Opinion
NOT TO BE PUBLISHED
Sup. Ct. No. 0532864
MORRISON, JUDGE
Defendant Daniel Evan Nelson pleaded no contest to committing a lewd or lascivious act on a child (Pen. Code, § 288, subd. (a)). On appeal, he contends the trial court imposed the upper term based on facts not submitted to a jury in violation of his Sixth and Fourteenth Amendment rights (Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham)). We shall affirm the judgment.
Further undesignated statutory references are to the Penal Code.
BACKGROUND
Defendant was charged with three counts of committing a lewd or lascivious act on a child (§ 288, subd. (a)). Count I was based on an incident occurring on December 8, 2005, and involving Jane Doe #1. Counts II and III were based on incidents occurring in July 2005, and involving Jane Doe #2 and Jane Doe #3.
As part of a plea agreement, defendant entered into a Harvey waiver wherein he agreed, as explained by the trial court, “that although [he is] only pleading to one count, Count I, there are two other counts, similar charges, and the Court can take that into consideration in the sense of crafting the appropriate sentence in this case.” Defendant was also informed and agreed that he could be ordered to make restitution to the victims in the two remaining counts.
People v. Harvey (1979) 25 Cal.3d 754.
Accordingly, defendant entered a plea of no contest to count I. There were no promises as to sentence and defendant acknowledged his sentence would not exceed eight years (the upper term). Thereafter, the trial court found defendant in violation of four separate grants of probation.
In its tentative ruling, the trial court indicated it intended to deny probation and impose the upper term based on: (1) defendant was on four grants of probation at the time the offense was committed, (2) there were three separate victims, (3) the victims were particularly vulnerable, (4) defendant took advantage of a position of trust, and (5) defendant’s convictions as an adult are increasing in seriousness.
Defense counsel then argued at length for probation or a mitigated term. The bulk of his argument, which encompassed approximately 13 pages of the reporter’s transcript, focused on defendant’s need for rehabilitation over incarceration. Defense counsel argued that defendant’s offense was “less serious crime than other instances of the same type of crime. There is no digital or penile penetration of any kind here. The defendant was not armed, there is no report of injury, there is no report of monetary loss[]” and there was no victim in court. He further argued, again at length, that defendant was not a predator or a danger to society, but rather, a “bumbling drunk[.]” He characterized defendant’s offense as alcohol-related and argued that defendant was not sophisticated, and needed rehabilitation, not incarceration.
Defense counsel also presented several individuals, including defendant, to speak to the court in support of probation.
During his lengthy argument, defense counsel mentioned, in a single sentence, that this was defendant’s first felony conviction and later mentioned, again in a single sentence, that defendant is the “kind of young man without a serious criminal record” for the court to take a chance with probation. Defense counsel also admitted that defendant had failed “miserably” on seven grants of probation over the previous five years.
The prosecutor countered by stating that defendant’s offense was not “an alcohol offense[]” but rather, defendant had committed sex offenses on three young girls. The prosecutor argued that the following factors in aggravation applied and justified the upper term: the victim was vulnerable, defendant took advantage of a position of trust, defendant’s convictions were numerous and of increasing seriousness, defendant was on probation at the time the offense was committed, and his prior performance on probation had been unsatisfactory. The prosecutor noted that the factor cited in the probation report -- that defendant was convicted of other crimes for which consecutive sentences could have been imposed -- did not apply. The court interjected its agreement.
Defendant’s criminal history included seven prior misdemeanor convictions: burglary in 2000, vandalism in 2001, forgery in 2003, driving under the influence in 2003, assault with a deadly weapon in 2003, resisting arrest in 2004, and drug possession in 2005. Defendant received probation and county jail time for each conviction, with the exception of the 2005 drug possession, for which he received Proposition 36 probation.
After counsels’ argument, the trial court then responded that it remained convinced that defendant was not a suitable candidate for probation. In explaining its reasoning, the trial court specifically addressed the sex offender and psychological reports, which had been emphasized by defense counsel during argument. With respect to the appropriate prison term, the trial court then stated, “I believe it’s the aggravated term of eight years. I believe that there’s escalating probationary terms, but more importantly is he’s taken advantage of a position of trust on these three young girls, and based on that I think that the aggravated term of eight years is an appropriate sentence.”
DISCUSSION
Defendant claims that imposition of the upper term violates the Sixth Amendment to the United States Constitution as interpreted by Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi); Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely); and Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856].
Apprendi held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence a court could impose based solely on facts reflected by a jury’s verdict or admitted by the defendant; thus, when a court’s authority to impose an enhanced sentence depends upon additional factfindings, there is a right to a jury trial and proof beyond a reasonable doubt of the
additional facts. (Blakely, supra, 542 U.S. at pp. 303-305 [159 L.Ed.2d at pp. 413-414].) In Cunningham, the United States Supreme Court held that by “assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence.” California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Cunningham, supra, 549 U.S. at p. __ [166 L.Ed.2d at p. 864], overruling People v. Black (2005) 35 Cal.4th 1238 (Black I) on this point.)
However, “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.” (People v. Black (2007) 41 Cal.4th 799, 816 (Black II).)
Here, among the facts relied on by the trial court were that defendant was on four grants of probation at the time the offense was committed and that his convictions as an adult are increasing in seriousness. Defendant argues that, since the trial court did not repeat those reasons after counsel arguments on sentencing, the court did not rely on those facts. We disagree.
First, we note that the trial court did, in fact, restate the factor of defendant’s failed probationary terms when it imposed sentence (stating, “there’s escalating probationary terms”). Second, the fact that the trial court chose to respond to defense counsel’s argument, rather than merely restate its comments made prior to counsel arguments, does not establish that the trial court abandoned its earlier reasoning for imposing the upper term.
There was certainly nothing in defense counsel’s argument that would have swayed the trial court to disregard its earlier conclusion that defendant was on four grants of probation at the time the offense was committed, there were three separate victims, and defendant’s convictions as an adult are increasing in seriousness. Indeed, defense counsel admitted defendant was on four grants of probation and noted he had, in fact, failed on seven grants of probation in five years. Defense counsel never mentioned the dismissed counts or the two victims, nor argued they did not exist or should not be considered. Defense counsel did mention, in passing, that this was defendant’s first felony conviction and that defendant did not have a serious criminal record. However, defense counsel did not, and could not, suggest that, contrary to the trial court’s earlier statement, the current serious felony was not more serious than his previous seven misdemeanors. In sum, the record does not support a conclusion that the trial court had been persuaded to abandon its previous reasoning.
The trial court’s reliance on defendant’s prior convictions did not violate the Apprendi/Blakely/Cunningham rule even though that fact was not submitted to a jury. And because defendant’s status on probation was related directly to his prior convictions, the court’s consideration of that factor in aggravation was proper even though it had not been submitted to a jury. (Black II, supra, 41 Cal.4th at p. 819; People v. Thomas (2001) 91 Cal.App.4th 212, 223; see U.S. v. Corchado (10th Cir. 2005) 427 F.3d 815, 820 [the rule does not apply to “‘subsidiary findings’” “related to” a prior conviction, such as the defendant’s status on probation].) Defendant had been placed on seven grants of probation in five years, counsel admitted he had “failed miserably,” and the trial court had just found him in violation of four of those grants.
Moreover, defendant waived any right he may have had to have a jury decide whether he was on probation at the time he committed the current offense. Prior to entering his plea, defendant stated that he was aware he would be found in violation of his four trailing probation cases by virtue of his plea. After entering his plea, defense counsel submitted the matter and the trial court found defendant in violation of his probation in all four cases.
A defendant may waive his rights under Apprendi, supra, 530 U.S. 466 [147 L.Ed.2d 435] by either stipulating to the relevant facts or consenting to judicial factfinding. (Blakely, supra, 542 U.S. at p. 310 [159 L.Ed.2d at pp. 417-418].) Here, defendant implicitly admitted his status as a probationer by acquiescing, without objection, to the adjudication of the alleged probation violations in the four trailing cases in conjunction with the plea on the current offense. There was no Blakely error when the court later considered that fact in determining the appropriate term.
Additionally, we note that, in selecting the upper term, the trial court also relied on the fact that there were three separate victims. Although count I involved only Jane Doe #1, dismissed counts II and III involved two additional victims. Defendant expressly agreed, pursuant to his Harvey waiver, that the court could consider the dismissed counts in fashioning the appropriate sentence. Having agreed that the trial court could consider those facts for purposes of aggravating his sentence, defendant cannot complain of error under Blakely and Apprendi. (Blakely, supra, 542 U.S. at p. 310 [159 L.Ed.2d at pp. 417-418]; Apprendi, supra, 530 U.S. at p. 488 [147 L.Ed.2d at p. 453].)
In Harvey, supra, 25 Cal.3d 754, the Supreme Court held that, in imposing sentence under a plea bargain, the court may not consider evidence of any crime as to which charges were dismissed as a “circumstance in aggravation” supporting the upper term on the remaining counts. (Id. at p. 758.) The court deemed it “improper and unfair” to permit the sentencing court to consider any of the facts underlying dismissed counts because, absent an agreement to the contrary, a plea bargain implicitly includes the understanding that the defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, dismissed counts. (Ibid.)
Defendant’s prior convictions, his status on probation when he committed the crime, and his multiple victims, individually and collectively made him eligible for the upper term. Thus, once the trial court made those findings, the Sixth Amendment “permit[ted] 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, supra, 41 Cal.4th at p. 813.)
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., BUTZ, J.
To avoid the Harvey restriction, prosecutors often “condition[] their plea bargains upon the defendant agreeing that the sentencing court may consider the facts underlying the not-proved or dismissed counts when sentencing on the remainder.” (People v. Myers (1984) 157 Cal.App.3d 1162, 1167.) Defendants may accept this relatively minor potential consequence in order to avoid other convictions or sentencing enhancement terms. (Ibid.) This agreement is known as a “Harvey waiver.” (Ibid.) A Harvey waiver permits the sentencing court to consider the facts underlying dismissed counts and enhancements when determining the appropriate disposition for the offense or offenses of which the defendant stands convicted. (People v. Moser (1996) 50 Cal.App.4th 130, 132-133.)