Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF05661
SCOTLAND , P.J.
Defendant Billy James Hammett was charged in three separate cases with having committed violent crimes on three separate occasions. He entered a negotiated plea of guilty to assault by means of force likely to produce great bodily injury and admitted that the offense was committed while he was participating in a criminal street gang. In exchange for his plea, additional counts and complaints were dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754), and it was agreed that he would receive a maximum of six years in state prison (the upper term of four years for felony assault, plus the low term of two years for the gang enhancement).
Defendant’s guilty plea was based on an incident in which he struck a 72-year-old African American man in the face and kicked him after he fell to the ground. Defendant was wearing a black shirt that displayed “SS” lightening bolts and the words “Whitey Forever,” and he was overheard making statements about “hating old people, blacks, and Jews.”
Penal Code section 1237.5 provides, “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met:
On appeal, defendant contends that imposition of the upper term based on facts not submitted to a jury violated his Sixth and Fourteenth Amendment rights (Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (hereafter Cunningham)), and he challenges the trial court’s statement that he must “verify” his compliance with the gang registration requirement. We shall affirm the judgment.
DISCUSSION
I
The trial court stated three reasons for imposing the upper term for the assault by means of force likely to produce great bodily injury: (1) defendant’s prior convictions are numerous and of increasing seriousness; (2) he was on probation when he committed the crime; and (3) his prior performances on probation and on juvenile parole were unsatisfactory. (Cal. Rules of Court, rule 4.421(b).)
In mitigation, the court found that defendant’s alcohol abuse may have reduced his culpability and that defendant admitted wrongdoing early in the proceedings. (Cal. Rules of Court, rule 4.423(b).)
Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (hereafter 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. (Id. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence that 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 fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely v. Washington (2004) 542 U.S. 296, 303-305 [159 L.Ed.2d 403, 413-414] (hereafter Blakely).) In Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d. at p. 864], the United States Supreme Court held that California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments” to the extent that it allows a judge to impose the upper term sentence “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Ibid., overruling People v. Black (2005) 35 Cal.4th 1238 on this point.)
Thus, the trial court’s reliance on the fact of 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 a prior conviction, the court’s consideration of that factor in aggravation was proper even though it had not been submitted to a jury. (People v. Black (2007) 41 Cal.4th 799, 819 (hereafter Black II)); 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’s prior convictions and his status on probation when he committed the crime 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; orig. italics.)
This is so because “the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies only to a fact that is ‘legally essential to the punishment’ (Blakely, supra, 542 U.S. at p. 313), that is, to ‘any fact that exposes a defendant to a greater potential sentence’ than is authorized by the jury’s verdict alone (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 863]).” (Black II, supra, 41 Cal.4th at p. 812.) “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. (People v. Osband (1996) 13 Cal.4th 622, 728.) 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.’” (Black II, supra, 41 Cal.4th at p. 813.)
Consequently, “[t]he issue to be determined in each case is whether the trial court’s fact finding increased the sentence that otherwise could have been imposed, not whether it raised the sentence above that which otherwise would have been imposed.” (Black II, supra, 41 Cal.4th at p. 815; orig. italics.) “As noted above, . . . the presence of one aggravating circumstance renders it lawful for the trial court to impose an upper term sentence. [Citations.] The court’s factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating facts are found by the court, the upper term remains the maximum that may be imposed. Accordingly, judicial fact finding on those additional aggravating circumstances is not unconstitutional.” (Ibid.)
In any event, we conclude beyond a reasonable doubt that the trial court would have imposed the upper term based solely upon the aggravating circumstance of defendant’s numerous prior convictions. Thus, the court’s reliance on other factors was harmless. (See Washington v. Recuenco (2006) 548 U.S. __, __ [165 L.Ed.2d 466, 474-477].)
II
The trial court ordered defendant “to register pursuant to Penal Code Section 186.30 as a member of [a] criminal street gang within 10 days from your release from custody or within 10 days of your arrival in a city or county, in whichever occurs first, either the chief of police for any city in which you reside or the sheriff if you reside in the unincorporated area of the county. Your failure to register will constitute a new offense.” The court then stated: “If released on parole, the Defendant shall verify that he has complied with registration requirements of Penal Code Section 186.30.” (Further section references are to the Penal Code.)
Defendant does not dispute he is required to register as a gang member upon his release from prison. (§§ 186.30, 186.32.) He simply contends that the trial court should not have said defendant must “verify” his compliance with the registration requirement.
Section 186.31 states: “At the time of sentencing in adult court, or at the time of the dispositional hearing in the juvenile court, the court shall inform any person subject to Section 186.30 of his or her duty to register pursuant to that section. This advisement shall be noted in the court minute order. The court clerk shall send a copy of the minute order to the law enforcement agency with jurisdiction for the last known address of the person subject to registration under Section 186.30. The parole officer or the probation officer assigned to that person shall verify that he or she has complied with the registration requirements of Section 186.30.”
Section 186.30 requires those convicted of violation of section 186.22 to “register with the chief of police of the city in which he or she resides, or the sheriff of the county if he or she resides in an unincorporated area, within 10 days of release from custody or within 10 days of his or her arrival in any city, county, or city and county to reside there, whichever occurs first.” (§ 186.30, subds. (a) and (b)(1).)
Thus, it is the parole officer, not defendant, who is required to verify defendant’s compliance with the registration requirement upon release from prison. We think it probable the trial court simply misspoke when it stated that “defendant” must verify his compliance with the registration requirement. In any event, the court’s comment is of no moment because the abstract of judgment does not contain such a requirement. It states only that defendant “must register [as member of a criminal street gang] [p]ursuant to [section] 186.30 PC.”
DISPOSITION
The judgment is affirmed.
I concur: MORRISON , J.
CANTIL-SAKAUYE, J.
I concur in the majority opinion that the challenge to the upper term fails because of the California Supreme Court’s decision in People v. Black (2007) 41 Cal.4th 799 and that in any event, because the trial court would have imposed the upper term based on defendant’s numerous prior convictions, the court’s reliance on other factors, was harmless. I dissent, however, because defendant failed to obtain a certificate of probable cause, and without one, his appeal must be dismissed.1
Here, defendant entered into a plea agreement with a negotiated sentence. In exchange for the dismissal of other counts and complaints, defendant entered into a negotiated plea to assault by means of force likely to produce great bodily injury and admitted a gang enhancement. It was agreed that he could receive up to a six-year state prison maximum sentence calculated as the upper term of four years for the assault and the low term of two years for the enhancement. The sentencing triad on the gang enhancement is two years, three years or four years. Thus, but for defendant’s plea bargain specifying the negotiated sentence of six years, he could have received up to eight years state prison as a result of his plea and admission, calculated as the upper term on the assault and the upper term on the gang enhancement.
Defendant now challenges the court’s imposition of the six-year state prison sentence, by specifically challenging its imposition of the upper term on the assault charge. A challenge to a negotiated sentence which is imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself. A defendant seeking to challenge that negotiated sentence on appeal must seek and obtain a probable cause certificate. (People v. Panizzon (1996) 13 Cal.4th 68, 79.)
Furthermore, defendant entered into a negotiated six-year state prison lid. At sentencing defense counsel unsuccessfully argued for probation and in the alternative, the low or midterm on the assault charge. Now, defendant challenges the trial court’s imposition of the upper term on the assault charge contending that imposition of the upper term based on facts not submitted to a jury violated his Sixth and Fourteenth Amendment rights. (Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856].) In People v. Shelton (2006) 37 Cal.4th 759, our Supreme Court concluded that inclusion of a sentence lid implies a mutual understanding and agreement that the trial court has the authority to impose the specified maximum sentence and preserves only the defendant’s right to urge that the trial court should or must exercise its discretion in favor of a shorter term. “Accordingly, a challenge to the trial court’s authority to impose the lid sentence is a challenge to the validity of the plea requiring a certificate of probable cause.” (Id. at p. 763.) The appeal should be dismissed.
The counts that were dismissed due to the negotiated plea agreement were based on the following incidents: (1) defendant and a companion got into an altercation with two individuals, one of whom received a stab wound that punctured his spleen; and (2) defendant attacked and struck a person with a beer bottle and defendant’s fists and then attempted to take the person’s truck.
“(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 with the clerk of the court.”