Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. FF407302
Premo, J.
This matter has been transferred here from the Supreme Court (S157590) with directions to vacate our previous decision (People v. Lacerda (Sept. 20, 2007) H030026 [nonpub. opn.]) and to reconsider the cause in light of People v. French (2008) 43 Cal.4th 36 (French). In our earlier opinion, we affirmed a judgment that resulted from a plea bargain. We held, in part, that 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) was not cognizable on appeal because of the failure to obtain a certificate of probable cause. French held to the contrary. We therefore address the challenge on the merits as well as reiterate the remaining part of our prior opinion.
Our discussion of the other issue raised by defendant is identical to our previous opinion in this case. We are not reconsidering the issue given that French does not affect it. We discuss it only because we are vacating our earlier 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. After consideration of the Blakely issue, we affirm the judgment.
In exchange for dismissal of other charges and enhancements and a sentencing range of no less than 11 years and no more than 15 years, defendant Steven M. Lacerda pleaded guilty to (1) gross vehicular manslaughter, (2) driving under the influence of alcohol--blood alcohol level of .08 percent, and (3) hit and run resulting in serious injury or death. He also admitted that he had (1) personally inflicted great bodily injury, (2) suffered a prior conviction of driving under the influence, and (3) fled the scene of a hit and run. The plea bargain, as recited by the trial court at the change-of-plea hearing, did not mention the fines required by Penal Code sections 1202.4 (restitution-fund fine) and 1202.45 (parole-revocation fine). However, at the same time as the hearing, defendant signed and initialed an advisement of rights, waiver, and plea form that did mention the fines. The trial court sentenced defendant to the maximum term permitted under the plea agreement, which involved the use of a 10-year upper term for the manslaughter conviction. It also imposed a restitution-fund fine of $9,000 and a suspended parole-revocation fine in the same amount. Defendant thereafter filed an amended notice of appeal in which he appeals upon a ground that “arose after entry of pleas of guilty and does not challenge the validity of the pleas.” He did not seek, nor was he granted, a certificate of probable cause. (§ 1237.5.) Defendant contends that the trial court erred by (1) imposing the upper term sentence contrary to Blakely, and (2) imposing the fines contrary to his plea bargain.
Further unspecified statutory references are to the Penal Code.
BACKGROUND
Defendant met a woman in a bar and gave her a ride on his motorcycle despite consuming several alcoholic beverages. He lost control of the motorcycle and struck a fire hydrant. The woman was thrown from the motorcycle into a tree. She later died. Defendant walked away from the scene.
Defendant signed the advisement of rights form, which denoted a sentence “11 yr. bottom 15 yr. top.” In reciting the terms of the agreement at the change-of-plea hearing, the trial court stated that, “The sentencing understanding is that he’ll receive no less than 11 years and no more than 15 years in state prison.” It then asked defendant, “Is that what you want to do?” Defendant responded, “Yes, sir.” The following colloquy then occurred.
“THE COURT: [Defense counsel], did you execute a plea form, or did you help [defendant] execute the form?
“[Defense counsel]: I read the form in its entirety except for the matters which did not relate to his case and crossed out those boxes, prior to his initialing and signing the form.
“THE COURT: I’ve been handed a waiver form. Are these your initials and signature on the form?
“THE DEFENDANT: Yes, sir.
“THE COURT: Did you go over the form carefully with your attorney . . . before you signed it?
“THE DEFENDANT: Yes.
“THE COURT: Do you have any questions for me or for your attorney concerning anything, anything concerning the case?
“THE DEFENDANT: No, sir.”
Provision 30 of the form signed by defendant states: “No one has made any promises to me other than what were stated on the record in order to induce me into entering my plea(s).” Defendant placed his initials next to provision 30.
Provision 42 of the form signed by defendant states: “I understand that there will be a mandatory restitution fund fine of not less than $200 nor more than $10,000, and if I am being sentenced to State prison that there will be an additional equal amount imposed but stayed.” Defendant placed his initials next to provision 42.
At the sentencing hearing, defense counsel asked the court to impose a midterm sentence, which would calculate to the minimum 11-year term, rather than the upper term recommended by the prosecution, which would calculate to the 15-year term. Defense counsel did not, however, argue that the trial court did not have the authority to impose an upper term sentence absent jury findings that one or more aggravating factors existed. (Blakely, supra, 542 U.S. 296.) In sentencing defendant to the upper term, the trial court also ordered the following, which was consistent with the probation officer’s recommendation: “There’s a $9,000 restitution fine using the statutory formula. I imposed an additional $9,000 restitution fine suspended pursuant to [section] 1202.45 of the Penal Code pending successful completion of your parole.”
BLAKELY
When the trial court sentenced defendant, the following sentencing rules applied. A trial court must impose the statutory middle term “unless imposition of the upper or lower term is justified by circumstances in aggravation or mitigation.” (Cal. Rules of Court, rule 4.420(a).) “Circumstances in aggravation and mitigation shall be established by a preponderance of the evidence. Selection of the upper term is justified only if, after a consideration of all the relevant facts, the circumstances in aggravation outweigh the circumstances in mitigation. . . . Selection of the lower term is justified only if, considering the same facts, the circumstances in mitigation outweigh the circumstances in aggravation.” (Id., rule 4.420(b).) “The reasons for selecting the upper or lower term shall be stated orally on the record.” (Id., rule 4.420(e).)
The negotiated disposition in this case took place on January 9, 2006, and sentencing happened on March 6, 2006. Rule citations are to the former rules then in effect.
The trial court gave the following reasons for imposing the upper term: (1) “defendant has engaged in violent conduct which indicates a serious danger to society” (Cal. Rules of Court, rule 4.421(b)(1)), (2) “defendant’s prior convictions as an adult or sustained petition in juvenile delinquency proceedings are numerous or of increasing seriousness” (id., rule 4.421(b)(2)), and (3) “defendant knew he was impaired and chose to drive anyway.”
In Apprendi v. New Jersey (2000) 530 U.S. 466, a five-justice majority of the United States Supreme Court held, “Other 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.) Blakely held 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.” (Blakely, supra, 542 U.S. at p. 303, italics omitted.)
Blakely describes three types of facts that a trial judge can properly use to impose an aggravated sentence: (a) “ ‘the fact of a prior conviction’ ” (Blakely, supra, 542 U.S. at p. 301); (b) “facts reflected in the jury verdict” (id. at p. 303, italics omitted); and (c) facts “admitted by the defendant” (ibid., italics omitted).
The California Supreme Court subsequently concluded that Blakely did not apply to California’s determinate sentencing law (DSL), and that “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence . . . under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (People v. Black (2005) 35 Cal.4th 1238, 1244 (Black I).)
In Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856], the United States Supreme Court disagreed with Black I and held that, under California’s DSL, the upper term can only be imposed if the factors relied upon comport with the requirements of Apprendi and Blakely.
In People v. Black (2007) 41 Cal.4th 799 (Black II), the court recently reexamined the propriety of the defendant’s upper term sentence in light of Cunningham. The court acknowledged Cunningham’s disagreement with Black I’s holding that California’s DSL did not violate the Sixth Amendment insofar as it permitted the sentencing judge to impose an upper term sentence based upon factors not determined by a jury beyond a reasonable doubt. (Id. at p. 808.) But it concluded that “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Id. at p. 813.) It therefore held “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.) Because the trial court based the upper term sentence upon a factor that was the basis for the jury’s prior true finding on a special allegation (i.e., force used to commit sex crime), the court in Black II held that the upper term sentence was not unconstitutional. (Id. at pp. 816-817.) Black II also held that the defendant’s criminal history was a second aggravating circumstance meeting Sixth Amendment requirements. (Id. at p. 818.) The court explained that this factor encompasses “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. [Citations.] [¶] The determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ [citation] require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense.” (Id. at pp. 819-820, fn. omitted.)
In French, the California Supreme Court addressed the application of Cunningham to cases in which the defendant has pleaded guilty or no contest. It held 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.)
Here, the probation report states the following: “A review of the defendant’s criminal history revealed three prior misdemeanor convictions for Unlawful Sexual Intercourse and Driving under the Influence of Alcohol.” And, in entering his plea, defendant admitted suffering the prior driving-under-the-influence conviction. Because the fact of a prior conviction is an exception to the requirement that aggravating circumstances must be found true by a jury or admitted by the defendant, defendant’s prior criminal record was established consistent with Sixth Amendment principles. Also, because defendant admitted a prior conviction, that prior conviction was established consistent with Sixth Amendment principles. The trial court was therefore entitled to rely on defendant’s recidivism as an aggravating factor so as to impose the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728 [a single aggravating factor is sufficient to support imposition of the upper term].) Its reference to other aggravating factors is irrelevant. (Black II, supra, 41 Cal.4th at p. 813.)
RESTITUTION FINES
The statutory bases for the fines at issue are sections 1202.4 and 1202.45. Section 1202.4, subdivision (a)(3)(A) mandates judicial imposition of a restitution-fund fine whenever a person is convicted of a crime. The trial court shall impose the fine “unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.” (§ 1202.4, subd. (c).) In the absence of extraordinary reasons, the minimum fine the court must impose is $200. (Id., subd. (b)(1).) The court has discretion to impose a fine of up to $10,000. The general guideline is that the fine should be “commensurate with the seriousness of the offense.” (Ibid.) Section 1202.45 mandates an additional fine duplicating the amount of the restitution fine. This fine takes effect only if parole is revoked.
Relying on People v. Walker (1991) 54 Cal.3d 1013 (Walker), defendant asserts that any restitution fine above the statutory minimum of $200 violated his plea bargain because the terms of his plea bargain did not contain any reference to the fines.
In People v. Crandell (2007) 40 Cal.4th 1301, the court held that the imposition of a more-than-minimum restitution fine does not violate a plea agreement, even if the amount of the fine was not mentioned as part of the plea agreement, so long as the defendant acknowledged that there had been no promises to him other than the agreed prison term and he was informed that a restitution fine of between $200 and $10,000 would be imposed. (Id. at pp. 1309-1310.)
Here, at the change of plea hearing, the court and the parties orally identified the agreed prison-term range. But other aspects of the plea were reflected in the written waiver form and became part of the bargain as well. As relevant here, defendant acknowledged in the waiver form that (1) no one had made promises to him other than reflected on the record (provision 30), and (2) the trial court would impose restitution fines between $200 and $10,000 (provision 42). Defendant entered his plea only after confirming his understanding of that form. This incorporated into the plea the terms set forth in the form. “[B]ecause the record demonstrates that the parties intended to leave the amount of defendant’s restitution fine to the discretion of the court, defendant is not entitled to relief.” (Crandell, supra, 40 Cal.4th at p. 1309.)
“These facts distinguish the case from Walker, where the court advised the defendant only that the ‘ “maximum penalties provided by law” ’ for his offense included ‘ “a fine of up to $10,000” ’ and obtained no assurance that the parties intended their plea bargain to leave the amount of the restitution fine to the court’s discretion.” (Crandell, supra, 40 Cal.4th at pp. 1309-1310.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.