P. v. Upp

Filed 8/8/07 P. v. Upp 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Yuba)

----

Defendant Daniel Upp entered a negotiated plea of no contest to felony battery causing serious bodily injury (Pen. Code,  243, subd. (d)), in exchange for dismissal of the remaining charges against him. The trial court sentenced him to the upper term of four years in state prison.

On appeal, defendant contends that imposition of the upper term based on facts that were not submitted to a jury violated his Sixth and Fourteenth Amendment rights. (Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant got out of a truck in the parking lot of a market and began arguing with Guy Bennett, who was in the lot. Witnesses observed defendant hit Bennett numerous times in the face with defendants closed fist, causing Bennett to fall to the ground. Defendant then kicked and stomped on [Bennetts] head while the victim was on the ground. A witness heard defendant say he attacked Bennett because the victim is Indian. When sheriffs deputies arrived at the scene, Bennett was bleeding from his face and head, and due to his semi-conscious state, he was unable to tell them what had occurred.

After assaulting Bennett, defendant got back into his truck and fled from the parking lot. When an officer stopped the truck, defendant ran into an apartment complex and was apprehended after jumping out of the window of a second story apartment in the complex.

Defendant had a swastika tattoo on his back, with the words, White and Power, tattooed above and below the swastika.

Charges of assault with a deadly weapon with infliction of great bodily injury, committing a hate crime, and resisting arrest were dismissed as part of defendants agreement to plead no contest to battery causing serious bodily injury.

Imposing the upper term, the court stated: In aggravation, [California Rules of Court,] [r]ule 421(a)(1) . . . is true. Crime did involve great violence, great bodily harm, and did disclose a high degree of cruelty, viciousness or callousness; [rule] 421(b)(2), [defendants] sustained petitions in juvenile delinquency proceedings are numerous; [rule] 421(b)(5), his prior performance on juvenile probation is unsatisfactory. [] In mitigation, the [d]efendant did enter into a disposition at an early stage. Factors in aggravation not only numerically but qualitatively outweigh circumstances in mitigation. The appropriate disposition is the upper term.

DISCUSSION

Defendants sole contention on appeal is that imposition of the upper term violates the federal Constitution because the court relied on factors not found true beyond a reasonable doubt by a jury. (Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d. 856]; Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (hereafter Blakely); Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (hereafter Apprendi).)

The People disagree because, in their view, (1) defendant forfeited his claim of error by failing to raise it in the trial court, (2) he has suffered prior convictions, and (3) any error was harmless beyond a reasonable doubt.

As we will explain, defendants failure to raise an Apprendi/ Blakely objection in the trial court to imposition of the upper term does not bar him from raising the issue on appeal. However, we first must address a procedural issue not raised by the parties.

Does the fact that defendant did not obtain a certificate of probable cause (Pen. Code, 1237.5; further section references are to the Penal Code),^[1] preclude him from challenging the upper term? The answer is, no.

Some plea agreements include what is commonly called a sentence lid, namely, that the defendant would be sentenced to no more than a specified term, but could argue for something less, even including probation. (See People v. Shelton (2006) 37 Cal.4th 759, 763, 767-768 (hereafter Shelton.) A sentencing lid indicates that, absent the plea agreement, the charges admitted by the defendants plea would expose him to a term greater than the agreed-upon lid.

In Shelton, the California Supreme Court held that unless a defendant who has agreed to lid sentence has obtained a certificate of probable cause, he or she is precluded from raising on appeal a claim that section 654 prevented the trial court from imposing the agreed-upon lid. (Shelton, supra, 37 Cal.4th at pp. 763, 766.) This is so because relying on section 654 to attack the lid sentence constitutes a challenge to the trial courts legal authority to impose that sentence (id. at p. 769), which attack is inconsistent with the plea agreement since inclusion of a sentence lid implies a mutual understanding and agreement that the trial court has authority to impose the specified maximum sentence and preserves only the defendants right to urge that the trial court should or must exercise its discretion in favor of a shorter term. (Id. at p. 763.) Accordingly, a challenge to the trial courts authority to impose the lid sentence is a challenge to the validity of the plea requiring a certificate of probable cause. (Ibid.) Hence, [a]bsent a certificate of probable cause, a reviewing court cannot entertain [a] sentence challenge [based on section 654] and has no alternative but to dismiss the appeal. (Id. at p. 769.)

Here, defendant pled no contest to only one count, without any enhancements. Thus, the upper term of four years was the maximum penal consequence of his plea. ( 243, subd. (d).) Since defendant could not have been sentenced to a term greater than four years for the only charge that he admitted, it cannot be said that he agreed to a sentencing lid.

In any event, even if the upper term can be characterized as a sentence lid, a Cunningham challenge to the upper term is not an attack on the trial courts legal authority to impose that term; it is simply a challenge to the courts exercise of discretion based on factors that were not found true by a jury beyond a reasonable doubt. In other words, a Cunningham claim is not a challenge to the validity of a plea; thus, a certificate of probable cause is not needed to raise the claim of error. (People v. Buttram (2003) 30 Cal.4th 773, 790-791 [certificate of probable cause is not required to challenge the exercise of individualized sentencing discretion within an agreed maximum sentence. Such an agreement, by its nature, contemplates that the court will choose from among a range of permissible sentences within the maximum, and that abuses of this discretionary sentencing authority will be reviewable on appeal, as they would otherwise be. Accordingly, such appellate claims do not constitute an attack on the validity of the plea, for which a certificate [of probable cause] is necessary].)

We now turn to the Peoples claim that defendants failure to object in the trial court to the imposition of the upper term was a forfeiture of his right to raise the issue on appeal.

When defendant was sentenced, the California Supreme Court, in People v. Black (2005) 35 Cal.4th 1238 (hereafter Black), already had distinguished the cases of Blakely and Apprendi and had held that the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence . . . under California law does not implicate a defendants Sixth Amendment right to a jury trial.) (Black, supra, 35 Cal.4th at p. 1244; vacated in Black v. California (2007) ___ U.S. ___ [167 L.Ed.2d 36].) Because the trial court was bound by the decision in Black (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), it would have been futile for defendant to raise an Apprendi/Blakely objection, other than to preserve the issue for review by the federal courts. Consequently, we decline to apply the forfeiture doctrine to preclude him from challenging the upper term for the first time on appeal based on the holdings in Apprendi, Blakely, and Cunningham. (People v. Welch (1993) 5 Cal.4th 228, 237 [Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile]; see People v. Black (July 19, 2007, S126182) __ Cal.4th __, __ [pp. 8-11] (hereafter Black II).)

Nevertheless, defendants challenge to the upper term fails for reasons that follow:

Apprendi held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence a court could impose based solely on facts reflected by a jurys verdict or admitted by the defendant; thus, when a courts authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. at pp. 303-305 [159 L.Ed.2d at pp. 413-414].) In Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d. at p. 864], 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 determinate sentencing law violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (Ibid., overruling People v. Black (2005) 35 Cal.4th 1238 on this point.)

Here, two of the factors upon which the trial court relied to impose the upper term were that defendant had numerous adjudications for having committed crimes -- which factor falls within the prior conviction exception to the Apprendi/Blakely/Cunningham rule -- and that defendant inflicted great bodily harm -- which factor falls within the admission by the defendant exception to the Apprendi/Blakely/Cunningham rule because defendant pled no contest to battery with infliction of serious bodily injury on the victim. ( 243, subd. (d).)

The question, then, is whether the trial court erred in also relying upon additional aggravating facts that do not fall within the prior conviction exception to the Apprendi/Blakely/Cunningham rule as other reasons to impose the upper term--namely, defendants crime involved great violence and disclose[d] a high degree of cruelty, viciousness or callousness, and his prior performance on probation was unsatisfactory.

No says Californias Supreme Court. (Black II, supra, __ Cal.4th at pp. __ [pp. 2, 11, 12, 16-17].) Because defendants prior criminal adjudications made him eligible for the upper term, the Sixth Amendment permit[ted] 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. __ [p. 12]; orig. italics.)

This is so because the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies only to a fact that is legally essential to the punishment (Blakely, supra, 542 U.S. at p. 313), that is, to any fact that exposes a defendant to a greater potential sentence than is authorized by the jurys verdict alone (Cunningham, supra, __ U.S. at p. __ [127 S.Ct. at p. 863]). (Black II, supra, ___ Cal.4th at p. __ [p. 11].) Under Californias determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum. (Black II, supra, ___ Cal.4th at p. __ [p. 13].)

Consequently, says Californias Supreme Court, [t]he issue to be determined in each case is whether the trial courts fact finding increased the sentence that otherwise could have been imposed, not whether it raised the sentence above that which otherwise would have been imposed. (Black II, supra, __ Cal.4th at p. __ [ p. 16]; orig. italics.) As noted above, . . . the presence of one aggravating circumstance renders it lawful for the trial court to impose an upper term sentence. [Citations.] 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. (Id. at pp. __ [pp. 16-17].)

Accordingly, defendants constitutional attack on imposition of the upper term fails.^[2]

DISPOSITION

The judgment is affirmed.

SCOTLAND, P.J.

I concur:

SIMS , J.

I concur that the challenge to the upper term fails in light of the California Supreme Courts decision in People v. Black (July 19, 2007, S126182) ___ Cal.4th ___ and that, in any event, because the trial court would have imposed the upper term based on defendants prior adjudications for criminal misconduct, the courts consideration of other factors was harmless. Under the circumstances of this case, however, I believe defendant needs a certificate to challenge the sentence arising from his plea under a negotiated plea agreement. Without one, his appeal must be dismissed.

Penal Code section 1237.5 and California Rules of Court, rule 8.304(b), former rule 30(b), require that a defendant obtain a certificate upon a plea of no contest to obtain review of certificate issues. There is an exception to the requirement in section 1237.5 that a defendant obtain a certificate of probable cause where the notice of appeal states that the appeal is based on: [] . . . [] (B) grounds that arose after entry of the plea and do not affect the pleas validity. (People v. Shelton(2006) 37 Cal.4th 759, 766 (Shelton); see Cal. Rules of Court, rule 8.304(b)(4)(B).) Defendant argues that he was not required to obtain a certificate because while he agreed to a negotiated plea, his sentence was not negotiated. His argument is that since he challenges only his postplea unnegotiated sentence, a certificate is unnecessary. Defendant ignores the issue whether the grounds for the appeal affect the pleas validity. Hence, the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea. (People v. Panizzon (1996) 13 Cal.4th 68, 76, italics omitted.) And, 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. (Id. at p. 79.)

Here, defendant dodged other serious charges and enhancements in exchange for a deal to plead to one charge with the opportunity to argue for less than the maximum sentence. In my view, defendants negotiated plea agreement implicitly incorporated a negotiated maximum sentence. Pursuant to the plea agreement, defendant entered a plea to one count subject to an express sentencing range from probation up to the maximum of four years prison; the remaining two counts and two enhancements were dismissed. Although the terms of the negotiated plea may not have specifically referred to a maximum sentence, it required dismissal of the other charges and enhancements, essentially establishing a four year maximum. Defendant acknowledged the range without argument or reservation. Under the negotiated plea agreement, defendant could and did argue for probation but was not exposed to a sentence that would likely have exceeded the four year maximum had he been convicted of the dismissed counts and enhancements.

A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.] The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. (Civ. Code,  1636.) If contractual language is clear and explicit, it governs. (Civ. Code,  1638.) (Shelton, supra, 37 Cal.4th at p. 767.)

Pursuant to the negotiated plea agreement, count 2 without enhancement with other counts being dismissed the court clarified that defendant was pleading to count two straight up. The court advised defendant that if probation is denied, defendant could be sentenced to prison for either two, three or four years. Under this agreement, in exchange for defendants plea to one count which carried a maximum of four years, the court on motion of the prosecutor dismissed the balance of the charges and enhancements thereby limiting defendants prison exposure. Any of those dismissed charges and enhancements could have served as the means to distribute four years or more of prison time. While the defendant reserved the right to urge the trial court to exercise its sentencing discretion in favor of a lesser term, at no time did defendant reserve or make the argument that the court was unauthorized to sentence him to the maximum term under the negotiated plea agreement, until now.

Defendants situation is similar to the case of People v. Young (2000) 77 Cal.App.4th 827 (Young), wherein appellant negotiated a maximum sentence with the understanding that appellant may argue for a lesser term on the ground that the trial court should impose a lesser sentence in the exercise of its sentencing discretion and not on the ground that the court lacked authority to impose the maximum sentence. In that case, like our defendant here, the plea agreement did not provide for a particular sentence, but for a maximum sentence thereby allowing appellant to seek a lesser sentence. Without a certificate, this court dismissed the appeal concluding that defendants challenge to the constitutionality of the maximum sentence that was part of his plea bargain is no less an attack on the validity of [the] plea. (Id. at p. 829.) Here, after negotiating a plea agreement to one charge in exchange for the beneficial dismissal of other charges and enhancements and acknowledging the maximum sentence under the plea bargain, defendant now challenges the courts authority to impose the maximum sentence. Under these circumstances, I believe a certificate is required.

CANTIL-SAKAUYE , J.

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^[1] Section 1237.5 states: No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.

^[2] In any event, Presiding Justice Scotland and Associate Justice Cantil-Sakauye conclude beyond a reasonable doubt that the trial court would have imposed the upper term even if the court had not also relied on the facts that do not fall within the prior conviction exception to the Apprendi/Blakely/Cunningham rule. (Washington v. Recuenco (2006) 548 U.S. ___, ___ [165 L.Ed.2d 466, 474-477] [the claim of error is reviewable under a beyond-a-reasonable-doubt standard of harmless error].)
Defendant, who admitted belonging to a White Supremacist criminal street gang since he was 11 years old, has a long record of juvenile court adjudications for having committed crimes, including burglarizing a grocery store; threatening to stab his teacher; leaving an obscene message on a telephone answering machine of a church member who apparently had not allowed defendants friend to participate in a church program--the message included the words, Ill gut you like a fuckin gold fish bitch! Whats up with letting Lindsay not going [sic] to church on Saturday, you fuckin fighting Chinese fish; possessing a methamphetamine pipe and resisting arrest; stealing a firearm from his grandmothers home; using marijuana while in a juvenile court youth guidance program; battering another minor while both the victim and defendant were in custody at the Yuba County Courthouse; fleeing from police officers after being stopped as a passenger in a stolen car; committing residential burglary at which money and a vehicle were stolen; unlawfully driving a stolen car (officers found what appeared to be a small stick of dynamite in defendants pocket); resisting arrest; and illegally consuming alcohol.
Due to the number and nature of those criminal adjudications, Presiding Justice Scotland and Associate Justice Cantil-Sakauye have no doubt that the trial court would have found this valid factor alone outweighed the mitigating factor that defendant enter[ed] into a disposition at an early stage. Indeed, the latter factor is hardly mitigating because defendant got what seems to be a very lenient plea agreement considering his criminal history and the nature of his attack on the victim in this case.
The record shows that at the outset of the sentencing hearing the court emphasized that defendants criminal record was not minimal; rather, in the courts words, he had a history . . . of repeated violations of criminal laws. These comments and the courts observation that defendant had not learn[ed] from the services provided to him as a result of past adjudications lead Justices Scotland and Cantil-Sakauye to conclude, beyond a reasonable doubt, that the trial court would have imposed the upper term based solely on defendants prior adjudications of criminal misconduct (People v. Osband, supra, 13 Cal.4th at p. 728 [one valid aggravating factor is sufficient to expose defendant to the upper term]), which factor did not have to be submitted to the jury. Hence, the courts reliance on other aggravating facts which had to be submitted to a jury, but were not, was harmless.