P. v. Sullivan

Filed 10/24/07 P. v. Sullivan CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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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Following an apparent crime spree he claims to have undertaken to pay a drug debt, defendant Edward Paul Sullivan entered a negotiated no contest plea to six counts of second degree robbery. (Pen. Code, 211.) According to the probation report, defendant used an air pistol to threaten the victims into giving up cash.

Defendant was sentenced to a state prison term of 10 years, comprised of the upper term of five years on count 1, plus consecutive one-year terms (one-third the midterm) for each of the remaining five counts.

In entering his plea, defendant expressly agreed that the matter of probation and sentence is to be determined solely by the superior court judge, and agreed to a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754) which provided that, when imposing sentence, the trial court could consider defendants prior criminal history and the entire factual background of the case, including any unfiled, dismissed or stricken charges or allegations. We conclude this constituted a waiver of his right to a jury trial on the aggravating factors used by the court to impose the upper term.

Therefore, we reject defendants claim of Cunningham error (Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham)) and will affirm the judgment.

Facts and Procedural History

When pleading no contest, defendant made three stipulations which resolve the issues raised in this appeal. First, defendant stipulated: [T]here is a factual basis for my plea(s) [and admission(s)] and I further stipulate the court may take facts from probation reports, police reports or other sources as deemed necessary to establish the factual basis. Second, he stipulated that the matter of probation and sentence is to be determined solely by the superior court judge and, finally, he stipulated by Harvey waiver that the sentencing judge may consider my prior criminal history and the entire factual background of the case, including any unfiled, dismissed or stricken charges or allegations or cases when granting probation, ordering restitution or imposing sentence. Defendant also acknowledged on the plea form that the court could sentence him to a maximum aggravated term of 10 years, and could impose consecutive sentences.

The probation report summarized the facts of the case. On August 10, 2005, defendant robbed a check cashing store of $844;^[1]he brandished a firearm before demanding money and he tied one of the two female employees to a chair. The women suspected the gun could have been a fake but were not sure.

Three months later, defendant robbed a Safeway gas station after grabbing a pistol concealed in his waistband and exposing the weapon to the clerk. The clerk believed the gun was authentic and gave defendant $400.

On November 12, defendant robbed the Safeway gas station again: he brandished a handgun at the checkout counter and demanded that the clerk give him all the money from the cash till and from under the register drawer. Both the clerk and two boys who hid in the store during the robbery believed the gun was authentic and described it to police.

On November 17, defendant robbed a credit union of between $3,900 and $5,000 after he pointed a gun at a teller and demanded money. Defendant ordered one of the other employees to lie on the ground. All of the employees believed the gun was real.

On December 23, defendant robbed a second credit union of $140 from a deposit envelope after he pointed a handgun at a female employee working at a desk and demanded money. She was scared to look at the handgun and, afterward, he ordered her to lie on the floor.

Finally, on December 29, defendant robbed the Safeway gas station a third time. The clerk told police a man (later identified as defendant) pointed a handgun at him, demanded all the money in the cash register and, when the clerk failed to hand him the money fast enough, started removing bills from the drawer himself.

Although he initially told police an acquaintance committed the robberies, after his arrest defendant admitted that he had committed all the robberies, and the weapon he used proved to be a black air pistol. In a statement contained in the probation report, defendant said he used a BB gun in the robberies, and was under the influence of Oxycontin during each crime. He wore a stocking mask and in each of the robberies he waited until there were no customers in the business before entering. He committed the robberies because he owed over $9,700 to the supplier of the Oxycontin pills defendant sold. He committed the last robbery because he was $300 short on his drug debt, and stopped when the debt had been fully paid.

At sentencing, the trial court ruled that the upper term was justified because the crime involved the threat of great bodily injury. The defendant was armed with a weapon, the crime was premeditated and the crime involved violence indicating the defendant is dangerous. Defendant has no prior felony convictions and his criminal history played no part in the courts stated sentencing choices.

Discussion

The sole question on appeal is whether the imposition of the upper term on count 1 based entirely on facts neither admitted by defendant nor found beyond a reasonable doubt to be true by a jury violated his Sixth Amendment right to a jury trial as set forth in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely), and Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856].^[2] We answer the question in the negative because defendant expressly waived his right to have facts used by the trial court to aggravate his sentence decided by a jury.

Cunningham held that Californias procedure for selecting the upper term under the determinate sentencing law violated a criminal defendants Sixth and Fourteenth Amendment rights to jury trial 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. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864].) In light of Cunningham, the United States Supreme Court remanded People v. Black (2005) 35 Cal.4th 1238 (Black I), which had held that the California procedure was constitutional under Apprendi, supra, 530 U.S. 466, Blakely, supra, 542 U.S. 296, and United States v. Booker (2005) 543 U.S. 220 [160 L.Ed.2d 621], earlier Supreme Court decisions that had addressed the issue. (Black v. California (2007) ___ U.S. ___ [167 L.Ed.2d 36].) On remand, the California Supreme Court, in People v. Black (2007) 41 Cal.4th 799 (Black II), held that imposition of an upper term sentence did not violate defendants right to a jury trial, because at least one aggravating circumstance was established by means that satisf[ied] Sixth Amendment requirements and thus made him eligible for the upper term. (Black II, supra, 41 Cal.4th at p. 806.)

Turning to the merits of defendants challenge, we conclude that defendants admissions and stipulations made him eligible for the upper term. Apprendi 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. (530 U.S. at p. 490, italics added.) Blakely defined the statutory maximum to mean for Apprendi purposes the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. (Blakely, supra, 542 U.S. at p. 303, italics omitted.)

Defendant stipulated that the court could take facts from his probation report as deemed necessary to establish the factual basis for his plea. He also stipulated in a Harvey waiver that the judge could consider the entire factual background of the case when imposing sentence. The probation report included a statement in which defendant admitted committing all of the robberies (in which the victims reported he threatened them with a handgun most believed was genuine) for the sole purpose of paying a drug debt. He wore a mask designed to obscure his face and waited outside each establishment until he believed only employees remained. Thus, defendants admissions support two of the factors in aggravation cited by the court: (1) that he was armed with a weapon (Cal. Rules of Court, rule 4.421(a)(2)); and that the manner in which the crimes were carried out indicated premeditation or planning (Cal. Rules of Court, rule 4.421(a)(8)).

A Harvey waiver normally refers to an agreement that the sentencing judge may consider dismissed charges at sentencing. (See Harvey, supra, 25 Cal.3d 754.) Here, defendants Harvey waiver was much broader, allowing the sentencing judge to consider the entire factual background of the case. The broad waiver included the probation report, which the court considered without objection. Defendant also indicated that he understood that the matter of probation and sentence [was] to be determined solely by the superior court judge. On this record, we conclude that defendant knowingly and voluntarily waived his right to jury trial on the factual background of the case, and the court properly considered his admissions in identifying aggravating circumstances. (See People v. Munoz (2007) 155 Cal.App.4th 160.) Because a single legally sufficient circumstance is enough to render a defendant eligible for the upper term (Black II, supra, 41 Cal.4th at pp. 815-816), defendants admissions provided grounds for imposing the upper term for second degree robbery.

Disposition

The judgment is affirmed.

DAVIS , J.

We concur:

SCOTLAND, P.J.

RAYE , J.

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^[1] All figures are approximate.

^[2] The United States Supreme Court issued its opinion in Cunningham while this appeal was pending.