P. v. Slater

Filed 6/30/08 P. v. Slater CA3

Opinion on remand from Supreme Court

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

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Defendant Thomas James Slater entered a negotiated plea of no contest to one count of receiving stolen property (Pen. Code,  496) and admitted a prior prison term enhancement (id.,  667.5, subd. (b)) in exchange for dismissal of three other charges. At the time of the plea, defendant acknowledged the maximum term of imprisonment the court may impose would be four years. The court thereafter denied probation and sentenced defendant to state prison for four years.

Defendant appeals, contending imposition of the upper term based on factors not determined by a jury beyond a reasonable doubt violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution. On January 30, 2008, we issued an opinion dismissing defendants appeal for failure to obtain a certificate of probable cause (Pen. Code,  1237.5).

On May 14, the Supreme Court granted defendants petition for review and transferred the matter back to this court with directions to vacate our opinion and reconsider the matter in light of People v. French (2008) 43 Cal.4th 36 (French). We have done so and now conclude, contrary to our earlier opinion, that defendant was not required to obtain a certificate of probable cause to raise his Sixth and Fourteenth Amendment challenge to the sentence. However, we further conclude defendants challenge is without merit and affirm the judgment.

Facts and Proceedings

In light of defendants no contest plea, the facts are taken from the probation report.

Sometime between 4:30 and 10:30 p.m. on June 5, 2006, the home of 86-year-old Robert M. was burglarized and approximately $30,000 in cash was taken. Robert M. had known defendant for 14 years and had given him small amounts of money. He believed defendant knew where he kept his money.

On July 20, the police searched defendants residence and discovered 500 rounds of ammunition. Defendant later admitted having recently stored firearms at his residence. On a second search of the premises, officers found counterfeit $50 and $100 bills and three envelopes containing 241, $20 bills, $8,000, and 30, $100 bills. A witness told deputies defendant told him he had taken the cash from Robert M.

Defendant was charged with theft from an elder or dependent adult (Pen. Code,  368, subd. (d)), receiving stolen property (id.,  496, subd. (a)), possession of a firearm by a felon (id.,  12021, subd. (a)(1)), and possession of ammunition by one prohibited from possessing a firearm (id.,  12316, subd. (b)(1)). The complaint was thereafter amended to add an enhancement for a prior prison term (id.,  667.5, subd. (b)).

Defendant entered a negotiated plea of no contest to the single charge of receiving stolen property and admitted the enhancement in exchange for dismissal of the other charges. At the time, defendant acknowledged that, as a result of the plea, he could be sentenced to a maximum sentence of four years.

At sentencing, defendant argued imposition of the upper term on the receiving stolen property count violated his Sixth and Fourteenth Amendment rights. The court nevertheless imposed the upper term of three years on that count, plus an enhancement of one year for the prior prison term.

Discussion

Defendant contends the trial court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution by imposing the upper term based on facts not submitted to the jury and proved beyond a reasonable doubt.

In Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), the United States Supreme Court held that [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Id. at p. 490 [147 L.Ed.2d at p. 455].) In Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham), the Supreme Court applied Apprendi to Californias determinate sentencing law (DSL) and held that by assigning to the trial judge the authority to find the facts that expose a defendant to an upper term sentence, the DSL violates the defendants Sixth and Fourteenth Amendment rights. (Cunningham, supra, 549 U.S. at p. 870 [166 L.Ed.2d at p. 876].)

The People contend defendants Cunningham claim is not cognizable on appeal because he failed to obtain a certificate of probable cause. They argue defendant acknowledged as part of his plea that the maximum penalty the court may impose is four years and, therefore, his challenge to that sentence is a challenge to the plea itself. We disagree.

When a defendant enters a plea of guilty or no contest, he may not challenge the validity of the plea on appeal unless he has sought, and the trial court has issued, a certificate of probable cause showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. (People v. Emery (2006) 140 Cal.App.4th 560, 562; see Pen. Code,  1237.5.) Only two types of issues may be raised without a certificate of probable cause: (1) search and seizure issues for which an appeal is provided under [Penal Code] section 1538.5, subdivision (m); and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. (People v. Panizzon (1996) 13 Cal.4th 68, 74-75.)

Normally, issues regarding sentencing decisions fall within this second category and may be raised without a certificate of probable cause. However, a challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself and thus requires a certificate of probable cause. (People v. Shelton (2006) 37 Cal.4th 759, 766 (Shelton).)

In Shelton, supra, 37 Cal.4th 759, the defendant entered into a plea agreement providing for dismissal of four of six felony counts in exchange for a plea of no contest to the remaining two counts. The parties further agreed the defendant would be sentenced to state prison for a term not to exceed three years eight months. The defendant was thereafter sentenced to state prison for three years eight months. He appealed without obtaining a certificate of probable cause, arguing his prison sentence violated Penal Code section 654, the statutory prohibition against double punishment.

The California Supreme Court held the defendant was required to obtain a certificate of probable cause, because the issue raised was effectively an attack on the validity of his plea. The court explained that a negotiated plea agreement is a form of contract to be interpreted according to general contract principles. (Shelton, supra, 37 Cal.4th at p. 767.) Applying those principles, the court explained: [T]he specification of a maximum sentence or lid in a plea agreement normally implies a mutual understanding of the defendant and the prosecutor that the specified maximum term is one that the trial court may lawfully impose and also a mutual understanding that, absent the agreement for the lid, the trial court might lawfully impose an even longer term. (Id. at p. 768.) A defendant may thereafter raise a claim that the court abused its discretion in failing to impose a sentence less than the agreed-upon lid. However, a claim that the court lacked the legal authority to impose the lid is a challenge to the plea itself and is precluded without a certificate of probable cause.

In French, supra, 43 Cal.4th 36, the high court addressed a claim by the defendant, without a certificate of probable cause, that his upper-term sentence of 18 years violated Cunningham. The sentence was pursuant to a plea agreement whereby the defendant pleaded no contest to six counts of lewd and lascivious conduct in exchange for dismissal of six other counts and enhancements and a sentencing lid of 18 years. (Id. at p. 42.) The defendant argued on appeal that, although the sentence imposed was within the stated maximum, the sentencing court considered factors not determined by the jury on proof beyond a reasonable doubt in imposing the upper term. (Id. at p. 43.)

The Supreme Court concluded the defendants claim was cognizable on appeal without a certificate of probable cause. Distinguishing Shelton, the court explained: A certificate of probable cause is not required in the present case, because defendants claim does not constitute an attack upon the validity of the plea agreement. In contrast to a case in which the maximum term under the plea agreement would be unlawful under section 654, the Sixth Amendment would not render an upper term unlawful for defendants crimes under all circumstances. Whether an upper term sentence was permissible for defendants offenses depended upon whether aggravating factors were established at the sentencing hearing, and not upon the facts of the offenses themselves. Even without a jury trial on aggravating circumstances, the upper term would have been authorized if the prosecution had established an aggravating factor at the sentencing hearing based upon defendants prior convictions or upon his admissions. [Citation.] Defendants claim is that the upper term was not authorized because the prosecution failed to establish an aggravating circumstance at the sentencing hearing in the manner required by the Sixth Amendment. Such a claim does not affect the validity of the plea agreement. (French, supra, 43 Cal.4th at p. 45.)

The present matter is controlled by French. Defendant entered into a plea agreement providing for a sentencing lid of four years. He was sentenced to the upper term of three years on the receiving stolen property charge plus a one-year enhancement, for a total of four years. The absence of a certificate of probable cause does not preclude him from raising a Cunningham challenge to his sentence.

On the merits of defendants challenge, the trial court cited the following reasons for choosing the upper term: the victim was particularly vulnerable; the crime involved great monetary value; defendant took advantage of a position of trust; defendants prior convictions are numerous; defendant served a prior prison term; defendant was on probation when he committed the offense; and defendants performance on parole was unsatisfactory.

Following Cunningham,the California Supreme Court in People v. Black (2007) 41 Cal.4th 799 (Black), concluded imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (Id. at p. 816.)

Here, the trial court relied in part on defendants numerous prior convictions. They included a 1982 conviction for burglary (Pen. Code,  459), a 1984 conviction for vandalism (id.,  594), a 1987 conviction for resisting arrest (id.,  148), a 1991 conviction for receiving stolen property (id.,  496), a 1999 conviction for driving under the influence (Veh. Code,  23152), 2000 convictions for dissuading a witness (Pen. Code,  136.1) and corporal injury to a spouse or cohabitant (id.,  273.5), and a 2005 conviction for child abuse (id.,  273a, subd. (b)).

The foregoing recidivism factor alone sufficed to render defendant eligible for the upper term. (Black, supra, 41 Cal.4that p. 816.) However, the trial court also relied on two other recidivism factors--defendant served a prior prison term and was on probation when he committed the current offense.

The California Supreme Court and other jurisdictions have interpreted the recidivism exception broadly to include not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. (Black, supra, 41 Cal.4th at p. 819; see also cases cited in People v. McGee (2006) 38 Cal.4th 682, 703-706.) Defendants probationary status and the fact he served a prior prison term necessarily arise from one or more of his prior convictions. They can be determined by reviewing court records pertaining to defendants prior convictions, sentences, and grants of probation or parole. These are the types of determinations more appropriately undertaken by a court than a jury. (Black, at p. 820; see People v. Thomas (2001) 91 Cal.App.4th 212, 223 [prior prison term allegations]; see also United States v. Corchado (10th Cir. 2005) 427 F.3d 815, 820 [probation status].)

Once the trial court has found at least one recidivism factor rendering a defendant eligible for the upper term, the consideration of other aggravating factors does not implicate Cunningham. The courts factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating facts are found by the court, the upper term remains the maximum that may be imposed. Accordingly, judicial fact finding on those additional aggravating circumstances is not unconstitutional. (Black, supra, 41 Cal.4th at p. 815.)

Based on the trial courts use of three recidivism factors in aggravation, imposition of the upper term did not violate defendants Sixth Amendment rights.

Disposition

The judgment is affirmed.

HULL, J.

We concur:

NICHOLSON , Acting P.J.

ROBIE , J.

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