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People v. Propp

California Court of Appeals, Third District, Shasta
Jul 3, 2008
No. C056465 (Cal. Ct. App. Jul. 3, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. NELS CHRISTIAN PROPP, Defendant and Appellant. C056465 California Court of Appeal, Third District, Shasta July 3, 2008

NOT TO BE PUBLISHED

Super. Ct. Nos. 07F3370, 07F1305

CANTIL-SAKAUYE, J.

In case No. 07F1305, defendant Nels Christian Propp pled guilty to illegal possession of ammunition (Pen. Code, § 12316, subd. (b)(1) - count 2) and admitted a prior prison term allegation (§ 667.5, subd. (b)) in exchange for dismissal of the remaining counts and allegations and a three-year prison term with execution suspended. The court imposed an aggregate state prison sentence of three years, suspended execution of sentence and granted probation.

Hereafter, undesignated statutory references are to the Penal Code.

Defendant admitted violating probation in case No. 07F1305 and entered a negotiated plea of no contest to assault with a deadly weapon (§ 245, subd. (a)(1) - count 1), false imprisonment by violence (§§ 236, 237 - count 4), and making a credible threat to cause serious bodily injury (§ 601, subd. (a)(1) - count 5) in case No. 07F3370 in exchange for the dismissal of the remaining counts (two counts of criminal threats, first degree burglary, false imprisonment by violence, two counts of petty theft with a prior, aggravated trespass and vandalism) and a stipulated state prison sentence of six years.

The court sentenced defendant to state prison for an aggregate term of six years, that is, the upper term of four years for the assault offense in case No. 07F3370 and a consecutive one-third the midterm or eight months for the remaining offenses, that is, counts 4 and 5 in case No. 07F3370 and for the offense in case No. 07F1305. The prior prison term allegation in case No. 07F1305 was stricken pursuant to section 1385.

Defendant appeals contending (1) imposition of the upper term of four years for the assault offense contravenes Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham) and (2) the abstract of judgment requires modification. We will order the abstract corrected and affirm the judgment.

I.

Defendant contends imposition of the upper term violated his right to a jury trial, proof beyond a reasonable doubt and due process as set forth in Cunningham and other cases. This claim is frivolous.

With respect to imposition of the upper term for the assault offense in case No. 07F3370, defendant waived his right to a jury trial as to the existence of aggravating factors. In the written plea form under constitutional rights, defendant initialed both of the following statements:

“3. I understand I have a right to a jury trial as to the existence of any sentencing factors that may be used by the court to increase my sentence to the upper or aggravated term provided by law on any count, sentencing enhancement, or allegation.

“I hereby give up the right to a jury trial on the existence of any sentencing factors and consent to the judge determining, by proof beyond a reasonable doubt, the existence of any aggravating sentencing factors within the judge’s discretion. I also agree this waiver shall apply to any future sentence imposed following the revocation of probation.”

The written plea agreement also reflects that defendant had discussed the negotiated plea agreement with his attorney who had answered all of his questions. Defendant signed the plea agreement. His attorney attested that he had “explained each of the above rights to the defendant,” and consented to the plea and concurred in defendant’s decision to waive his rights and enter the plea.

At the entry of plea hearing, defendant, represented by counsel, confirmed that he read and understood the plea form, initialed in the spaces provided and signed at the end. Defendant understood that he would receive a six-year stipulated term in exchange for his plea to counts 1, 4 and 5 and his admission that he violated probation. He also confirmed that he had not been forced or threatened to enter his plea and was not under the influence of any medications, alcohol or controlled substances. Defendant entered his pleas and the court found them to be “knowingly and intelligently made, freely and voluntarily entered.” The court also found that defendant understood the nature and consequences of his plea and admissions.

At sentencing, the court imposed an upper term of four years for count 1 and consecutive one-third the midterm or eight months on counts 4 and 5 as well as for the offense in the probation violation case for an aggregate stipulated term of six years. The court imposed sentence “[p]ursuant to the agreement of the parties, and the stipulations.” There was no objection. Subsequently, the court struck the prior prison term allegation in the probation violation case in order to conform to the negotiated plea agreement.

Defendant’s express waiver of his right to jury trial on aggravating factors bars his challenge now on appeal to the imposition of the upper term as contravening Cunningham. (See People v. French (2008) 43 Cal.4th 36, 41.)

“[A] court may rely upon a defendant’s validly executed waiver form as a proper substitute for a personal admonishment.” (People v. Panizzon (1996) 13 Cal.4th 68, 83; see People v. Castrillon (1991)227 Cal.App.3d 718, 722.) “[A] defendant who has signed a waiver form upon competent advice of his attorney has little need to hear a ritual recitation of his rights by a trial judge. The judge need only determine whether defendant had read and understood the contents of the form, and had discussed them with his attorney. If the questioning of defendant and his attorney leads the judge to believe that the defendant does not in fact fully comprehend his rights, or the consequences of pleading guilty, however, the judge must conduct further canvassing of the defendant to ensure a knowing and intelligent waiver of rights.” (In re Ibarra (1983) 34 Cal.3d 277, 286.)

“So long as the waiver form contains sufficient information, and both the defendant and his counsel attest to its valid execution, the judge may, in his discretion, dispense with further explanation to the defendant of his rights.” (In re Ibarra, supra, 34 Cal.3d at p. 286.) Here, the plea form contained defendant’s signature which he confirmed and defense counsel’s attestation that he explained each of defendant’s rights to him and concurred in defendant’s waiver of the same. The rights listed included defendant’s right to a jury trial on aggravating factors.

Defendant’s written waiver of his right to a jury trial on aggravating factors was confirmed at the entry of the plea hearing. The trial court confirmed that defendant had read and understood the form, had initialed the statements and had signed the form. In the written plea form, defense counsel consented to defendant’s plea and concurred in his waiver of his rights, which counsel had explained. The trial court found that defendant’s waiver of his rights and entry of plea was knowing, voluntary, and intelligent. There is nothing in the record which raises a doubt that defendant understood and knowingly waived his rights.

In view of our conclusion, we need not discuss the Attorney General’s arguments that defendant’s lack of a certificate of probable cause and receipt of the benefit of his bargain bars his challenge on appeal.

II.

Defendant contends the abstract of judgment “is at variance with the trial court’s oral pronouncement and the minute order of the oral pronouncement of judgment” in that a $400 rather than a $200 restitution fine and parole revocation restitution fine are reflected. He also argues that a parole revocation restitution fine was not imposed when defendant was originally granted probation.

At sentencing, the trial court imposed the challenged fines as follows: “Having previously been ordered to pay restitution fine in [case No. 07F]1305 of two hundred dollars; an additional two hundred dollars restitution fine is imposed but stayed pending your successful completion of parole. [¶] As to the new case [case No. 07F3370] appears an additional restitution fine of two hundred dollars, plus a 10 percent administrative fee. And then the two hundred dollars restitution, which is stayed pending your successful completion of parole.”

The abstract of judgment reflects a $400 restitution fine and a $400 parole revocation restitution fine.

The Attorney General concedes that the abstract should be corrected to reflect that a $200 restitution fine and a $200 parole revocation restitution fine were imposed in each case rather than consolidating the fines. We will order the abstract corrected accordingly.

With respect to defendant’s complaint that no parole revocation restitution fine was imposed in case No. 07F1305 when he was originally granted probation, the short answer is that section 1202.45 did not authorize such fine until defendant’s “sentence included a period of parole.” Here, when defendant was originally sentenced and granted probation, the court imposed a probation revocation restitution fine. After probation was revoked and defendant was sentenced to prison, the trial court properly imposed a parole revocation restitution fine.

DISPOSITION

The trial court is directed to prepare a corrected abstract of judgment to reflect that a $200 restitution fine and a $200 parole revocation restitution fine was imposed in each case and to forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is affirmed.

We concur: SCOTLAND, P.J., NICHOLSON, J.


Summaries of

People v. Propp

California Court of Appeals, Third District, Shasta
Jul 3, 2008
No. C056465 (Cal. Ct. App. Jul. 3, 2008)
Case details for

People v. Propp

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. NELS CHRISTIAN PROPP, Defendant…

Court:California Court of Appeals, Third District, Shasta

Date published: Jul 3, 2008

Citations

No. C056465 (Cal. Ct. App. Jul. 3, 2008)