THE PEOPLE, Plaintiff and Respondent, v. SETH CHRISTOPHER HILBURN, Defendant and Appellant.
D080175
Court of Appeal, Fourth Appellate District, Division One, State of California
July 5, 2023
CERTIFIED FOR PUBLICATION
Daniel F. Link, Judge
(Super. Ct. No. SCD286360)
Matthew Aaron Lopas, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting, Michael Dolida and Daniel Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
Seth Christopher Hilburn was charged with first degree burglary of an inhabited dwelling, first degree robbery, and carjacking, with allegations that he personally used a firearm in the commission of all three offenses. Before trial, Hilburn entered into an agreement with the district attorney to plead guilty to the first degree robbery charge and the related firearm enhancement in exchange for the dismissal of the remaining charges and a maximum sentence of 13 years in prison. At the sentencing hearing, the court considered aggravating and mitigating factors and imposed an eight year sentence, consisting of the middle term of four years for both the first degree robbery conviction and the admission of the firearm enhancement allegation.
Hilburn appeals the sentence, asserting the court violated his Sixth Amendment right to a jury trial by imposing the middle, and not low terms, on the charges. Hilburn argues recent changes to the sentencing laws required the court to impose the low terms for the crimes he pleaded guilty to because the aggravating factors relied on by the court were not stipulated or proven to a jury beyond a reasonable doubt. Hilburn also asserts the court abused its discretion by imposing the middle terms because the aggravating factors did not outweigh those in mitigation.
As we shall explain, we reject Hilburn‘s constitutional argument and agree with the Attorney General that the imposition of the middle term did not implicate Hilburn‘s Sixth Amendment jury trial rights. In addition, we conclude the court‘s imposition of the middle terms was not an abuse of its discretion. Accordingly, we affirm the judgment of conviction.
On October 16, 2020, the district attorney filed an amended felony complaint charging Hilburn with first degree burglary of an inhabited dwelling with a person other than an accomplice present (
Subsequently, on October 8, 2021, Hilburn pleaded guilty to the robbery of an inhabited dwelling charge (count 2) and admitted the related
At the sentencing hearing on February 15, 2022, Hilburn‘s counsel argued that under newly amended
However, the court found the aggravating and mitigating factors supported the imposition of the middle terms in the interests of justice. Specifically, the court concluded several aggravating factors supported imposition of the middle terms: Hilburn‘s use of a firearm in the robbery; he chose a home that was occupied by its residents; and he was not a passive participant in the crime, but actively made verbal threats to the victim that caused severe emotional injury. In addition, the court found that Hilburn‘s prior record of criminal conduct was an aggravant supporting the imposition of the middle term.3
DISCUSSION
As noted, Hilburn makes two primary arguments on appeal. First, he asserts the trial court violated his jury trial rights under the Sixth Amendment to the United States Constitution by basing the imposition of the middle term sentences on aggravating factors to which he did not stipulate, and which were not found true by a jury beyond a reasonable doubt. Second, Hilburn contends that, even if his constitutional rights were not violated, the court abused its sentencing discretion because the aggravating factors did not outweigh those in mitigation.
The Attorney General responds that this court must dismiss Hilburn‘s appeal because he failed to obtain a certificate of probable cause in the trial court. Alternatively, the Attorney General contends that under newly amended
I
Certificate of Probable Cause
“The right to appeal is statutory only, and a party may not appeal a trial court‘s judgment, order or ruling unless such is expressly made appealable by statute.” (People v. Loper (2015) 60 Cal.4th 1155, 1159.) “In general, [however,] a defendant may appeal from a final judgment of conviction, unless otherwise limited by sections 1237.1 and 1237.5.” (People v. Maultsby (2012) 53 Cal.4th 296, 298–299, citing
”
” ‘In determining whether
Relying on People v. Shelton (2006) 37 Cal.4th 759 (Shelton) and People v. Cuevas (2008) 44 Cal.4th 374 (Cuevas), the Attorney General argues that Hilburn‘s challenge is to the validity of the plea agreement itself. The Attorney General asserts that Hilburn‘s argument is an attack on the 13-year sentencing lid the parties agreed was a permissible and authorized sentence, and thus a certificate of probable cause was required to appeal. Hilburn responds that his challenge is no different than the one made in French, supra, 43 Cal.4th 36, in which the California Supreme Court determined no certificate was required for the defendant‘s assertion that imposition of the upper term—although, like here, within the terms of the plea agreement‘s sentencing lid—violated his jury trial rights. We agree.
In Shelton, the California Supreme Court held “that a defendant‘s claim—that the sentence imposed by the trial court, which was within the agreed-upon maximum term, violated the multiple punishment prohibition of
Shelton “explained that ‘inclusion of a sentence lid [in a plea agreement] implies a mutual understanding and agreement that the trial court has authority to impose the specified maximum sentence and preserves only the defendant‘s right to urge that the trial court should or must exercise its discretion in favor of a shorter term.’ ” (French, supra, 43 Cal.4th at p. 44.) Accordingly, the court held that the defendant‘s “challenge to the trial
Although the defendant in Shelton had the right to argue for a lesser sentence, the bargain did not contemplate that he could challenge the court‘s authority to impose a sentence within the sentencing lid based on
In Cuevas, the court considered a similar challenge based on the multiple punishment prohibition of
In contrast to Shelton and Cuevas, French held that a challenge to the imposition of an upper term sentence based on the defendant‘s Sixth Amendment jury trial rights did not require a certificate of probable cause. The defendant in French was charged with 12 counts of lewd and lascivious conduct with a child involving three victims, which was punishable by a triad of prison terms of three, six, or eight years. (
The French court distinguished Shelton, and the line of authority leading to it, based on the fact that the defendant‘s argument did “not constitute an attack upon the validity of the plea agreement.” (French, supra, 43 Cal.4th at p. 45.) Rather, the defendant‘s appeal ” ‘assert[ed] only that errors occurred in the [subsequent] adversary hearings conducted by the trial court for the purpose of determining the degree of the crime and the penalty to be imposed.’ ” (Ibid.) Like here, those proceedings were contemplated by the plea agreement, which allowed the defendant to argue for a lower term sentence.
French held that “[i]n contrast to a case in which the maximum term under the plea agreement would be unlawful under
We see no difference between Hilburn‘s Sixth Amendment argument and that advanced by the defendant in French. Like French, Hilburn entered a plea agreement with a sentencing lid. Like French, Hilburn argues that the
II
Apprendi Error
A
Penal Code Section 1170
“Effective January 1, 2022, our determinate sentencing law [(DSL)],
Meanwhile, Assembly Bill No. 124 provided the opportunity for a low-term sentence under specified circumstances, including where a defendant was a “youth” as defined
At the time of his commission of the offenses in this case, Hilburn was five weeks shy of his twenty-fifth birthday.
Under
The California Rules of Court, which provide guidance to courts in selecting between the terms, were also amended to conform to the new legislation. Rule 4.420 now provides, in relevant part:
“(a) When a judgment of imprisonment is imposed, or the execution of a judgment of imprisonment is ordered suspended, the sentencing judge must, in their sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (b).
“(b) The court may only choose an upper term when (1) there are circumstances in aggravation of the crime that justify the imposition of an
upper term, and (2) the facts underlying those circumstances have been (i) stipulated to by the defendant, (ii) found true beyond a reasonable doubt at trial by a jury, or (iii) found true beyond a reasonable doubt by the judge in a court trial. “(c) Notwithstanding paragraphs (a) and (b), the court may consider the fact of the defendant‘s prior convictions based on a certified record of conviction without it having been stipulated to by the defendant or found true beyond a reasonable doubt at trial by a jury or the judge in a court trial. This exception does not apply to the use of the record of a prior conviction in selecting the upper term of an enhancement.
“(d) In selecting between the middle and lower terms of imprisonment, the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. The court may consider factors in aggravation and mitigation, whether or not the factors have been stipulated to by the defendant or found true beyond a reasonable doubt at trial by a jury or the judge in a court trial. The relevant circumstances may be obtained from the case record, the probation officer‘s report, other reports and statements properly received, statements in aggravation or mitigation, and any evidence introduced at the sentencing hearing.
“(e) Notwithstanding section 1170(b)(1), and unless the court finds that the aggravating circumstances outweigh the mitigating circumstances such that imposition of the lower term would be contrary to the interests of justice, the court must order imposition of the lower term if any of the following was a contributing factor in the commission of the offense:
- The defendant has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence;
- The defendant is a youth, or was a youth as defined under section 1016.7(b) at the time of the commission of the offense; or
- Prior to the instant offense, or at the time of the commission of the offense, the defendant is or was a victim of intimate partner violence or human trafficking.
“(f) Paragraph (e) does not preclude the court from imposing the lower term even if there is no evidence of the circumstances listed in paragraph (e).” (Cal. Rules of Court, rule 4.420, Revised January 1, 2022, re-lettered and amended effective March 14, 2022.)
B
The
Hilburn asserts that under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and its progeny, under new subdivision (b)(6) of
In Apprendi, the United States Supreme Court held that “the Federal Constitution‘s jury trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, supra, 549 U.S. at pp. 274–275.) The high court later clarified in Blakely v. Washington (2004) 542 U.S. 296 (Blakely) that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations.] In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” (Blakely, at pp. 303–304, original italics.)
Prior to Cunningham, California‘s DSL assigned the trial judge with the authority to determine facts underlying aggravating circumstances that expose a defendant to an upper term sentence. The version of
Applying Apprendi and Blakely, the Cunningham court concluded that the default middle term was the relevant statutory maximum and that the sentencing scheme did not “withstand measurement against [the court‘s] Sixth Amendment precedent.” (Cunningham, supra, 549 U.S. at p. 293.) Under Cunningham, California could retain the DSL without encountering a Sixth Amendment violation by either (1) “calling upon the jury to find any fact necessary to the imposition of an elevated sentence” or (2) allowing judges to exercise ” ‘broad discretion ... within a statutory range.’ ” (Id. at p. 273.)
In response to Cunningham, California elected the second option through emergency legislation, effective March 2007 (Stats. 2007, ch. 3, § 2). The Legislature amended the DSL to eliminate the presumptive middle term, leaving “the choice of the appropriate term” among each crime‘s sentencing triad to the “sound discretion of the court,” solving the constitutional infirmity of the previous statutory scheme. (Stats. 2007, ch. 3, § 2.)
In 2022, the Legislature dramatically modified this regime by approving the amendments to
As discussed, the additional changes made by Assembly Bill No. 124, for the three specified classes of offenders whose circumstance is a contributing factor to the offenses, create a presumption in favor of the lower term sentence. However, even if these additional factual findings are made, the court remains authorized to impose the middle term if the court determines that the aggravating and mitigating factors show that imposition of the lower term would be contrary to the interest of justice. (
The Attorney General responds that the statutory language of
of offenders set forth in subdivision (b)(6). Specifically, the People argue that the explicit statement in subdivision (b)(2) that an upper term sentence cannot be imposed without satisfying the constitutional requirements of Apprendi shows that if the Legislature intended to require findings for imposition of the middle term for subdivision (b)(6) offenders, it clearly knew how to do so. Additionally, the Attorney General contends imposition of the middle term under subdivision (b)(6) does not run afoul of the constitution‘s jury trial guarantee because the provision “creates a potential reduced term, as opposed to an increased term, for certain enumerated defendants based on judicial findings of eligibility and whether imposition of a low term sentence is in the interest of justice.”
We agree with the Attorney General‘s interpretation of the new sentencing provision. First, the language and framework of the amended law makes clear the Legislature intended to maintain the sentencing court‘s discretion to impose the middle term even if it finds the defendant falls within one of the three categories of
Second, the imposition of the low term becomes presumptive only after the sentencing court makes findings in addition to those supporting the
To summarize, under
III
The Trial Court Did Not Abuse Its Discretion
Hilburn‘s final argument is that the trial court‘s imposition of the middle term was an abuse of discretion because the aggravating circumstances relied on by the court to impose the middle term “did not so outweigh the mitigating circumstances that the interests of justices required an elevated term.” We disagree.
After a sufficient factual basis to support the circumstances in aggravation or mitigation is found, the court enjoys broad discretion in its sentencing determination. The trial court‘s sentencing decision is “review[ed] for abuse of discretion.” (People v. Sandoval (2007) 41 Cal.4th 825, 847.) That “discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an ‘individualized consideration of the offense, the offender, and the public interest.’ ” (Ibid.) The court abuses “its discretion ... if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.” (Ibid.)
Hilburn has not shown the court abused its discretion. Rather, the record establishes the court carefully considered the relevant aggravating and mitigating circumstances. The court recognized that Hilburn‘s youth could qualify him for the recently amended law‘s presumptive low term, and found Hilburn‘s youth was the primary mitigating factor in the case. The court then appropriately determined that Hilburn‘s criminal history and the circumstances of the crime itself, particularly Hilburn‘s use of a firearm and the fact that the robbery occurred inside the victim‘s home, in the middle of the night, while the victim and the home‘s other occupants slept, warranted the middle term. This decision was an appropriate exercise of discretion by the trial court.
DISPOSITION
The judgment of conviction is affirmed.
McCONNELL, P. J.
WE CONCUR:
O‘ROURKE, J.
DO, J.