Opinion
F052778
4-25-2008
THE PEOPLE, Plaintiff and Respondent, v. CATHERINE JILL SCOTT, Defendant and Appellant
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez, Brian Alvaraz, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Cornell, Acting P.J., Gomes, J., and Kane, J.
Pursuant to a plea agreement, appellant Catherine Jill Scott pled no contest to grand theft by embezzlement (Pen. Code, § 487, subd. (a)). The court imposed the three-year upper term and ordered appellant to pay $106,115.62 in restitution.
All statutory references are to the Penal Code.
On appeal, appellant contends the court violated appellants constitutional right to trial by jury by imposing the upper term sentence based on aggravating factors neither found by a jury to be true beyond a reasonable doubt nor admitted by appellant, and therefore appellants sentence must be reduced to the middle term. We will vacate the sentence and remand for further proceedings.
BACKGROUND
Appellant was initially charged with grand theft by embezzlement (§ 487, subd. (a); count 1) and forgery (§ 475, subd. (a); count 2). According to the report of the probation officer, appellant told an investigating Tulare County deputy sheriff that over a period of approximately 11 months while employed as the office manager for Carver Pump Service (the company), she forged the company owners signature and wrote approximately four checks per month to herself, for amounts totaling approximately $80,000.
On November 3, 2006, appellant entered into a plea agreement, the terms of which were that appellant would plead no contest to count 1, the People would dismiss count 2, the maximum sentence that could be imposed was three years, the sentencing hearing would be set out three months hence to allow appellant to make restitution and it "would be a big consideration in her sentence if she [made] restitution." That same day, appellant pled no contest to the instant offense and the court set sentencing for February 23, 2007.
Thereafter, the office manager of the company submitted to the probation officer a letter stating that the companys losses, as a result of appellants conduct, totaled "$106,115 and possibly more ...."
Appellant appeared for sentencing on March 6, 2007. At the outset of the hearing, defense counsel told the court appellant was attempting to obtain a bank loan to pay restitution but had been unsuccessful so far, and requested a continuance. The court denied the request, and proceeded to sentencing. The prosecutor read into the record the letter from the companys office manager.
In imposing the upper term, the court found as circumstances in mitigation that appellant had no prior criminal record and had acknowledged wrongdoing at an early stage of the proceedings; found as circumstances in aggravation that the taking was of great monetary value, appellant took advantage of a position of trust and confidence in committing the crime and the manner in which the crime was committed indicated planning, sophistication, and professionalism; and concluded that the circumstances in aggravation outweighed those in mitigation. As indicated above, the court also ordered appellant to pay $106,115.62 in restitution.
On April 9, 2007, defense counsel and the prosecutor appeared in court, at which time defense counsel "lodge[d] an objection" under the Sixth Amendment and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 868] (Cunningham) to the imposition of the upper term. Defense counsel noted that issue had been discussed off the record at the time of sentencing. Cunningham was decided in January 2007, after appellant had entered her plea and before sentencing.
The court noted the following: appellant had entered her plea "with the understanding it would be a three year lid in state prison, and the restitution situation was more or less hanging in the balance"; "[i]t was hoped that ... the defendant could come up with a substantial portion of the restitution by the time [of] sentencing," in which case the court "could consider that and perhaps reduce the sentence somewhat"; but appellant paid no restitution. The court "noted and overruled" the defense objection "because of the fact [appellant] did enter [the] plea to that understood sentence."
DISCUSSION
Appellant, relying chiefly on Cunningham and the very recent case of People v. French (March 27, 2008, S148845) ___ Cal.4th ___ , argues that the court erred in imposing the upper term because the court did so based on aggravating factors that were neither alleged, admitted nor found true by a jury beyond a reasonable doubt, and appellant neither waived her right to trial by jury on, nor effectively admitted, those aggravating factors. The People concede the point, and we agree.
In Apprendi v. New Jersey (2000) 530 U.S. 466, the United States Supreme Court held, "Other 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.) The high court reaffirmed this rule in Blakely v. Washington (2004) 542 U.S. 295 (Blakely) and later in Cunningham. And in Cunningham the Supreme Court also held that under the version of Californias determinate sentencing law (DSL) then in effect, the middle term, not the upper term was the relevant statutory maximum (Cunningham, supra, 127 S.Ct. at p. 868), and therefore the DSL violated the Sixth Amendment because it "authorizes the judge, not the jury, to find the facts permitting an upper term sentence" (id. at p. 871).
There are, however, three types of facts a trial judge can properly use to impose an aggravated sentence: (1) "`the fact of a prior conviction" (Blakely, supra, 542 U.S. at p. 301); (2) "facts reflected in the jury verdict" (id. at p. 303, italics omitted); and (3) facts "admitted by the defendant" (ibid., italics omitted). In People v. French, supra, ___ Cal.4th ___ the court, addressing the third of these types of facts, held: "[D]efendant, by entering into a plea agreement that included an upper term as the maximum sentence, did not implicitly admit that his conduct could support that term." (Id. at p. 4256].) "California law ... requires that an aggravating circumstance be based upon a fact other than an element of the crime. [Citation.] Although defendants no contest plea on six counts constituted an admission to all elements of those offenses [citation], it did not constitute an admission to any aggravating circumstance." (Id. at p. 4257.)
Thus, as the parties agree, appellants plea did not constitute an admission to any of the aggravating factors upon which the court relied. And as the parties also agree, the aggravating circumstances upon which the court relied were neither facts of a prior conviction nor established by a jury verdict. Therefore, appellants Sixth Amendment right to a jury trial was violated by the imposition of the upper term. We turn now to the question of whether that error requires reversal.
"Failure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error." (Washington v. Recuenco (2006) 548 U.S. 211, ___ [126 S.Ct. 2546, 2553] (Recuenco). "Such an error does not require reversal if the reviewing court determines it was harmless beyond a reasonable doubt, applying the test set forth in Chapman v. California (1967) 386 U.S. 18." (People v. French, supra, ___ Cal.4th ___ .)
Appellant argues automatic reversal is required because here, unlike Recuenco, the circumstances in aggravation found by the court were not alleged in the information. Alternatively, appellant argues the court committed prejudicial error. We need not decide whether Cunningham error can ever be found harmless in a case in which a defendant pleads guilty or no contest and the aggravating factors found by the court are not alleged, because we conclude that the record in the instant case does not support the conclusion that the error was harmless beyond a reasonable doubt.
In applying the Chapman harmless error standard in the context of Cunningham error, we must "determine `whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jurys verdict would have authorized the upper term sentence. [Citation.] If 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." (People v. French, supra, ___ Cal.4th ___ .)
The assessment of prejudice can be "problematic," in part because "although defendant did have an incentive and opportunity at the sentencing hearing to contest any aggravating circumstances mentioned in the probation report or in the prosecutors statement in aggravation, that incentive and opportunity were not necessarily the same as they would have been had the aggravating circumstances been tried to a jury. First, the standard of proof at the sentencing hearing was lower; the trial court was required to make a finding of one or more aggravating circumstances only by a preponderance of the evidence. (Cal. Rules of Court, rule 4.420(b).) Second, because the trial court had broad discretion in imposing sentence, a finding by the court concerning whether or not any particular aggravating circumstance existed reasonably might have been viewed by defense counsel as less significant than the courts overall assessment of defendants history and conduct. Counsels strategy might have been different had the aggravating circumstances been tried under a beyond-a-reasonable-doubt standard of proof to a trier of fact that was responsible only for determining whether such circumstances were proved (and not for making the ultimate sentencing decision). Accordingly, a reviewing court cannot always be confident that the factual record would have been the same had aggravating circumstances been charged and tried to the jury." (People v. French, supra, ___ Cal.4th ___ .)
Moreover, "When a defendant pleads guilty or no contest, a prejudice assessment is even more problematic [than in a situation in which there has been a jury trial] because the record generally does not contain a full presentation of evidence concerning the circumstances of the offense." (People v. French, supra, ___ Cal.4th ___ .) In French, our Supreme Court found Cunningham error in the failure to submit to the jury certain aggravating factors relating to the commission of the offenses. The court concluded that the error could not be deemed harmless, noting that "the record ... contains no evidence of the type that would be admissible had the issue been tried to a jury" because the probation report, although it recited the facts of the offenses, was based on multiple hearsay, and a witness who testified at the sentencing hearing did not do so under oath and was not subject to cross-examination. (People v. French, supra, ___ Cal.4th ___ .) Moreover, the court noted, "Because there was no preliminary hearing, the record does not reflect how witnesses might have testified had there been a trial." (Ibid.)
The People argue that the violation of appellants Sixth Amendment rights was harmless because the restitution order of more than $106,000 "clearly" establishes that the taking was of great monetary value and appellants failure to make any restitution, despite being given several months in which to do so, "was a clear indication ... that [appellant] had not reformed and remained a danger to society." We disagree.
Here, similar to French, although the record contains information concerning the instant offenses which supports the circumstances in aggravation found by the court, there was no evidence of the type that would have been admissible in a trial: there was no preliminary hearing; the probation report, which is hearsay, summarizes the facts of the instant offenses based on police reports, also hearsay; and a letter from the company officer manager containing information supporting the courts finding that the taking was of great monetary value—that appellant embezzled at least $106,155—was not testimony under oath and the writer was not subject to cross-examination. On the record before us, we cannot conclude that the Sixth Amendment error was harmless beyond a reasonable doubt.
Based on the foregoing, it is appropriate to vacate the upper term imposed on appellants conviction of grand theft by embezzlement and remand for resentencing in accordance with guidelines set forth in People v. Sandoval (2007) 41 Cal.4th 825. Sandoval directed "that sentencing proceedings to be held in cases that are remanded because the sentence imposed was determined to be erroneous under Cunningham ... are to be conducted in a manner consistent with the amendments to the [determinate sentence law] adopted by the Legislature." (People v. Sandoval, supra, 41 Cal.4th at p. 846.)
To preserve the issue for federal review, appellant argues that "[the remand procedure prescribed in Sandoval] would violate due process and the constitutional proscription of ex post facto laws, and that the only constitutionally viable remedy on remand is the imposition of the upper term." As appellant recognizes, we are bound to follow the decisions of the California Supreme Court, and we reject this contention on that basis. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The sentence is vacated and the matter is remanded for resentencing in accordance with this opinion.