Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06NF4098. Lance Jensen, Judge.
Cindi B. Mishkin, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
BEDSWORTH, P. J.
Anthony Arthur Hawkins filed a notice of appeal with this court following a judgment of conviction and an order sentencing him to state prison for 6 years after his plea of guilty to receiving stolen property and unlawfully taking a vehicle. His six-year sentence was comprised of the upper three-year term for each offense, doubled pursuant to Penal Code sections 667, subdivision (d)(e)(1) and 1170.12, subdivisions (b) and (c)(1). We appointed counsel to represent Gonzalez on appeal. Counsel filed a brief which set forth, in considerable detail, the facts of the case. Counsel did not argue against his client, but advised the court no viable issues were found to argue on appellant’s behalf. (See People v. Wende (1979) 25 Cal.3d 436.) Appellant was given 30 days to file written argument in his own behalf and did so.
All further statutory references are to the Penal Code.
Hawkins admitted two prior felony convictions that fall under California’s “Three Strikes Law.”
We have examined the record, counsel’s Wende brief, and appellant’s written argument ourselves to see if we can find any arguable issue and cannot.
On December 15, 2006, the Orange County District Attorney filed an Amended Felony Complaint charging Hawkins with four crimes; felony receiving stolen property, felony car theft, evading a police officer, and resisting and obstructing a police officer. He initially pleaded not guilty to all counts but later agreed to plead guilty to receiving stolen property and unlawful taking of a vehicle. He also admitted two prior felony convictions that fall under California’s Three Strikes Law. On December 27, 2006, in return for pleading guilty, the court dismissed the remaining charges and sentenced Hawkins to state prison for a term of six years, comprised of the upper three-year term, doubled pursuant to section 667, subdivision (d)(e)(1) and section 1170.12, subdivisions (b) and (c)(1). One prior felony conviction was stricken for the purposes of sentencing. The court noted that the basis for its decision was the 25-year period between Hawkins’ current charges and last felony conviction, the “nature and circumstances of the current crime and making,” and Hawkins’ “willingness to accept responsibility and admit guilt at an early stage of the proceedings.” At his plea, Hawkins waived the appropriate constitutional rights and was provided an “Advisement and Waiver of Rights for a Felony Guilty Plea” form (hereafter Tahl Form). The Tahl Form included several terms which Hawkins was required to acknowledge and accept. These terms included the understanding that Hawkins was pleading guilty to counts one and two, would receive a stayed sentence for count one under section 654, and be sentenced to six years in state prison for count two, instead of 25 years to life as allowed under section 667, subdivision (d)(e)(2)(A). A factual basis was included in the Tahl form and Hawkins allocuted that basis. At the plea and sentencing hearing, the trial court asked Hawkins, who was seated in a wheelchair, if he had gone over the Tahl Form with his lawyer, if he initialed and signed the form, and if he understood and agreed with everything on the form. Hawkins answered in the affirmative. The judge also asked Hawkins if he understood he could get a maximum of 25 years but was instead receiving 6 years. Hawkins again answered in the affirmative.
The judge asked Hawkins’ counsel if he joined in the waivers, pleas and admissions, and counsel answered in the affirmative. The court found a knowing, intelligent and voluntary waiver of Hawkins’ constitutional rights, and knowing and intelligent understanding of the consequences of the plea and the sentencing. The court asked Hawkins if he chose to waive a formal arraignment for sentencing, time for sentencing, and a written probation report. Hawkins’ attorney answered affirmatively. The court accepted the plea and sentenced Hawkins to 6 years in state prison with 61 days of credit applied to the sentence, plus restitution. The only proceeding occurring after his plea was an administrative hearing for the correction of ministerial errors pertaining to the minute order.
Hawkins filed a notice of appeal, followed by an amended notice of appeal on January 16, 2007, based upon “the sentence or other matters occurring after the plea.” There is no indication in the notice of appeal that Hawkins sought to challenge the validity of the plea or admission. He did not seek a certificate of probable cause. In a letter filed August 6, 2007, Hawkins contended: 1) he was not in complete possession of his mental faculties at the time of the plea and sentencing due to a stroke; 2) he was pressured into accepting the plea agreement; 3) the court gave no reasons for imposing the upper sentence term; and 4) the court failed to allow for mitigating circumstances.
I
We deal first with the question of the constitutionality of Hawkins’ sentence. No challenge was offered at the time of sentencing, and challenges to procedures or to the admission of evidence are normally forfeited unless timely raised in the trial court. (People v. Black (2007) 41 Cal.4th 799, 810, hereafter Black II.) However, this is not true when the pertinent law later changes so unforeseeably that it is unreasonable to expect counsel to have anticipated the change. (Ibid.) That is the case here. Hawkins pled guilty at a time of considerable foment in California sentencing law (i.e., after Apprendi v. New Jersey (2000) 530 U.S. 466), but prior to Blakely v. Washington (2004) 542 U.S. 296 and Cunningham v. California (2007) 127 S.Ct. 856 (Black II, supra, 41 Cal.4th at p. 810). We therefore must address the sentencing issue raised in Hawkins’ case.
Hawkins is not a lawyer, and has not raised this issue in so many words, but he complains that his sentence is too harsh and we think that is sufficient to force its examination under the circumstances here.
Cunningham applied to California’s determinate sentencing law the principles established prior in Apprendi and Blakely. (Cunningham v. California, supra, 127 S.Ct. at p. 868.) Apprendi held that, except for a prior conviction, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi v. New Jersey, supra, 530 U.S. at p. 490.) “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.” (Blakely v. Washington, supra, 542 U.S. at p. 303. italics omitted.) However, there is a bright line exception for prior convictions. Furthermore, “nothing prevents a defendant from waiving his Apprendi rights . . . [i]f appropriate waivers are procured, States may continue to offer judicial factfinding as a matter of course to all defendants who plead guilty.” (Id. at p. 309.)
Here, defendant waived his rights to have a jury decide any issues, and even if he had not, the court was free to consider his prior convictions without recourse to jury consideration. (See People v. Burch (2007) 148 Cal.App.4th 862.)
In one respect, Burch is distinguishable from Hawkins’ case. The Burch court stated reasons for imposing the upper term, and Hawkins’ court did not. However, unlike the Burch trial court, the court here had the benefit of Hawkins’ agreement to the plea and sentence. This relieved the court of the obligation to state reasons, and is discussed further, post.
II
Hawkins next contends he was mentally incompetent at the time of his plea. This is a recurring theme of the letter he submitted at our invitation. But he obtained no certificate of probable cause, so we are unable to reach this contention on direct appeal. It must be raised, if at all, by writ of habeas corpus.
California Rules of Court, rule 8.304(b)(1) states a defendant seeking appeal of a guilty plea must file a notice of appeal as well as satisfy the requirements of section 1237.5. Section 1237.5 requires a written statement by the defendant showing “reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.” (§ 1237.5.) It also requires the trial court execute and file a certificate of probable cause. (Ibid.) A reviewing court will not consider any issues affecting the validity of the plea unless the requirements of section 1237.5 are met. (Cal. Rules of Court, rule 8.304(b)(5).) Where a challenge to a sentence is in substance a challenge to the validity of the plea, the appeal is subject to the requirements of section 1237.5. (People v. Panizzon (1996) 13 Cal.4th 68, 78.) This includes situations wherein a plea was entered at a time when the defendant was mentally incompetent. (People v. Mendez (1999) 19 Cal.4th 1084, 1100.)
In Mendez, the defendant pled not guilty by reason of insanity to first degree murder. (People v. Mendez, supra, 19 Cal.4th at p. 1090.) Mendez was found to be mentally incompetent during the proceedings, and his sentencing was postponed while he received medical treatment. He subsequently regained his mental competency, and returned to the criminal proceedings against him. (Ibid.) Mendez changed his plea from not guilty to guilty to a lesser charge, and was sentenced to 15 years to life. (Id. at pp. 1090-1091.) He appealed his conviction, challenging the court’s finding he was mentally competent to stand trial. (Id. at p. 1091.) Mendez requested a certificate of probable cause, but his request was untimely. The court affirmed the conviction on the basis Mendez failed to obtain a certificate of probable cause within the statutory time frame. The court adjured us that the provisions of section 1237.5 “should be applied in a strict manner.” (Id. at p. 1098.)
Hawkins challenges his sentence based upon the claim that he was not in complete possession of his mental faculties at the time of his plea. Although Hawkins appeals the sentence rather than the plea or admissions, Mendez clearly found such an appeal to be an attack on the validity of the plea. Just as a certificate of probable cause was required in Mendez for an appeal of this nature, it is also required for Hawkins’ challenge. There is no evidence in the record that Hawkins requested a certificate of probable cause. Just as Mendez was barred from appealing without timely submitting a certificate of probable cause, so too is Hawkins barred from challenging his sentence on the basis of mental competency without the same.
Hawkins’ related complaint that he was pressured to accept the plea is similarly flawed. Hawkins implies by his claim that he would not have accepted the guilty plea but for pressure from counsel. This is clearly an attack on the plea itself and therefore requires a certificate of probable cause. Again, since no certificate of probable cause was requested, Hawkins is barred from appealing on this issue.
III
A close reading of the record and Hawkins’ letter could also be said to raise the issue of error by the trial court in failing to state the reasons for his selection of the upper terms in this case. Out of an abundance of caution, we address that issue as well. California Rules of Court, rule 4.420(a) states when a sentence of imprisonment is imposed, the sentencing judge must select the upper, middle or lower term on each count for which the defendant has been convicted. The reasons for selecting one of the three authorized prison sentences must be stated orally on the record. (Cal. Rules of Court, rule 4.420(e).) However, the defendant’s expressed agreement to the sentence, personally and by counsel, and the lack of an objection by the defense attorney, is adequate reason for imposing a sentence. (Cal. Rules of Court, rule 4.412(a).) The agreement and lack of objection must be stated on the record. (Ibid.)
The Advisory Committee Comment, California Rules of Court, rule 4.412(a) states that the rule is intended to relieve judges of the obligation to give reasons for a sentence that has been agreed to by the defendant and where defense counsel expresses no objection.
In People v. Childress (1987) 189 Cal.App.3d 1220, the defendant pled guilty to kidnapping charges and admitted a prior prison sentence, in exchange for an upper term sentence plus enhancement, and the dismissal of other charges. After conviction, the defendant appealed on the basis the trial court failed to state reasons for selecting the upper term. (Id. at p. 1222.) The appellate court affirmed the conviction and sentence, finding the fact Childress agreed to the terms of the sentence was sufficient reason for its imposition, citing California Rules of Court, rule 440(a). (Ibid.) Hawkins pled guilty and expressed agreement with the terms of a specific sentence, just as Childress did. Hawkins acknowledged, on the record, that he understood and agreed with the terms of the plea, including the length of the sentence. Hawkins’ counsel further acknowledged, on the record, that he agreed to the pleas, sentence and admissions. Because the record clearly shows the judge asked Hawkins if he understood and agreed with the plea form, the nature of his plea and term of his sentence, the actions of the court fit squarely within the holding of Childress and the express provisions of California Rules of Court, rule 4.412(a). Therefore, the trial court had no obligation to state reasons for selecting the upper term, and there is no error.
California Rules of Court, rule 440(a), which applied only to pleas of guilty or nolo contendere, was repealed and replaced by rule 4.412(a), which does not so limit the court.
IV
We consider summarily the possible issues involving a putative failure by the trial court to consider mitigating factors. We find them not to have merit. Essentially, they fail because Hawkins waived a probation report, did not provide any mitigating considerations for the court to factor into its sentencing computation, and, most importantly, because the trial court clearly and explicitly did consider mitigating factors.
First, Hawkins waived a probation report. Waiver by defendant of a probation report bars the defendant from appealing on the basis a probation report was not obtained. (People v. Santos (1976) 60 Cal.App.3d 372, 381-82, overruled on other grounds in People v. Mendez (1999) 19 Cal.4th 1084.) Waiver of a probation report may be made only by written stipulation or by oral stipulation in open court that is made and entered into the minutes of the court. (§ 1203(b)(4).)
In Santos, the defendant challenged his sentence, claiming the trial court failed to refer to the probation officer and further failed to obtain a waiver of the report from the defendant. (People v. Santos, supra, 60 Cal.App.3d at p. 382.) The appellate court rejected the argument and affirmed the sentence, as the record clearly showed both the defendant and counsel waived the probation referral. (Ibid.)
Hawkins may be contending that a probation report should have been submitted to the court. Like Santos, however, the record shows Hawkins’ counsel waived the report. The judge asked counsel, “waive formal arraignment for sentencing, waive time for sentencing, waive written report?” Counsel’s answer: “Yes.” As Hawkins stipulated to the waiver in open court, appeal on the issue is barred.
Second, no statement of mitigating factors was submitted to the court. An appellate court must restrict its review to that which appears on the trial record. (In re Ketchel (1968) 68 Cal.2d 397, 401.) In determining the lower, middle, or upper term, the court may consider statements in aggravation or mitigation submitted by the prosecution, the defendant, the victim, the victim’s family, and any further evidence introduced at the sentencing hearing. (§ 1170, subd. (b).) Parties to a criminal action may submit statements in aggravation or mitigation at least four days prior to the time set for imposition of judgment. (Ibid.)
Under section 1170, subdivision (b), Hawkins had the right to submit a statement of mitigating circumstances for the consideration of the court. The defendant submitted no such statements. Hawkins contends his wife submitted a letter to counsel which should have been considered in his sentencing. Nothing in the record suggests a letter was received by counsel or by the court prior to Hawkins’ plea. Additionally, nothing in the record suggests Hawkins questioned the omission of the letter allegedly submitted by his wife. Instead, the record shows Hawkins requested immediate sentencing, and waived arraignment and time for sentencing. As nothing in the trial record indicates a statement of mitigation was submitted, the argument that such statement was not considered is not properly before us on appeal and could only be considered by writ review.
Finally, it appears to us that the trial court did consider factors in mitigation. The court may properly consider factors in mitigation relating to the crime and to the defendant, such as the recency or frequency of prior crimes, and whether the defendant voluntarily acknowledged wrongdoing at an early stage of the criminal process. (Cal. Rules of Court, rule 4.423(b)(1), (3).)
Although Hawkins asserts the court failed to account for mitigating factors, the record clearly shows the court considered precisely the mitigating factors outlined above in its sentence. Indeed, in Hawkins’ letter stating the ground for his appeal, he acknowledges the court’s reasoning for allowing the plea and sentence of 6 years as opposed to the authorized term of 25 to life, “The court notes the amount of time between the last strike and the current offense, being almost 25 years, as well as the nature and circumstance of the current crime. . . . The basis for the court’s decision, sir, is also your willingness to accept responsibility and admit guilt at an early stage in the proceedings.” It is obvious the court followed the guidance of the California Rules of Court in considering Hawkins’ sentence, and that such consideration benefited Hawkins. There is no error.
Having found no other arguable error, we affirm the judgment.
WE CONCUR: O’LEARY, J., ARONSON, J.