Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. CM024933, CM025913
DAVIS, J.
Defendant George Brian Schy pleaded no contest in case No. CM024933 to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and receiving stolen property (Pen. Code, § 496, subd. (a)). Pending sentencing in that case, defendant pleaded no contest in case No. CM025913 to receiving stolen property (§ 496, subd. (a)). The trial court denied probation in both cases, sentencing defendant to three years eight months in case No. CM024933 and eight months in case No. CM025913, for a total collective sentence of four years four months. The court also ordered that defendant pay various fees and fines, including victim restitution in the amount of $67.97.
Hereafter, undesignated section references are to the Penal Code.
On appeal, defendant contends imposition of the upper term in case No. CM024933 violated the law of Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham), and the order for victim restitution was unauthorized. Accepting the People’s concession as to the second contention, we will modify the judgment with regard to the amount of victim restitution and will affirm the judgment in all other respects.
FACTS AND PROCEDURAL HISTORY
On April 4, 2006, police observed that the vehicle driven by defendant had stolen license plates and conducted a traffic stop. Defendant, on parole and driving with a suspended license, told police he recently purchased the vehicle but, because he could not afford the registration, he used license plates from a friend, which he admittedly thought might be stolen. A search of the vehicle revealed 0.1 gram of methamphetamine and a pipe with marijuana in it.
Defendant was charged in case No. CM024933 with possession of methamphetamine (count 1), receiving stolen property (count 2) and giving false evidence of vehicle registration (count 3). As to counts 1 and 2, it was alleged defendant had served two prior prison terms. (§ 667.5, subd. (b).) He pleaded no contest to counts 1 and 2 in exchange for dismissal of count 3 and the special allegations with a Harvey waiver.
People v. Harvey (1979) 25 Cal.3d 754 (Harvey).
Approximately six months later, while sentencing was pending in case No. CM024933, defendant was arrested when he gave police a false name and was found to be in possession of a stolen license plate. Defendant was charged in case No. CM025913 with receiving stolen property (count 1) and giving false information to a police officer (count 2). Defendant pleaded no contest to count 1 in exchange for dismissal of count 2 with a Harvey waiver.
The court pronounced sentence in both cases together, imposing the upper term of three years as to count 1 and eight months as to count 2 in case No. CM024933, and eight months as to count 1 in case No. CM025913, for a total combined sentence of four years four months. The court also ordered fees and fines, including victim restitution in the amount of $67.97 in case No. CM024933 pursuant to the victim’s statement that, as a result of defendant’s crime, she incurred expenses of $17 for new license plates and registration, $43.97 to replace gas siphoned from the vehicle and $7 to replace a stolen gas cap lock.
Defendant filed a timely notice of appeal challenging the validity of the plea and the sentence or other matters occurring after the plea, and requested a certificate of probable cause. The court denied defendant’s request in light of the timely notice of appeal “on other grounds” filed by counsel on his behalf the following day.
DISCUSSION
I. Cunningham
Defendant contends imposition of the upper term violated Blakely and Cunningham. In particular, he argues that each factor the court found to be aggravating for purposes of imposing the upper term required a finding by a jury beyond a reasonable doubt. We disagree.
Applying the Sixth Amendment to the federal Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jury’s verdict or admitted by the defendant; thus, when a sentencing 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. 302-304.)
Accordingly, in Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856], 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.” (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864], overruling on this point People v. Black (2005) 35 Cal.4th 1238 (Black I), vacated in Black v. California (2007) ___ U.S. ___ [167 L.Ed.2d 36].) Thus, except for a prior conviction, any fact that increases the penalty for a crime beyond the middle term must be tried to the jury and proved beyond a reasonable doubt.
Applying Cunningham, in People v. Black (2007) 41 Cal.4th 799 (Black II), this state’s highest court recently held 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.” (Id. at p. 816.)
Here, in deciding to impose the upper term, the court cited the fact that “the defendant’s priors are numerous, the defendant has served prior prison terms, defendant was on probation or parole at the time of the crime, and prior performance on probation or parole is unsatisfactory.” In mitigation, the court found that “the amount of drug contraband was minimal and [] the crimes in this particular case were not serious.” The court concluded that the aggravating factors outweighed those in mitigation.
As pointed out in Apprendi, Blakely, Cunningham and Black II, the Sixth Amendment jury trial guarantee does not apply to prior convictions that are used to impose greater punishment. (See, e.g., Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864]; Black II, supra, 41 Cal.4th at pp. 818-820.) The reasons underlying the exemption of prior convictions are as follows: (1) the fact of a prior conviction “‘does not relate to the commission of the offense’” for which the defendant is being sentenced (Apprendi, supra, 530 U.S. at p. 496), and (2) “the certainty that procedural safeguards attached to any ‘fact’ of prior conviction . . . mitigate[s] the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a ‘fact’ increasing punishment beyond the maximum of the statutory range.” (Id. at p. 488, fn. omitted.) It follows that the exception applies not only to the fact of a prior conviction, but also to “an issue of recidivism which enhances a sentence and is unrelated to an element of a crime.” (People v. Thomas (2001) 91 Cal.App.4th 212, 223 (Thomas).) Therefore, “‘the fact of a prior conviction,’ and related facts . . . may be judicially found at sentencing.” (United States v. Cordero (5th Cir. 2006) 465 F.3d 626, 632-633, fns. omitted.) For instance, the trial court may determine and rely on the defendant’s probation or parole status to impose the upper term. (Cf. United States v. Fagans (2d Cir. 2005) 406 F.3d 138, 141-142; United States v. Corchado (10th Cir. 2005) 427 F.3d 815, 820 (Corchado) [“the ‘prior conviction’ exception extends to `subsidiary findings’ such as whether a defendant was under court supervision when he or she committed a subsequent crime”].)
Here, it was proper for the trial court to impose the upper term based on defendant’s numerous prior convictions (six felonies and five misdemeanors, according to the probation report), as well as the fact that he was on parole at the time of the crime (Corchado, supra, 427 F.3d at p. 820) and the fact that he served prior prison terms (Thomas, supra, 91 Cal.App.4th at p. 223), all aggravating factors that did not have to be submitted to a jury. The fact that the trial court relied on defendant’s unsatisfactory prior performance on probation/parole is of no consequence because it relied on at least one aggravating circumstance that was established by means that satisfy the requirements of the Sixth Amendment. (Black II, supra, 41 Cal.4th at p. 813.) Because defendant’s prior convictions, prior prison terms, and probationary status at the time he committed the offenses each render him eligible for the upper term, he “was not legally entitled to the middle term, and his Sixth Amendment right to jury trial was not violated by imposition of the upper term sentence for” the crimes of which he was convicted. (Id. at p. 820.)
We conclude there was no sentencing error.
II. Victim Restitution
Defendant contends, and the People concede, that the court’s order of victim restitution in case No. CM024933 was unauthorized because it included amounts not directly resulting from the crime for which defendant was convicted (i.e., $43.97 to replace the stolen gas and $7 to replace the stolen gas cap lock). (§ 1202.4, subd. (f); People v. Percelle (2005) 126 Cal.App.4th 164, 179-181, 184.) We accept the People’s concession and modify the judgment to reflect victim restitution in the amount of $17.00.
DISPOSITION
The judgment is modified to impose a $17 restitution fine in case No. CM024933 pursuant to section 1202.4, subdivision (f). As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment accordingly and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
I concur: SCOTLAND, P.J.
Cantil-Sakauye, J. concurring and dissenting.
I concur in section II of the majority opinion, but respectfully dissent on the Cunningham issue (Cunningham v. California (2007) 549 U.S. ____ [166 L.Ed.2d 856]) in section I. I agree with the majority that defendant’s recidivism made him eligible for the upper term and that the trial court’s reliance on defendant’s unsatisfactory prior performance on probation/parole is of no consequence. I dissent, however, because defendant requires a certificate of probable cause to challenge the upper term sentence arising from his plea of no contest to two felonies in case No. CM024933. Without one, his appeal on that issue must be dismissed.
Generally, a defendant who has entered a plea of guilty or no contest must obtain a certificate of probable cause from the trial court to appeal. (Pen. Code, § 1237.5.) No certificate is required, however, when the grounds for appeal arose “after entry of the plea and do not affect the plea’s validity.” (Cal. Rules of Court, rule 8.304(b)(4)(B).) In determining whether a certificate is required, “the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea . . . .” (People v. Panizzon (1996) 13 Cal.4th 68, 76, italics omitted (Panizzon).)
“‘[A] challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself’ and thus requires a certificate of probable cause. [Citation.]” (People v. Shelton (2006) 37 Cal.4th 759, 766 (Shelton), quoting Panizzon, supra, 13 Cal.4th at p. 79.)
“‘[T]he specification of a maximum sentence or lid in a plea agreement normally implies a mutual understanding of the defendant and the prosecutor that the specified maximum term is one that the trial court may lawfully impose and also a mutual understanding that, absent the agreement for the lid, the trial court might lawfully impose an even longer term.’” (People v. Bobbit (2006) 138 Cal.App.4th 445, 447 (Bobbit), quoting Shelton, supra, 37 Cal.4th at p. 768.) “Accordingly, a challenge to the trial court’s authority to impose the lid sentence is a challenge to the validity of the plea requiring a certificate of probable cause.” (Shelton, supra, at p. 763.)
Here, the defendant was originally charged with two felonies, one misdemeanor and two prior prison term allegations. Pursuant to the plea agreement in this case, defendant pled no contest to two felony charges in exchange for the dismissal of the misdemeanor charge and the two prior prison term allegations for a maximum of three years eight months in state prison. Prior to entry of the pleas on case No. CM024933, defendant signed and initialed a written plea form indicating he understood that he may serve the maximum sentence of three years and eight months in state prison. At the change of plea hearing, defendant acknowledged that he had no questions about the information on the plea form and that he read and understood its contents. At sentencing, the trial court imposed the three year eight month maximum term permitted under the plea agreement.
The plea agreement here was based on a mutual understanding that in exchange for dismissal of the prior prison terms and misdemeanor charge, the court could order defendant to serve the maximum three-year eight-month prison sentence. Defendant now argues that the maximum sentence he negotiated and from which he benefitted violates Cunningham. His challenge to the sentence is in substance a challenge to the plea’s validity.
The benefit of the bargain of this plea to defendant was the reduction of his prison exposure by two years. Moreover, each felony to which defendant pled in case No. CM024933 carries the same sentence triad: 16 months, 2 years or 3 years in state prison. Thus, in order for the court to lawfully reach the maximum term in the plea agreement, it necessarily would require selection of an upper term on one of the two charges. Consequently, the maximum term to which defendant agreed he could be sentenced to in the plea bargain included imposition of the upper term. And an examination of the plea form, the entry of plea, and the sentencing hearing does not reveal that defendant reserved the right to challenge the court’s authority to impose the upper term.
In return, the prosecutor’s bargain was that defendant is deemed to have agreed that the court could lawfully impose the full three-year eight-month state prison sentence, absent an abuse of the trial court’s discretion. In the context of Cunningham, by way of his plea bargain with the prosecutor and his acknowledgement that he may serve the maximum three years and eight months in prison, defendant is deemed to have admitted that there were facts that would justify an upper term sentence if the judge chose to impose it.
Under these circumstances, defendant’s challenge to his upper term sentence requires a certificate of probable cause. Absent a certificate, the appeal must be dismissed.