Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tuolumne County No. CRF9998 Eric L. DuTemple, Judge.
Law Offices of Mark Borden and Mark Borden for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Levy, Acting P.J.
INTRODUCTION AND FACTS
On November 4, 2002, appellant Rita Nina Floyd pled guilty to two counts of identity theft in Tuolumne County Superior Court case number CRF9710 (case 9710). (Pen. Code, § 530.5, subd. (a).) On March 3, 2003, the court suspended imposition of sentence and placed appellant on probation for a period of five years. The court imposed a number of terms and conditions, including the condition that appellant obey all laws.
Unless otherwise specified all statutory references are to the Penal Code.
On May 14, 2003, appellant pled guilty to one count of identity theft in Tuolumne County Superior Court case number CRF9998 (case 9998). (Pen. Code, § 530.5, subd. (a).) On June 11, 2003, the court suspended the imposition of sentence and placed appellant on probation for a period of five years. The court imposed a number of terms and conditions, including the condition that appellant obey all laws.
On July 8, 2005, the court found appellant violated her probation by failing to report to her probation officer. In consequence, the court revoked, reinstated and modified her probation to include 60 days in county jail.
On or about March 5, 2007, appellant mailed a handwritten document she prepared in propria persona referencing case 9998 entitled “Motion to Amend 2002 Sentence to Title Reinstate And Run Concurrent with Time being Served in New Mexico” (first motion to amend). Therein, appellant wrote that she was sentenced to a nine-year term of imprisonment in New Mexico on October 18, 2006. Appellant motioned the court “to Amend the 2002 case, REINSTATE, And run Concurrent with time … now being served in New Mexico.” Appellant did not provide any supporting statutory or decisional authority. In a “Certificate of Mailing” appellant wrote that she mailed to the trial court one original and two copies of the first motion to amend and she “request[ed] that one of the copies be given to the District Attorney of Tuolumne County.” The first motion to amend was denied on March 17, 2007.
Underscoring omitted from all document titles in this opinion.
On April 23, 2007, the court received a second handwritten document appellant prepared in propria persona referencing case 9998 entitled “Motion to Amend 2002 Sentence to Title Reinstate and Run Concurrent with Time being Served in New Mexico” (second motion to amend). The contents of the second motion to amend are substantively identical to the contents of the first motion to amend. The second motion to amend was denied on May 4, 2007.
On May 2, 2007, the probation department filed an affidavit in support of revoking appellant’s probation because appellant was sentenced in the State of New Mexico on October 18, 2006, to nine years’ imprisonment for crimes she committed in that state.
An order to show cause was heard on July 2, 2007. Defense counsel argued that the court lacked jurisdiction over appellant pursuant to section 1203.2a. The court set the matter for hearing to determine whether appellant had satisfied any of the notice requirements contained in section 1203.2a.
In July 2007, appellant mailed the court two handwritten letters asking for concurrent sentencing. The first letter did not reference any specific case. The second letter referenced case 9998.
On August 1, 2007, defense counsel filed a motion in connection with cases 9998 and 9710 entitled “MOTION TO TERMINATE PROBATION AND COURT’S JURISDICTION TO IMPOSE SENTENCE PURSUANT TO PENAL CODE SECTION 1203.2a” (termination motion). Therein, defense counsel contested the court’s jurisdiction over appellant based on section 1203.2a. The termination motion was heard on August 22, 2007. Sierra Grohl, who is a custodian of records for the Tuolumne County Probation Department (the probation department), testified that the probation department did not receive a copy of the first motion to amend or the second motion to amend. In November 2006, the probation department received a written copy of appellant’s judgment and sentencing in the State of New Mexico from the district attorney in the State of New Mexico’s Seventh Judicial District. After argument by counsel, the trial court denied the termination motion. It concluded that it did not lose jurisdiction to sentence appellant because she did not provide the probation department or the court with notice satisfying the requirements of section 1203.2a.
On September 7, 2007, defense counsel filed a demand for sentencing in cases 9998 and 9710. Appellant was sentenced on October 7, 2007, to an aggregate term of four years and four months imprisonment, calculated as follows: the aggravated term of three years in state prison for count I in case 9998 and to two consecutive terms of eight months each for counts II and III in case 9710. This sentence was to run consecutive to the sentence imposed in the State of New Mexico.
Appellant separately appealed the judgments in cases 9998 and 9710. Appeal number F054010 relates to case 9998. Appeal number F054011 relates to case 9710. In both appeals, appellant argues that the court lacked jurisdiction to sentence her pursuant to section 1203.2a. We are not persuaded. Appellant did not provide the court or the probation department with notice satisfying the requirements of section 1203.2a. As a result, the time limits contained in this section did not commence to run. In appeal number F054010, appellant argues that imposition of the aggravated term for count I in case 9998 prejudicially infringed her jury trial right. She is correct. Following and applying our Supreme Court’s recent decision in People v. French (2008) 43 Cal.4th 36 (French), we conclude that imposition of the aggravated term infringed appellant’s jury trial right because this sentencing decision was based exclusively on offense-related factors that were not found true by a jury. The error is prejudicial because the record does not contain evidence demonstrating beyond a reasonable doubt that a jury unquestionably would have found at least one of these offense-based aggravating factors to be true. Therefore, appellant must be resentenced in case 9998. In case 9710, we will affirm.
The abstract of judgment reflects the sentences that were imposed in cases 9710 and 9998. However, resentencing is necessary only in case 9998. To avoid confusion, in the dispositional paragraph of our opinion in this appeal we will direct the clerk of the superior court to prepare an amended abstract of judgment after appellant is resentenced in this case, reflecting the new sentence imposed in this case and the sentence that was imposed in case 9710 on October 7, 2007. The clerk is to transmit the amended abstract of judgment to the Department of Corrections and Rehabilitation.
DISCUSSION
I. The trial court possessed jurisdiction to sentence appellant.
Appellant argues that the court lost jurisdiction to sentence her because neither the probation department nor the court complied with the time limits contained in section 1203.2a. We disagree. As will be explained, neither of appellant’s motions to amend provided the court with notice satisfying the requirements of section 1203.2a. Also, appellant did not notify the probation officer of her incarceration in the State of New Mexico and the district attorney’s notification to the probation department of appellant’s incarceration did not trigger the 30-day time limit contained in the second paragraph of section 1203.2a.
In relevant part, section 1203.2a provides:
“If any defendant who has been released on probation is committed to a prison in this state or another state for another offense, the court which released him or her on probation shall have jurisdiction to impose sentence, if no sentence has previously been imposed for the offense for which he or she was granted probation, in the absence of the defendant, on the request of the defendant made through his or her counsel, or by himself or herself in writing, if such writing is signed in the presence of the warden of the prison in which he or she is confined or the duly authorized representative of the warden, and the warden or his or her representative attests both that the defendant has made and signed such request and that he or she states that he or she wishes the court to impose sentence in the case in which he or she was released on probation, in his or her absence and without him or her being represented by counsel.
“The probation officer may, upon learning of the defendant’s imprisonment, and must within 30 days after being notified in writing by the defendant or his or her counsel, or the warden or duly authorized representative of the prison in which the defendant is confined, report such commitment to the court which released him or her on probation.
“Upon being informed by the probation officer of the defendant’s confinement, or upon receipt from the warden or duly authorized representative of any prison in this state or another state of a certificate showing that the defendant is confined in prison, the court shall issue its commitment if sentence has previously been imposed. If sentence has not been previously imposed and if the defendant has requested the court through counsel or in writing in the manner herein provided to impose sentence in the case in which he or she was released on probation in his or her absence and without the presence of counsel to represent him or her, the court shall impose sentence and issue its commitment, or shall make other final order terminating its jurisdiction over the defendant in the case in which the order of probation was made. If the case is one in which sentence has previously been imposed, the court shall be deprived of jurisdiction over defendant if it does not issue its commitment or make other final order terminating its jurisdiction over defendant in the case within 60 days after being notified of the confinement. If the case is one in which the sentence has not previously been imposed, the court is deprived of jurisdiction over defendant if it does not impose sentence and issue its commitment or make other final order terminating its jurisdiction over defendant in the case within 30 days after defendant has, in the manner prescribed by this section, requested imposition of sentence.
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“In the event the probation officer fails to report such commitment to the court or the court fails to impose sentence as herein provided, the court shall be deprived thereafter of all jurisdiction it may have retained in the granting of probation in said case.” (§ 1203.2a.)
“The purpose of section 1203.2a is ‘to provide a mechanism by which the probationary court [can] consider imposing a concurrent sentence, and to “preclude[] inadvertent imposition of consecutive sentences by depriving the court of further jurisdiction over the defendant” when the statutory time limits are not observed. [Citation.]’ [Citation.]” (People v. Murray (2007) 155 Cal.App.4th 149, 157 (Murray), quoting In re Hoddinott (1996) 12 Cal.4th 992, 999 (Hoddinott).) “Loss of jurisdiction over a convicted felon is a severe sanction which courts have been unwilling to apply unless the sentencing court’s jurisdiction has been ousted by strict compliance with the statute. [Citations.]” (People v. Como (1975) 49 Cal.App.3d 604, 609 (Como); see also Murray, supra, 155 Cal.App.4th at p. 156.)
In this case, appellant did not provide the court with notice satisfying section 1203.2a. Neither the first motion to amend nor the second motion to amend satisfied the notice provision of paragraph one of section 1203.2a because these motions were not “signed in the presence of the warden of the prison in which [appellant] is confined or the duly authorized representative of the warden, and the warden or his or her representative [did not] attest[] both that [appellant] has made and signed such request and that [appellant] states that … she wishes the court to impose sentence in the case in which … she was released on probation, in … her absence and without … her being represented by counsel.” (§ 1203.2a.) Similarly, neither of the handwritten letters appellant mailed to the court in July 2007 was signed in the presence of the warden in accordance with the requirements contained in paragraph one of section 1203.2a. Therefore, neither the motions to amend nor appellant’s letters triggered the 30-day time period contained in paragraph three of section 1203.2.
Appellant also failed to notify the probation department of her incarceration in the State of New Mexico. She did not mail the probation department a copy of either motion to amend and she did not ask the court to send the probation department a copy of these motions. The notification of appellant’s incarceration that was provided by a district attorney did not trigger the 30-day jurisdictional time period contained in paragraph two of section 1302.2a. Paragraph two is clear and does not necessitate “‘resort to the various tools of statutory construction.’” (Hoddinott, supra, 12 Cal.4th at p. 1002.) It plainly provides that when a probation department learns of a defendant’s incarceration by a method other than written notification “by the defendant or his or her counsel, or the warden or duly authorized representative of the prison in which the defendant is confined,” the probation department is granted an unrestricted period of time to exercise its discretion to report the commitment to the court. Since the probation department was not notified of appellant’s incarceration in New Mexico by appellant, her counsel or the warden or duly authorized representative of the prison in which appellant is confined, the 30-day time period contained in paragraph two of section 1203.2a did not apply.
Appellant relies on Murray and Hoddinott to support her contention that the court lacked jurisdiction. Neither case is analogous. In Hoddinott, the defendant gave his probation officer written notice of his state prison commitment. (Hoddinott, supra, 12 Cal.4th at p. 994.) In Murray, a prison representative provided written notice of defendant’s incarceration to the probation officer. (Murray, supra, 155 Cal.App.4th at p. 156.)
Como, supra, 49 Cal.App.3d 604 is on point. There, a probation officer’s report dated April 11, 1973, noted that defendant, who was on probation, had been sentenced to state prison. Sixty-two days later, the court made a minute order revoking defendant’s probation and ordering the issuance of a bench warrant. The appellate court concluded that the superior court did not lose jurisdiction by virtue of section 1203.2a. It explained that neither defendant nor the probation officer provided the court with written notice of confinement satisfying the requirements of section 1203.2a. It explained that the probation officer’s report set forth the sentence, but not the commitment or confinement. Also, the record did not establish that the probation department was notified by the defendant, his counsel or a prison representative of the prison commitment. Therefore, the jurisdictional time periods contained in paragraphs two and three of section 1203.2a did not apply. (Id. at p. 609.)
Likewise, in this case written notice satisfying the requirements of section 1203.2a was not provided to the court or the probation department. Therefore, the restrictive time periods contained in paragraphs two and three were not triggered and the court did not lose jurisdiction. (Como, supra, 49 Cal.App.3d at p. 609.)
II. Imposition of the aggravated term for count I in case 9998 prejudicially infringed appellant’s federal constitutional jury trial right.
A. Facts
Appellant waived a preliminary hearing in case 9998 and she entered a negotiated guilty plea to count I.
The original probation report in case 9998 provides that appellant has no prior record of criminal conduct. This probation report derived the factual circumstances of count I from the police reports. The probation officer recommended that appellant be granted probation. If sentence was imposed it recommended the offense be declared aggravated. It listed the following aggravating circumstances: (1) the victims were particularly vulnerable; (2) the manner in which the crime was carried out indicated planning, sophistication, and professionalism; (3) the crime involved an actual taking of great monetary value; and (4) the defendant took advantage of a position of trust and confidence to commit the offense.
The supplemental probation report recommended that appellant’s crimes in case 9998 and case 9710 be declared neither aggravated nor mitigated. It recommended that the term appellant is currently serving in the State of New Mexico be declared the principle term and the three counts in cases 9998 and 9710 be declared subordinate terms, to be served consecutively at one-third the midterm of the base sentence, for a total term of two years’ imprisonment.
At the sentencing hearing, the prosecutor argued in favor of the aggravated term based on the circumstances of appellant’s crimes in the States of California and New Mexico. Defense counsel objected to imposition of an aggravated term based on Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham). The court imposed the aggravated term and explained this sentencing choice, as follows:
“The Court, looking at the pre-sentence report in that matter, notes that the victims were particularly vulnerable given the way that this -- each victim was victimized by defendant opening false credit card accounts and charging things on line. I note that it is a fairly sophisticated way of identity -- involving themselves in identity theft. Also, taking was of great monetary value. Reviewing both forms, I determined the amount to be $8,500.00.
“Counsel talked about the granting of probation. Frankly, in reviewing this pre-sentence report -- I didn’t do the sentencing, but I would have been skeptical. However, she was given the benefit of the doubt, and that probably, as Counsel pointed out, was a mistake with what she has done subsequent to sentencing in this matter. She certainly did take advantage of a position of trust.
“For the reasons stated on the record, the Court is going to aggravate the sentence and order the defendant be sent to prison for the aggravated term of three years.”
B. Imposition of the aggravated term was prejudicial constitutional error.
Appellant argues that imposition of the aggravated term was unconstitutional because none of the aggravating circumstances relied upon by the court were found true by a jury. We agree.
In Cunningham, 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. __ [127 S.Ct. at p. 860].) 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.
In People v. Black (2007) 41Cal.4th 799 (Black II), our Supreme Court determined 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.) And in People v. Sandoval (2007) 41 Cal.4th 825 at page 838 (Sandoval), it held that infringement of a defendant’s confrontation right is not structural error and is examined for prejudice under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18.
Although appellant’s opening brief was filed after issuance of Black II and Sandoval, it does not cite either of these cases. Respondent’s brief cites Sandoval. Appellant did not file a reply brief.
In French, our Supreme Court considered a Cunningham challenge in a factually analogous context. There, defendant pled no contest to six counts of violating section 288, subdivision (a). Defendant was sentenced to the upper term on one count based on the aggravating factor that he abused a position of trust. The appellate court affirmed the sentence. The high court reversed and remanded for resentencing. (French, supra, 43 Cal.4th at p. 55.) It held that Cunningham applies to cases in which the defendant pled guilty or no contest and concluded that a waiver of the right to jury trial on the substantive offenses does not constitute a waiver of the right to a jury trial on any aggravating circumstances. Also, by entering into a plea agreement that includes the upper term as the maximum sentence, a defendant does not implicitly admit that his conduct could support that term. A defendant’s stipulation to a factual basis for the plea constitutes an admission to the elements of the charged offenses only and not to any additional aggravating circumstances. Therefore, imposition of the aggravated term based solely on an offense-related factor that was not admitted or found true by a jury infringed defendant’s jury trial right. (Id. at pp. 48-52.) Next, the high court determined that the error was prejudicial. It explained, “When a defendant pleads guilty or no contest, a prejudice assessment is even more problematic, because the record generally does not contain a full presentation of evidence concerning the circumstances of the offense.” (Id. at p. 54.) Since the defendant pled guilty without a preliminary hearing, the record did not reflect how witnesses might have testified if there had been a trial. The probation report recited the facts of the offenses based on multiple layers of hearsay. As a result, the record did not contain overwhelming evidence establishing that defendant abused a position of trust.
Just as in French, in this case appellant pled guilty in case 9998 and no preliminary hearing was conducted. The recitation of facts contained in the initial probation report is derived from the police reports and therefore contains multiple layers of hearsay. The sentencing court selected the aggravated term for the reasons stated on the record. These reasons are the same as the aggravating factors listed in the original probation report and are all offense-based factors.
Following and applying French, we likewise conclude that reliance on these offense-based factors that were neither admitted by appellant nor established by a jury verdict as the sole basis for imposition of the aggravated term infringed appellant’s federal constitutional jury trial right. The prosecution failed to establish an aggravating circumstance at the sentencing hearing in the manner required by the Sixth Amendment. Given the limited factual record, we cannot find the existence of overwhelming evidence proving beyond a reasonable doubt that a jury unquestionably would have determined at least one of these offense-based aggravating factors to be true. Accordingly, appellant is entitled to resentencing in case 9998.
We summarily reject appellant’s challenge to the constitutionality of Senate Bill No. 40. The point was resolved adverse to appellant’s position in Sandoval, supra, 41 Cal.4th at pages 845-857.
DISPOSITION
The conviction is affirmed. The sentence is vacated and the case is remanded to the superior court solely for resentencing in accordance with this opinion. After resentencing, the clerk of the superior court is directed prepare an amended abstract of judgment that includes both the new sentence imposed in Tuolumne County Superior Court case CRF9998 and the sentence that was imposed in Tuolumne County Superior Court case CRF9710 on October 7, 2007. The clerk of the superior court is further directed to transmit the amended abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: Cornell, J., Dawson, J.