Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. C9540785
Premo, J.
This matter has been transferred here from the Supreme Court (S154293) with directions to vacate our previous decision (People v. Soto (June 7, 2007) H027820 [nonpub. opn.]) and to reconsider the cause in light of People v. French (2008) 43 Cal.4th 36 (French). In our earlier opinion, we reversed a judgment that resulted from a no-contest plea. We held, in part, that (1) a challenge to the trial court’s authority to impose an upper term in light of Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham) was cognizable on appeal despite the failure to obtain a certificate of probable cause, and (2) a Blakely challenge was not forfeited by failing to raise the issue below. The Supreme Court thereafter granted the People’s petition for review. In French, the California Supreme Court upheld our holdings. In addressing the application of Blakely and Cunningham to cases in which the defendant has pleaded guilty or no contest, the court held that that “(1) defendant was not required to obtain a certificate of probable cause in order to raise his claim of Cunningham error on appeal, because that claim implicates his sentence only and does not constitute a challenge to the plea agreement; (2) defendant did not forfeit his Cunningham claim by failing to raise it in the trial court because, under the circumstances of this case, an express waiver of jury trial on aggravating circumstances was required and no such waiver occurred; (3) in pleading no contest pursuant to a plea agreement providing for a sentence not to exceed a stipulated maximum and further stipulating to a factual basis for the plea, defendant neither waived his right to a jury trial on aggravating circumstances nor admitted facts that established an aggravating circumstance; and (4) imposition of the upper term sentence violated defendant’s Sixth Amendment right to a jury trial, and the constitutional error was not harmless beyond a reasonable doubt.” (French, supra, 43 Cal.4th at p. 41.)
We therefore reiterate our prior opinion after eliminating the discussion relating to the certificate of probable cause and revising the discussion relating to forfeiture.
Our reiteration is identical to our previous opinion in this case. We reiterate because the Supreme Court instructed us to vacate the opinion and French did not affect the opinion.
The parties have not elected to file supplemental briefs. (Cal. Rules of Court, rules 8.528(f), 8.200(b).) We hereby vacate our previous decision. We then reverse the judgment.
Defendant Louis Munoz Soto pleaded no contest to four counts of forcible lewd and lascivious acts on a child under the age of 14 (Pen. Code, § 288, subd. (b)(1), hereafter, § 288(b)(1)). The court sentenced defendant to a total prison term of 32 years, based upon consecutive upper term sentences of eight years for each count.
All further statutory references are to the Penal Code unless otherwise stated.
Defendant challenged the conviction, claiming that the court committed sentencing error: (1) under the United States Supreme Court’s decision in Blakely, supra,542 U.S. 296, which was decided after judgment was entered on defendant’s conviction; and (2) by imposing an ex post facto parole revocation restitution fine under section 1202.45.
In our decision filed July 8, 2005, we held, inter alia, that there was no Blakely error. Thereafter, the United States Supreme Court granted certiorari, vacated the prior judgment, and remanded the case to us for further consideration in light of the Supreme Court’s decision in Cunningham, supra,549 U.S. 270 [127 S.Ct. 856]. After such reconsideration, we conclude that there was Blakely error. We hold further that imposition of the fine was improper. We therefore reverse and remand for resentencing with instructions that any new sentence not include a parole revocation restitution fine.
FACTS
This appeal concerns principally the legal question of whether the sentence imposed by the court violated Blakely, supra, 542 U.S. 296. We therefore present a short summary of the facts as taken from the probation report.
In March 1995, the San Jose Police Department responded to a report of child molestation. The police conducted an investigation by interviewing the two minor victims and their respective mothers.
Victim 1 reported that in approximately 1993 (when he was seven or eight years old), he would visit his aunt, who was married to defendant. During these visits, defendant would take victim 1 to the basement and molest him. The four incidents described by victim 1 involved defendant fondling and placing his mouth over victim 1’s penis, defendant forcing victim 1 to rub defendant’s penis, and one instance in which defendant attempted to place his penis into victim 1’s buttocks.
Victim 2 reported to the police that he and his mother had lived with defendant in San Jose from 1992 to 1993, when victim 2 was nine years old. He told the police that defendant had molested him on five occasions in victim 2’s bedroom. Defendant forced victim 2 to orally copulate him. On two occasions, defendant went to victim 2’s room at night, pushed him on the bed, and placed his penis in victim 2’s anus. In addition, there were three occasions in which defendant rubbed victim 2’s “ ‘privates.’ ”
PROCEDURAL BACKGROUND
Defendant was charged by complaint with four violations of section 288(b)(1) (forcible lewd and lascivious acts on a child under the age of 14). As later amended, the complaint alleged that defendant committed two forcible lewd acts each on an eight-year-old boy, victim 1, and on a nine-year-old boy, victim 2. Two of the incidents occurred in 1993; the other two violations were alleged to have occurred between September 1993 and January 1994.
“Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.” (§ 288(b)(1).) Subdivision (a) of section 288 provides: “Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.”
The complaint was filed April 26, 1995. After the molestation was reported in 1995, defendant apparently moved out of the area and was not arrested until 2003.
Following a partial preliminary examination during which the two victims provided testimony, defendant pleaded no contest to the four counts. On June 14, 2004, the court sentenced defendant to a total prison term of 32 years; defendant received an upper term sentence of eight years for each offense, and the court ordered that each eight-year prison term be served consecutively. Defendant filed a timely notice of appeal from the judgment on August 16, 2004.
Significantly, Blakely, supra, 542 U.S. 296, was decided on June 24, 2004.
On July 8, 2005, we filed our opinion in which we struck the parole revocation restitution fine and affirmed the judgment as modified. The California Supreme Court denied review. Thereafter, defendant filed a petition for certiorari, which was granted on February 20, 2007; at that time the United States Supreme Court vacated the judgment and remanded the case to us for further consideration in light of Cunningham, supra, 549 U.S. 270 [127 S.Ct. 856]. (Soto v. California(2007) __ U.S. __ [127 S.Ct. 1211].)
DISCUSSION
I. Contentions on Appeal
Defendant asserts two challenges to the judgment. These claims of error are as follows:
1. The court imposed upper term sentences for each of the four convictions based upon circumstances in aggravation that were neither part of the jury’s factual findings nor admitted by defendant. Under Blakely, supra, 542 U.S. 296, this sentence violated defendant’s right to a jury trial guaranteed under the United States and California Constitutions.
2. The court’s imposition of a parole revocation restitution fine under section 1202.45 violated ex post facto principles because the underlying crimes of which defendant was convicted preceded the enactment of the statute authorizing such fine.
II. Claimed Blakely Violation
A. Contentions of the Parties
The trial court imposed the upper term of eight years in state prison for each of the four counts charging violations of section 288(b)(1). The court’s reasons for imposing the upper term sentences as to each of the four counts--recited largely from the probation report--were that (1) the crimes “involved great violence, bodily harm, threat of bodily harm expressing high degree of cruelty, viciousness or callousness”; (2) the victims were “particularly vulnerable”; (3) the crimes were carried out in a manner indicating “planning, sophistication or professionalism”; (4) defendant “took advantage of a position of trust, confidence”; (5) defendant “engaged in violent conduct including serious danger to society”; (6) there were “repeat molestations, multiple victims, multiple times, by multiple times this easily could have reached toward the hundreds”; (7) defendant “used force, forcibly held [the victims] down, turned them over, forced them to have oral copulation on him”; and (8) defendant showed “no remorse.”
The trial court’s comments often refer to the crime in the singular. It is clear from a review of the entire record, however, that the trial court’s description of factors in aggravation are to the multiple offenses to which defendant pleaded no contest.
Defendant claims that, under Blakely, supra, 542 U.S. 296, he was deprived of his constitutional right to a jury trial when the trial court imposed upper term sentences for each of the four counts to which he pleaded no contest. He argues that Blakely applies to the imposition of upper term sentences under California’s determinate sentencing statute. Defendant asserts that there was Blakely sentencing error here because: (1) he did not admit any of the factors in aggravation on which the court’s sentence was based; (2) none of the exceptions to Blakely are applicable; and (3) none of the factors cited by the sentencing court was proved beyond a reasonable doubt.
The Attorney General responds that defendant forfeited any claim of error under Blakely by failing to raise the issue below. Further, even if defendant did not forfeit his appellate challenge, Blakely does not apply to California’s determinate sentencing law (hereafter, sometimes DSL). Alternatively, the Attorney General argues that any Blakely error was harmless because the jury would have found one or more of the factors in aggravation utilized by the judge in its upper term sentence.
We conclude below that defendant did not forfeit his contention that there was Blakely error. We hold further that, under Cunningham, supra, 549 U.S. 270 [127 S.Ct. 856], the trial court’s imposition of upper term sentences for each of the four convictions implicated defendant’s Sixth Amendment right to a jury trial and thus there was Blakely error.
B. Discussion of Blakely Challenge
1. Forfeiture
The Attorney General contends that defendant forfeited his objection to the upper term sentence by failing to specifically object at the time of the sentencing hearing under Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi). Defendant, however, is in the same circumstance as the defendant in French.
“At the time that defendant entered his plea of no contest, he expressly waived his right to a jury trial on the substantive offenses, but this waiver did not encompass his right to a jury trial on any aggravating circumstances. The absence of such an explicit waiver is not surprising. When defendant entered his plea, Blakely had not yet been decided, and prior to that decision ‘it was widely assumed that for the purposes of the rule established in Apprendi, the maximum term authorized by the jury’s verdict was the upper term.’ [Citation.] Defendant pleaded no contest only to the offenses charged and did not admit any sentencing factors. Defendant’s waiver of jury trial on the offenses in connection with his no contest plea cannot reasonably be interpreted to extend to proof of aggravating circumstances when, at the time of the plea, no right to a jury trial on such circumstances had been recognized. Defendant did not forfeit his Sixth Amendment right by failing to request a jury trial on the aggravating circumstances, and his claim must be addressed on the merits.” (French, supra, 43 Cal.4th at p. 48, fn. omitted.)
2. Merits of Blakely challenge
In Apprendi, supra, 530 U.S. 466, the United States Supreme Court held unconstitutional a New Jersey law permitting an enhancement that could result in potentially double the maximum sentence for possession of a firearm in the event that the judge determined by a preponderance of the evidence that a hate crime had been committed; it concluded 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.) This principle, the court explained, derives from two constitutional rights, namely, the right to trial by jury, and the prohibition against depriving a person of liberty without due process of law. (Id. at pp. 476-477; see also Ring v. Arizona (2002) 536 U.S. 584, 603-609.)
In Blakely, supra, 542 U.S. 296, the court considered Washington determinate sentencing laws under which the trial court--after the defendant had pleaded guilty to a class B felony--determined that he “had acted with ‘deliberate cruelty’ ” (id. at p. 298), and accordingly “imposed an exceptional sentence of 90 months--37 months beyond the standard maximum.” (Id. at p. 300.) The defendant contended that the Washington sentencing procedure deprived him of his federal constitutional right to a jury trial to determine beyond a reasonable doubt all of the facts required for the sentence imposed. (Id. at p. 301.) The Supreme Court agreed, holding “that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations.] In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” (Id. at pp. 303-304.) The judge had relied on a fact not found by the jury or admitted by the defendant; accordingly the Supreme Court concluded that the sentence in Blakely was invalid. (Id. at p. 304; see also United States v. Booker (2005) 543 U.S. 220 [Blakely holding found applicable to Federal Sentencing Guidelines].)
In People v. Black (2005) 35 Cal.4th 1238 (Black), the California Supreme Court considered the effect of Blakely and Booker on upper term sentencing under California’s determinate sentencing law. The court noted that under California’s DSL, “[t]hree terms of imprisonment are specified by statute for most offenses.” (Id. at p. 1247.) The judge’s sentencing discretion is guided as follows: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.” (§ 1170, subd. (b).) It acknowledged that under this scheme, “[t]he sentencing judge retains considerable discretion to identify aggravating factors” (Black, supra, at p. 1247), and that he or she may base that decision “on aggravating facts that have not been found true by the jury.” (Id. at p. 1248.)
The Black court held that the imposition of an upper term sentence under California’s determinate sentencing statute was not unconstitutional under Blakely. It reasoned: “[E]ven though section 1170, subdivision (b) can be characterized as establishing the middle term sentence as a presumptive sentence, the upper term is the ‘statutory maximum’ for purposes of Sixth Amendment analysis. The jury’s verdict of guilty on an offense authorizes the judge to sentence a defendant to any of the three terms specified by statute as the potential punishments for that offense, as long as the judge exercises his or her discretion in a reasonable manner that is consistent with the requirements and guidelines contained in statutes and court rules. . . . [T]he upper term is the ‘maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict. . . .’ ” (Black, supra, 35 Cal.4th at pp. 1257-1258, quoting Blakely, supra, 542 U.S. at p. 303.)
The defendant in Cunningham, supra, 549 U.S. 270 [127 S.Ct. 856]--like the defendant in Black--received an upper term sentence of 16 years after his conviction under section 288.5, the sentencing judge having found six aggravating factors warranting the sentence. (Cunningham, supra, at pp. __ [at pp. 860-861].) The California Court of Appeal (First District) rejected the defendant’s Blakely challenge, and the California Supreme Court denied review, having decided Black nine days earlier. (Id. at p. __ [at p. 861].)
As a starting point for the court’s analysis, Justice Ginsburg, writing for the majority in Cunningham, noted: “This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham, supra, 549 U.S. at pp. __ [127 S.Ct. 856 at pp. 863-864].) Accordingly, after discussing California’s determinate sentencing law, and the court’s decisions in Apprendi, Blakely, and Booker, the court concluded that “aggravating circumstances depend on facts found discretely and solely by the judge. In accord with Blakely, therefore, the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum. [Citation.] Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, [citation], the DSL violates Apprendi’s bright-line rule: Except for 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. __ [at p. 868].) After discussing Black at some length, the Cunningham court concluded that the California Supreme Court’s reasoning was at odds with the principles of Apprendi and Blakely: “Because the DSL allocates to judges sole authority to find facts permitting the imposition of an upper term sentence, the system violates the Sixth Amendment. It is comforting, but beside the point, that California’s system requires judge-determined DSL sentences to be reasonable.” (Id. at p. __ [at p. 870].)
There was sentencing error here. The sentencing provision with which we are concerned here specifies that each count of forcible lewd acts upon a minor is punishable “by imprisonment in the state prison for three, six, or eight years.” (§ 288(b)(1).) Thus, under Cunningham, the middle term of six years was the “statutory maximum” for Sixth Amendment purposes under Blakely. (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. 856 at p. 868].) And none of the factors in aggravation identified by the sentencing judge concerned prior crimes of which defendant was convicted--an exception to the requirement that circumstances in aggravation supporting an upper term sentence must be found by a jury beyond a reasonable doubt. (Ibid.) Accordingly, we conclude that there was Blakely error here with respect to the court’s imposition of (upper term) eight-year sentences for each of the four counts to which defendant pleaded no contest, and that this error requires a remand for resentencing.
IV. Parole Revocation Restitution Fine
Defendant challenges the court’s imposition of a parole revocation restitution fine in the amount of $9,600 under section 1202.45. He contends that this fine violated ex post facto principles because the statute authorizing such fine was enacted in 1995, after the offenses were alleged in the complaint to have been committed (i.e., between 1993 and 1994). Defendant cites People v. Callejas (2000) 85 Cal.App.4th 667, 669, in support of his position.
Section 1202.45 originally read as follows: “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional restitution fine shall be suspended unless the person’s parole is revoked.” (Stats. 1995, ch. 313, § 6, p. 1758, eff. Aug. 3, 1995.)
The Attorney General concedes the point. Indeed, he admits that the imposition of an unauthorized sentence as is the case here is a recognized exception to the waiver rule. (See People v. Andrade (2002) 100 Cal.App.4th 351, 354.)
We agree that the imposition of the fine here violated ex post facto principles under Callejas. Accordingly, we order that the fine be stricken.
DISPOSITION
The judgment is reversed. The matter is remanded for resentencing. The trial court is directed to follow the current version of section 1170, subdivision (b) (Stats. 2007, ch. 3, § 2), which provides that sentencing terms shall rest within the sound discretion of the trial court. The new sentence shall not include a parole revocation restitution fine.
WE CONCUR: Rushing, P.J., Elia, J.