P. v. Trelles

Filed 10/30/07 P. v. Trelles CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. Lynn C. Atkinson, Judge.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.

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Miguel Angel Trelles entered a no contest plea to one count of using a minor as an agent for the sale of methamphetamine. (Health & Saf. Code,  11380, subd. (a).) Trelles also admitted the crime was committed for the benefit of a criminal street gang pursuant to the provisions of Penal Code section 186.22, subdivision (b)(1). In exchange, the prosecutor dismissed the other 13 counts in the information.

The trial court imposed an aggravated sentence of nine years for the underlying crime, enhanced by five years for the criminal street gang allegation, for a total prison term of 14 years. Trelles argues the sentence was imposed in violation of his Sixth Amendment right to a trial by jury.

DISCUSSION

We first address the Peoples assertion that Trelles is procedurally barred from challenging his sentence.

The People urge the appeal must be dismissed because Trelles failed to obtain a certificate of probable cause from the trial court. Penal Code section 1237.5 provides that a defendant may not appeal from judgment of conviction after a plea of guilty or no contest unless he or she first files with the trial court a challenge to the legality of the proceedings, and the trial court executes and files a certificate of probable cause for such appeal. (Id., subds. (a) & (b).)

Despite the mandatory nature of the statute, there are exceptions to the certificate of probable cause requirement. Penal Code section 1538.5 provides that, notwithstanding a guilty plea, a defendant may obtain appellate review of the validity of a search or seizure. (Id., subd. (m).) In addition, the defendant may appeal from a postplea determination of the degree of the crime or the punishment imposed. (People v. Shelton (2006) 37 Cal.4th 759, 766; People v. Hoffard (1995) 10 Cal.4th 1170, 1178, fn. 6.)

Trelles appeals from a postplea determination of the punishment imposed, apparently within an exception to the certificate of probable cause requirement. The People, however, argue that Trelles agreed to a sentencing range in entering his plea, thus requiring Trelles to obtain a certificate of probable cause.

The People rely on Shelton to support their position. Shelton holds that when a defendant accepts a plea bargain containing a maximum term with the right to argue for a lesser term at sentencing (a sentence lid), he loses the right to claim that the maximum term to which he agreed legallycannot be imposed. (People v. Shelton, supra, 37 Cal.4th at p. 769.)

The Peoples position is not supported by the record. First, Trelles did not agree to a maximum sentence. Shelton explained that an agreement to a maximum sentence 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. (People v. Shelton, supra, 37 Cal.4th at p. 768.)

A similar issue was addressed in People v. Buttram (2003) 30 Cal.4th 773, 785-786. The defendant apparently agreed to plead guilty in exchange for a maximum sentence that was less than the maximum that could be imposed pursuant to the applicable statutes. The defendant appealed after sentencing, arguing the trial court abused its discretion at the sentencing hearing. The People argued the appeal should be dismissed because the defendant failed to obtain a certificate of probable cause. The Supreme Court disagreed.

The parties to a plea agreement are free to make any lawful bargain they choose, and the exact bargain they make affects whether a subsequent appeal, in substance, is an attack on the validity of the plea. When the parties negotiate a maximum sentence, they obviously mean something different than if they had bargained for a specific or recommended sentence. By agreeing only to a maximum sentence, the parties leave unresolved between themselves the appropriate sentence within the maximum. That issue is left to the normal sentencing discretion of the trial court, to be exercised in a separate proceeding.

In general, a trial courts exercise of its sentencing discretion is reviewable on appeal where the issue was properly preserved on the record. [Citation.] This exercise of discretion is not made standardless and unreviewable simply because its exercise is confined to a specified range by the terms of a plea bargain that included no express waiver of appeal. In such a circumstance, when the claim on appeal is merely that the trial court abused the discretion the parties intended it to exercise, there is, in substance, no attack on a sentence that was part of [the] plea bargain. [Citation.] Instead, the appellate challenge is one contemplated, and reserved, by the agreement itself. (People v. Buttram, supra, 30 Cal.4th at pp. 785-786.)

The Supreme Court held the defendant did not need to obtain a certificate of probable cause because he was not challenging the validity of the plea agreement. (People v. Buttram, supra, 30 Cal.4th at p. 790.)

Trelles is not challenging the validity of the plea agreement. He did not agree to a maximum sentence that was less than could be imposed pursuant to the applicable statutes, as was the case in Shelton and Buttram. He was merely informed of the maximum sentence that could be imposed.

Shelton and Buttram establish the parameters for challenging a sentence after a defendant enters a guilty or no contest plea in exchange for a maximum sentence that is less than that which legally could be imposed. A certificate of probable cause is not necessary, in these circumstances, when the defendant is challenging the discretion exercised by the trial court in imposing the sentence. A certificate of probable cause is necessary, however, if the defendant is challenging the legality of the sentence that was imposed.

While he is challenging the legality of the sentence that was imposed, similar to Shelton, the Shelton analysis is inapposite because of the lack of an agreement to a maximum sentence. In other words, the plea agreement left the sentence to be imposed within the discretion of the trial court, to be imposed pursuant to the applicable statutes and rules. Accordingly, Trelles also retained the right to challenge the sentence on all applicable grounds. Since Trelles did not give up the right to challenge the sentence imposed by the trial court, a certificate of probable cause is unnecessary.

The Peoples second procedural argument is that Trelles forfeited his Sixth Amendment argument by failing to present it in the trial court. Trelles points out that at the time of his sentencing hearing, the controlling authority in California was People v. Black (2005) 35 Cal.4th 1238 (Black I), which rejected a Sixth Amendment argument to Californias determinate sentencing law (DSL). Trelles argues, therefore, that any objection would have been futile.

Black I was overruled by the United States Supreme Court in Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856], thus revitalizing Sixth Amendment challenges to aggravated sentences under the DSL. Cunningham was decided after Trelles was sentenced.

Cunningham required the California Supreme Court to reconsider Black I. It did so in People v. Black (2007) 41 Cal.4th 799 (Black II). In Black II the People argued that Black had forfeited his Sixth Amendment argument because he did not raise the issue in the trial court. The Supreme Court disagreed, applying the rule that although challenges to procedures or to the admission of evidence normally are forfeited unless timely raised in the trial court, this is not so when the pertinent law later changed so unforeseeably that it is unreasonable to expect trial counsel to have anticipated the change. [Citations.] (Black II, supra, 41 Cal.4th at p. 810.)

The rule applied in Black II is equally applicable here. At the time Trelles was sentenced, Black I was the law and one could only speculate whether it would be overruled by the United States Supreme Court. The trial court was bound by Black I and certainly would have rejected an argument based on the Sixth Amendment. It was not unreasonable for Trelles to also rely on Black I. Therefore, he did not forfeit an argument that was once dead, but has since been resurrected by the Untied States Supreme Court.

Trelless success on this appeal ends once we turn to the merits of his argument. Once again, we find guidance in Black II.

Sentencing schemes throughout the country have faced uncertainty since the United States Supreme Court decided a line of cases, beginning with Apprendi v. New Jersey (2000) 530 U.S. 466. Apprendi held that any fact, other than a prior conviction, that is used to increase the penalty beyond the statutory maximum must be tried to a jury utilizing the beyond-a-reasonable-doubt standard. (Id. at p. 490.)

In Black I, the California Supreme Court concluded the DSL did not violate a defendants Sixth Amendment right to a jury trial. In Cunningham the United States Supreme Court overruled Black I and held the DSL violated a defendants right to a jury trial to the extent it permitted imposition of an aggravated term on facts that were not found true by the jury applying the beyond-a-reasonable-doubt standard. (Cunningham v. California, supra, 549 U.S. at p. __ [127 S.Ct. at p. 868].)

In response to Cunningham, the California Supreme Court held in Black II that as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. (Black II, supra, 41 Cal.4th at p. 812.) Shortly thereafter, the Supreme Court reiterated its conclusion: [S]o long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. (Id. at p. 813.)

Black II also recognized the Sixth Amendment right to a jury trial of factors that may increase a defendants sentence does not apply to the fact of a prior conviction. (Black II, supra, 41 Cal.4th at p. 818.) The United States Supreme Court has consistently so stated in its Sixth Amendment jurisprudence on this issue. (Cunningham v. California, supra, 549 U.S. at p. __ [127 S.Ct. at p. 868]; United States v. Booker (2005) 543 U.S. 220, 231; Blakely v. Washington (2004) 542 U.S. 296, 301; Apprendi v. New Jersey, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States (1998) 523 U.S. 224, 243.)

In sentencing Trelles to an aggravated sentence, the trial court noted that (1) Trelles had suffered two adjudications as a juvenile, both for possession of illegal drugs for the purposes of sale; (2) this case involved significant quantities of drugs for the purposes of sale; (3) the offense required a significant amount of planning; (4) Trelles appeared to be in a position of leadership; and (5) Trelless prior performance on juvenile probations was unsatisfactory.

Pursuant to unanimous Sixth Amendment jurisprudence, prior convictions may be used as an aggravating circumstance, even in the absence of a jury finding. According to Black II, once the trial court found as a circumstance in aggravation that Trelles had suffered two prior juvenile adjudications, he became eligible for an aggravated term, and the trial court properly could rely on other factors in imposing an aggravated sentence, regardless of whether those circumstances were found true by a jury. Accordingly, the imposition of the aggravated term did not violate Trelless constitutional right to a trial by jury.

DISPOSITION

The judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Cornell, J. and Dawson, J.