Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. SCD195437, David J. Danielsen, Judge.
BENKE, J.
Appellant in this case pled guilty to one count of mayhem and admitted personally inflicting great bodily injury on the victim. (Pen. Code, §§ 203, 12022.7, subd. (e).) Under the terms of his plea agreement, appellant agreed he could be sentenced to prison for a period of from five to thirteen years. The trial court sentenced appellant to a total of 12 years in prison, relying in part on the fact appellant had tied and bound the victim within the meaning of section 1170.84.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant argues that because neither the information under which he was charged nor his plea agreement make any reference to section 1170.84, the trial court should not have relied on the statute. We find no error. As part of appellant's plea agreement, appellant agreed the trial court could determine the existence of any aggravating facts which might be used to increase his sentence. Section 1170.84 is such an aggravating circumstance. Accordingly, we affirm the judgment.
Appellant also argues that the abstract of judgment contains a clerical error. As respondent points out, this error has been corrected by the trial court.
FACTUAL BACKGROUND
Defendant and appellant Christopher Shelor is a 24-year-old pimp and marijuana trafficker. At the time of the offense to which he pled guilty, appellant was living with Nicole Williams. Williams worked for appellant as a prostitute and was his codefendant.
The victim of their assault, Maya Kaufman, is a 19-year-old adult entertainer and escort. Kaufman dated appellant for a number of months and shared her earnings with him.
On the afternoon of December 7, 2005, Kaufman went to appellant's apartment because appellant and Williams accused her of withholding money she earned at a bachelor party. Although at one point Kaufman left the apartment, she returned and found appellant asleep. When appellant woke up, he and Kaufman resumed their argument and appellant and Williams began their assault. Appellant picked Kaufman up by the neck and threw her on the couch. Appellant then handcuffed Kaufman and took off her clothes. After Kaufman's clothes were removed, Williams punched Kaufman twice in the stomach. Appellant punched Kaufman once in the side and slapped her. Because Kaufman was crying, Williams pulled her head back and put a sock in Kaufman's mouth. Appellant and Williams then told Kaufman that Williams would stab her if she tried to leave.
Next, appellant whipped Kaufman on the legs, buttocks and back with an extension cord. Williams then filled the bathtub with water. Appellant forced Kaufman into the bathroom and onto her knees. Appellant then forced Kaufman's head underwater, twice. Kaufman began kicking, and appellant restrained her by tying one end of the extension cord around her neck and fastening the other end to the bathroom door. Kaufman testified that if she moved her neck, she would be choked. While Kaufman was tied to the bathroom door, appellant slapped her.
During the course of his assault on Kaufman, appellant lit a cigarette lighter and waited until the metal portion of the lighter was very hot. He then touched the metal to Kaufman's skin. Later on in the assault, appellant used the cigarette lighter to melt wax. He then dipped the end of a vacuum cleaner tube in the melted wax and used the tube to put the molten wax on Kaufman's breasts. During the assault, Williams and appellant also took still and video images of Kaufman and told her they were going to put the images on the Internet.
Kaufman's ordeal ended when there was a knock at the apartment door. When Williams answered the door, two police officers asked if they could come in. Williams went to the bathroom and told appellant police were present. Appellant took the handcuffs and extension cord off Kaufman and told her stay in the bathroom. Kaufman complied. Kaufman was discovered by the police as they conducted a search of the premises.
Appellant was charged by way of an amended information with criminal conspiracy, torture, false imprisonment, assault by means likely to produce great bodily injury, assault with a deadly weapon and mayhem. In addition, the information alleged appellant personally used a deadly weapon and personally inflicted great bodily harm. The information expressly alleged that in torturing Kaufman, appellant handcuffed her, tied an extension cord around Kaufman's neck, put the cord on the bathroom door causing it to tighten around Kaufman's neck, and that while Kaufman was bound with the extension cord, appellant slapped her.
Following a preliminary hearing at which Kaufman testified to her ordeal, including in particular appellant's use of the handcuffs and extension cord to restrain her, appellant pled guilty to committing mayhem and to inflicting great bodily harm on Kaufman. Under the terms of a plea agreement with the district attorney, appellant agreed the trial court could impose a prison sentence of between five and thirteen years. In addition, the plea form appellant signed contained a Blakely waiver, which in pertinent part stated: "[T]he sentencing judge may determine the existence or non-existence of any aggravating facts which may be used to increase my sentence on any count or allegation above the middle term either at the initial sentencing or at any future sentencing in the event my probation is revoked."
See Blakely v. Washington 542 U.S. 296 [124 S.Ct. 2531].
Following his plea, the trial court sentenced appellant to the upper term of eight years on the mayhem count and the middle term of four years on the great bodily injury enhancement for an aggregate term of twelve years. In imposing the upper term on the mayhem conviction, the court stated it had considered mitigating circumstances, including appellant's difficult childhood, his psychological and learning disabilities, drug use and lack of any prior felony convictions but found they were outweighed by the aggravating circumstances. In setting forth the aggravating circumstances, the court stated: "I think that [appellant's] active leadership role in this crime, . . . the fact that he was responsible for initiating the torture of this victim is a circumstance in aggravation which is significantly important. Likewise, the law provides that the Court may consider a statutory factor in aggravation, and that is identified in Penal Code section 1170.84. And that is that this defendant was convicted of a serious felony, and in the course of the commission of that serious felony, he did engage in tying, binding, and confinement of the victim."
With respect to the great bodily injury enhancement, the trial court stated: "I have considered striking the [enhancement] after consideration of the facts and circumstances relating to this crime and to this defendant and his background. I decline to do so."
Appellant filed a timely notice of appeal.
I
On appeal appellant argues that in sentencing him, the trial court erred in relying on section 1170.84. We agree with appellant that he was not required to obtain a certificate of probable cause in order to pursue this argument on appeal. In general, where a defendant asserts grounds that arose after entry of a plea and do not affect the plea's validity, a certificate of probable cause is not required. (Rule 8.304(b)(4)(B), Cal. Rules of Court.) Thus a defendant who has pled guilty to a crime may, without obtaining a certificate of probable cause, appeal from a sentence imposed after entry of his plea on the grounds the trial court erred in imposing a particular sentence. (See People v. Buttram (2003) 30 Cal.4th 773, 777.)
II
Section 1170.84 provides in pertinent part: "[I]t shall be considered a circumstance in aggravation of the crime in imposing a term under subdivision (b) of Section 1170 if, during the course of the serious felony, the person engaged in the tying, binding, or confining of any victim."
As we have noted, the amended information expressly alleged appellant handcuffed Kaufman, tied an extension cord around her neck and tied her to the bathroom door and Kaufman testified to the occurrence of those allegations at the preliminary hearing. Moreover, appellant agreed the trial court could determine the existence of any aggravating circumstances. Importantly, as we have also noted, the trial court did not impose a sentence in excess of that provided in appellant's plea agreement. Given these circumstances, the trial court did not err in relying on the provisions of section 1170.84 in sentencing appellant to the upper term.
First, we reject appellant's contention due process required any specific reference to section 1170.84 in the amended information. Although section 1170.1, subdivision (e), requires that enumerated sentence enhancements be pled, nothing in our Penal Code imposes a specific pleading requirement with respect to aggravating circumstances. We recognize that in general due process requires a defendant have fair notice of the circumstances that might be used to increase his sentence. (See People v. Mancebo (2002) 27 Cal.4th 735, 747.) However, the tying and binding to which Kaufman was subjected was a central part of the torture allegations in the amended complaint and gave appellant more than adequate notice of the specific circumstances the prosecution would rely on in showing his crimes were particularly cruel and heinous. In this context, to require a specific reference to section 1170.84 in the amended information would impose the rigid code pleading our Legislature has consistently eschewed. (See People v. Deas (1972) 27 Cal.App.3d 860, 863.)
Secondly, we reject appellant's contention that in relying on section 1170.84 the trial court breached the terms of appellant's plea agreement. Appellant agreed he could be sentenced to a term of up to 13 years and that the trial court would determine the existence of facts which might aggravate his sentence. Consistent with that agreement the trial court sentenced appellant to a total of 12 years based in part on its finding the aggravating circumstance set forth in section 1170.84 had occurred. As the court in People v. Walker (1991) 54 Cal.3d 1013, 1027, stated: "[O]nly a punishment significantly greater than that bargained for violates the plea bargain." (Italics added.) Because appellant's sentence was in fact less than permitted under the terms of the plea agreement, appellant cannot meet this threshold burden.
Notwithstanding the fact his sentence was within the literal terms of his plea agreement, appellant contends his agreement was breached because he was not notified that if the court found tying and binding had occurred, the trial court would be required to treat that as an aggravating circumstance. The record does not support the notion that the mandatory nature of section 1170.84 offended any material part of the plea bargain. In light of both the allegations of tying and binding in the amended information and Kaufman's testimony at the preliminary hearing, appellant cannot contend he had any reasonable expectation that in determining his sentence the trial court would ignore the fact Kaufman was tied and bound. Indeed, quite apart from the requirements of section 1170.84, under California Rules of Court, rule 4.421(a)(1) and (a)(3), aggravating circumstances include the fact that the crime involved a high degree of cruelty, viciousness, or callousness and that the victim was vulnerable. In short, even in the absence of section 1170.84, appellant could not have reasonably expected the trial court would have simply ignored the tying and binding and its alternative significance under rule 4.421(a)(1) and (a)(3).
Judgment affirmed.
WE CONCUR: McCONNELL, P. J., HUFFMAN, J.