Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA 054790, Cynthia Rayvis, Judge.
California Appellate Project, Jonathan B. Steiner and Ronnie Duberstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
In a plea bargain, the People dismissed enhancement allegations based on defendant’s prior convictions and defendant agreed that if he violated the terms of his probation the trial court could impose the upper term sentence. Defendant violated his probation and the court imposed the upper term, citing the dismissed priors as the only aggravating factors. Defendant appeals the sentence contending that the trial court’s decision to impose the upper term based on his prior convictions violated his right to a jury trial and proof beyond a reasonable doubt under Cunningham v. California (2007) 549 U.S. 270. Alternatively, defendant contends that his plea agreement contained an implied understanding that the dismissed priors would not be considered as aggravating factors in sentencing should he violate his probation. We conclude that such consideration in imposing the upper term sentence did not violate defendant’s constitutional rights under Cunningham. We further conclude that although consideration of defendant’s prior convictions to impose the upper term breached an implicit term of his plea bargain, the error was harmless because it is not reasonably probable defendant would obtain a better result on a remand for resentencing. Therefore, we affirm the judgment. We grant defendant’s unopposed motion to correct the trial court’s minute orders and abstract of judgment to show that he was convicted under Penal Code section 245, subdivision (a)(1) of assault by means of force likely to produce great bodily injury.
FACTS AND PROCEEDINGS BELOW
An information charged Jimmy J. Johnson with assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). It also alleged that Johnson previously had suffered two felony convictions that qualified as strikes under the Three Strikes law (§ 1170.12, subds. (a)-(d)), and that he had served two separate prison terms. Johnson pleaded guilty to the assault charge, which subjected him to a maximum sentence of four years, in return for the People’s agreement to dismiss the felony conviction and prison term allegations. By doing so Johnson avoided a possible 25 years to life sentence under the Three Strikes law or, at the very least, a 10-year enhancement for the prior prison terms. Under the agreement, imposition of sentence would be suspended and Johnson would serve 365 days in jail and be placed on three years formal probation. The prosecutor advised Johnson: “[T]he maximum confinement time in your case . . . is four years in the state prison. [¶] . . . .[¶] . . . If you violate [the terms of probation] you could be sentenced to the maximum time of confinement in state prison.” Johnson stated that he understood the possible consequences of a probation violation. The trial court accepted Johnson’s plea and sentenced him according to the agreement.
All statutory references are to the Penal Code.
After Johnson twice violated the terms of his probation, the trial court revoked probation and, on January 16, 2007, sentenced Johnson to the upper term of four years in prison. Six days later the United States Supreme Court handed down its decision in Cunningham v. California, supra, 549 U.S. 270.)
In March 2007 the trial court considered Johnson’s request that in light of the Cunningham decision the court exercise its power under section 1170, subdivision (d), to recall the upper term sentence and resentence him to the midterm on the ground that he could not be sentenced to the upper term absent a jury finding of facts beyond a reasonable doubt supporting that term. The court denied Johnson’s request on the ground that it properly imposed the upper term based on Johnson’s two prior felony convictions, the truth of which, under Cunningham, did not have to be tried to a jury. The court also rejected Johnson’s argument that, because the allegations of those convictions were dismissed as part of his plea bargain, the court could not base the upper term on those same prior convictions.
Johnson filed a timely appeal from the sentence.
DISCUSSION
I. CUNNINGHAM ERROR
The United States Supreme Court and our Supreme Court have consistently held that the rights to a jury trial and proof beyond a reasonable doubt do not apply to the fact of a prior conviction. (Blakely v. Washington (2004) 542 U.S. 296, 301; People v. Towne (June 26, 2008, S125677) ____ Cal.4th ____ [2008 D.A.R. 9681].) We are bound by the decisions of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The People concede that under People v. French (2008) 43 Cal.4th 36, Johnson did not have to obtain a certificate of probable cause to raise a Cunningham issue.
II. THE PLEA BARGAIN
At our request, the parties briefed the following issues: Did the trial court err in imposing the upper term sentence based on the felony convictions and prison term allegations which were dismissed as part of Johnson’s plea bargain? If so, was the error prejudicial? Is a certificate of probable cause required to raise the first issue? We conclude that a certificate of probable cause was not required to raise the issue of whether the court erred by considering the dismissed prior convictions in sentencing. We further conclude that the plea bargain prohibited consideration of such priors in sentencing but that the error was not prejudicial.
A. Certificate Of Probable Cause
Section 1237.5, subdivision (a)(b), provides that a defendant may not appeal from a judgment of conviction following a guilty plea unless he has filed a written statement in the trial court “showing reasonable constitutional, jurisdictional or other grounds going to the legality of the proceedings” and the trial court has “executed and filed a certificate of probable cause for such appeal with the clerk of the court.” The requirement of a certificate of probable cause does not apply to the extent the appeal is based on “[g]rounds that arose after entry of the plea and do not affect the plea’s validity.” (Cal. Rules of Court, rule 8.304, subd. (b)(4)(B).)
This appeal does not require a certificate of probable cause because Johnson is not challenging the validity of his plea agreement. On the contrary, he seeks to enforce that agreement.
B. Imposition Of The Upper Term
1. Procedural background
In addition to charging Johnson with one count of assault, the information alleged that Johnson had suffered two felony convictions for which he had served two separate prison terms. Johnson agreed to plead guilty to the assault charge in return for the People dismissing the prior conviction allegations. Prior to taking Johnson’s plea, the court asked the prosecutor whether the People “would be dismissing all other counts and enhancements” and the prosecutor answered “Yes.” After Johnson entered his plea the prosecutor moved “to dismiss the remaining enhancements.” The court responded: “The remaining enhancements are dismissed per plea agreement . . . .”
When Johnson violated the terms of his probation, the trial court revoked probation and sentenced Johnson to the upper term of four years for the assault. The court stated it was imposing the upper term “based upon the defendant’s two prior convictions.” The court rejected Johnson’s argument that it could not consider the priors as aggravating factors because the People had dismissed them as part of the plea bargain.
2. Aggravation of the sentence based on the dismissed priors
In People v. Harvey (1979) 25 Cal.3d 754, our Supreme Court held that a trial court could not impose an upper term sentence based upon the facts of an unrelated count dismissed as part of a plea bargain. Harvey pleaded guilty to two counts of robbery in return for the prosecution’s agreement to dismiss a third count charging an unrelated robbery. (Id. at p. 757.) In sentencing Harvey to the upper term, however, the trial court expressly relied on a probation report containing an extensive discussion of the facts of the dismissed robbery count. (Id. at pp. 757-758.) The high court reversed Harvey’s sentence on the ground that the trial court’s use of the facts of the dismissed robbery charge was prohibited by the plea agreement. (Id. at p. 758.)
The court reasoned: “[U]nder the circumstances of this case, it would be improper and unfair to permit the sentencing court to consider any of the facts underlying the dismissed count three for purposes of aggravating or enhancing defendant’s sentence. Count three was dismissed in consideration of defendant’s agreement to plead guilty to counts one and two. Implicit in such a plea bargain, we think, is the understanding (in the absence of any contrary agreement) that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count.” (People v. Harvey, supra, 25 Cal.3d at p. 758.)
In In re Knight (1982) 130 Cal.App.3d 602, the court applied Harvey’s reasoning in holding that a trial court could not impose an upper term sentence based upon allegations of prior convictions dismissed as part of a plea bargain. Knight was charged with robbery and two firearm violations. The information alleged four prior felony convictions. Two of the prior felony allegations were dismissed as part of a plea bargain. (Id. at p. 603.) In sentencing Knight to the upper term for the robbery, however, the trial court expressly relied on the two dismissed priors. (Id. at p. 604.) The Court of Appeal vacated Knight’s sentence on the ground that the trial court’s use of the two dismissed prior felony allegations was prohibited by the plea agreement. (Id. at p. 605.)
Citing the Supreme Court’s reasoning in Harvey, the court concluded that “the same implicit understanding exists in a bargain to dismiss prior convictions. We find no material distinction between a bargain to dismiss another substantive offense and a bargain to dismiss a charged prior.” (In re Knight, supra, 130 Cal.App.3d at p. 605, fn. omitted.)
In People v. Haney (1989) 207 Cal.App.3d 1034, the court distinguished Harvey and Knight in holding that the trial court properly imposed an upper term sentence based upon priors that were not charged pursuant to a plea agreement. In Haney, the only express condition of the plea bargain relating to the defendant’s priors was “that the prosecution would not charge any prior prison terms as enhancements . . . .” (Id. at p. 1036.) The agreement did not expressly prohibit the use of the uncharged priors in sentencing.
The court rejected the defendant’s argument that the plea agreement contained an implied term precluding the use of the priors as aggravating factors. “Nothing before us suggests that the instant plea bargain impliedly contains a term precluding use of defendant’s prior prison terms for aggravation. Such a term is unnecessary to give the agreement reasonable meaning, since, as we have noted, the defendant already received a significant benefit from the lack of pleaded enhancements. Nor can we think of any public policy requiring such a construction of the agreement. Nor are we aware of any ‘custom’ or ‘usage’ that would require us to find the implied term urged by defendant.” (Id. at pp. 1039-1040.) The court acknowledged that Harvey and Knight had held that an agreement to dismiss counts or priors contained an implicit understanding that the dismissed charges would not be resurrected at sentencing. Those cases were distinguishable, the court reasoned, because they “presumably relied on the custom and usage surrounding the use of dismissed charges” while Haney involved the use of uncharged priors. (Id. at p. 1040.)
Johnson argues his case is on all fours with Knight. He, like Knight, bargained for the dismissal of prior conviction allegations with the understanding that they would not be considered in sentencing. He maintains the holding in Knight flowed logically from the Supreme Court’s holding in Harvey and that we should follow Harvey and Knight.
The People maintain that Knight was wrongly decided. But whether it was or not, we are not writing on a clean slate. We must enforce the terms of the plea bargain as the parties reasonably understood them at the time of the plea. (Civ. Code, § 1636.) Nothing in the record suggests that the parties were not aware of Knight when they entered into their agreement or that they did not believe it governed their bargain. Indeed, it appears that at that time, Knight’s interpretation of Harvey was so well known that it was the custom and usage for parties to explicitly exclude the Knight limitation when they intended that the struck priors could be considered by the court in sentencing. (See, e.g. People v. Myers (1984) 157 Cal.App.3d 1162, 1168.) Thus in the absence of any indication in the record that the parties did not intend Knight to govern the interpretation of their agreement, we conclude that they intended to adopt its interpretation of their bargain.
C. Prejudice
The People contend that even if the trial court erred in basing the upper term on Johnson’s prior convictions the error was harmless because it is reasonably probable that if we were to remand the matter for resentencing the court would again impose the upper term on the ground that Johnson was on parole and performed poorly on probation when he committed the assault. We agree. Factors in aggravation include that “[t]he defendant was on probation or parole when the crime was committed[.]” (Cal. Rules of Court, rule 4.421, subd. (b)(4).) Here the probation report shows that Johnson was on parole at the time he committed the assault.
III. CORRECTION OF MINUTE ORDERS AND ABSTRACT OF JUDGMENT.
The record shows that Johnson was charged with and pled guilty to “the crime of assault by means likely to produce great bodily injury, in violation of Penal Code section 245(a)(1).” (Some caps. omitted.) The abstract of judgment and the court’s minute orders, however, erroneously describe the crime as “assault w deadly weapon/instr[.]” (All bold and caps. omitted.) Although assault with a deadly weapon or instrument is also a crime listed in section 245, subdivision (a), it is a separate crime from assault by means likely to produce great bodily injury. (People v. Haykel (2002) 96 Cal.App.4th 146, 149.)
Johnson requests that the abstract of judgment and minute orders be corrected to reflect the crime for which he was convicted. The People have not opposed this motion.
We will direct the abstract of judgment and minute orders be corrected.
DISPOSITION
The judgment is affirmed. The court is directed to correct the abstract of judgment and minute orders of September 14, 2005 and January 16, 2007 to reflect that defendant was convicted only of assault by means likely to produce great bodily injury and to forward a corrected copy of the abstract of judgment to the Department of Corrections.
We concur: MALLANO, P. J., NEIDORF, J.
Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.