Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. TA077957.
William R. Chidsey, Jr., Judge.
Heather J. Manolakas, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Locker and Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews, Kristofer Jorstad and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P.J.
The United States Supreme Court granted certiorari in this case and vacated the judgment, for “further consideration” in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).
Appellant Vance Ervin was convicted by a jury of possession of a firearm by felon with a prior conviction (Pen. Code, § 12021, subd. (a)(1); count 1) and carrying a loaded and unregistered firearm (§ 12031, subd. (a)(1); count 2), with a finding that he had a prior serious or violent felony conviction (§§ 667, subds. (b) – (i), 1170.12, subds. (a) – (d)). Appellant was sentenced to prison for a total term of six years, consisting of double the upper term of three years on count 2 and a similar stayed sentence on count 1.
Unless otherwise indicated, all statutory references are to the Penal Code.
Appellant contends: (1) imposition of the upper term reflected improper punishment for exercising his right to a jury trial; (2) he was sentenced for a crime with which he was not convicted; and (3) imposition of the upper term violated his right to trial by jury, as interpreted in Blakely v. Washington (2004) 542 U.S. 296 (Blakely), because the aggravating factors were not found true by a jury.
On June 8, 2006, we filed an opinion rejecting all three of appellant’s contentions. Our rejection of the Blakely issue was based on People v. Black (2005) 35 Cal.4th 1238 (Black I), in which our Supreme Court held that Blakely did not apply to imposition of the upper term under California’s Determinate Sentencing Law (DSL).
On January 22, 2007, the United States Supreme Court abrogated Black I in Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856]. Cunningham held that imposition of the upper term under the DSL violated the Sixth and Fourteenth Amendments, “by placing sentence-elevating factfinding within the judge’s province.” (Cunningham, at p. ___ [127 S.Ct. at p. 860].)
On February 20, 2007, the United States Supreme Court granted certiorari in Black I and vacated the judgment, for further consideration in light of Cunningham. (Black v. California (2007) ___ U.S. ___ [127 S.Ct. 1210].)
As indicated, this case was sent back to us in March of 2007, for “further consideration” in light of Cunningham. In August and September of 2007, both sides filed supplemental Cunningham briefing.
Meanwhile, on July 19, 2007, the California Supreme Court filed opinions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825, both of which explained the effect of Cunningham. We are guided by those cases for the Blakely issue here. We take from our prior opinion the recitation of the facts and the discussion of the two other issues raised. However, we use a new analysis of the issue of the upper term at sentencing without a jury finding, based on Cunningham and Black II. We nonetheless still conclude that the upper term was appropriate due to appellant’s prior criminal record.
Accordingly, the result is the same disposition as in our prior opinion.
FACTS
On February 5, 2005, at approximately 11 p.m., two Los Angeles police officers were on duty driving an unmarked Crown Victoria down an alley behind two apartment complexes which faced 120th Street. The officers noticed appellant and two other people standing between the apartment buildings. One of appellant’s companions was drinking some beer from a bottle.
The two officers parked their vehicle and then approached appellant and his companions. Appellant turned in their direction and appeared startled to see the police. He turned his body away from the officers and put his hands to his waistband area, with each hand at a pocket. Appellant then pulled a revolver out of his left pants pocket, and tossed it in front of him where it slid several feet across the sidewalk.
One of the officers arrested appellant. The gun appellant had discarded was a .32 caliber revolver containing six live rounds of ammunition. The gun was not registered to appellant.
In appellant’s defense at trial, one of his companions asserted that she did not see appellant in possession of the gun and never saw him discard a gun. Appellant claimed that he did not dispose of or possess a gun on the evening of his arrest. Appellant admitted during cross-examination that he had been convicted in 1997 of the felony possession of marijuana for sale.
DISCUSSION
I. The trial court did not deny appellant due process by imposing a longer prison term after trial than appellant would have received had he accepted the pretrial offer to plead guilty or no contest to the charges.
Contrary to appellant’s contention, the court did not punish him with a longer sentence because he chose to go to trial. It is well settled that punishing a defendant for exercising the right to a trial by jury is “‘a due process violation of the most basic sort.’” (In re Lewallen (1979) 23 Cal.3d 274, 278.) Nonetheless, “not every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive such a right, is invalid. Specifically, there is no per se rule against encouraging guilty pleas. We have squarely held that a State may encourage a guilty plea by offering substantial benefits in return for the plea.” (Corbitt v. New Jersey (1978) 439 U.S. 212, 218-219, fns. omitted.)
The legitimacy of plea bargaining, which can benefit both the prosecution and the defense, is well established. (People v. West (1970) 3 Cal.3d 595, 604-605.) Imposing a longer sentence on a defendant who goes to trial, in comparison to the shorter sentence he would have received had he pled guilty pursuant to a plea bargain, is the logical and inexorable converse of offering a defendant a shorter sentence in exchange for a guilty plea in the first place.
“When a defendant voluntarily chooses to reject . . . a plea bargain, he retains no right to the rejected sentence. Having rejected the offer of a lesser sentence, he assumes the risk of receiving a harsher sentence. If defendants could demand the same sentence after standing trial that was offered in exchange for a guilty plea, all incentives to plead guilty would disappear. Defendants would lose nothing by going to trial. [Citation.] The reality of plea bargaining is that ‘[o]nce the defendant elects to go to trial, all bets are off.’” (United States v. Carter (9th Cir. 1986) 804 F.2d 508, 513-514.)
In the present case, prior to trial the prosecutor agreed to accept a plea of guilty or no contest with the understanding that appellant would be sentenced to 32 months, consisting of double the low term on either of the two counts plus admission of the alleged prior strike. The court noted that in view of the possibility of some overlapping of the charges, appellant’s maximum exposure at trial would be “at the very least” six years in prison. There was nothing constitutionally infirm in the offer or in withdrawing the benefit once the offer was rejected and appellant proceeded to trial.
We also note that after trial, the sentencing court had before it appellant’s probation report which indicated, in pertinent part, that appellant had two prior felony convictions and one misdemeanor conviction for drugs, two sustained juvenile petitions (one case involving a robbery and the other possession of a firearm), and “unsatisfactory” performance while on probation. To the extent such details were not before the court at the time the plea offer was extended but were thereafter considered at sentencing after trial, such new information could well warrant imposition of a sentence longer than that originally offered.
II. The trial court did not sentence appellant for a crime with which he was not charged.
Count 2 of the information alleged that appellant possessed on his person and in a vehicle an unregistered and loaded firearm, in violation of section 12031, subdivision (a)(1). At the time of sentencing, the court discussed count 2 and, according to appellant, sentenced based on the fact that the charge was a different offense, possession of a loaded gun by a felon in violation of section 12031, subdivision (a)(2)(A), which was not charged in the information. However, viewed in its proper context, we do not read the record in such a fashion and thus find no reversible error.
“The entire record may be looked to in ascertaining the offense for which an accused is sentenced, and erroneous recitals or statements by the court in pronouncing sentence will not vitiate the judgment when the record fully discloses the offense for which the accused was indicted [or accused by information], tried and convicted.” (People v. Hesbon (1968) 264 Cal.App.2d 846, 851-852.)
In the present case, count 1 alleged possession of a firearm by a felon (§ 12021, subd. (a)(1)), and count 2 alleged possession of a loaded and unregistered firearm (§ 12031, subd. (a)(1)). At sentencing, after the court declined to strike the prior felony strike (§§ 667, subds. (b) – (i), 1170.12, subds. (a) – (d)) alleged in count 2, it found no factors in mitigation. Regarding aggravating factors, the court noted prior convictions and stated, “this is a gun charge, possession of a firearm by a known felon, that is an aggravating factor, although it relates to the charge.” Since the court found the factors in aggravation substantially outweighed the factors in mitigation, it imposed the high term of three years which, because of the strike, was doubled to six years. Thereafter, the court stated, “Now, we have two counts and the sentence goes to count 2, possession of a firearm by a felon. . . . As to count 1, the court will sentence [appellant] along the same lines, three years doubled to six and that sentence is ordered stayed.”
Viewed in its proper context, it is apparent that at sentencing the trial court used the wrong description of count 2, describing it as the offense actually alleged in count 1. The phrase used by the court to describe count 2 (i.e., “possession of a firearm by a felon”) is the exact same phrase used in the information to describe the offense in count 1.
Thus, contrary to appellant’s contention, the trial court did not convict him of a crime with which he was not charged. Rather, the trial court merely misspoke when describing count 2. Such an error in locution will not result in the reversal of a conviction.
III. Imposition of the upper term sentence did not violate appellant’s right to a jury trial under the Sixth and Fourteenth Amendments.
Appellant maintains that under Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856], and Blakely, supra, 542 U.S. 296, the trial court’s imposition of the upper term violated his federal constitutional right to trial by jury and was improperly based on the judge’s own findings of fact made by a preponderance of the evidence. The contention is without merit. The sentence imposed did not violate appellant’s rights under the Sixth and Fourteenth Amendments.
In Cunningham, the United States Supreme Court held that California’s procedure for selecting upper terms violated the defendant’s right to a jury trial under the Sixth and Fourteenth Amendments because it gave “to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence.” (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 860].) The court explained 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 a defendant.” (Cunningham, at p. ___ [127 S.Ct. at p. 860].)
In interpreting Cunningham, the California Supreme Court held that an upper term sentence based on at least one aggravating circumstance complying with Cunningham “renders a defendant eligible for the upper term sentence,” so that “any additional factfinding 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.” (Black II, supra, 41 Cal.4th at p. 812, original italics.) Thus, “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.” (Id. at p. 816.)
Moreover, an aggravating circumstance accords with Cunningham if it is based on the “defendant’s criminal history.” (Black II, supra, 41 Cal.4th at p. 818.) This “exception” for a defendant’s recidivism must not be read “too narrowly” and encompasses “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Id. at p. 819.)
Black II identified in the record before it two aggravating circumstances, each of which was sufficient to support the upper term. One was the jury’s finding that the defendant used force, which was made in the context of a finding that the defendant was ineligible for probation due to the use of force. The other was the defendant’s criminal history. (Black II, supra, 41 Cal.4th at pp. 816-818.) Either of those two aggravating circumstances “independently satisfy Sixth Amendment requirements and render [the defendant] eligible for the upper term.” (Black II, p. 820.)
In the present case, in imposing the upper term the trial court relied in part on appellant’s criminal history. Apart from the trial court’s consideration of factors involving appellant’s current crimes, it found as follows: “The defendant does have prior convictions as an adult and, as proved, a sustained possession for robbery, petition for robbery, two felony convictions for possession [for] sale of marijuana and/or either felony -- or, strike that, cocaine or some other controlled substance. [¶] In addition and as I previously alluded to when the court made its findings with respect to Romero, during the periods of time the defendant was on probation, apparently he wasn’t very successful. It notes that he violated probation on a number of occasions. It is also alluded to that at least [on] one separate occasion he failed to appear based on his written promise to appear.”
Thus, appellant’s criminal record before the court at sentencing rendered him eligible for the upper term. The imposition of the upper term was proper, and the trial court’s reliance on any additional aggravating circumstance findings did not violate appellant’s right to a jury trial under Cunningham.
Additionally, appellant admitted during cross-examination at trial that he had been convicted in 1997 of the felony possession of marijuana for sale.
Appellant also urges that the recidivism exception of Allendale-Torres v. United States (1998) 523 U.S. 224, 235, 247, allowing use in aggravation of a prior conviction found by the trial court, does not permit findings that involve more than the “fact” of a prior conviction. However, Black II, supra, 41 Cal.4th at pages 819-820, rejected that very argument. As Black II interpreted Cunningham, only one valid aggravating factor is necessary, and a defendant’s prior criminal history is a valid aggravating factor. We, of course, are bound by the decisions of our Supreme Court and must follow Black II. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Accordingly, appellant’s federal constitutional right to trial by jury was not violated by the court’s imposition of the upper term.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, J., CHAVEZ, J.