Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 02F2001
SCOTLAND , P.J.
In 2003, defendant Conway Scott Phelps entered a negotiated plea of guilty to continuous sexual abuse of a girl between the ages of seven and nine, and other sexual assault charges against defendant were dismissed. He was sentenced to the upper term of 16 years in state prison. (Pen. Code, § 288.5, subd. (a).) In selecting the upper term, the trial court found in aggravation (1) the victim was vulnerable, (2) defendant took advantage of a position of trust in order to commit the continuous sexual abuse, and (3) the acts involved planning in that they were “continuous” and “defendant even talk[ed] about his plan on the internet,” i.e., he “published his crimes to other persons, published a photograph of the victim on the internet so that any other sexual offender or potential sexual offender could look at the child” and “talked about his crimes and intended crimes” (in chat room conversations on the internet, defendant described the acts he had performed on the girl, as well as future acts he wanted to perform on her, and solicited advice on how to get her to participate willingly).
Defendant appealed from the judgment, claiming imposition of the upper term contravened the holding of Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (hereafter Blakely) because it was imposed based on aggravating facts not admitted by him and not submitting to a jury, thus violating his Sixth Amendment right to a jury trial on those facts.
On April 18, 2005, this court affirmed the conviction but remanded the matter for further sentencing proceedings, concluding Blakely applied to California’s determinate sentencing scheme and, thus, the trial court erred in relying on aggravating facts that were not submitted to a jury and proved beyond a reasonable doubt. (People v. Phelps (Apr. 18, 2005, C045839) [nonpub. opn.].)
While the case was on remand for further proceedings, the California Supreme Court filed its decision in People v. Black (2005) 35 Cal.4th 1238 (hereafter Black I), holding that Blakely did not apply to California’s determinate sentencing scheme and, therefore, did not preclude imposition of the upper term based on sentencing factors not submitted to a jury. (Id. at p.1244; Black I was subsequently vacated in Black v. California (2007) __ U.S. __ [167 L.Ed.2d 36].)
Consequently, the trial court applied Black I (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and reimposed the state prison term of 16 years. Defendant again appealed.
While defendant’s second appeal was pending in this court, the United States Supreme Court decided Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (hereafter Cunningham), which overruled Black I and held that the Sixth Amendment, as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (hereafter Apprendi) and Blakely, supra, 542 U.S. 296 [159 L.Ed.2d 403], applies to California’s sentencing scheme, including the upper term. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at pp. 863-864].)
We asked for, and received, supplemental briefing regarding the effect of Cunningham on defendant’s second appeal.
Then, the California Supreme Court issued its opinions in People v. Black (2007) 41 Cal.4th 799 (hereafter Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (hereafter Sandoval).
Applying the reasoning of Black II and Sandoval, as we must (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455), we now conclude beyond a reasonable doubt that imposition of the upper term based on aggravating circumstances not submitted to a jury was harmless. (Sandoval, supra, 41 Cal.4th at p. 839.) This is so because the facts and circumstances acknowledged by defendant regarding his continuous sexual abuse of the victim are such 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 . . . .” (Ibid.) Accordingly, we shall affirm the judgment.
DISCUSSION
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. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence 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, supra, 542 U.S. at pp. 303-305 [159 L.Ed.2d at pp. 413-414].)
Accordingly, in Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864], the United States Supreme Court held that by “assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence,” California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Ibid.)
Interpreting the decision in Cunningham, the California Supreme Court concluded that “imposition of the upper term does not infringe upon the defendant’s constitutional right to 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.” (Black II, supra, 41 Cal.4th at p. 816.) This is so, Black II explains, 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 factfinding 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 factfinding on those additional aggravating circumstances is not unconstitutional.” (Id. at p. 815.)
Here, the trial court imposed the upper term based upon aggravating factors that were unrelated to any prior convictions, were not submitted to a jury, and were not formally admitted by defendant. This judicial fact finding violated his constitutional right to a jury trial on facts used to enhance his sentence. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864].)
Defendant did not have any prior convictions.
The People argue that defendant is precluded from complaining about the Cunningham error because, when he was first sentenced, he did not raise a Sixth Amendment objection to the sentence. The contention fails for reasons stated in Black II. (Black II, supra, 41 Cal.4th at pp. 811-813.)
We also reject the People’s argument that defendant cannot complain about the upper term of 16 years because by entering his no contest plea with the understanding he could be sentenced to a maximum term of 16 years, he “in effect admitted the existence of facts necessary to impose the aggravated term . . . and thereby waived his right to a jury trial on [aggravating] factors.” In our view, it cannot be said that by acknowledging his plea exposed him to the possibility of the upper term, defendant admitted the existence of any aggravating factor that would justify the upper term; rather, the plea agreement contemplated that whether defendant received the upper term would depend on the prosecution’s ability, at the time of sentencing, to establish circumstances in aggravation that outweighed circumstances in mitigation. Certainly, it cannot be said he knowingly waived his right to a jury trial on aggravating factors. Indeed, when he entered his plea, “it was widely assumed” that a defendant did not have a right to jury trial regarding aggravating factors. (Black II, supra, 41 Cal.4th at p. 811.)
Also without merit is the People’s claim that defendant cannot raise his Cunningham challenge on appeal because he failed to obtain a certificate of probable cause from the trial court. (Pen. Code, § 1237.5.) Even if it could be said that the upper term of 16 years was a “sentence lid” (People v. Shelton (2006) 37 Cal.4th 759, 763, 766-769) to which he agreed as part the negotiated disposition, a Cunningham challenge to the upper term is not an attack on the trial court’s legal authority to impose that term; it is simply a challenge to the court’s exercise of discretion based on factors that were not found true by a jury beyond a reasonable doubt. In other words, a Cunningham claim is not a challenge to the validity of a plea; thus, a certificate of probable cause is not needed to raise the claim of error. (People v. Buttram (2003) 30 Cal.4th 773, 790-791 [“certificate of probable cause is not required to challenge the exercise of individualized sentencing discretion within an agreed maximum sentence. Such an agreement, by its nature, contemplates that the court will choose from among a range of permissible sentences within the maximum, and that abuses of this discretionary sentencing authority will be reviewable on appeal, as they would otherwise be. Accordingly, such appellate claims do not constitute an attack on the validity of the plea, for which a certificate [of probable cause] is necessary”].)
Penal Code section 1237.5 states: “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: [¶] (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.”
Although defendant correctly asserts the trial court committed Cunningham error in imposing the upper term, the question remains whether defendant was prejudiced by the error. Before turning to that question, we address preliminary issues raised by defendant.
There is no merit in his contention that the upper term must be reversed because when the trial court reimposed the upper term, its sentencing choices were “tainted” in that the court was “under a mistaken understanding of the law and benefits [defendant] received from the plea agreement.” According to him, the mistaken belief was he “had been saved from a much longer potential prison term by entering into a plea agreement that provided that the six counts alleging violations of [Penal Code] section 288 would be dismissed.” In defendant’s words, the court “indicated that the mitigated or middle term may have been appropriate based on [defendant’s] clean record had he not received such a great benefit by the plea agreement . . . .” The court’s comments do not support defendant’s view. Rather, its remarks were directed at correcting a “mistaken belief” expressed in the brief that defendant filed in his first appeal, in which defendant suggested the court had given no consideration to his “clean record” because he had already received the benefit of a “plea bargain.” As the court made plainly clear when reimposing the upper term, it had given “defendant’s clean record consideration” as a “mitigating factor,” and the benefit that defendant obtained as a result of the plea agreement did not affect the court’s decision to impose the upper term.
Also unavailing is defendant’s contention that the trial court erred in failing to obtain a supplemental probation report before resentencing defendant on remand. This issue arose because of the unusual procedural posture of the case on remand. This court had held that resentencing was required because imposition of the upper term based on aggravating circumstances that were not submitted to a jury violated the Sixth Amendment as interpreted in Blakely. But by the time of resentencing, the California Supreme Court, in Black I, had disapproved this court’s reasoning. Consequently, the trial court concluded it must reinstate the original sentence as a matter of law because the legal foundation for the remand for resentencing was no longer valid and, thus, there was no reason or need to obtain a supplemental probation report. We need not decide whether a supplemental probation report was necessary because, as the trial court emphasized, nothing that might have occurred since the first sentencing would have convinced the court to grant defendant probation or to impose a sentence other than the upper term. In light of the egregious facts of this case and the court’s comments, it is not reasonably probable that defendant would have obtained a more favorable result had the court obtained a supplemental probation report.
And there is no merit in defendant’s claim that the prosecution “waived its right to charge and prove the alleged aggravating factors by failing to do so originally, or after this Court remanded [the] case to the trial court for that purpose . . . .” Defendant’s conviction and original sentencing occurred in 2003, prior to the decision in Blakely that was issued in 2004. Blakely “‘worked a sea change in the body of sentencing law.’ [Citation.]” (Black II, supra, 41 Cal.4th at p. 812.) Until then, “it was widely assumed” the reasoning of Apprendi did not apply to the upper term in our state’s determinate sentencing scheme. (Id. at p. 811.) Hence, the prosecution cannot be penalized for not originally charging defendant with, and prosecuting him for, aggravating circumstances upon which the trial court relied to impose the upper term. And the prosecution cannot be penalized for not charging the aggravating circumstances while this case was on remand because while the proceeding was pending in the trial court, the California Supreme Court held in Black I that the Sixth Amendment right to a jury trial did not apply to aggravating circumstances.
For reasons stated by this court in Barragan v. Superior Court (2007) 148 Cal.App.4th 1478, we reject defendant’s claim that his sentence “must be reduced to the middle term because there [was] no provision in California law that allow[ed] the determination of aggravating factors to be submitted to the jury.”
As we will explain below, the judgment must be affirmed because the Cunningham sentencing error was harmless. Since remand for resentencing is unnecessary, we need not address defendant’s claim that further proceedings would violate his right not to be subjected to double jeopardy.
This brings us back to the question whether defendant was prejudiced by the imposition of the upper term without affording him a jury trial on the aggravating factors upon which the trial court relied.
Cunningham error in failing to submit a punishment-increasing factual issue to the jury is subject to harmless error analysis under the beyond-a-reasonable doubt test of Chapman v. California (1967) 386 U.S. 12, 24 [17 L.Ed.2d. 704, 710]. (Sandoval, supra, 41 Cal.4th at p. 838; People v. Davis (2005) 36 Cal.4th 510, 564; see also U.S. v. Zepeda-Martinez (9th Cir. 2006) 470 F.3d 909, 913-914 [the error is harmless where the record contains overwhelming and uncontroverted evidence supporting the sentencing factor].) Accordingly, we must determine whether “beyond a reasonable doubt, that the 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.” (Sandoval, supra, 41 Cal.4th at p. 839.)
As to the aggravating circumstance that “victim was particularly vulnerable” (Cal. Rules of Court, rule 4.421(a)(3)), it is beyond dispute that defendant engaged in continuous sexual abuse of a girl between the ages of seven and nine under circumstances that made her particularly vulnerable to his misconduct. Indeed, defendant proclaimed on the internet: “I have licked her and fingered her when she was asleep.” And defendant’s access to the victim, which we do not specify so as to maintain the confidentiality of her identity, made the girl particularly vulnerable to his persistent sexual assaults. We are confident beyond a reasonable doubt that a jury presented with the circumstances of defendant’s continuous molestation of the victim (much of which was proclaimed by defendant on the internet and admitted by him when he was interviewed by law enforcement) would have reached a verdict finding the victim to be particularly vulnerable. Indeed, it is inconceivable that a jury would have reached a contrary finding.
We could stop here as one legitimate aggravating circumstance is sufficient to support the upper term. (Black II, supra, 41 Cal.4th at p. 813.) But there is more.
As to the aggravating circumstance that “defendant took advantage of a position of trust” to commit the continuous sexual abuse (Cal. Rules of Court, rule 4.421(a)(11)), it is beyond dispute that defendant had such a relationship with the victim that placed him in a position of trust which allowed him to commit the sexual abuse. He admitted such on the internet and in his statements to law enforcement. Thus, we conclude beyond a reasonable doubt that a jury presented with the circumstances of his continuous molestation of the victim would have reached a verdict finding that defendant took advantage of a position of trust to commit continuous sexual abuse of the victim. Again, it is inconceivable that a jury would have reached a contrary finding.
As to the aggravating circumstance that the “manner in which the [continuous sexual abuse] was carried out indicates planning” (Cal. Rules of Court, rule 4.421(a)(8)), defendant’s chat room conversation on the internet, and his statements to law enforcement, made it clear that defendant planned not only the acts he committed against the victim, but also carefully planned, indeed asked for advice from others, how to encourage the nine-year-old victim to participate voluntarily in other sex acts. Therefore, we conclude beyond a reasonable doubt that a jury presented with the facts of his continuous molestation of the victim would have reached a verdict finding that the manner in which defendant carried out the sex acts indicated planning. It is absurd to suggest otherwise.
For all the reasons stated above, the Cunningham error was harmless beyond a reasonable doubt, and defendant is not entitled to the relief he seeks.
DISPOSITION
The judgment is affirmed.
I concur: ROBIE , J.
NICHOLSON , J.
In my view, the appeal should be dismissed pursuant to People v. Bobbit (2006) 138 Cal.App.4th 445. The application of “general contract principles” to defendant’s negotiated plea reveals that his plea agreement embodies a mutual understanding that the upper term could lawfully be applied. Consequently, defendant’s appellate contention is, in substance, a challenge to his negotiated plea and requires a certificate of probable cause.
In any event, I agree with the majority that any error in imposing the upper term without submitting the factual questions to a jury was harmless beyond a reasonable doubt.