Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CONSOLIDATED APPEALS from judgments of the Superior Court of San Diego County, and petition for writ of habeas corpus, William H. Kennedy, Judge, Super. Ct. No. SCD194999
McINTYRE, J.
Juan Villasenor Martinez and David Escobedo Acero (together Defendants) pleaded guilty to four drug-related offenses and admitted various sentencing enhancements. They challenge their respective sentences, claiming the trial court abused its discretion and violated their right to due process by relying on an untimely filed and unverified supplemental statement in aggravation at sentencing. In his petition for habeas corpus Martinez contends that he did not waive his right to appeal the introduction of the supplemental statement in aggravation. We affirm the judgments. In doing so we reject the Attorney General's waiver argument and reach the merits of Martinez's arguments on appeal; accordingly, we dismiss Martinez's habeas corpus petition as moot.
FACTUAL AND PROCEDURAL BACKGROUND
On November 14, 2005, a confidential source working for the Drug Enforcement Agency (DEA) arranged to purchase methamphetamine from codefendant Mark Anthony Ramirez at a restaurant while under surveillance by DEA agents. The agents saw a truck driven by Martinez, in which Acero was a passenger, park at the restaurant and observed Martinez speak to Ramirez and the confidential informant. After the confidential informant gave Ramirez $275 in marked bills, Ramirez gave Martinez the money in exchange for .25 ounces of methamphetamine. DEA agents later stopped the truck and recovered the marked bills from Defendants, a digital scale from Acero and drugs hidden inside the engine compartment of the truck.
Defendants were charged with selling methamphetamine (count 1), possessing methamphetamine (count 2), transporting heroin (count 3), and possessing heroin for sale (count 4), and Martinez was individually charged with possessing marijuana for sale (count 5). It was also alleged that Defendants had previously been convicted of similar offenses, each had served three separate prison terms, each had a strike prior and that Martinez had a violent felony prison prior. Acero pleaded guilty to all charges and admitted the respective sentence enhancement allegations against him. Martinez pleaded guilty to counts 1, 2, 3 and 5 and the lesser crime of possessing heroin as to count 4. He also admitted the respective sentence enhancement allegations against him, except for the violent felony prison prior, which the People struck.
The day before the sentencing hearing, the People filed a supplemental statement in aggravation, indicating that sheriff's deputies searched Defendants' joint jail cell with a narcotics detecting dog and that the dog alerted on a piece of paper containing a black residue in Martinez's possession and a greeting card, with no identifying information. Sheriff's deputies opined that the paper contained black tar heroin and that the back of the greeting card had been soaked in methamphetamine. Although the information came from a sheriff's deputy, no report of the incident had yet been created.
At the sentencing hearing, the trial court denied Defendants' respective motions to dismiss their prior strike conviction allegations and sentenced each to a total of eight years in prison, consisting of the four-year midterm for count 3, doubled for the prior strike conviction. Defendants filed notices of appeal, but did not obtain certificates of probable cause pursuant to Penal Code section 1237.5. (All undesignated statutory references are to the Penal Code.) Martinez later filed a petition for writ of habeas corpus and we have consolidated the petition with these appeals.
DISCUSSION
I. Martinez's Appeal -- Procedural Issues
As a preliminary matter, the Attorney General argues that we should dismiss Martinez's appeal because his notice of appeal did not specifically state he was challenging a noncertificate matter. We disagree.
After a defendant has pleaded guilty, section 1237.5 requires that the defendant file a timely notice of appeal and obtain a certificate of probable cause for all appellate claims that in substance attack the validity of the plea. Nonetheless, a defendant can still appeal and raise issues concerning sentencing that do not attack the validity of the plea. (People v. Buttram (2003) 30 Cal.4th 773, 780.)
Here, Martinez pleaded guilty without any promise from the People or the trial court as to his sentence and his notice of appeal stated that he was appealing from the "judgment and sentence." His appeal does not attack the validity of the plea; rather, he is appealing the alleged lack of due process at the sentencing hearing. The absence of a certificate of probable cause does not preclude Martinez from raising this challenge and his reference to the "sentence" in the notice of appeal made his appeal operative with respect to issues arising after the plea was entered. (People v. Lloyd (1998) 17 Cal.4th 658, 664-665; Cal. Rules of Court, rule 8.304(a)(4) ["notice of appeal must be liberally construed"].)
It is undisputed that Martinez waived his right to appeal any stipulated sentence in his change of plea form and that Martinez did not receive a stipulated sentence. The Attorney General, however, asserts that the trial court expanded the waiver of appellate rights during the change of plea hearing to include any sentence and that Martinez is bound by the trial court's statement because he did not object to it. On appeal and in his writ petition, Martinez asserts that he did not waive the right to appeal any due process violation. We agree with this assertion.
At the change of plea hearing, the trial court referenced the paragraph in Martinez's written change of plea form waiving the right to appeal any stipulated sentence and stated that under the form, Martinez had "waived [his] right to appeal . . . the sentence that's imposed by the Court at the time here . . . ." and Martinez agreed with the court's statement. Thereafter, the trial court confirmed with defense counsel that he had reviewed the change of plea form with Martinez and discussed all the consequences with him.
In California, the right to appeal a criminal conviction is statutory (§§ 1235, 1237; Douglas v. California (1963) 372 U.S. 353, 356) and a defendant may validly waive the right to appeal and will be bound by it as to all issues arising before a plea agreement is made, as long as the waiver is "knowing, intelligent and voluntary." (People v. Vargas (1993) 13 Cal.App.4th 1653, 1661.) The record before us confirms that Martinez knowingly, intelligently and voluntarily agreed to waive his right to appeal any stipulated sentence. The trial court cited to and confirmed this wavier and then apparently expanded the waiver to include any sentence. The record, however, does not show that Martinez bargained for such a waiver or that the purported waiver was knowing, intelligent and voluntary. Rather, it appears that the trial court simply misspoke when it stated that Martinez had waived the right to appeal the sentence. The trial court's statements at the end of the sentencing hearing support this conclusion as the court informed Martinez that he was "entitled to process an appeal within 60 days of today's date on the sentence imposed . . . ." Accordingly, we reject the suggestion that Martinez's appeal must be dismissed.
II. Defendants' Appeal -- Merits
Statements in aggravation or mitigation must be filed at least four days prior to a sentencing hearing and any assertions of fact contained in the statements "must be disregarded unless they are supported by the record in the case, the probation officer's report or other reports properly filed in the case, or other competent evidence." (Cal. Rules of Court, rule 4.437 (a), (d); also § 1170, subd. (b).) Evidence excluded from the guilt phase may be received as bearing on the punishment to be imposed (People v. Peterson (1973) 9 Cal.3d 717, 725), but due process requires that sentencing decisions be based on reliable information. (People v. Arbuckle (1978) 22 Cal.3d 749, 754-755.)
Defendants contend that the trial court violated their due process rights and right to a fair sentencing hearing when it relied on the untimely filed and unverified supplemental statement in aggravation. As a threshold matter, the Attorney General argues that Defendants waived any claim regarding the timeliness of the supplemental statement by not objecting on that ground. While we agree that the record does not show that Defendants objected to the timeliness of the statement, they did argue that the information contained in the supplemental statement should not be considered because it was unsubstantiated. We agree with this contention.
The information contained in the supplemental statement was relayed to the prosecutor from a sheriff's deputy and was not supported by a sworn statement or an official report of the search incident. Additionally, there was no indication that a laboratory analysis had confirmed that the items found in Defendants' jail cell actually contained drugs. There was no assurance that the hearsay statements were based on reliable information and the trial court erred when it relied on the statement during Defendants' sentencing hearing.
Nonetheless, we affirm the judgment because it is not reasonably probable that the court would have imposed more favorable sentences (i.e., placed Defendants on probation and sent them to a drug treatment program) in the absence of the error. (People v. Avalos (1984) 37 Cal.3d 216, 233.) At the commencement of Acero's change of plea hearing, the trial court indicated that it would consider Delancy Street placement, but "[r]ight now, the way things are, in consideration of your background, I'm not inclined to do that." The written change of plea form indicated "no deals" and that Acero understood that he faced 23 years in prison and the sentencing judge could consider his prior criminal history and the entire factual background of the case, including any dismissed or stricken charges or allegations when imposing sentence.
At the sentencing hearing, defense counsel admitted that Acero had placed himself at the mercy of the court and that the court had "graciously agreed to consider" the Delancy Street option. Thereafter, the trial court canvassed Acero's criminal history, noting that he had been convicted "time and time again," specifically in 1994, 1995, 1996 (first prison prior), 1998 (second prison prior) and 2001 (third prison prior) and had been on parole for less than two months when he committed the instant crime. After giving the matter much thought, the trial court concluded that Acero was not amenable to any form of treatment and that his request for Delancy Street placement was not genuine.
The trial court similarly recounted Martinez's extensive and ongoing criminal history at the sentencing hearing, noting that he had a total of 15 felony convictions and exhibited unsatisfactory performance on probation and parole. Although Martinez's counsel and the court discussed the jail incident, the court appeared to give the incident little weight, stating: "In any event, the Court rejects the request to strike the strike in this case because to do so would be inconsistent with the strike law, and I don't have facts that would warrant it."
Put simply, after reviewing Defendants' respective criminal histories, the trial court could not find mitigating factors that warranted granting their requests to strike the strike prior conviction allegations and place them on probation, matters on which the trial court had broad discretion. (People v. Garcia (1999) 20 Cal.4th 490, 499 [trial court has discretion to strike prior conviction allegations]; People v. Sanchez (1987) 190 Cal.App.3d 224, 229 [granting or denying probation rests in the sound discretion of the trial judge].) Our review of the record convinces us that the trial court's refusal to place Defendants on probation and send them for drug treatment and its imposition of the presumptive midterm was based on their respective criminal histories and not the supplemental statement in aggravation. Accordingly, the error was harmless and remand is unnecessary under the circumstances of this case. Even if we were to find that the trial court's consideration of the supplement statement was an error of constitutional magnitude, we would conclude the error to be harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
DISPOSITION
The judgments are affirmed and Martinez's petition for writ of habeas corpus is dismissed as moot.
WE CONCUR: HUFFMAN, Acting P. J., McDONALD, J.