P. v. Bighead

Filed 8/29/07 P. v. Bighead CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Following a mistrial on rape charges, defendant Jason Bighead pleaded guilty to sexual battery and unlawful sexual intercourse. Pursuant to a negotiated disposition, his sentence was suspended and he was placed on probation conditioned on serving 16 months in the county jail. Defendants probation was later revoked, and he was sentenced to the upper term of four years in state prison on the sexual battery count, with a concurrent upper term sentence on the unlawful sexual intercourse count. On appeal, defendant contends that his upper term sentences were imposed in violation of Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). We disagree, and affirm the judgment.

I. BACKGROUND

In May 2004, defendant was charged by information with rape by use of drugs or other intoxicating substances (Pen. Code,[1] 261, subd. (a)(3); count 1) and rape of an unconscious person ( 261, subd. (a)(4); count 2). Defendant pleaded not guilty and a jury trial commenced on August 16, 2004. On August 18, 2004, the trial court declared a mistrial after the jury was unable to return a verdict on either count. In September 2004, pursuant to a negotiated disposition, defendant pleaded guilty to sexual battery ( 243.4, subd. (a)) and unlawful sexual intercourse with a minor ( 261.5, subd. (c)).

As described in a presentence investigation report filed on October 21, 2004, the facts underlying defendants offenses were as follows: On April 1, 2004, a deputy of the Del Norte County Sheriffs Department was contacted by the victim, henceforth identified as Jane Doe. She is 17 years old, and married. She and her husband live with her parents. Doe wanted to report a sexual assault, and provided the following summary. [] On March 28, 2004, the victim came home and found the defendant and her husband, who are brothers, playing video games together. The defendant told them he was homeless and asked to spend the night.^[[2]] They agreed the defendant could spend the night on the couch. [] The victims husband went to work, and the defendant went with him. On the way back, the defendant purchased some wine and vodka.^[[3]] When he returned, they went to the victims room and drank the alcohol while they played video games. As Doe has had surgery that affects her digestive system, she cannot drink very much alcohol without becoming intoxicated. She told the defendant she was going to bed and he could finish the game and go sleep on the couch. He agreed to do so and she went to sleep. [] The victim was later awakened with a jolt and hit her head on a pair of audio speakers at the top of her bed. She was disoriented, but knew there was a man on top of her having sex with her. At first she thought it was her husband but then realized it was his brother, the defendant. She pushed him off and confronted him. [] The defendant got up and pulled up his pants. The defendant started saying how his brother had everything and he did not. Does mother heard the commotion and came to the door. Doe could hear her try the door and found it locked. Doe told the defendant to get out and he picked up his clothing and left.

Defendants September 2004 plea agreement provided that he was to serve a 16-month jail term and be placed on probation. At a hearing on November 4, 2004, the trial court found that defendants negotiated plea was in the interests of justice, suspended imposition of sentence, and placed defendant on probation conditioned in part on defendant serving 16 months in county jail with credit for time served and custody credits. The court also ordered as a condition of his probation that defendant successfully complete a postconviction drug court program upon his release from jail, and that he abstain from the possession or consumption of alcoholic beverages.

The trial court went on at the November 4 hearing to discuss the sentences that would be indicated for defendants two offenses in the event that his probation was revoked.[4] The court explained that it found as aggravating factors that: (1) defendant had taken advantage of a position of trust or confidence, and (2) his prior convictions as an adult or sustained petitions in juvenile delinquency proceedings were numerous or of increasing seriousness. In mitigation, the court found that defendant was suffering from a mental condition at the time of the offense, intoxication, that reduced his culpability. The court advised the defendant that (1) aggravated terms of four years and three years, respectively, were indicated for the sexual battery and unlawful sexual intercourse counts in the event that defendants probation were to be revoked because the aggravating factors outweighed the mitigating factors; and (2) the terms would run concurrently because the offenses were part of the same transaction.

On September 6, 2005, the court summarily revoked defendants probation for failure to comply with the drug court program. A petition for modification or change of probation was filed on September 8, 2005. A second petition alleging further probation violations was filed on March 10, 2006. Defendant admitted the allegations in the petitions.

On April 13, 2006, the court sentenced defendant to the upper term of four years in state prison for sexual battery and to a concurrent four-year upper term for unlawful sexual intercourse.[5] This appeal followed.

II. DISCUSSION

Defendant contends that the trial courts imposition of upper term sentences when his probation was revoked violated his federal constitutional right to a jury trial under Blakely.

As an initial matter, the People argue that defendants appeal must be dismissed because he failed to obtain a certificate of probable cause to challenge the constitutionality of his sentence. The People rely on cases holding that when a defendant agrees to a sentence lid or range as part of a plea bargain, without specifically reserving a right to appeal the trial courts authority to impose the maximum sentence, a challenge to that authority will be construed as a challenge to the validity of the plea itself, and requires a certificate of probable cause. (See People v. Shelton (2006) 37 Cal.4th 759, 763; People v. Young (2000) 77 Cal.App.4th 827, 829832; People v. Cole (2001) 88 Cal.App.4th 850, 868.) A Third Appellate District case, People v. Bobbit (2006) 138 Cal.App.4th 445 (Bobbit), holds that this certificate of probable cause requirement applies equally to Blakely claims. (Bobbit, at pp. 447448.)

In our view, Bobbit and the other cases cited are inapposite here. Defendants plea agreement did not encompass any agreement to a maximum prison sentence. He agreed to a 16-month jail term, but he did not agree to any sentence range or specified maximum sentence should his probation be revoked. Accordingly, defendants Blakely claim is not a challenge to the validity of his plea, and he was not required to obtain a certificate of probable cause in order to pursue it in this appeal.

The People also claim that defendant forfeited the issues raised here by failing to object on Blakely grounds either at the November 2004 hearing when the court suspended imposition of sentence, or at the April 2006 sentencing hearing when it imposed the upper term sentences. We disagree. At the 2004 hearing, the court sentenced defendant to 16 months in county jail. It did not impose or impose and suspend execution of an upper term state prison sentence. Unless a sentence was being imposed in violation of its requirements, a Blakely objection would not have been appropriate or necessary at that time to preserve the issue for later appellate review. While such an objection would have been in order at the time of defendants April 2006 sentencing hearing, by that time the California Supreme Court had issued its holding in People v. Black (2005) 35 Cal.4th 1238 (Black I) that Blakely did not invalidate Californias determinate sentencing procedures. An objection on Blakely grounds at sentencing would have been futile since the trial court was bound to follow Black I. We will not deem defendants objection forfeited because he failed to raise an objection that would have been futile at the time it was made. (See People v. Welch (2003) 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 or unsupported by then prevailing law].)

Turning to the merits of defendants claim, Blakely and its predecessor, Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), hold that with the exception of facts pertaining to a defendants prior convictions, or facts admitted by the defendant, 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. (Id. at p. 490; Blakely, supra, 542 U.S. at pp. 301, 303304.) As noted above, Black I held that Blakely did not apply to the judicial factfinding used to select aggravated sentences under Californias DSL. Black I was thereafter overruled on this issue by Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856]. We must therefore decide whether the courts reliance in this case on two aggravating factors that were neither admitted by him nor proven to a jury beyond a reasonable doubtthat he took advantage of a position of trust and that his criminal history showed offenses of increasing seriousnessconstituted reversible error requiring resentencing.

The parties in this case dispute whether the trial courts finding that defendants prior convictions were numerous or of increasing seriousness comes within the Blakely exception for prior convictions. Defendant contends that the exception is limited to the fact of a prior conviction, while the People maintain that all facts broadly relating to a defendants recidivism may be found by the court. Although the issue was not settled when the parties briefs were filed, the California Supreme Court has recently held squarely that the factual determination of whether a defendants prior convictions were numerous or of increasing seriousness comes within the Blakely-Apprendi prior conviction exception, and may be made by the court based on a preponderance of the evidence, and used as an aggravating factor under the DSL if found to be true, without violating the defendants right to a jury trial. (People v. Black (2007) 41 Cal.4th 799, 819-820 (Black II).)[6] Therefore, under Black II, the trial court committed no Blakely error in making a finding that defendants prior convictions were numerous or of increasing seriousness, or in using that finding as a basis for imposing the upper term sentence upon him.[7]

Defendant further argues that even if the trial court could properly rely on its own finding by a preponderance of the evidence that his prior convictions were numerous or of increasing seriousness, the courts additional reliance on a second disputed factor unrelated to recidivismdefendants asserted abuse of a position of trustis sufficient in itself to demonstrate prejudicial error under Blakely. Black II specifically rejected this line of argument. Black II holds that as long as a single aggravating circumstance has been established in accordance with the requirements of Blakely, any additional factfinding by the court in selecting the appropriate sentence under the DSL will not violate the defendants right to a jury trial. (Black II, supra, 41 Cal.4th at pp. 812815.) The Black II court explained that under the DSL the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (Id. at p. 813.) Therefore, the court reasoned, if one such circumstance has been established in accordance with the requirements of Blakely, the upper term sentence becomes the DSLs statutory maximum sentence. (Black II, at p. 813.) The court applied the principle that judicial factfinding is only unconstitutional under Blakely  when that finding raises the sentence beyond the sentence that could have been lawfully imposed by reference to facts found by the jury or admitted by the defendant.  (Black II, at p. 815, quoting United States v. Booker (2005) 543 U.S. 220, 278 (dis. opn. of Stevens, J.), original italics omitted; italics added.) Thus, in deciding a claim of Blakely error, [t]he issue to be determined . . . is whether the trial courts factfinding 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, at p. 815.)

Put another way, in reviewing a claim of Blakely error, we need not decide whether the trial court would have reached the same sentencing decision had it considered only aggravating circumstances found in accordance with the requirements of Blakely, as long as one of the aggravating circumstances it relied upon satisfied those requirements. Under this standard, the trial court committed no Blakely error in sentencing defendant to the upper term sentence of four years for sexual battery in reliance, in part, on its finding that defendants prior convictions were numerous or of increasing seriousness.

III. DISPOSITION

The judgment is affirmed.

_________________________

Margulies, J.

We concur:

_________________________

Marchiano, P.J.

_________________________

Stein, J.

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[1] All statutory references are to the Penal Code.

[2] At trial, the victim and defendants brother testified that defendant was staying at somebody elses house, but he did not like it there.

[3] At trial, the victim testified that she and defendant dropped her husband off at work and on the way back the two of them stopped at a liquor store where defendant used her money to purchase alcohol for both of them to consume.

[4] We note that under the Determinate Sentencing Law (DSL), section 1170 et seq., [a] term of imprisonment shall not be specified if imposition of sentence is suspended. ( 1170, subd. (b).)

[5] The upper term sentence for a violation of section 261.5, subdivision (c) is three years, not four years. ( 18; see People v. Olson (1989) 216 Cal.App.3d 601.)

[6] Defendants prior conviction record consisted of the following: (1) misdemeanor disorderly conduct (two convictions) and possession of an explosive device in 1998; (2) misdemeanor vandalism and burglary in 2000; (3) misdemeanor failure to appear, false identification to a peace officer, and assault in 2002; and (4) multiple probation violations beginning in 2001.

[7] Defendant makes no claim that the evidence was insufficient to support the trial courts finding regarding his prior convictions.