THE PEOPLE,
A165406
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Filed 12/13/23
CERTIFIED FOR PUBLICATION; (Del Norte County Super. Ct. No. CRF219022)
I.
In this case we consider a negotiated disposition entered into after the effective date of the recent amendments to
Defendant challenges his sentence on three grounds-(1) the court (and the parties) mistakenly assumed he was presumptively ineligible for probation; (2) the aggravating factors found by the court were not pleaded; and (3) the court erred in finding aggravating factors in the absence of his personal waiver in open court of his right to jury trial on the facts supporting such factors. As to the latter ground, defendant advances only a Sixth Amendment challenge and has expressly disavowed any challenge on the basis of the recent amendments to
In addressing his arguments we consider, among other issues, the following: the distinction drawn by our Supreme Court between a constitutionally sufficient general jury trial waiver and the sufficiency of a waiver of statutory jury trial rights; forfeiture of the “certified record” evidentiary requirement imposed by the recent amendments to
We conclude the judgment should be affirmed.
Defendant, a registered sex offender, was friends, and resided, with the two victims’ grandfather. The victims were under the age of 14 at the time of the molestations. One recalled approximately 20 incidents of abuse, including instances of defendant fondling his penis, masturbating him, and orally copulating him. The last incident occurred when he was 12 or 13 years old. The other victim recalled four instances where defendant molested him when he was under or around 10 years old. Defendant variously sodomized him, laid in bed with him and pulled down his underwear, and grabbed his penis over his clothes.
In 2021, the People charged defendant with sodomy of a child 10 years old or younger (
At the preliminary hearing, the trial court admitted evidence of a 1995 misdemeanor conviction for violation of
In February 2022, pursuant to a negotiated disposition, the People filed an amended information, adding two felony counts of committing lewd acts upon a child under the age of 14 (
Defendant also initialed the provision of the change of plea form stating, “I understand the Court will not decide whether to accept a plea or sentence bargain or to impose sentence or extend probation: until a Probation Officer makes an investigation and reports on my background, prior record (if any) and the circumstances of the case.”
At the change of plea hearing, the prosecutor summarized the plea agreement as follows: “A plea of no contest to Count 5 and a plea of no contest to Count 6. All sentencing options would be open to the Court. The Court could consider all aggravating factors. That‘s the stipulation under 1170(b)“-a maximum potential exposure of 10 years. Defense counsel agreed. Defendant, himself, also stated that was his understanding of the negotiated disposition.
Prior to accepting defendant‘s no contest pleas, the court reviewed the plea form with him, and defendant personally confirmed that he read and understood it and had given up all the rights as stated therein, including his “right to have a jury trial.” Counsel then stipulated that the preliminary hearing transcript could be used as a factual basis for the plea, with defense counsel stating defendant was “not admitting guilt in any way.” The
prosecutor also asked that the record specifically reflect “the parties’ stipulation under
At the sentencing hearing, counsel confirmed the stipulation that the trial court would consider all sentencing factors, both mitigating and aggravating. Defense counsel agreed there was a “[s]tip to all aggravating factors for the Court to be considered,” so “[t]he options open to the Court are probation with jail time all the way up to the ten years. And that would be the eight years with one-third the middle term of two if the Court decided to run it consecutive.”
The prosecution urged the court to impose the upper term, pointing out “[i]t only takes one factor [in aggravation] under the case law to-for the Court to do an aggravated sentence.” He then urged the court to find
applicable all the factors in aggravation recommended in the probation report, as well as several additional aggravating factors. The probation officer emphasized the “long-term emotional, mental, and psychological ramifications” for the victims.
At the conclusion of the prosecution‘s presentation, defendant spoke, stating “The kids are lying. I have said that from the beginning, and I still say it. . . . [T]heir behavior isn‘t from anything I have done. They have been rotten behavior from the get-go. . . . [¶] . . . They didn‘t like the way I disciplined. . . . [¶] It‘s not me that didn‘t show remorse. I didn‘t do it. . . .” Defense counsel agreed her client had maintained he was innocent from “day one,” and acknowledged “he is angry; he is upset.” She also acknowledged that his prior
The probation officer then provided further testimony, stating when he asked defendant about his prior
The court found defendant ineligible for probation and further found no mitigating factors and seven aggravating factors set forth in rule 4.421. Commenting that the aggravating circumstances “far, far outweigh” the circumstances in mitigation, the court sentenced defendant to a 10-year prison term, comprised of the upper term of eight years for count 5 and two
years (one-third the six-year middle term) for count 6. The remaining counts were dismissed.
III. DISCUSSION
A. Ineligibility for Probation
Defendant first contends the trial court (and counsel) erred in assuming he was presumptively ineligible for probation under
While defendant is correct that his misdemeanor conviction did not give rise to a presumption of ineligibility for probation, he made no objection at the time of sentencing to the court‘s invocation of such presumption and has therefore waived the issue on appeal. (See People v. Scott (1994) 9 Cal.4th 331, 353.) Recognizing this was likely the case, defendant alternatively advances a claim of ineffective assistance of counsel.
The standard of review for an ineffective assistance of counsel claim is well established. “First, the defendant must show that counsel‘s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.” (Strickland v. Washington (1984) 466 U.S. 668, 687.) However, “a court need not determine whether counsel‘s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” (Id. at p. 697.) Indeed, it is often easier to dispose of such a claim based on lack of sufficient prejudice alone. (Ibid.) To prevail on an ineffective assistance of counsel claim, “the
petitioner must carry his burden of proving prejudice as a ‘demonstrable reality,’ not simply speculation as to the effect of the errors or omissions of counsel.” (People v. Williams (1988) 44 Cal.3d 883, 937, quoting People v. Stephenson (1974) 10 Cal.3d 652, 661.)
We agree with the Attorney General that defendant cannot show prejudice attributable to the asserted ineffectiveness of counsel. “The standard for analyzing prejudice in an ineffective assistance of counsel claim mirrors the state standard for prejudicial error. (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050-1051. . . .) That is, ‘a “miscarriage of justice” should be declared only when the court, “after an examination of the entire cause, including the evidence,” is of the “opinion” that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ (People v. Watson (1956) 46 Cal.2d 818, 836. . . .)” (People v. Lepere (2023) 91 Cal.App.5th 727, 738.)
There is no reasonable probability a result more favorable to defendant would have ensued had counsel urged that defendant was fully eligible, rather than presumptively ineligible, for probation. First, defendant was, in fact, wholly ineligible, not merely presumptively ineligible, for probation pursuant to
have granted probation, given the court‘s statements at the sentencing hearing and its imposition of the maximum allowable sentence under the terms of the plea agreement.
B. “Pleading” Aggravating Factors
Defendant contends the recent amendments to
In short, as Pantaleon holds, defendant‘s sentence was not constitutionally or statutorily infirm due to failure to allege sentencing factors in aggravation.
In sentencing defendant to the upper term of eight years on one of the
based: the crime involved acts disclosing a high degree of cruelty, viciousness, or callousness (
Defendant‘s principal claim on appeal is that the aggravated term imposed by the court is unlawful because he did not, himself and in open court, waive his constitutional right to jury trial on the facts underlying the aggravated factors, as required by Cunningham v. California (2007) 549 U.S. 270 (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296 (Blakely).5 (See generally Black II, supra, 41 Cal.4th at p. 816; Couzens et al., Sentencing California Crimes (The Rutter Group 2023) ¶ 10:1 et seq.)
Federal constitutional precedent establishes 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.’ (Apprendi [v. New Jersey (2000)] 530 U.S. [466,] 490 . . . [(Apprendi)].)” (Black II, supra, 41 Cal.4th at p. 814.) The “relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after
finding additional facts, but the maximum [the judge] may impose without any additional findings.” (Blakely, supra, 542 U.S. at pp. 303-304.)
There are two exceptions to a defendant‘s Sixth Amendment right to a jury trial on aggravating facts-facts admitted by the defendant and the fact
Applying the principles established in Apprendi and its progeny, our Supreme Court ruled in Black II that “imposition of the upper term does not infringe upon the defendant‘s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant‘s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.) The court explained that “so 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.” (Black II, at p. 813.) ” ‘Judicial factfinding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial, and reasonable-doubt components of the Fifth and Sixth Amendments.’ (Harris v. United States (2002) 536 U.S. 545, 558. . . .) Facts considered by trial courts in exercising their discretion within the statutory range of punishment authorized for a crime ‘have been the traditional domain of judges; they have not been alleged in the indictment or proved beyond a reasonable doubt. There is no reason to believe that those who framed the Fifth and Sixth Amendments would have thought of them as the elements of the crime.’ (Id. at p. 560; see Rita v. United States, supra, 551 U.S. at p. ---- . . . [the ‘Sixth Amendment cases do not automatically forbid a sentencing court to take account of factual matters not determined by a jury and to increase the sentence in consequence‘].)” (Black II, at p. 813.)
Black II remains our high court‘s most recent pronouncement on whether an upper term sentence imposed on the basis of at least one permissibly established aggravating factor passes muster under the Sixth Amendment right to jury trial. (See Sandoval, supra, 42 Cal.4th at p. 839 [holding, where
decisions; “we find no basis to ignore Black or Towne . . . [,] decisions from our state‘s high court that address the precise [recidivist] issue presented here“].)
1. General Jury Trial Waiver
The Attorney General points out defendant stipulated that the preliminary hearing transcript provided a factual basis for his plea and further stipulated that the court would consider factors in aggravation in accordance with rule 4.421 and urges that these stipulations sufficed to waive defendant‘s constitutional right to jury trial on facts in aggravation.
As to the Attorney General‘s first point-that counsel‘s stipulation to the preliminary hearing transcript as a factual basis for the plea constituted a sufficient waiver of defendant‘s constitutional right to jury trial-the analysis is straightforward. Case authority squarely holds it does not. (See French, supra, 43 Cal.4th at pp. 46-47, 51 [“defense counsel‘s stipulation to the factual basis cannot reasonably be construed as an admission by the defendant sufficient to satisfy the Sixth Amendment requirements established in Cunningham, supra, 549 U.S. 270,” (fn. omitted)].)
However, as to the Attorney General‘s second point-that counsel‘s stipulation that “under
As we have recited, in his change of plea form defendant expressly waived his right to jury trial not only as to each charge but also to any “special allegation and/or sentence enhancement I admit to be true.” And in open court he expressly confirmed that the terms of the disposition included that the court would consider all aggravating factors set forth in rule 4.421,
and after that confirmation, he went on to expressly confirm he was giving up various rights, including, specifically, his right to jury trial.
As our Supreme Court has explained, there is a distinction between what is constitutionally required for a valid jury waiver and what may be statutorily required under state law. ( People v. Sivongxxay (2017) 3 Cal.5th 151, 171 (Sivongxxay). In Sivongxxay, the defendant claimed his jury trial waiver did not encompass a waiver of his right to jury trial on a special circumstance allegation. (Ibid.) The court rejected his claim, stating “[d]efendant demands more than the federal and state Constitutions require for a valid waiver of the jury trial right. As discussed, a knowing and intelligent jury waiver requires an appreciation of the nature of the jury trial right and the consequences of forgoing this right. [Citation.] There is no additional constitutional requirement that a defendant be specifically advised of the specific charges, enhancements, allegations, or other issues to which a general jury waiver will apply. On the contrary, with a comprehensive jury waiver such as the one entered below, absent unusual circumstances not present here ’ “[i]t is settled that where a defendant waives a jury trial he is deemed to have consented to a trial of all of the issues in the case before the court sitting without a jury.” ’ (People v. Berutko (1969) 71 Cal.2d 84, 94 . . . , quoting People v. Russell (1961) 195 Cal.App.2d 529, 532. . . .)” (Id., at pp. 171, 173, italics omitted.)
The majority reiterated the point in responding to the dissent‘s conclusion to the contrary, stating “The dissenting justices apparently read the trial judge‘s advisements differently, perceiving the failure to expressly refer to the special circumstance allegation as somehow implicitly excluding that allegation from a counseled and otherwise comprehensive jury waiver. (See conc. & dis. opn. of Liu, J., post, at pp. 203-206; conc. & dis. opn. of
Cuéllar, J., post, at pp. 218-219.) We respectfully disagree with this interpretation of the colloquy, for the reasons we have previously given. The dissenting justices’ position boils down to the proposition that the judge was constitutionally bound to utter the phrase ‘special circumstance’ at some point in the waiver colloquy with defendant, even if the judge never went on to explain what this phrase meant. But our waiver jurisprudence rejects the notion that a knowing and intelligent waiver hinges on the recitation of a ’ “talismanic phrase.” ’ [Citations.] The fact of the matter is that the dissenting justices, like defendant, would require a degree of elaboration and specificity in a jury waiver colloquy that has never been demanded for a jury waiver to be considered knowing and intelligent under constitutional standards.”6 (Sivongxxay, supra, 3 Cal.5th at pp. 175-176, fn. & italics omitted.)
recognized. The majority‘s discussion is set forth above. In his dissent, Justice Cuéllar stated, “The gist of defendant‘s claim is that the record fails to show he was aware of his right to a jury trial on this phase of the trial or that he waived it. State v. Williams (2005) 197 Ore.App. 21 . . . presents an analogous situation. Williams similarly was unaware that he had the right to a jury finding of the facts that could trigger an enhanced sentence; his trial had predated Blakely v. Washington (2004) 542 U.S. 296 . . . , which held that a criminal defendant has a federal constitutional right to have a jury find the facts that could subject him to a sentence greater than the statutory maximum. The Williams court reasoned that no waiver could be implied in those circumstances unless the record showed that the defendant was aware both of ’ “the right to have a jury determine the aggravating factors” ’ and that ’ “he was waiving that right.” ’ (Williams, at p. 1152; accord, People v. French (2008) 43 Cal.4th 36, 48 . . . [because the defendant entered his plea pre-Blakely, his jury waiver on the substantive offense ‘did not encompass his right to a jury trial on any aggravating circumstances‘]; State v. Schofield (2005) 2005 ME 82. . . .) Unlike the majority, I see no meaningful distinction in the fact that Williams was unaware of his jury trial right because of an intervening change in the law, while defendant was unaware of his jury trial right because it was never mentioned anywhere in the colloquy. (Cf. maj. opn., ante, at pp. 172-173, fn. 7.)” (Sivongxxay, supra, 3 Cal.5th at pp. 222-223 (dis. opn. of Cuéllar, J.).) Here, in contrast, at the time defendant pleaded no contest, the constitutional right to jury trial on facts in aggravation was well established.
circumstance’ was never mentioned at all. Although such precision [was] not required for a knowing, voluntary, and intelligent waiver, [the high court believed] that Memro‘s requirement of a ‘separate waiver,’ ” even as that rule was clarified in subsequent cases, “demand[ed] at least that much specificity.” (Id. at pp. 177-178.) Thus, although the court recognized the line it was drawing was “a narrow one,” it held the defendant‘s “purported waiver as to the special circumstance determination was deficient, as a matter of state law.” (Id. at p. 178.)
Given the clarity of the record here that defendant knowingly and voluntarily waived his right to jury trial generally and did so fully advised and personally agreeing in open court that the negotiated disposition included that
2. Prior Convictions
Even if we were to conclude defendant‘s jury trial waiver was not constitutionally sufficient, we agree with the Attorney General that the trial court relied on at least one permissibly established aggravating circumstance-defendant‘s prior convictions-and therefore, under Black II, the aggravated sentence is not constitutionally infirm.
At the sentencing hearing, the trial court stated defendant “had four prior DUIs at the time of this conviction, including a prior 288 as a misdemeanor. Now they have elevated to felony conduct.” While the record of defendant‘s
Despite advancing only a constitutional challenge to his aggravated sentence, defendant complains none of these convictions were, as now
required by amended
Regardless of the state of the briefing, we conclude the prior
insufficient foundation, defendant has forfeited the issue on appeal. (See People v. Jackson (2016) 1 Cal.5th 269, 366 [defendant forfeited claim that testimony lacked foundation by failing to object on this ground at trial]; see
Furthermore, we agree with the Attorney General that in this case the
As we have recited, the recidivist factor set forth in
in juvenile delinquency proceedings are numerous or of increasing seriousness.” As defendant points out, this language refers to “convictions,” plural.
The advisory committee comment states, however, that, “In determining whether to impose the upper term for a criminal offense, the court may consider as an aggravating factor that a defendant has suffered one or more prior convictions, based on a certified record of conviction.” (
The advisory committee‘s note, moreover, is not inherently inconsistent with the language of the rule. To begin with, the term “convictions,” plural, can be used as an inclusive term, i.e., embracing one or more convictions. For example, if a person having only one prior conviction were asked whether he had prior convictions, plural, he would in all likelihood answer, “yes, I have a conviction.” It strains credibility to suppose he would answer “no” reasoning he was asked about convictions, plural, and leaving the person who asked the question with the impression he, in fact, had no prior convictions. The rule also speaks in terms of prior convictions that are “numerous or of increasing seriousness.” (
Furthermore, we cannot conceive the Legislature or the Judicial Council would not consider defendant‘s 1995
In addition, there is no practical distinction between a defendant who sustains two prior
Since we have concluded that at least one of the factors in aggravation—recidivism under
Defendant did not address Black II‘s analysis in his opening brief. Rather, he relied on French. However, even in French, the high court reiterated that an upper term would have been constitutionally permissible “if the prosecution had established an aggravating factor at the sentencing hearing based upon defendant‘s prior convictions or upon his admissions.” (French, supra, 43 Cal.4th at p. 45French, as we have observed, was that the trial court had not found any aggravating factor on such basis. (Id. at p. 43.) Accordingly, Black II‘s analysis simply did not apply.
In his closing brief, defendant argues for the first time that Black II “is not good law as applied to amended
In any event, defendant cites no case holding that one factor in aggravation is never sufficient to impose an upper term, even in a case like this one where the court found no factors in mitigation. In fact, recent cases suggest the law in this regard remains unchanged. (See Zepeda, supra, 97 Cal.App.5th at p. 83 [under amended statute, court “has no authority to impose an upper term sentence unless a jury has found one or more aggravating factors true beyond a reasonable doubt,” (italics added)]; id., at p. 86 [“a judge lacks the authority to impose an upper-term sentence in the absence of a jury finding of one or more aggravating factors,” (italics added)]; Achane, supra, 92 Cal.App.5th at p. 1044 [“trial court on remand can again impose the upper term if
Nor does the language of the amended statute foreclose reliance on a single aggravating factor in an appropriate case.12 When speaking of a sentencing court‘s discretion to impose the upper term,
Furthermore, as we have discussed, defendant confined his opening brief to a claim of constitutional error, i.e., that his Sixth Amendment right to jury trial had been violated by imposition of the upper term. He made no claim that any additional statutory rights set forth in amended
In sum, we conclude defendant knowingly and intelligently waived his constitutional right to jury trial, including as to aggravating facts, and his aggravated sentence is constitutionally permissible for that reason, alone. We further conclude that, even if defendant did not sufficiently waive his constitutional jury trial right, the trial court found at least one aggravating factor—recidivism pursuant to
IV. DISPOSITION
The judgment is AFFIRMED.
_________________________
Banke, Acting PJ.
We concur:
_________________________
Margulies, J.*
_________________________
Getty, J.**
*Retired Justice of the Court of Appeal, First Appellate District assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
**Judge of the Solano County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
A165406, People v. Hall
Trial Court: Del Norte County Superior Court
Trial Judge: Hon. Darren McElfresh
Counsel:
Christopher Stansell under appointment by the Court of Appeal for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jefferey M. Laurence, Senior Assistant Attorney General, Masha A. Dabiza and Arthur P. Beever, Deputy Attorneys General for Plaintiff and Respondent.