P. v. Hernandez

Filed 4/5/07 P. v. Hernandez CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

I.

Introduction

Appellant Manuel Cruz Hernandez (appellant) appeals from the sentence he received as a result of his no contest plea. Specifically, he contends that the trial court erred in imposing a restitution fine of $1,000, pursuant to Penal Code section 1202.4,[1] and in imposing an aggravated state prison term of three years for his plea to a violation of Vehicle Code section 23152. We reject these claims and affirm the judgment.

II.

Procedural History

Appellant was charged in a criminal complaint filed by the Mendocino County District Attorney with one count of felony driving under the influence (Veh. Code,  23152, subd. (a) (Count 1), and a second count of felony failure to register as a sex offender ( 290, subd. (g)(2)) (Count 2). Special allegations were also alleged as to each count, including that appellant had suffered a violent or serious prior conviction, within the meaning of sections 1170.12 and 667, and that he had served two prior state prison terms and had not been free from custody for a period of five years, within the meaning of section 667.5, subdivision (b).

A not-guilty plea was entered at appellants arraignment after counsel was appointed to represent him, and he was advised of his constitutional rights, including his right to a jury trial. A preliminary hearing was set for April 10, 2006.

At the time set for the preliminary hearing, appellant decided to change his plea to no contest as to Count 1, and to admit the two prior prison term special allegations ( 667.5, subd. (b)). In return, Count 2 was dismissed as well as the remaining special allegations, with a Harvey waiver.[2]

As to the possible sentence, appellant was told by the court that by virtue of his plea, he could be sentenced to up to five years in state prison; three years for the conviction as to Count 1, and one year each for the two admitted prison priors. When the plea was taken the following exchange occurred:

THE COURT:  . . . Now, Im satisfied, after hearing both attorneys, that the maximum period of time in state prison that this Courtthat I could order you to serve would be a maximum of five years. [] Do you understand that?

[Appellant]: Yes.

THE COURT: Okay. The Court could sentence you to a period in prison of less than five years. It could be, essentially, two years on the charge thats pending before the Court, or even 16 months on the charge thats pending before the Court, but each of the special allegations that weve talked about would add one year, individually or separately, to any sentence. [] So the Court could send you to state prison for 16 months, or two years, or three years on the charge of driving as a drunk driver, and add one year for each of the special allegations. [] Do you understand the sentencing perimeter [sic] thats there?

[Appellant]: Yes.

As to the waiver of appellants right to a jury trial, the following exchange occurred:

THE COURT: [Appellant], sir, at the time of trial, following [p]reliminary [h]earing, you would have the right to trial by judge or jury; you would have the right to have your lawyer with you at all stages of the proceedings; you would have the right to testify on your own behalf; you would have the right to remain silent regarding these offenses should you choose to do so; and you would have the right to present any relevant evidence to the Court. [] Do you understand those rights, sir?

[Appellant]: Yes.

As to the restitution fine now being disputed on appeal, the following exchange occurred:

THE COURT: Okay. And because its likely that a state prison sentence is contemplated in this case, I need to advise you that . . . the Court will impose restitution for any parties that are . . . damaged out-of-pocketany parties that have lost money. There will also be a restitution fine imposed[.] The minimum is $400; the maximum is $10,000. So there would be an additional restitution fine imposed at the time of sentencing. [] [] ^[[3]] Understood?

[Appellant]: Yes.

Sentencing was set for May 8, 2006, and a probation department report, with sentencing recommendations, was filed that same day. In it, the officer recommended that a restitution fine of $800 be imposed, and recommended imposition of the mid term of two years for the conviction as to Count 1, and one year each for the two prior prison terms, aggregating four years in state prison. However, the report also concluded that the current offense was appellants sixth drunk driving conviction, with the last three being felonies. It noted aggravating sentencing factors based on the numerosity and seriousness of appellants prior convictions, his prior prison sentences, and the fact that he was on parole when the current offense occurred. Two possible mitigating circumstances were cited including that appellant suffers from alcohol addiction, and that he took advantage of an early plea bargain.

At the sentencing hearing, the prosecutor expressed surprise at the probation recommendation, and argued instead for imposition of an aggravated three-year sentence for the conviction, which, when the two prior prison terms special allegations were added, would result in a total of five years in state prison. The author of the probation report was present in court, who confirmed the recommendation of the two-year mid term for the conviction. However, in so doing the officer conceded that there is a strong case for the aggravated term on this; no question. Well leave that up to the court. Defense counsel asked the court to follow probations sentencing recommendation.

After weighing the sentencing factors referred to by the probation department and counsel, the court pronounced that the matter ultimately was an aggravated case. Accordingly, a five-year aggregate state prison sentence was imposed, rather than the four-year sentence recommended in the probation report.

The court also initially stated that it was ordering appellant to pay a fine under section 1202.4 of $800. However, the court was then interrupted by the prosecutor who noted it should be $1,000, which instigated the following brief exchange:

THE COURT: On the basis of the five years; five times two?

[PROSECUTOR]: Yes.

THE COURT: [Prosecutor], youre correcting my math as well. Its appropriate that you do.

THE CLERK: $1,000 on both?

THE COURT: Yes, on both. It should be a thousand on both. [] And the enforcement of the second portion of the restitution fine is stayed under [section] 1202.45. . . .

No objection was made to the sentence by defense counsel.

III.

Legal Discussion

A. Imposition of the Aggravated Term

On appeal, appellant argues that the court abused its discretion in imposing the aggravated term of three years for his drunk driving conviction. He claims unfairness by the court in considering as an aggravating factor his prior prison terms because the court was already using those two incarcerations to add two years to his sentence under section 667.5, subdivision (b). However, appellant concedes that the existence of prior convictions is an enumerated aggravating factor under Californias Determinate Sentencing Law (DSL) (Cal. Rules of Court, rule 4.421(b)(2); People v. Sanchez (1982) 131 Cal.App.3d 718, 736.) Nevertheless, appellant argues that the record in Sanchez made it clear that the trial judge was not relying on the same prior convictions to aggravate the sentence as those used to enhance the sentence under section 667.5, subdivision (b).

We disagree with appellant that the court in this case impermissibly relied on the same conduct to enhance and to aggravate appellants sentence. While appellant is correct that a court may not solely rely on a defendants service of a prior prison term both to aggravate and enhance a sentence (People v. Brucker (1983) 148 Cal.App.3d 230), that is not what occurred here. A fair reading of the trial judges comments reveals that the court decided to aggravate the sentence because (a) appellant had suffered prior convictions; (b) he had suffered prior prison terms for some of those convictions; (c) this was his sixth drunk driving conviction, indicating a pattern of numerous prior convictions which were also increasing seriousness; and (d) he was on parole when the current offense occurred.

Of course, any one proper factor is sufficient to impose, and affirm on appeal, an aggravated sentence. (People v. Osband (1996) 13 Cal.4th 622.) Here the trial judge relied on four separate factors, only one of which arguably was not permissible, assuming the validity of appellants argument. Moreover, given the extensive comments by the trial court, culminating in the pain[ful] decision that this is an aggravated case, we have no hesitation in concluding that even if the court omitted the reference to appellants prior prison terms, an aggravated sentence would have been imposed anyway. Therefore, there is no reasonable probability that a lesser sentence would have been imposed absent reliance on appellants prior record of incarceration. (People v. Castorena (1996) 51 Cal.App.4th 558.)

Alternatively, appellant contends that he was entitled to a jury trial as to the alleged aggravating factors relied on to impose the upper term, under Blakely v. Washington (2004) 542 U.S. 296. He argues that imposition of the aggravated term here violated his rights under the Sixth and the due process clause of the Fourteenth Amendments to the United States Constitution.[4] Appellant goes on to observe that the California Supreme Court has determined in People v. Black (2005) 35 Cal.4th 1238 (Black), that our states DSL is not analogous to the sentencing scheme in Blakely, but that this decision was under review by the United States Supreme Court in Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856 (Cunningham), and therefore he raises the issue to preserve it for further appeal.

Cunningham was recently decided while this appeal was pending, and it holds generally that Blakely does apply to Californias DSL, and therefore a criminal defendant is entitled to have a jury determine the truth of facts used to aggravate a prison sentence. (Cunningham, supra, 127 S.Ct. at p. 860.) The United States Supreme Court held that by assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence, Californias DSL violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (Ibid., overruling Black, supra, 35 Cal.4th 1238, vacated in Black v. California (2007) ___ U.S. ___, 127 S.Ct. 1210.)

By order dated January 24, 2007, we requested the parties to provide supplemental briefs relating to several aspects of the Cunningham decision, and its possible application here. Those briefs have since been received and considered.

We conclude that even considering this most recent pronouncement by the United States Supreme Court, appellants rights under the federal Constitution were not violated under the facts of this case. We note that prior to the entry of appellants plea, he acknowledged that by pleading no contest, he was agreeing that the court could sentence him to a maximum of five years, which included the aggravated term of three years in state prison for the drunk driving conviction itself, plus an additional two years for the prison priors he admitted. Where, as here, a defendant agrees pursuant to a plea agreement that the maximum sentence may be imposed, the defendant necessarily admits that his conduct is sufficient to expose him to that punishment. Thus, appellant in effect admitted the existence of facts necessary to impose the upper term and thereby waived his right to jury trial on those factors. Accordingly, no Blakely/Cunningham violation is present here.

B. Imposition of $1000 Restitution Fine

Appellant also claims that the court erred in imposing a $1000 restitution fine, pursuant to section 1202.4, subdivision (b), because the colloquy at sentencing suggests that the trial judge was unaware that he had discretion to impose a lesser fine, or none at all. Section 1202.4, subdivision (b) provides:

(b) In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.

(1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony, and shall not be less than one hundred dollars ($100), and not more than one thousand dollars ($1,000), if the person is convicted of a misdemeanor.

(2) In setting a felony restitution fine, the court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.

First, respondent contends that any claim relative to the imposition of a $1000 restitution fine was waived by the failure of appellants counsel to object at sentencing. We agree. The failure to object at sentencing waives the claim. (People v. ONeal (2004) 122 Cal.App.4th 817, 820; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469.)

Perhaps anticipating this disposition, appellant alternatively argues that his counsel was ineffective in failing to make an objection. The merits of appellants ineffective assistance of counsel claim are bottomed on the failure of the trial court to indicate it was aware that it had the discretion to impose a lower fine. Appellant claims that had his counsel objected, the court would have realized that it had discretion not to impose a $1,000 fine, and there was a reasonable probability that a lower fine, or none at all, would have resulted.

First, appellant has failed to make a sufficient showing that the trial court was unaware that it had the discretion to impose a lesser fine. No negative inference can be drawn from the absence of any explanation as to why the court chose to impose a fine of $1,000. Indeed, the restitution statute itself states explicitly that [e]xpress findings by the court as to the factors bearing on the amount of the fine shall not be required. ( 1202.4, subd. (d).) Therefore, the statute states that the trial court need not do the very thing appellant states the trial court must do in order to dispel any question of whether the trial judge was aware of his discretion.

More importantly, remand for resentencing is unnecessary where the record is silent concerning whether the trial court misunderstood its sentencing discretion. Error may not be presumed from a silent record. (People v. White Eagle, supra, 48 Cal.App.4th [1511,] 1523.)  [A] trial court is presumed to have been aware of and followed the applicable law. [Citations.] (People v. Martinez (1998) 65 Cal.App.4th 1511, 1517 . . . .) (People v. Brown (2007) 147 Cal.App.4th 1213, 1229.)

We note further that the formula used by the trial court to calculate the total amount of the restitution fine ($200 for each year of appellants five-year state prison sentence) is expressly provided for in the restitution statute itself. ( 1202.4, subd. (b)(2).)[5] It can hardly be said that defense counsel provided ineffective assistance of counsel in not objecting to the courts use of the very formula expressly allowed by statute in calculating the amount of the restitution fine imposed.

Appellant also contends that the total fine of $1000 was an unconstitutionally excessive fine under both the federal and California Constitutions (Eighth Amendment and art. I,  12, respectively). Quite simply, appellant fails to cite any authority which supports his position. For example, he cites to People v. Urbano (2005) 128 Cal.App.4th 396, in which a restitution fine of $3,800 was upheld against the very constitutional challenge appellant makes here. Nevertheless, he points out that case involved  a completely unprovoked attack by a two-striker causing great bodily injury solely to promote a criminal street gang,  while here neither a criminal gang nor bodily injury was involved. This difference, he states, illustrates the excessiveness of the present fine.

The fine imposed here was explicitly authorized by the restitution statute ( 1202.4, subd. (b)(2)), and appellant cites no authority indicating that the statute is unconstitutional in this regard. Moreover, making factual comparisons among cases is a dubious approach to attack or support a restitution award. Looking at the facts of this case, appellant had a serious criminal record, a fact appellant himself acknowledges. This was appellants sixth drunk driving offense. This level of recidivism involving the same misconduct, which exposes the public to great danger, fully justifies the imposed fine. Thus, we have no hesitation to conclude that the fine in this instance was not grossly disproportionate to the gravity of the offense. (City and County of San Francisco v. Sainez (2000) 77 Cal.App.4th 1302, 1321-1322.) Accordingly, we reject appellants constitutional challenge.

IV.

Disposition

The judgment and sentence are affirmed.

_________________________

Ruvolo, P. J.

We concur:

_________________________

Sepulveda, J.

_________________________

Rivera, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

[1] All further undesignated statutory references are to the Penal Code, unless otherwise indicated.

[2]People v. Harvey (1979) 25 Cal.3d 754.

[3] The court also explained that a second parole violation restitution fine would be imposed but not enforced unless appellant violated the terms of his parole following release from state prison.

[4] He concedes, however, that United States Attorney General Alberto Gonzales is correct, and that he has no right of habeas corpus under the federal Constitution.

[5] (2) In setting a felony restitution fine, the court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve . . . .