Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC623859
Premo, J.
Defendant Toni Janice Bergschneider pled guilty to conspiracy to commit grand theft and 25 counts of grand theft (Pen. Code, §§ 182, 484, 487, subds. (a), (c)), and admitted taking property exceeding $50,000 in value. (§ 12022.6.) Defendant now challenges the trial court’s finding several factors in aggravation to justify an aggravated sentence for the conspiracy count.
Further statutory references are to the Penal Code unless otherwise stated.
FACTS
A brief account of the facts is taken from the probation report which defendant does not acknowledge as accurate in her opening brief. After a September 2004 fraud complaint, the San Jose Police Department started an investigation, which found many reports to other agencies of grand thefts involving defendant and two codefendants, her husband, Joseph Lauricella, and her son, Jesse Lauricella. The police discovered that the defendants created and ran various businesses that were used for fraudulently collecting money from various victims. The victims of the instant case had contacted “Volvo Werks,” defendants’ business, which advertised on eBay that it would restore older Volvo automobiles. The victims bought Volvo vehicles or motors from various sellers on eBay and sent money to Volvo Werks for restoration and delivery of their purchases. The items were for the most part not delivered, nor were most of the purchasers reimbursed for the advance payments.
Defendant pled guilty as stated above. The probation report listed a number of factors in aggravation and mitigation that might apply, and the report stated defendant had suffered a prior conviction in 1996 in case No. 184059 for insufficient funds checks (§ 476a) for which she was placed on five years formal probation and sentenced to six months in county jail. Probation was later revoked and a 16-month prison sentence was imposed.
Just before imposing sentence, the trial court stated, “This matter is a [California Rules of Court] Rule 412(a) [(agreed-upon sentence)] disposition, and under the terms of that disposition . . . probation will be denied. The defendant will be committed to the California Department of Corrections for four years, and that sentence will be as follows: [¶] On Count 1, [conspiracy] the aggravated term of three years, with an additional year . . . [consecutive for the great taking enhancement for] . . . the total of four years.”
California Rules of Court, rule 412(a) was amended effective January 1, 2001, and was renumbered 4.412(a). It states that a defendant’s agreement to a sentence or other disposition is an adequate reason for its imposition provided the agreement of the defendant and defense counsel appears on the record and the prosecuting attorney has not expressed an objection to it. The rule does not authorize a sentence that is not otherwise authorized by law. Neither party’s briefs discussed whether the rule applies in this case or has any effect on the issue and the record does not show that a specific term of years was promised to and accepted by defendant. When defendant pled guilty on May 4, 2006, defendant answered “no” when the trial court asked her if anyone made any promises to her to induce her guilty pleas other than what was stated on the record, and answered “yes” to the question “do you understand [that the maximum sentence in this case would be 11 years, four months in state prison]?” The court also informed defendant and she stated she understood that she could be sentenced to state prison for that term or a lesser term or could be placed on felony probation and that she could be ordered to pay fines, actual restitution, and other fees.
The court then found circumstances in aggravation: Under California Rules of Court, rule 4.421(a)(4), defendant induced others to participate in the commission of the crime or occupied a position of leadership or dominance; under rule 4.421(a)(7), defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences were being imposed; under rule 4.421(a)(8), the manner in which the crime was carried out indicates planning, sophistication, or professionalism; and under rule 4.421(a)(9), the crime involved an attempted or actual taking of great monetary value; under rule 4.421(b), factors relating to the defendant, defendant’s prior convictions were numerous or of increasing seriousness (rule 4.421(b)(2)); defendant has served a prior prison term (rule 4.421(b)(3)); and defendant’s prior performance on parole or probation was unsatisfactory (rule 4.421(b)(5)).
In mitigation, under California Rules of Court, rule 4.423(a)(3), the court found that defendant committed the crime because of an unusual circumstance, such as great provocation, that is unlikely to recur. The court then stated that the aggravated factors significantly outweighed the mitigating factors and that the aggravated sentence was appropriate. In addition, “the stipulated midterm of two years” was imposed to run concurrently on counts 2 through 8 and 10 through 27 for a maximum of four years. This appeal ensued.
ISSUE ON APPEAL
Defendant complains that the trial court deprived her of her Sixth Amendment right to have an evidentiary hearing with a jury determination, beyond a reasonable doubt, of the existence of any aggravating factor which the court used to support imposition of the upper term sentence. The People declare that the claim is forfeited because defendant failed to object in the sentencing court.
Our Supreme Court recently held in People v. Sandoval (Cal. 2007) 161 P.3d 1146, 1153, footnote 4 (Sandoval), that Blakely v. Washington (2004) 542 U.S. 296 “changed the law ‘so unforeseeably that it is unreasonable to expect trial counsel to have anticipated the change.’ [Citation.] [¶] . . . [¶] . . . [O]ur decision in Black I [(People v. Black (2005) 35 Cal.4th 1238, disagreed with by Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856, 863-864])] was binding on the lower courts until it was overruled by the high court. [Citation.] Had defendant requested a jury trial on aggravating circumstances, that request clearly would have been futile, because the trial court would have been required to follow our decision in Black I and deny the request.”
DISCUSSION
Defendant complains that the trial court erred in imposing an upper term sentence on count 1 because at her sentencing hearing, the trial court, not a jury, found seven factors in aggravation, none of which “were necessarily established by [defendant’s] guilty plea to any of the substantive offenses,” or by any “admi[ssion] that any of these aggravating factors were true.” Nor did defendant waive her right to a jury determination of their validity. Defendant adds that at a proper enhancement hearing, she would be entitled to other Sixth Amendment protections guaranteed by the Confrontation Clause of the United States Constitution, namely to “see and be seen by those who give evidence . . . [(California v. Green (1970) 399 U.S. 149, 157)], [and to] cross examine all witnesses who give evidence against her. (Pointer v. Texas (1965) 380 U.S. 400, 404.)” In this case, the trial court “impos[ed] the upper term based solely on what was contained in the probation report.”
“The United States Supreme Court has recognized two exceptions to a defendant’s Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury’s verdict. [Citation.] Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction.” (Sandoval, supra, 161 P.3d at p. 1153 .)
In the instant case, defendant’s 1996 felony conviction for insufficient funds checks for which she served a prison term (Cal. Rules of Court, rule 4.421(b)(5)) falls under the second exception.
This one factor in aggravation makes defendant eligible for an aggravated sentence. “Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence and the upper term sentence is the ‘statutory maximum.’ ” (People v. Black (2007) 41 Cal.4th 799, 813.)
Nevertheless, the additional factors in aggravation found by the trial court fall within the first exception: a fact admitted by the defendant. The court correctly found under California Rules of Court, rule 4.421(a)(7), that defendant was convicted of other crimes (she admitted 25 counts) for which consecutive sentences could have been imposed but for which concurrent sentences were being imposed, and rule 4.421(a)(9), the crime involved an actual taking of great monetary value (defendant admitted to over $50,000). These factors were not used in aggravation, however, because the trial court imposed concurrent sentences on the additional counts and a consecutive sentence on the enhancement. Nevertheless, “[b]y providing that the defendant’s prior record and simultaneous convictions of other offenses may not be used both for enhancement and in aggravation, section 1170 [subdivision] (b) indicates that these and other facts extrinsic to the commission of the crime may be considered in aggravation in appropriate cases.” (Advisory Com. com. following Cal. Rules of Court, rule 4.421.)
The People state the crimes-of-increasing-seriousness (Cal. Rules of Court, rule 4.421(b)(2)) and unsatisfactory-performance-on-parole-or-probation factors (rule 4.421(b)(5)), fall within the recidivism exception, referencing two cases. In both cases cited by the People, review was granted: People v. Sayres (2007) 150 Cal.App.4th 1040, and contra, People v. Govan (2007) [2007 Cal.App. LEXIS 752] [58 Cal.Rptr.3d 829], review granted July 18, 2007, S153330.
The trial court did not deprive defendant of her Sixth Amendment rights in finding factors in aggravation and in sentencing her to the aggravated term in count 1.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.