Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. TA062419. Ellen C. DeShazer, Judge.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels, Jeffrey B. Kahan, Louis W. Karlin and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P.J.
Garret Borders entered a plea of no contest to 27 counts of committing a lewd act upon a child under the age of 14 and one count of continuous sexual abuse of a child, and he admitted a multiple victim allegation. (Pen. Code, §§ 288, subd. (a), 288.5, subd. (a), 667.61, subd. (b).) Two counts of lewd conduct and the continuous abuse count, as well as the multiple victim finding, were dismissed pursuant to the People’s petition for writ of habeas corpus. Appellant’s motion to withdraw his plea was denied. On resentencing, the trial court imposed a term of 56 years in prison, comprised of the upper term on one count and consecutive sentences on the remaining counts.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appeals from the denial of the motion to withdraw the plea and from the judgment, contending (1) that the trial court abused its discretion in refusing to permit him to withdraw his plea; (2) that trial counsel provided ineffective assistance in failing to adequately argue and/or provide authority to support the motion to withdraw the plea; (3) that the imposition of the upper term violated the Fifth and Sixth Amendments and Blakely v. Washington (2004) 542 U.S. 296 (Blakely); and (4) that the imposition of consecutive sentences violated his Sixth Amendment right to jury trial under Blakely.
This court issued its opinion in this matter on September 2, 2005. The California Supreme Court denied review. The United States Supreme Court granted appellant’s petition for writ of certiorari, vacated the judgment, and remanded the matter for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). The parties have submitted supplemental briefing on the effect of Cunningham and of the California Supreme Court’s recent opinions in People v. Black (2007) 41 Cal.4th 799 (Black) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). We conclude that the matter must be remanded for resentencing on Cunningham grounds.
Appellant filed a petition for writ of habeas corpus, B180355, which was considered concurrently with the original appeal. A separate order was filed in that matter.
Except for our discussion in part II, this opinion is substantially the same as the opinion filed on September 2, 2005.
FACTS AND PROCEDURAL BACKGROUND
The record discloses as to counts 1 through 25 that between August 1998 and October 2001, appellant committed acts of oral copulation, digital penetration and attempted sexual intercourse upon I.S., beginning when the girl was in kindergarten. Appellant committed the acts with the cooperation of I.S.’s mother, and photographs found on appellant’s computer revealed that appellant engaged in the sexual acts with I.S. while her mother looked on. The record further discloses that in October 1979, appellant committed lewd acts upon his young daughter R. (count 26). In October 1985, he committed lewd acts upon his five-year-old daughter T. (count 27). Between July 1981 and July 1984, appellant committed continuous sexual abuse, including mutual oral copulation several times a month, upon his daughter J., who was then between six and nine years of age (count 28). At the time the felony complaint was filed, the statute of limitations had expired as to the latter three counts, but the complaint alleged that section 803, subdivision (g) extended the statute of limitations.
The girl’s mother was charged in counts 1 through 25 along with appellant. She is not a party to this appeal.
In January 2002, appellant, who was then 62 years of age, waived his right to a preliminary hearing. He entered an open plea of no contest to all counts and admitted the multiple victim allegation, indicating that his plea was “in the best interest of [his] family.” Prior to sentencing, he moved to withdraw his plea, asserting that at the time of the plea he did not understand the consequences. The motion was denied and he was sentenced to 85 years to life in prison, comprised of the upper term for continuous sexual abuse, consecutive sentences on each of the lewd conduct counts, and a 15-year-to-life multiple victim enhancement.
The People subsequently filed a petition for writ of habeas corpus on appellant’s behalf asking that counts 26, 27 and 28 and the multiple victim allegation be dismissed pursuant to Stogner v. California (2003) 539 U.S. 607 (Stogner) and that appellant be resentenced. In Stogner, the United States Supreme Court ruled that section 803, subdivision (g) violated the ex post facto clause as to those counts in which the statute of limitations had expired prior to the effective date of section 803, subdivision (g).
Represented by different counsel, appellant moved to withdraw his plea. He argued that he had entered an open plea of no contest to all counts in the belief that he would be sentenced to 30 years in prison, because of his prior counsel’s defective representation. He also observed that the three counts and enhancement allegation eliminated by the ruling in Stogner “has to effect [sic] the analysis as to whether or not to plead open, assuming that such a deliberation even took place in this case.”
The trial court denied appellant’s motion to withdraw his plea. It granted the People’s petition, dismissing the three counts and the multiple victim allegation in accordance with the dictates of Stogner. On resentencing, it imposed a sentence of 56 years in prison, comprised of the upper term of eight years on count 1 and consecutive terms of two years, or one-third the midterm, on counts 2 through 25.
Appellant filed a notice of appeal in which he indicated (1) that his appeal was based on the sentence or other matters occurring after the plea and (2) that it challenged the validity of the plea. He filed a written statement in support of his request for a certificate of probable cause, but his request for a certificate of probable cause was denied by the trial court. We denied his petitions for writ of mandate seeking the issuance of a certificate of probable cause.
DISCUSSION
I. The challenges to the denial of the motion for withdrawal of the plea
Appellant contends that the trial court abused its discretion in refusing to permit the withdrawal of his plea. He argues that he pled no contest only to spare his daughters from having to testify against him, and in fact he derived no advantage from entering the open plea. He asserts that, had he known that the charges involving his daughters were not properly brought because of the expired statute of limitations, as Stogner ultimately instructed, he would not have entered the plea, and that once these counts were eliminated, the primary reason for the plea did not exist. Alternatively, he argues that if this claim has been waived because it was not adequately presented in the trial court, his trial counsel provided ineffective assistance in failing to adequately argue this issue.
Respondent argues that these contentions constitute a challenge to the validity of the plea and that they must be dismissed in the absence of a certificate of probable cause. Appellant counters that this is a unique circumstance in which his contentions raise issues concerning a matter occurring subsequent to the plea, the dismissal pursuant to Stogner of the counts involving his daughters which removed the reason for his entry of the plea. He therefore asserts that his contentions do not attack the validity of the plea when it was taken, but challenge the viability of the plea in view of the subsequent dismissals. We conclude that respondent is correct.
Section 1237.5 provides, in pertinent part, “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, . . . except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal . . . .”
California Rules of Court, rule 30(b), formerly rule 31(d), sets forth both the section 1237.5 rule and its exceptions. Rule 30(b) provides, in pertinent part, “(1) Except as provided in (4), to appeal from a superior court judgment after a plea of guilty or nolo contendere . . ., the defendant must file in that superior court -- in addition to the notice of appeal required by (a) -- the statement required by Penal Code section 1237.5 for issuance of a certificate of probable cause. [¶] . . . [¶] (4) The defendant need not comply with (1) if the notice of appeal states that the appeal is based on: [¶] (A) the denial of a motion to suppress evidence under Penal Code section 1538.5, or [¶] (B) grounds that arose after entry of the plea and do not affect the plea’s validity. [¶] (5) If the defendant’s notice of appeal contains a statement under (4), the reviewing court will not consider any issue affecting the validity of the plea unless the defendant also complies with (1).”
All further references to rules are to the California Rules of Court unless otherwise indicated.
The question before us is whether appellant’s contention regarding the denial of his motion to withdraw his plea and the related ineffective assistance claim are “so-called certificate issues” that challenge the validity of the plea, for which a certificate of probable cause is required. (In re Chavez (2003) 30 Cal.4th 643, 651 (Chavez).) We conclude that they are. In determining whether a certificate of probable cause is required, “‘“the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.” [Citation.]’” (People v. Buttram (2003) 30 Cal.4th 773, 781-782.) Although appellant asserts that the reason underlying his motion to withdraw his plea arose after the entry of the plea, when, pursuant to Stogner, the People obtained dismissal of the three counts and the allegation involving his daughters, by their very terms his claims raise grounds that affect the plea’s validity. “[A] defendant who has filed a motion to withdraw a guilty plea that has been denied by the trial court . . . must secure a certificate of probable cause in order to challenge on appeal the validity of the guilty plea. [Citations.]” (Chavez, supra, at p. 651; accord, People v. Stubbs (1998) 61 Cal.App.4th 243, 244-245.)
The issues relating to sentencing in this case are not certificate issues, since they do not challenge the validity of the open plea (see People v. Buttram, supra, 30 Cal.4th at pp. 783-785), and hence they are properly before us based on appellant’s notice of appeal, even absent a certificate of probable cause. (People v. Mendez (1999) 19 Cal.4th 1084, 1102, fn. 11.) However, the appeal must be dismissed as to the issues regarding withdrawal of the no contest plea and ineffective assistance of counsel in bringing that motion in the trial court.
II. The challenges to the upper term and consecutive sentences
In resentencing appellant after the dismissal of the three counts involving appellant’s daughters and the multiple victim allegation, the trial court indicated that it had seen the photographs of the sexual acts committed on I.S. by appellant and that it had read the probation report. The probation officer reported, “The defendant would take the [victim] in an alleyway; his home; victim’s home and would participate in oral sex activities. Pictures were found of the victim’s mother standing near the defendant and her daughter while the [victim] performed sex on the defendant. There was another photo of the [victim]’s mother, . . ., performing oral sex on the defendant while the . . . victim was naked watching them. Another photo showed the defendant performing oral sex on the . . . victim as she was naked on the couch. Another photo appeared to be the defendant’s penis inside of the . . . victim’s vagina while her mother looked on. The . . . victim stated the defendant would try and put his penis in her vagina, but she did not think he did.”
The probation officer further stated, “The [victim] stated in the police report that the sexual abuse began when she was four or five because she was in kindergarten. The . . . victim in the police report stated she would see the defendant almost every day and he would touch her every time she saw him. This included putting his fingers inside of her; rubbing her vagina; oral sex and attempting to place his penis in her vagina. Her mother would be present. There were also pictures taken in which her mother would tell her to smile. Also, allegedly the defendant had physical contact with her mother in which he would orally copulate her mother and at times they would both ‘suck on the defendant’s penis’ at the same time. The defendant would also show her dirty magazines which she did not want to look at. She also allegedly saw the defendant put his ‘dinky’ inside her mother’s vagina. He also kissed her mother’s chest and both the defendant and her mother would tell her to watch, including her mother who would state ‘watch, honey.’”
The prosecutor asked the trial court to impose the upper term of eight years on one count and a consecutive sentence on each of the remaining counts, for a total of 56 years, based on “the nature of these particular offenses, the vulnerability of the victim, and the degree of planning that went on in regards to these particular offenses . . . .” Defense counsel requested that the trial court impose a term of 30 years.
The probation report set forth the following factors in aggravation: the crime involved great violence, great bodily harm, the threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness or callousness; the victim was particularly vulnerable; the crime involved multiple victims; the planning, sophistication or professionalism with which the crime was carried out, or other facts, indicated premeditation; and appellant took advantage of a position of public trust or confidence to commit the offense.
In imposing judgment, the trial court stated, “The court had the opportunity to see the photographs and it is beyond comprehension how two adults could destroy the life of a five year old from the age of five to eight.” The court stated that the probation report “outlined the behavior of Mr. Borders towards this child and towards his children whose lives, in essence, he destroyed. And I am not even sure today as we sit here that his daughters have fully recovered from what he did to them. They appear on the outside to be healthy, but I’m not sure psychologically that they are. This child, if she does not get the quality of intervention that she needs -- and she certainly isn’t in an environment where that’s conducive to get the quality of intervention she needs -- will not recover either.”
The trial court concluded, “I believe this is the worst that I have ever had the misfortune of having to see and deal with. It’s worse than any movie I have ever seen, any book I have ever read. Real life beats fiction any day, and this was horrible, horrible, horrible, horrible how any adult male could do this to someone age five, to his children, and to another person’s children . . . .” The trial court found no circumstances in mitigation. It imposed the upper term on count 1 and, stating that appellant “has earned consecutive sentences,” it imposed consecutive sentences on each of the remaining counts.
Appellant contends that the upper term was imposed by the trial court in violation of Cunningham, because there were no recidivist factors and no factors that he admitted or that were found by a jury beyond a reasonable doubt. He further argues that, under Sandoval, supra,41 Cal.4th 825, the error was not harmless beyond a reasonable doubt. We agree with both claims.
The trial court based its choice of the upper term sentence on its determination that this offense was the worst it had ever had to see and deal with, that the victim would not “recover” if she did not get “the quality of intervention that she needs,” and that appellant and the girl’s mother had destroyed the life of a five-year-old child. The imposition of the upper term in this case denied appellant his right to a jury trial.
In Apprendi v. New Jersey (2000) 530 U.S. 466, the United States Supreme Court held 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.” (Id. at p. 490.) The Supreme Court subsequently held 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.” (Blakely, supra, 542 U.S. at p. 303.) The high court recently made it clear that, “[i]n accord with Blakely, . . . the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.” (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 868].) The court concluded that the California determinate sentencing law (DSL) was unconstitutional to the extent it authorized the trial court to impose an upper term sentence based on facts found by the court, rather than by a jury beyond a reasonable doubt. (Cunningham, supra, at p. ___ [127 S.Ct. at p. 871].)
The high court has identified two exceptions to this requirement of a jury trial: the fact of a prior conviction and a fact admitted by the defendant. (Sandoval, supra, 41 Cal.4th at pp. 836-837, citing Blakely, supra, 542 U.S. at pp. 301, 303.) Appellant had no prior convictions, and his plea did not admit any aggravating circumstances.
Under our Supreme Court’s formulation in Black, supra, 41 Cal.4th at page 812, “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” Respondent argues that the multiple victim circumstance applies to render appellant’s sentence constitutional, because appellant admitted that there were multiple victims when he entered no contest pleas to counts involving three of his daughters. We reject this argument. Apart from the fact that the trial court, appropriately, did not rely on this circumstance, the multiple victim circumstance is not a proper aggravating factor in cases such as this, where each count involves but one victim. (Sandoval, supra, 41 Cal.4th at p. 842, fn. 5.)
We must determine whether the constitutional error was harmless beyond a reasonable doubt. On this record, we are unable to do so.
Appellant entered an open plea to all counts, without entering into any agreement as to the sentence he would receive. The California Supreme Court is currently considering the question of whether, under Cunningham, a defendant’s Sixth Amendment right to a jury trial is violated when he is sentenced in accordance with the terms of a plea bargain. (People v. French, review granted Feb. 7, 2007, S148845.)
In Sandoval, our Supreme Court explained that the question was “whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence. . . . [I]f a reviewing court concludes, 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, the Sixth Amendment error properly may be found harmless.” (Sandoval, supra, 41 Cal.4th at pp. 838-839.)
The Sandoval court’s harmless error analysis was premised on its assessment of what the jury would have found, based on the trial evidence before the jury and the jury’s actual verdicts. The Supreme Court’s conclusion that it could not find, beyond a reasonable doubt, that a jury would have found various aggravating factors true beyond a reasonable doubt rested in large part on its determination that some of the issues were “in dispute” or “hotly contested” and that others were “not fully litigated at trial.” (Sandoval, supra, 41 Cal.4th at pp. 841-843.)
Here, there was no trial. Appellant had no opportunity to challenge trial evidence that might have supported imposition of the upper term. (See Sandoval, supra, 41 Cal.4th at p. 839.) Moreover, as the Supreme Court explained, his incentive and opportunity to challenge aggravating factors at the sentencing hearing were not the same as if they had been tried to a jury. (Ibid.) The Supreme Court observed that “a reviewing court cannot always be confident that the factual record would have been the same had aggravating circumstances been charged and tried to the jury,” and to the extent an aggravating circumstance “rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.” (Id. at p. 840.)
The circumstances cited by the trial court in this case were subjective and, with respect to the determinations that appellant had destroyed the victim’s life and that the victim would be unable to “recover” if she did not “get the quality of intervention that she needs,” it is unclear on what evidence they were premised and whether there would have been countervailing evidence for the jury’s consideration. However heinous appellant’s offense appears based on the probation officer’s report, including its description of the photographs, we simply do not know what evidence would have been adduced or admitted on which we would base our analysis of error under Sandoval. It is therefore even more difficult for us than it was for the Supreme Court in Sandoval to conclude beyond a reasonable doubt that a jury would have found beyond a reasonable doubt that the factors cited by the trial court were true.
The matter must be remanded for resentencing, the proceedings to be “consistent with the amendments to the DSL adopted by the Legislature” and the amended rules of court. (Sandoval, supra, 41 Cal.4th at pp. 846-847.)
Appellant raises the issue of the constitutionality of the consecutive sentences imposed in this matter in order to preserve the issue. This contention lacks merit. (Black, supra, 41 Cal.4th at pp. 820-823.)
DISPOSITION
As to the issues raised concerning withdrawal of the no contest plea and ineffective assistance of counsel, the appeal is dismissed. The matter is remanded for resentencing in accordance with the dictates of Sandoval, supra, 41 Cal.4th at pages 846-847. In all other respects, the judgment is affirmed.
We concur: ASHMANN-GERST, J., SUZUKAWA, J.
Associate Justice of the Court of Appeal, Second District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.