Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Humboldt County Super. Ct. No. CR071258
NEEDHAM, J.
Blas Parra (Parra) appeals from a judgment of conviction and sentence entered after he pled guilty to multiple counts. He contends the court’s imposition of the upper term of sentence violated his constitutional rights under Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856 (Cunningham), and ignored mitigating circumstances. We will remand the matter for resentencing.
I. FACTS AND PROCEDURAL HISTORY
In three counts, an information filed in May 2007 alleged that Parra and a co-defendant: sold or transported a controlled substance (Health & Saf. Code, § 11352, subd. (a)); possessed a controlled substance for sale (Health & Saf. Code, § 11351); and possessed or used a concealed or false compartment with the intent to transport a controlled substance (Health & Saf. Code, § 11366.8). It was further alleged that the controlled substance Parra possessed for sale weighed 14.25 grams or more (Pen. Code, § 1203.07, subd. (a)(1); Health & Saf. Code, § 11352.5, subd. (l)).
The underlying facts were summarized in the probation department’s pre-sentence report, based on a report of the Humboldt County Drug Task Force. According to the task force report, an agent learned from a confidential informant that heroin would be brought to the Bayshore Mall in Eureka at 1730 hours by two Hispanic males in a black Nissan Maxima. Agents conducting surveillance observed and stopped the vehicle, which was driven and owned by Ignacio Bojorquez and contained Parra as a passenger. During a search of the vehicle, a K-9 alerted to the center of the dashboard and the front passenger floorboard. In the dashboard area, agents located a hidden compartment containing five bundles of heroin, each wrapped in cellophane and marked with a name and number corresponding to the number of pieces in each bundle; there was a total of 36 pieces, with a total net weight of two pounds. Parra was wearing a Jesus Malverde necklace; Jesus Malverde is considered by some in Mexico to be the patron saint of drug traffickers.
In August 2007, Parra pled guilty to all counts and admitted the special allegation that he possessed for sale 14.25 grams or more of heroin. The plea was open to the court.
The probation department’s presentence report recommended an upper term of sentence on count one, citing the aggravating circumstance that the crime involved a large quantity of contraband (Cal. Rules of Ct., rule 4.421(a)(10)), based on the assertion that the “crime involved two pounds of heroin.” The report indicated no circumstances in mitigation and concluded: “The quantity of heroin involved in this case warrants the maximum term in prison.”
At the sentencing hearing, Parra’s attorney objected to an aggravated sentence on the ground it would violate Cunningham, supra, 549 U.S. ___. Counsel noted that Parra admitted possessing only about a half-ounce of heroin, not the two pounds mentioned in the pre-sentence report, and there was no finding that the case actually involved two pounds of heroin. In addition, counsel asserted there were circumstances in mitigation, in that Parra had maintained full-time employment for the prior five years, had no felony convictions and only one misdemeanor conviction, was only a passenger in the vehicle, and may not have known about the secret compartment. Counsel also pointed out that Parra would face additional imprisonment after the completion of his sentence due to his immigration status.
The court found, as a circumstance in aggravation, that the crime involved a large quantity of contraband. (Cal. Rules of Ct., rule 4.421(a)(10).) The court found no mitigating factors. Parra was then sentenced to five years in state prison, comprised of the upper term of five years on count one, a stayed middle term of three years on count two, and a concurrent middle term of two years on count three.
This appeal followed.
II. DISCUSSION
Parra contends the trial court violated his constitutional rights under Cunningham by imposing an upper term based on a fact not found by a jury or admitted by him. He further contends the court failed to consider mitigating circumstances. We discuss each contention in turn.
A. Cunningham
As mentioned, the court imposed the upper term by finding “an aggravat[ing] factor, that being that this crime did involve a large quantity of contraband. That’s rule 4.421(a)(10).” (See Cal. Rules of Ct., rule 4.421(a)(10) [“The crime involved a large quantity of contraband”] (rule 4.421(a)(10).)
Respondent argues that the upper term was imposed based on a fact Parra admitted, because in entering his plea Parra admitted the special allegation that he possessed heroin weighing 14.25 grams (about one-half ounce or 0.03 pounds) or more. Heroin weighing 14.25 grams or more is a large quantity, respondent contends, because the legislature considered the amount sufficiently large to use it as a basis for imposing a substantial fine and denying probation for those who possess that amount for sale. Health and Safety Code section 11352.5 requires, absent the inability to pay, a fine of up to $50,000 in addition to any term of imprisonment if the defendant possessed for sale 14.25 grams or more of a substance containing heroin. Penal Code section 1203.07, subdivision (a)(1), bars probation for any person convicted of Health and Safety Code section 11351 by possessing for sale 14.25 grams or more of a substance containing heroin. Having admitted an aggravating circumstance, respondent argues, it was lawful to impose the upper term. (See People v. Black (2007) 41 Cal.4th 799, 815-816 [one aggravating circumstance, found to exist by the jury or admitted by the defendant, renders it lawful for the trial court to impose an upper term sentence].)
Parra contends Black was wrongly decided in this regard. We will abide by our Supreme Court’s decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Parra counters that Black does not apply, because “[n]o single factor identified by the probation officer as supporting the upper term was established in accordance with Apprendi v. New Jersey (2000) 530 U.S. 466, because it was neither found by a jury nor factually admitted in appellant’s plea or other statements to the court.” (Italics added.) Although the probation report indicated that the crime involved two pounds of heroin, a fact neither proven nor admitted by Parra himself, the trial court did not state that it based the sentence on that fact. Instead, respondent urges, the court could have aptly based the upper term on Parra’s admission.
The problem, however, is that Parra admitted possessing 14.25 grams or more of heroin, but he did not expressly admit that he possessed a “large quantity” of heroin, in line with the actual language of rule 4.421(a)(10). Parra therefore did not admit the aggravating circumstance or a fact constituting an aggravating circumstance; rather, he admitted a fact from which the court inferred the existence of an aggravating circumstance. The court’s imposition of the upper term on count one, under California’s Determinate Sentencing Law (DSL) at the time, was therefore in violation of Cunningham, supra, 549 U.S. ___. We must next consider the issue of harmless error.
The failure to submit a sentencing factor to a jury does not require reversal if the reviewing court determines it was harmless beyond a reasonable doubt pursuant to Chapman v. California (1967) 386 U.S. 18. (People v. Sandoval (2007) 41 Cal.4th 825, 838 (Sandoval); see People v. French (2007) 43 Cal.4th 36, 52-53 (French).) Thus, “[i]f we conclude, beyond a reasonable doubt, that a ‘jury, applying the beyond-a-reasonable doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.’ [Citation.] The failure to submit a sentencing factor to a jury may be found harmless if the evidence supporting that factor is overwhelming and uncontested, and there is no ‘evidence that could rationally lead to a contrary finding.’ [Citations.]” (French, supra, 41 Cal.4th at p. 53.)
Parra urges that the harmless error test announced in Sandoval, and reiterated in French, violates the harmless error standard established by Cunningham. Again, we will follow the precedent of our Supreme Court.
A harmless error analysis is more difficult where, as here, the defendant was convicted based on his guilty plea rather than a jury trial. When the defendant has pled guilty, there is no trial evidence and “the record generally does not contain a full presentation of evidence concerning the circumstances of the offense.” (French, supra, 43 Cal.4th at p. 54.) Generally, a reviewing court cannot assume that the facts contained in a probation report are the facts that would have been established if aggravating circumstances had been tried to a jury, because the defense typically does not have the same incentive and opportunity to contest aggravating circumstances as it would if the existence of the aggravating circumstances had to be proven beyond a reasonable doubt. (Id. at pp. 53-54.)
Here, however, the situation is a bit different. In entering his plea, Parra admitted that he possessed 14.25 grams or more of heroin for sale. Given this admission, there is no factual dispute that he possessed at least 14.25 grams. Indeed, Parra’s defense counsel —knowing the import of the amount Parra possessed due to the probation department’s pre-sentence report and the rule in Cunningham—stated in his sentencing memorandum that about two pounds of heroin were seized from the car in which Parra was riding.
The question, therefore, is whether a jury unquestionably would have found beyond a reasonable doubt that “14.25 grams or more,” or even as much as approximately two pounds, was a “large amount” within the meaning of rule 4.421(a)(10).
Our Supreme Court has admonished: “[T]o the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.” (Sandoval, supra, 41 Cal.4th at p. 840.) The court specifically mentioned the aggravating factor of rule 4.421(a)(10) as one of the circumstances requiring “an imprecise quantitative or comparative evaluation of the facts.” (Sandoval, at p. 840.) In the matter before us, there is no evidence in the record as to what a “large amount of contraband” means in this context. Thus, even though Parra’s admission establishes that he possessed 14.25 grams or more of heroin, and even if we attributed to Parra the admission of his attorney that the case involved about two pounds of heroin, we cannot say that the evidentiary record is such that the aggravating circumstance of rule 4.421(a)(10) would unquestionably have been found true beyond a reasonable doubt by the jury. On this basis, we must remand the matter for resentencing.
Upon remand, the trial court shall resentence Parra in accordance with California’s DSL, which was amended after Cunningham by Senate Bill No. 40. (Stats 2007, ch. 3, eff. March 30, 2007; see Pen. Code, § 1170 et seq.) Although Parra claims that resentencing him under the amended DSL would violate due process and the constitutional proscription against ex post facto laws (U.S. Const., art. I, § 10, cl. 1), he acknowledges that our Supreme Court has ruled to the contrary. (Sandoval, supra, 41 Cal.4th at pp. 853-854.) We abide by the precedent of our Supreme Court.
B. Mitigating Factors
Parra contends the court failed to find as mitigating factors that Parra had a relatively insignificant criminal record (Cal. Rules of Court, rule 4.423(b)(1)) and pled open to the charges at an early stage of the proceedings (Cal. Rules of Ct., rule 4.423(b)(3).) The trial court was within its discretion to minimize or disregard any of the factors Parra offered in mitigation, however, and the court was not required to state its reasons for doing so. (People v. Lamb (1988) 206 Cal.App.3d 397, 401; People v. Salazar (1983) 144 Cal.App.3d 799, 813.) Parra has failed to establish an abuse of discretion in this regard.
In any event, the matter is being remanded for resentencing. We do not by this opinion suggest what the sentence should be or limit the options available to the court upon remand.
III. DISPOSITION
The upper term of sentence of five years on count one is vacated, and the case is remanded to the trial court for the limited purpose of resentencing Parra in accordance with applicable law. In all other respects, the judgment is affirmed.
We concur JONES, P. J. DONDERO, J.
Judge of the Superior Court of San Francisco City and County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.