Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County Super. Ct. No. BF112737A. Clarence Westra, Jr., Judge.
Matthew D. Roberts, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
Defendant Gabriel Norman Martinez was convicted by a jury of possession of a stolen vehicle, possession of methamphetamine, and possession of narcotic paraphernalia, and was sentenced by the trial court to a total prison term of four years, eight months. On appeal, defendant contends the trial court was without authority to withdraw its prior approval of defendant’s plea entered pursuant to a plea agreement. Defendant also seeks independent review by this court of information in a peace officer’s personnel file. Finally, defendant contends the court’s imposition of the upper term violated his constitutional rights. We will affirm.
BACKGROUND
On November 29, 2005, a complaint was filed charging defendant and codefendant, Clifton McNearny, with residential burglary (Pen. Code, § 460, subd. (a); count 1), possession of a stolen vehicle (§ 496d; count 2), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 3), and misdemeanor possession of narcotic paraphernalia (Health & Saf. Code, § 11364; count 4). The complaint also alleged defendant had suffered a prior prison term (§ 667.5, subd. (b)).
Further statutory references are to the Penal Code unless otherwise specified.
At a pre-preliminary hearing on December 12, 2005, the parties announced they had reached a plea agreement. Defense counsel told the trial court that defendant would plead no contest to possession of methamphetamine and “waive Prop. 36 for a lid of three years.” The parties stipulated there was a factual basis for the plea. Defendant then formally entered a no contest plea to count 3, and the remaining charges were conditionally dismissed with a Harvey wavier.
People v. Harvey (1979) 25 Cal.3d 754.
When the matter came on for sentencing on January 11, 2006, defense counsel stated there was no legal cause why sentence should not be imposed. The prosecutor, however, informed the trial court that the victims of the burglary – to which defendant’s codefendant had pled – had recently discovered new evidence directly tying defendant to the crime. Specifically, a few days before the sentencing hearing, the victims were watching a video recording of their daughter’s wedding when they discovered footage, which had apparently been shot by defendant and his codefendant with the victims’ video recorder while they were inside the victims’ home. Comments heard on the recording seemed to contradict defendant’s previous claim to police that he thought the residence belonged to his codefendant’s uncle and that they had permission to be there.
The prosecutor told the trial court that based on this new evidence and the victims’ expressed displeasure with the plea agreement, it was the prosecution’s position that the court should reject or set aside the plea. The court then allowed victim Arthur Caballero to address the court. This discussion followed:
“ARTHUR CABALLERO: Yes. Upon my wife going out, trying to see if she could recover any of the stolen jewelry, she was pretty down. So we decided to watch the video of my daughter’s wedding. To our amazement, we found on the backside of it Mr. McNearny wearing my clothes, videotaping the entire house.
“In the process, Mr. McNearny is saying, ‘I wonder who lives here? I wonder where these people are at?’ You know, ‘Where are these people?’ And that is on the tape.
“Also on the tape, you can see Mr. Martinez driving one of the stolen cars into our garage. You can also hear Mr. McNearny telling Mr. Martinez, ‘No. We’ll get that stuff later.’
“There is also another camera that – other digital camera that shows Mr. Martinez with a handful of money. Now, if you look on that digital picture, there’s probably a time and date that will show that that picture was taken after the jewelry was – was hocked.
“They had taken my wife’s car and then blown the speakers out on that, and I had to get that repaired.
“They had stolen that car, hocked the jewelry, came back to the house, and were ready to party. They hooked up their own X Box. They were doing laundry. They were there for the whole weekend.
“We also found, when I came back, another container full of drugs. I have no idea what they are, but I firmly believe that Mr. Martinez was a willful participant in this matter.
“THE COURT: And, Mr. Caballero, did you give any of this information to the police or the district attorney’s office?
“ARTHUR CABALLERO: We did not know this until two days ago – three days ago, and I had been trying to get ahold of [the prosecutor] to let her know that we did have this and that I was not pleased with the plea bargain that they had done because of mitigating circumstances.”
At the conclusion of the hearing, the trial court granted the prosecutor’s request to continue the sentencing hearing in order to file a motion to set aside the plea.
At the continued sentencing hearing on January 25, 2006, the trial court set aside defendant’s plea. The court explained its decision, in part, as follows:
“In this particular case, the length of time of the proposed sentence to Mr. Martinez may be arguably and reasonably appropriate at the upper term of three years to the drug charge.
“But the issue as to the invasion of the sanctity of the home, the offense the victim took to such invasion, the use of the victims’ personal properties throughout that particular invasion is such that the court feels that it is appropriate to give consideration and due consideration to the victim’s statement and concerns in this matter.”
On March 29, 2006, the trial court reviewed portions of the personnel file and related records of a peace officer during an in cameral proceeding pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). It found that the records did not contain any relevant information.
On April 24, 2006, a jury convicted defendant of counts 2, 3, and 4. The jury deadlocked on count 1 (residential burglary), and the court declared a mistrial as to that count. Defendant admitted having suffered a prior prison term and the trial court dismissed count 1. Defendant was sentenced to a total prison term of four years eight months as follows: the upper term of three years as to count 2, plus one year for the prior prison term, a consecutive eight-month term as to count 3, and a concurrent six-month term as to count 4.
DISCUSSION
I. The trial court was authorized to withdraw its prior approval of defendant’s plea.
Defendant contends the trial court lacked the authority to withdraw its prior approval of his plea; hence, he is entitled to have his convictions reversed and the original plea bargain restored. By setting aside his plea, defendant argues, the trial court violated his right to due process and the doctrine of separation of powers. For the reasons that follow, we conclude the trial court could properly withdraw its prior approval of defendant’s plea and reject defendant’s contentions to the contrary.
“‘[T]he court, upon sentencing, has broad discretion to withdraw its prior approval of a negotiated plea.’” (People v. Calloway (1981) 29 Cal.3d 666, 673.) Where this occurs, “‘[t]he preferred remedy … is to permit a defendant to withdraw his plea and to restore the proceedings to the original status quo.’ [Citation.]” (Id. at p. 671.) Furthermore, “ordering specific performance [is not appropriate where it] would prevent the trial court from exercising its sentencing discretion, forcing the court to impose a sentence it expressly rejected as inappropriate.” (Ibid.) “[A] defendant is not entitled to specific performance of a plea bargain ‘absent very special circumstances.’ [Citation.]” (Id. at p. 668.) We cannot say such circumstances are present here.
The court’s prior approval of a plea bargain “‘may be withdrawn at the time of sentencing if the court, after further consideration and in the exercise of its inherent discretion in sentencing, concludes that the bargain is not in the best interests of society’ [citation] or ‘upon [the court] being more fully informed about the case.’ [Citations.]” (People v. Stringham (1988) 206 Cal.App.3d 184, 194 (Stringham), first and last bracketed insertions added.) This is precisely what occurred here. The trial court, after further consideration of the victim’s statements, which presented the court with additional information about the offense and its impact, carefully weighed defendant’s interest in the plea bargain against the societal interests implicated by the victim’s experience and determined that the latter justified setting aside the plea. These circumstances reveal no abuse of discretion.
We note the victim was properly permitted to address the court pursuant to section 1191.1, which provides:
“The victim of any crime, or the parents or guardians of the victim if the victim is a minor, or the next of kin of the victim if the victim has died, have the right to attend all sentencing proceedings .… [¶] The victim, or up to two of the victim’s parents or guardians if the victim is a minor, or the next of kin of the victim if the victim has died, have the right to appear, personally or by counsel, at the sentencing proceeding and to reasonably express his, her, or their views concerning the crime, the person responsible, and the need for restitution. The court in imposing sentence shall consider the statements of victims, parents or guardians, and next of kin made pursuant to this section .…”
With respect to section 1191.1, the Stringham court observed:
“If, as occurred here, a defendant obviates the necessity of a trial by entering a plea of guilty, matters will proceed directly to the sentencing hearing. If the victim or next of kin is dissatisfied with the plea and wishes to protest, the earliest opportunity to do so will be at that hearing. The sentencing hearing will commence with the court making the inquiry demanded by section 1200. Having no inkling of the victim’s or next of kin’s disgruntlement, the defendant will answer that there is no legal cause why judgment should not be pronounced. Only thereafter will the victim or next of kin have an opportunity to make the statement expressly authorized by section 1191.1. To accept defendant’s argument that the court is at that point divested of its power to reject the plea bargain would consign the statement to utter ineffectuality: the court would have to listen to the statement and then ignore it, powerless to do anything based upon the statement protesting such a fait accompli. This situation might only be aggravated if the bargain included a specified sentence, for then the victim or next of kin would not even have the satisfaction of arguing for a more severe punishment. [¶] …It would be difficult to conceive of a more absurd result than to adopt a construction which would prevent a victim or next of kin from having a meaningful opportunity to protest a plea bargain that will allow a defendant to escape the punishment which the victim or next of kin feels is appropriate to the crime.” (Stringham, supra, 206 Cal.App.3d at pp. 196-197; italics added.)
Defendant’s reliance on People v. Mikhail (1993) 13 Cal.App.4th 846 (Mikhail) is misplaced. In Mikhail, the court held that a trial judge violated the separation of powers and the defendant’s due process rights by repudiating an unconditional negotiated plea which had already been approved by another judge and referred to the second judge for sentencing. The plea bargain did not specify the punishment so as to fall under section 1192.5; rather it fixed the degree of the crime and was governed by section 1192.1 and 1192.4. (Mikhail, supra, 13 Cal.App.4th at pp. 855-856, 857, 858, fn. 5.) The court noted that unlike section 1192.5, those statutes contain no statement that the court’s approval is “not binding.” (Mikhail, supra, 13 Cal.App.4th at pp. 855-856, fn. 4.) The court also observed that fixing punishment is traditionally a judicial power whereas determining the degree of an offense implicates the prosecutor’s power to decide how to charge the defendant. (Id. at pp. 853-857.) Therefore, at least in the absence of legislative authorization, the trial court could not nullify a plea governed by section 1192.1 after the prosecutor and court had assented to the plea. (Mikhail, supra, 13 Cal.App.4th at p. 857; see also People v. Olea (1997) 59 Cal.App.4th 1289, 1299 [describing Mikhail as depending on “‘very special’ circumstances involving no changes between plea and sentencing”].)
Section 1192.5 provides:
Defendant contends the plea in this case was taken under section 1192.2, not section 1192.5, and consequently Mikhail applies. Despite defendant’s characterization of his plea as unconditional, the plea, unlike the plea in Mikhail, placed specific limitations on the trial court’s sentencing power, and thus the plea bargain here appears to fall more within the scope of section 1192.5 than 1192.2. In Mikhail, supra, 13 Cal.App.4th, the defendant was charged with murder, attempted murder, and assault with a deadly weapon, and pled guilty to the lesser included offense of voluntary manslaughter in exchange for dismissal of the remaining charges; the plea included no restrictions on the trial court’s sentencing power. (Id. at p. 850.) In this case, the plea specified a maximum sentence of three years and precluded the court from exercising its legal power to sentence defendant under Proposition 36. The plea did not fix the degree of the crime or involve the negotiation of a plea to a lesser included offense. We recognize defendant was not expressly advised that the court’s approval of the plea was conditional. However, the prosecutor’s request for dismissal of the remaining counts and allegations was explicitly conditioned upon the plea remaining in effect. Thus, it was apparent the plea was not immutable.
Section 1192.2 and section 1192.1 are substantially identical for purposes of this appeal. Section 1192.2 provides: “Upon a plea of guilty before a committing magistrate as provided in Section 859a, to a crime or attempted crime divided into degrees, when consented to by the prosecuting attorney in open court and approved by such magistrate, such plea may specify the degree thereof and in such event, the defendant cannot be punished for a higher degree of the crime or attempted crime than the degree specified.”
In short, the presence of restrictions on the court’s sentencing power indicates the plea was reached in accordance with section 1192.5, not section 1192.2, as defendant contends. Defendant recognizes section 1192.5 has been construed as authorizing a court to withdraw its prior approval of a plea bargain at the time of sentencing. The trial court in this case did not abuse its discretion or otherwise impinge on defendant’s rights by setting aside his plea after duly considering the victim’s statements and concluding, in essence, the plea was not in the best interests of society.
II. The trial court’s ruling on the Pitchess motion was not an abuse of discretion.
On March 6, 2006, defendant moved pursuant to Pitchess, supra, 11 Cal.3d 531, for discovery of personnel records, investigative documents, and citizen complaints regarding “acts indicating or constituting dishonesty, fabrication of charges, evidence or reports” by Bakersfield Police Officer William Caughell. On March 29, 2006, the trial court conducted an in camera review of Officer Caughell’s personnel file. The court concluded there was no discoverable evidence.
Defendant asks this court to independently review the transcript of the in camera Pitchess proceeding and the personnel records made available to the trial court to determine whether the trial court “abused its discretion in refusing to disclose information in Officer Caughell’s personnel files.”
The statutory scheme for Pitchess motions is contained in Evidence Code sections 1043 through 1047 and sections 832.5, 832.7 and 832.8. When a defendant seeks discovery from a peace officer’s personnel records, he or she must file a written motion that satisfies certain prerequisites and makes a preliminary showing of good cause. If the trial court determines that good cause has been established, the custodian of records brings to court all documents that are “‘potentially relevant’ to the defendant’s motion.” (People v. Mooc (2001)26 Cal.4th 1216, 1226.) The trial court examines these documents in camera and, subject to certain limitations, discloses to the defendant “‘such information [that] is relevant to the subject matter involved in the pending litigation.’ [Citation.]” (Ibid.) The ruling on a Pitchess motion is reviewed for an abuse of discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330.)
Having independently reviewed the transcript of the Pitchess proceeding and the records examined by the trial court and submitted under seal, we conclude that the trial court did not abuse its discretion in determining that none of the records were relevant to the issues presented in this case. Accordingly, we uphold the ruling on the Pitchess motion. (People v. Prince (2007) 40 Cal.4th 1179, 1286; People v. Hughes, supra, 27 Cal.4th at p. 330.)
III. The trial court properly imposed the upper term.
Defendant contends the trial court erred by imposing the upper term on count 2 (possession of a stolen vehicle) based on facts neither admitted by defendant nor found to be true beyond a reasonable doubt, relying on Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). We conclude there was no error.
Because defendant was sentenced in June 2006, subsequent to the California Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), but prior to the United States Supreme Court’s decision in Cunningham, supra, 549 U.S. ___, his failure to object to the sentencing proceedings does not forfeit his constitutional claim. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4 [“An objection in the trial court is not required if it would have been futile…. 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”].)
In Cunningham, the United States Supreme Court held that California’s Determinate Sentencing Law violates a defendant’s right to a jury trial to the extent it permits a trial court to impose an upper term sentence based on aggravating factors found by the court instead of a jury. (Cunningham, supra, 127 S.Ct. at pp. 860, 868-871.) The Cunningham court expressly disapproved of our Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I). (Cunningham, supra, 127 S.Ct. at p. 871.) In light of Cunningham, the United States Supreme Court vacated the judgment in Black I and remanded the matter to the California Supreme Court. (See Black v. California (2007) 127 S.Ct. 1210.) Upon remand, our Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II), in which it held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to a 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, italics added.) In arriving at this conclusion, the court relied in part on the well established rule that “the right to a jury trial does not apply to the fact of a prior conviction,” citing United States Supreme Court decisions in Cunningham, supra, 127 S.Ct. at p. 868, Blakely v. Washington (2004) 542 U.S. 296, 301, Apprendi v. New Jersey (2000) 530 U.S. 466, 490, and Almendarez-Torres v. United States (1998) 523 U.S. 224, 243. (Black II, supra, 41 Cal.4th at p. 818.) “‘[R]ecidivism ... is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’” (Ibid.)
At the sentencing hearing, the trial court reviewed the probation report and identified the following aggravating circumstances to explain its decision to impose the upper term:
“One, that he has had prior convictions as an adult and sustained petitions in juvenile proceedings which are numerous, and as I recited, juvenile adjudications include adjudication of Penal Code Section 488 under Welfare and Institutions Code 777 A 2, 594, 488, 496, all of those being adjudicated in Juvenile Court. Five different adjudications of theft related offenses. He’s had five different arrests and convictions of theft related offenses ranging from 484, PC 460 Section 17, Vehicle Code Section 10851 on three different occasions, and an additional 496 A Section 17. His felony conviction – well, those are all the juvenile misdemeanor adjudications. A large number. And that is, therefore, found to be an aggravating circumstance.
“Aggravating circumstance number three is his prior performances on juvenile, misdemeanor probation, and parole are determined by the Court not to be satisfactory in that his criminal history is replete with performances which ended in additional court proceedings to revoke probation, and in this circumstance revoke his status as a parolee. Therefore, the Court finds that to be an aggravating factor, as well. Those are three circumstances in aggravation.”
The trial court’s imposition of upper term for possession of a stolen vehicle did not infringe upon defendant’s constitutional right to a jury trial under Cunningham. Where, as here, at least one legally sufficient aggravating circumstance is justified based upon a defendant’s history of recidivism, the trial court is authorized to impose the upper term. (Black II, supra, 41 Cal.4th at p. 816.) The trial court’s reliance on defendant’s prior convictions supports the imposition of the upper term.
The presence of additional aggravating circumstances cited by the trial court does not compel a different result. Black II explains: “[S]o long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits 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.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HARRIS, Acting P.J., KANE, J.
“Upon a plea of guilty or nolo contendere to an accusatory pleading charging a felony, other than a violation of [statutes not at issue here], the plea may specify the punishment to the same extent as it may be specified by the jury on a plea of not guilty or fixed by the court on a plea of guilty, nolo contendere, or not guilty, and may specify the exercise by the court thereafter of other powers legally available to it. “Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea. “If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so. The court shall also cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea. “If the plea is not accepted by the prosecuting attorney and approved by the court, the plea shall be deemed withdrawn and the defendant may then enter the plea or pleas as would otherwise have been available. “If the plea is withdrawn or deemed withdrawn, it may not be received in evidence in any criminal … proceeding .…”
Section 1192.1 provides: “Upon a plea of guilty to an information or indictment accusing the defendant of a crime or attempted crime divided into degrees when consented to by the prosecuting attorney in open court and approved by the court, such plea may specify the degree thereof and in such event the defendant cannot be punished for a higher degree of the crime or attempted crime than the degree specified.”
Section 1192.4 provides: “If the defendant's plea of guilty pursuant to Section 1192.1 or 1192.2 is not accepted by the prosecuting attorney and approved by the court, the plea shall be deemed withdrawn and the defendant may then enter such plea or pleas as would otherwise have been available. The plea so withdrawn may not be received in evidence in any criminal … proceeding .…”