Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County Nos. MF40921 & MF43703, Carol K. Ash, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Emry J. Allen 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, Assistant Attorney General, Carlos A. Martinez and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Benny Wayne Stead, Jr. pled no contest to first degree burglary and admitted three prior convictions. On appeal, he contends (1) the trial court erroneously believed it lacked the discretion to reduce his sentence and (2) the imposition of an upper sentencing term violated his federal constitutional rights under Cunningham. We affirm the judgment.
Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham).
FACTS AND PROCEDURAL HISTORY
On May 23, 2005, defendant was charged with being in possession of a controlled substance. (Health & Saf. Code, § 11377, subd. (a).) The complaint further alleged that defendant had been convicted of several prior felonies. Defendant pled no contest to the possession of a controlled substance charge and admitted three prior felony convictions. On March 6, 2006, the trial court sentenced defendant to three years, plus one year for each of the three prior conviction enhancements, for a total of six years. The court suspended the sentence and placed defendant on three years’ probation.
On May 19, 2006, while on probation, defendant was charged with first degree burglary (Pen. Code, § 459) and receiving stolen property (§ 496, subd. (a)). The complaint also alleged prior felony convictions. On September 7, 2006, defendant entered into a plea agreement in which he pled no contest to the burglary charge and admitted three prior felony convictions. The plea agreement specified that defendant would receive the upper term of six years for the burglary charge. The trial court further sentenced defendant to one year for each of the three enhancements, for a total of nine years. In addition, the trial court found defendant in violation of his previous probation and sentenced him to one-third the middle term of his prior conviction, which was eight months. This term was to be served consecutively to the nine-year sentence. The trial court suspended the entire sentence and placed defendant on three years’ probation.
All further statutory references will be to the Penal Code unless otherwise specified.
On February 9, 2007, defendant was taken into custody for allegedly violating his probation. Defendant admitted leaving a rehabilitation program on January 13, 2007, the attendance of which was a probation requirement, and he failed to contact his probation officer about leaving the program. Defendant admitted that he knew he would go to prison for nine years if he left the program and that he did not want to serve nine years. The trial court ordered that the sentence previously suspended be imposed.
On July 20, 2007, defendant filed his notice of appeal.
DISCUSSION
I. Sentencing Discretion
Defendant contends that his case should be remanded with instructions that the trial court has the discretion to reduce defendant’s sentence. We disagree.
A. Timeliness
A notice of appeal must be filed with the court 60 days after judgment is entered or 60 days after issuance of the order being appealed. (Cal. Rules of Court, rule 8.308(a).) Section 1237, subdivision (a) states that a trial court’s order granting probation is an appealable order. (E.g., People v. Preyer (1985) 164 Cal.App.3d 568, 576.) “[W]hen a court imposes sentence but suspends its execution at the time probation is granted, a defendant has the opportunity to challenge the sentence in an appeal from the order granting probation. [Citation.] If the defendant allows the time for appeal to lapse during the probationary period, the sentence becomes final and unappealable. [Citation.] This is so regardless of the fact the defendant will not serve the sentence unless the court revokes and terminates probation before the probationary period expires.” (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421.)
The order placing defendant on probation and suspending his nine-year-eight-month sentence was made on September 7, 2006. The 60-day clock for filing a timely notice of appeal began to run at that point. The clock subsequently expired on November 6, 2006. Defendant did not file a notice of appeal until July 20, 2007. Defendant was required to appeal the sentence after it was imposed, not when his probation was revoked. We conclude defendant allowed the time for appeal during his probationary period to elapse and as such, the sentence against him became final and his appeal is untimely.
Under certain circumstances, however, the courts have allowed appeals that would otherwise be considered untimely by section 1237. In People v. Hackler (1993) 13 Cal.App.4th 1049, the court considered whether a defendant waived his challenge to a probation condition because he failed to appeal from the order granting probation. The court found no case “squarely holding that the validity of probation conditions may be raised only by direct appeal upon the order granting probation. On the other hand, ... California appellate courts have frequently considered the validity of probation conditions, sometimes striking them, even in the absence of an appeal from the original probation order.” (Id. at p. 1056.) “[T]he sheer number of cases indicates an appellate court practice to reach the merits of challenges to probation conditions regardless of how the issue comes to the court.” (Id. at p. 1057.) The court in Hackler thus permitted the defendant to contest the validity of a probation condition even though he had not made a direct appeal of the order or sought review by a petition for a writ of habeas corpus. (Id. at pp. 1055-1057.)
In the interest of justice, we will adopt the above appellate practice and address defendant’s claim on the merits.
B. Merits
Defendant argues that the trial court erred when asserting that it lacked the discretion to reduce defendant’s sentence following the revocation of his probation. We affirm the trial court’s ruling.
In People v. Howard (1997) 16 Cal.4th 1081 (Howard), our Supreme Court concluded that “if the court has actually imposed sentence, and the defendant has begun a probation term representing acceptance of that sentence, then the court has no authority, on revoking probation, to impose a lesser sentence at the precommitment stage.” (Id. at p. 1095.) In Howard,the defendant had appealed the denial of a motion to set aside her plea but the court noted that she never contested the sentence itself when the court imposed it, suspended it and granted probation. (Ibid.) The court concluded that since she failed to contest the length of her sentence when it was imposed, “[n]o good reason exist[ed] for allowing her to do so once the court revoked her probation.” (Ibid.)
Defendant’s case is analogous to Howard. Defendant accepted his sentence when it was imposed and the record is devoid of any evidence that he contested the validity of the sentence at that time. Defendant only contested the sentence when his probation was revoked. The trial court did not have the discretion to reduce defendant’s sentence and was, in fact, bound to impose the previously suspended sentence without alteration. The trial court did not err in its imposition of sentence.
II.ConstitutionalError
Defendant asserts that his case should be remanded for imposition of a midterm sentence and that the eight-month sentence should be served concurrently. We disagree.
A. Timeliness
We conclude that this issue was untimely appealed under the same analysis as in Part I of this discussion. However, in People v. Munoz (1975) 51 Cal.App.3d 559, the court ignored an untimely appeal in order to hear the defendant’s constitutional argument that he received ineffective assistance of counsel. (Id. at pp. 563-565.) There, the defendant did not raise the issue of inadequate representation at the proceeding which resulted in his placement on probation. (Id. at pp. 561-564.) Instead, he raised the issue on appeal after he was subsequently sentenced to state prison following a probation revocation. (Id. at p. 563.) The court allowed the defendant to argue his claim of ineffective assistance of counsel solely on the ground that it was a constitutional claim. (Ibid.)
Similarly, we will address the merits of defendant’s claim solely on the basis that it is a Sixth Amendment constitutional issue.
B. Cunningham Error
Defendant argues that his rights to due process and a jury trial were violated when the trial court imposed an upper term and consecutive sentences against him without a jury finding as to the enhancements. We again affirm the trial court’s ruling.
1. Upper Term Sentence
The United States Supreme Court in Cunningham ruled that the Sixth Amendment prevents a sentencing court from imposing a sentence beyond the statutory maximum based on aggravating circumstances, without a jury first finding the facts of those circumstances. (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 860].) The relevant statutory maximum for this inquiry is not the maximum sentence a court may impose on the finding of additional facts, but the maximum sentence allowed without finding any additional facts. (Ibid.) The court in Cunningham concluded that because the upper term under California sentencing law requires the finding of additional facts, the middle term is to be considered the statutory maximum. (Id. at p. 868.) The court further concluded that, “[e]xcept 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.’” (Ibid.) The maximum sentence a court may impose is a sentence that rests “‘solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.’” (Id. at p. 865, italics omitted.)
The trial court in the present case derived its sentence from defendant’s admission of three prior convictions. The court asked defendant if he understood the ramifications of admitting the prior convictions and defendant responded in the affirmative that he understood. The facts upon which the enhancements in the present case are based fit within the prior conviction exception of Cunningham. Furthermore, Cunningham permitted the court to rely on facts admitted by defendant. Accordingly, there was no Cunningham error.
2. Consecutive Sentences
Defendant argues that the trial court erred by imposing consecutive sentences without a jury finding. This contention has no merit.
Consecutive sentencing does not implicate Cunningham. (People v. Black (2007) 41 Cal.4th 799, 823 (Black II).) In Black II, the court concluded the constitutional right to a jury trial is not violated by the imposition of consecutive sentences based on facts not found by a jury. (Id. at pp. 822-823.) Defendant asserts that Black II is incorrect, but we are, of course, bound by it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Boykin v. Alabama (1969) 395 U.S. 238 (Boykin); In re Tahl (1969) 1 Cal.3d 122 (Tahl).
Though muddled by the Cunningham argument, defendant’s primary contention is that he did not knowingly and intelligently waive his constitutional protections when admitting the truth of his prior convictions. Defendant’s contention, though couched in terms of Cunningham, is actually that the trial court committed Boykin-Tahl error because it failed to properly advise defendant of his constitutional rights before accepting admissions of prior convictions. We disagree.
Over 30 years ago, the California Supreme Court ruled that an accused “must be advised of (1) specific constitutional protections waived by an admission of the truth of an allegation of prior felony convictions, and (2) those penalties and other sanctions imposed as a consequence of a finding of the truth of the allegation.” (In re Yurko (1974) 10 Cal.3d 857, 860 (Yurko).) The court developed its decision in Yurko through a synthesis of the United States Supreme Court decision in Boykin and its own decision in Tahl. The Boykin court stated that a plea of guilty was equivalent to a waiver of three constitutional protections: (1) the right against self-incrimination, (2) the right to a jury trial and (3) the right to confront one’s accusers. (Boykin, supra, 395 U.S. at pp. 243-244.) In Tahl, the California Supreme Court concluded that proper application of Boykin required the trial court to specifically inform the accused of the three constitutional rights enumerated above. (Tahl, supra, 1 Cal.3d at pp. 131-132.) The Yurko court decided that an accused must be admonished of the rights enumerated by Boykin and Tahl and must be appraised of the penal effects an admission of prior felony convictions might cause. (Yurko, supra, 10 Cal.3d at p. 864.)
In 1992, the California Supreme Court revised its holding in Yurko, as the case law “no longer support[ed] the proposition that the federal Constitution requires reversal when the trial court has failed to give explicit admonitions on each of the so-called Boykin rights.” (People v. Howard (1992) 1 Cal.4th 1132, 1175.) The court decided that it would “continue to require that trial courts expressly advise defendants on the record of their Boykin/Tahl rights. However, errors in the articulation and waiver of those rights [would] require the plea to be set aside only if the plea fails the federal test.” (Ibid.) The federal test explains that a plea will be valid provided the record affirmatively shows the plea to be made voluntarily and intelligently under the totality of the circumstances. (North Carolina v. Alford (1971) 400 U.S. 25, 31; Brady v. United States (1970) 397 U.S. 742, 747-748; People v. Howard, supra, 1 Cal.4th at p. 1175.)
Four years ago, the California Supreme Court stated that an “appellate court must go beyond the courtroom colloquy to assess a claim of Yurko error.” (People v. Mosby (2004) 33 Cal.4th 353, 361.) “Now, if the transcript does not reveal complete advisements and waivers, the reviewing court must examine the record of ‘the entire proceeding’ to assess whether the defendant’s admission of the prior conviction was intelligent and voluntary in light of the totality of circumstances.” (Ibid.) Thus, the absence of express admonitions and waivers no longer requires reversal regardless of prejudice. Reversal is only merited if we, after reviewing the entire record, are unable to discern that the defendant made his admissions voluntarily and intelligently.
In this case, defendant’s contention that the record is silent on this matter is incorrect. The trial court did fail to specifically admonish defendant of his Boykin rights regarding prior convictions. However, while express admonishments are still required in this state, failure to give them is not reversible error per se. (People v. Howard, supra, 1 Cal.4th at p. 1175.) We conclude, under the totality of the circumstances, that defendant’s admission of the three prior felony convictions was made both voluntarily and intelligently.
When defendant pled no contest to the possession of a controlled substance charge, he did so with full knowledge that he would receive the specific term of six years based upon his admission of three prior convictions. In return for the plea and the admissions, defendant’s sentence was suspended. As part of this plea agreement process, defendant signed and repeatedly initialed a plea agreement form that advised him of the constitutional rights waived by making the agreement. Defendant initialed the form three times, showing he understood that by making the agreement he waived the right to a jury trial, the right to remain silent and the right to confront witnesses against him. Following these waivers, defendant admitted the three prior convictions in writing on the form where he was asked to “admit as true the allegations.” At the oral hearing where the trial court accepted defendant’s plea, the trial court first orally enumerated that defendant would plead no contest to the possession charge and would be admitting three prior felony convictions. Defendant stated that he “[d]efinitely” understood the terms of the agreement. The court then asked if defendant had discussed the plea with defense counsel and whether defendant understood his constitutional rights as described on the form he had signed, and the fact that they were being waived. Defendant answered that he understood. We note that this plea agreement was a package deal for defendant. He knew in advance the exact sentence he would receive, what the sentence would be based on, and that it would be suspended.
When defendant pled no contest yet again, this time to the burglary charge, he again signed and initialed a plea agreement form that listed the constitutional rights defendant would waive as a result of the plea. Defendant had to again initial three different boxes showing he understood that, by his plea, he waived the right to a jury trial, the right to remain silent and the right to confront adverse witnesses. The form also required defendant to aver what he understood the consequences of his plea to be. Defendant initialed that he understood he would receive a one-year sentence for each of his three prior convictions. At the oral hearing, the trial court first enumerated all consequences of the plea including what defendant was pleading to and the sentence he would receive. The court then asked defendant if he understood the agreement. Defendant said he understood the ramifications of the agreement including that he would be sentenced, because he admitted three prior convictions, one year for each prior. The court finally asked if defendant specifically understood that by entering into the agreement, he was waiving the constitutional rights of a jury trial, the right to remain silent and the right to confront his accusers. Defendant expressly stated that he understood. We also note that when the court actually took defendant’s plea for the record, it was defense counsel who reminded the court that defendant needed to admit the three prior convictions as part of the plea. Like the first plea agreement, this plea agreement was a package deal where defendant knew exactly the sentence he would receive, the requirements for making the sentence and that the sentence would be suspended.
When the plea agreement from which defendant appeals is combined with the plea to the drug charge, the record clearly demonstrates that defendant had a sophisticated understanding of the criminal justice system. “[E]vidence of a defendant’s prior experience with the criminal justice system [is] relevant to the question [of] whether he knowingly waived constitutional rights.” (Parke v. Raley (1992) 506 U.S. 20, 37.) “[P]revious experience in the [system] is relevant to a recidivist’s ‘“knowledge and sophistication regarding his [legal] rights.”’ [Citations.]” (People v. Mosby, supra, 33 Cal.4th at p. 365, fn. omitted.) Defendant was advised of his rights on four separate occasions, two of which were in writing. In addition, the record demonstrates that defendant discussed his plea with defense counsel and made the decision to enter his plea with the benefit of advice from defense counsel.
Moreover, the nature of both plea agreements shows that defendant knew exactly what he was bargaining for by making the agreement. Defendant received a suspended sentence on both occasions and knew before he entered the agreement what would be expected of him in making the plea. Defendant received the benefit of his bargain. (People v. Hester (2000) 22 Cal.4th 290, 295.) Defendant’s agreement allowed him to stay on probation and the imposed sentences were suspended provided defendant successfully completed probation.
In sum, while defendant was never explicitly advised of his constitutional rights regarding admissions of prior convictions separately from the substantive charge, the error was harmless.
This review could easily have been avoided had there been one sentence on the plea form expressly admonishing defendant of his constitutional rights regarding prior convictions. The trial court’s failure to give full advisements and obtain express waivers carries a high and needless cost. “‘As a consequence of the ... failure to obtain valid admissions of readily provable serious priors, appeals are filed, briefs are prepared, appellate research and record review are conducted, argument is heard, appellate opinions are written, matters are remanded to trial courts, defendants are transported from prisons to county jails to courtrooms, attorneys are appointed to represent defendants, and prior allegations are belatedly relitigated.’” (People v. Mosby, supra, 33 Cal.4th at p. 365, fn. 3 (conc. opn. of Woods (Fred), J.).)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Wiseman, Acting P.J., Levy, J.