Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA236684, George G. Lomeli, Judge.
Valerie West, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Jamie L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent
OPINION
COOPER, P. J.
INTRODUCTION
This case is before us for a second time, following remand from the Supreme Court of the United States for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), which held that California’s determinate sentencing law (DSL) violates a defendant’s federal constitutional right to a jury trial by assigning to the trial judge, rather than the jury, the authority to make factual findings that subject a defendant to the possibility of an upper term sentence.
Initially, Lowry appealed from a judgment entered after his plea of nolo contendre to a charge of possession of a controlled substance (Health & Saf. Code, §11377, subd. (a)) and admission of a prior “strike” allegation. On November 14, 2005, we filed an opinion affirming the judgment in all respects. Thereafter, appellant filed a petition for writ of certiorari before the United States Supreme Court. The Supreme Court granted Lowry’s petition, vacated the judgment of this court, and remanded the matter to us for further consideration in light of Cunningham. On October 9, 2007, we recalled the remittitur issued on February 22, 2006, vacated the opinion filed on November 14, 2005 and requested the parties file supplemental briefs addressing the effect, if any, of Cunningham, People v. Black (Black II) (2007) 41 Cal.4th 799, and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval) on appellant’s sentence.
The parties submitted their briefs and we have considered their submissions. As we shall explain, we find no constitutional error in the sentencing in this case. We again affirm the judgment in its entirety.
CONTENTIONS ON APPEAL
Defendant’s contention on appeal in his initial brief was that the upper term sentence imposed by the trial court was based on aggravating facts not determined by the jury beyond a reasonable doubt, or admitted by defendant, in violation of the Sixth Amendment right to a jury trial under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531] (Blakely). In his supplemental opening brief, appellant adds the argument that “the aggravating factors relied on by the court had nothing to do with the crime charged and procedurally there never was any jury to which these factors could have been submitted, since they occurred after appellant’s plea. . . . While it is undisputed that appellant did not appear for sentencing as originally scheduled, the actual reasons for this failure were contested but no evidence was presented by either of the parties.”
Respondent contends that Lowry’s appeal must be dismissed because:
1) Appellant did not obtain a certificate of probable cause to challenge the constitutionality of the sentence imposed; 2) any Cunningham error was harmless because a jury “applying the beyond-a-reasonable doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury”; or 3) beyond a reasonable doubt, on remand, the trial court would again impose an upper term.
FACTS AND PROCEDURAL BACKGROUND
On December 11, 2002, appellant pleaded nolo contendere to a charge of possession of a controlled substance (Health and Saf. Code, § 11377, subd. (a)). In addition, Lowry admitted the truth of a prior “strike” allegation.
The prosecutor informed appellant that “we are going to have you plead guilty to count 1 today, the possession case; admit the prior strike, and the sentence would be 32 months.” The court based the sentence on a low term for the offense, 16 months. Lowry’s prior strike would double the 16-month sentence. Pursuant to the plea agreement, the prosecutor dismissed a charge of misdemeanor possession of a smoking device (Health and Saf. Code, § 11364). Lowry agreed to assist the Bureau of Alcohol, Tobacco, Firearms and Explosives after posting bail.
In addition, Lowry entered a waiver pursuant to People v. Cruz (1988) 44 Cal.3d 1247 (Cruz); the court could subject him to an enhanced sentence for a separate offense without a trial. The prosecutor warned Lowry that a failure to return to court would result in an open plea with “up to six years in state prison.” Lowry confirmed that he would appear in court. Contrary to his agreement, Lowry failed to appear in court. Lowry eventually was located in Illinois; he had been arrested for various traffic violations and for obstruction of justice. Upon his return to court, the sentencing judge denied probation and imposed the upper term of 36 months, which was to be doubled due to the prior strike.
At sentencing, the judge stated:
“Let me say that I am inclined to give him the high term on this matter in view of his egregious behavior. [¶]. . . [¶] And the court then, based on the representations made by the attorneys, and I take it based on their reliance on the defendant’s representations, convinced this court to allow him to plea open to this court, and then to have him to leave for purposes of cooperation. He shortly thereafter disappeared and absconded. . . . He was picked up in another jurisdiction who attempted to expedite him, and that didn’t work out. And he subsequently picked up a misdemeanor case. . . . The court’s indicated in all of the factors, I am inclined to impose the high term three years to be doubled pursuant to 1170.12 (a) through (d). . . . I find his behavior of absconding more egregious than anything. He didn’t abide by the agreement. He was warned by this court and advised by this court at the time of his plea that that behavior would not be tolerated, and as a consequence of that, he would be facing an open plea and an open sentence by this court. [¶]. . . [¶] The defendant is sentenced to six years in state prison. The court will select the high term of three years based on the aggravating factors the court referenced on the record with respect to Count 1.” (Italics added.)
The minute order prepared for that date states, “The court imposes the upper term due to the following factors in aggravation: [¶] (1) Defendant [appellant] immediately absconded from law enforcement in violation with his agreement to cooperate with them. [¶] (2) Defendant [appellant] remained at large close to one year from this jurisdiction. [¶] (3) Defendant [appellant] was brought before the court as a result of the issuance of a bench warrant. [¶] (4) Defendant [appellant] was arrested and charged with a new case.
Upon receiving his sentence, appellant requested a certificate of probable cause. Appellant claimed that the “sentence exceeded that authorized by the plea agreement and is excessive.” The superior court rejected the request.
DISCUSSION
Appellant’s contentions are that his sentence exceeded that authorized by the plea agreement and is excessive and further that the sentence violated Cunningham. In the trial court, appellant accepted a negotiated plea bargain for a specified term that allowed him to be released on his own recognizance. (People v. Hester (2000) 22 Cal.4th 290, 295; see People v. Buttram (2003) 30 Cal.4th 773, 785-787.) He received the benefit of dismissal of other charges and the opportunity to remain out of custody pending sentencing. The downside of the Cruz agreement was made very clear to appellant at the time of the plea. In these circumstances, we conclude he cannot now raise any Cunningham issue which might otherwise have existed. (See People v. Shelton (2006) 37 Cal.4th 759, 767; People v. Buttram, supra, 30 Cal.4th at p. 783; accord People v. Vargas (2007) 148 Cal.App.4th 644, 648.)
To begin with, the violation of a Cruz waiver is the breach of an agreement, not a fact used to impose a higher sentence. The violation of the waiver provisions differs from a fact used to impose a higher sentence because of the different contexts -- a voluntary plea agreement versus the making of factual findings to determine an involuntary, judge-imposed sentence. Here, appellant had been advised of the higher sentence to be imposed by the court if he failed to comply with the terms of the agreement and went forward with the plea. A trial court making a Cruz violation determination is not making a finding in aggravation or a discretionary sentencing choice. (See People v. Carr (2006) 143 Cal.App.4th 786, 794.) Consequently, there is no “upper term choice” or “increased sentence choice” as contemplated by Blakely and Cunningham. In Blakely, the court said the following: “When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial fact-finding. See Apprendi v. New Jersey (2000) 530 U.S. [466,] 488, [citation]; Duncan v. Louisiana (1968) 391 U.S. 145, 158, [citations]. If appropriate waivers are procured, States may continue to offer judicial factfinding as a matter of course to all defendants who plead guilty.” (Blakely, supra, 542 U.S. at p. 310.)
We conclude that here, as well, when appellant waived his right to a jury trial in contemplation of the bargained-for plea, he waived his right to a jury trial on all issues, including the sentencing issue he raises now as to the conditions of his Cruz waiver. His waiver of the right to a jury trial and agreement to the agreed-to sentence supports the trial court’s imposition of the upper term sentence.
Appellant attempts to restore the Cruz waiver scenario to the Cunningham fold by arguing that the record provides no evidence that he failed to abide by the terms of the plea agreement. This is not accurate, the record does contain evidence that appellant failed to return for sentencing and only returned to court as a result of his arrest on a misdemeanor matter in California and the bench warrant issued in this case. We can’t determine from the record whether he fulfilled his promise to cooperate with the federal law enforcement officials, but it is not necessary to make that specific factual finding. We believe this argument is somewhat disingenuous and misses the point because it is a matter of common understanding that the determination whether or not there has been a Cruz violation is a matter for determination by the trial court, not a matter calling for the fact finding services of a jury panel.
We do not find that the trial court would have sentenced appellant to the high term based on any court or jury findings made beyond a reasonable doubt. We are aware that we are allowed in certain circumstances to find that any Cunningham error was harmless if we conclude “beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury . . . .” (Sandoval, supra, 41 Cal.4th at p. 839) Similarly, when it is clear that the trial court would sentence to high term based on allowable factors, we can avoid the wasted effort of returning the case for resentencing. In this case however, although the record does contain evidence that appellant had numerous prior convictions and that his performance on probation and parole was unsatisfactory, the trial court did not refer to these factors in making his sentencing determination. This was a single count drug case by a defendant with one prior strike. Absent the “egregious” violation of the Cruz agreement, it is not evident that appellant would have been sentenced to the high term; regardless of any potential findings about his recidivist tendencies.
DISPOSITION
The judgment of the trial court is affirmed.
I concur: RUBIN, J.