P.v . Ramirez
Filed 4/25/07 P.v . Ramirez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(El Dorado)
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THE PEOPLE, Plaintiff and Respondent, v. JUAN CARLOS LOPEZ RAMIREZ, Defendant and Appellant. | C053201 (Super. Ct. No. S04CRF0333) |
Defendant Juan Ramirez entered pleas of no contest to three counts of child molestation charged in an amended information in exchange for a stipulated prison term of 8-12 years and dismissal of the original charges. The court sentenced him to the upper term on one count and a two-year consecutive term for each of the other two counts, for a total of 12 years.
On appeal, the defendant contends the trial court did not fulfill its duty to determine a factual basis for the pleas, did not obtain his personal waiver of a probation report, and relied on improper aggravating factors in imposing the upper term. Because we must remand for resentencing in light of the recent decision in Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham), his claims should be presented to the trial court.
Discussion
Cunningham rejected the efforts of People v. Black (2005) 35 Cal.4th 1238 to distinguish Californias judge-imposed aggravated sentences from the constitutional shortcomings that Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] identified in the state of Washingtons analogous sentencing procedures. Whenever the prosecution relies on a fact (other than recidivism) as the basis for increasing a penalty beyond the maximum term that a judge may otherwise impose for a crime under the pertinent sentencing statute, the Sixth Amendment requires the prosecution to establish that fact beyond a reasonable doubt in a jury trial. (Cunningham, supra, 549 U.S. at pp. ___, ___ [166 L.Ed.2d at pp. 868, 873, 876].) Under California law, the court must impose the middle term in the absence of finding any facts in aggravation, which cannot include any element of the crime or its enhancement. (Pen. Code, 1170, subd. (b).) The Black courts examination . . . satisfied it that Californias sentencing system does not implicate significantly the concerns underlying the Sixth Amendments jury-trial guarantee. Our decisions, however, leave no room for such an examination. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 874].) Moreover, the effort to equate Californias sentencing procedures to the post-Booker federal system was unavailing. (Id. at p. ___ [166 L.Ed.2d at p. 875].)
In the present case, the trial court imposed an upper term for the principal offense, citing a number of facts. None of these, however, involved any recidivism on the defendants part. Consequently, imposition of the upper term was unconstitutional.[1] We will vacate the sentence in its entirety and remand the matter.[2] The trial court can address the defendants complaints regarding the determination of the factual basis for the plea and his personal waiver of a probation report.
Disposition
The judgment is affirmed. The sentence is vacated and remanded for further proceedings.
DAVIS, Acting P.J.
We concur:
NICHOLSON , J.
BUTZ , J.
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[1] The imposition of consecutive sentences for the subordinate offenses does not implicate any constitutional concerns, because a comparable statutory presumption does not exist in favor of concurrent subordinate terms as exists for the middle term on the principal offense. (People v. Reeder (1984) 152 Cal.App.3d 900, 923.)
[2] On remand, the trial court is not required to set aside the plea bargain. The prosecution expressly agreed to any sentence within the range of 8-12 years. Nor does the plea bargain estop the defendant from claming error under Cunningham, because the plea bargain allowed for judicial discretion in making proper sentencing decisions. (Cf. People v. Buttram (2003) 30 Cal.4th 773, 787, 790-791; People v. Jordan (2006) 141 Cal.App.4th 309, 319-322.)
