Opinion
A153160
11-13-2018
THE PEOPLE, Plaintiff and Respondent, v. NICKOLAS NORMAN LE BLEU, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 31914019)
Defendant Nickolas Norman Le Bleu appeals from a judgment entered after he pled no contest to two weapons offenses. Although defendant was placed on probation and imposition of sentence was suspended, he contends the trial court erred in considering certain facts neither admitted nor found by a jury in denying his motion to reduce the two "wobbler" offenses to misdemeanors. We shall affirm the judgment.
Background
Defendant and Alexander Arana were charged with different offenses in a five count complaint. The first three counts charged Arana with a second degree robbery, an attempted second degree robbery, and brandishing a person in a motor vehicle. Count 4 charged defendant with felony possession of an assault weapon fitted with a large-capacity magazine (Pen. Code, § 30605, subd. (a)) and count 5 charged him with felony receipt of a large-capacity magazine (Pen. Code, § 32310. subd. (a)). The police reports demonstrating a factual basis for acceptance of defendant's no contest plea, which were submitted by defendant in support of his motion to reduce his offenses to misdemeanors, reflected that the three offenses charged against Arana were committed by him accompanied by a second male driving a black or dark grey Chevrolet Camaro and occurred within two hours of the point at which officers stopped the Camaro being driven by defendant with Arana as his passenger and found in the car the weapons belonging to defendant.
Following the entry of defendant's no contest plea to the offenses charged in counts 4 and 5, defendant moved under Penal Code section 17, subdivision (b) to have the offenses reduced to misdemeanors, stressing that he was not charged with nor did he admit participation in the offenses charged against Arana. In denying the motion, the trial court explained: "I certainly understand the defense's position here with respect to the scope of conduct that's relevant here, but I think for purposes of . . . that motion, I also think for purposes of what I can consider for sentencing, I don't read Harvey as narrowly to say that absolute only thing that I can consider is the four corners of the charging document, namely what's alleged in counts 4 and 5. I think the court is permitted to consider some of the relevant offense conduct that's part and parcel or tethered to the count to which a defendant pleads guilty. [¶] And when I look at the overall Gestalt of this case, while I'm certainly not holding Mr. Le Bleu accountable or finding that he committed a robbery, I certainly am not, he's not charged with that, but the fact remains that he is driving a car in which an associate of his has been identified as pointing firearms at people. Mr. Le Bleu himself is identified as the driver by at least one of those individuals that was robbed earlier on that day. [¶] So I think the factual record in this case is one where it would be inappropriate for me to reduce counts 4 and 5 to misdemeanors, so on that basis I'm going to deny the motion to reduce counts 4 and 5 to misdemeanors and they will be considered as felonies for purposes of sentencing today."
People v. Harvey (1979) 25 Cal.3d 754 (Harvey).
Immediately prior to announcing its sentencing decision, the court reiterated: "So while I think it's appropriate for me to consider a broader record in the context of the defense's motion, I'm not overly inclined to give a lot of weight to conduct for purposes of sentencing that wasn't proven, wasn't admitted, but I do still think this is a serious offense that was committed here. I think that driving around with a loaded assault rifle with an extended magazine and other firearms in the car, it is something that's very problematic."
After announcing sentence, the court added: "And for the record, I want to make clear, I'm not considering . . . that offense conduct to which Mr. Le Bleu has not pled guilty. However, I do think it's appropriate for me to consider the conduct in which he was identified by [the victim of the robbery charged in count 1] for purposes of that instance."
The court then implicitly suspended imposition of a sentence, placed defendant on probation for three years subject to numerous conditions including 364 days in county jail and payment of certain fines and fees, and ordered restitution reserved to a later hearing. Defendant has timely appealed.
The court did not explicitly mention "suspending imposition of sentence" but began by stating "that the defendant is to be placed on a term of formal probation for three years." The minute order does state, with the use of checked boxes, that it was ordered that imposition of sentence be suspended during period of probation supervision.
Discussion
Defendant's challenge to the court's order is essentially twofold. First, he contends that he was denied his Sixth Amendment right to a jury trial when the court considered facts which he did not admit and which had not been found by a jury. He relies on the line of cases beginning with Apprendi v. New Jersey (2000) 530 U.S. 466 and including Blakely v. Washington (2004) 542 U.S. 296, Cunningham v. California (2007) 549 U.S. 270 and People v. French (2008) 43 Cal.4th 36. The argument fails for multiple reasons. As our Supreme Court explained in People v. Sandoval (2007) 41 Cal.4th 825, 843-852, the Sixth Amendment violation that Cunningham found in California's prior sentencing scheme was eliminated when the midterm was no longer made the presumptive sentence that could be increased only by finding that circumstances in aggravation outweighed those in mitigation, and discretion was conferred on the court to select among the sentencing alternatives. As summarized in People v. Pham (2009) 180 Cal.App.4th 919, 930-931): "In response to Cunningham, the California Legislature did away with the midterm presumption, and now trial courts are free to impose an upper term sentence without engaging in additional factfinding. [Citation.] Because of this, criminal defendants are no longer entitled to a jury trial on the issue of aggravating circumstances." In French, the case defendant heavily relies upon in his reply brief, sentence was imposed before the change in California procedure, and the case was remanded for resentencing in accordance with Sandoval. (43 Cal.4th at p. 55.)
Moreover, even under the law as it previously existed, the court was entitled to consider facts relating to commission of the offense not admitted or found by a jury in ruling on a motion to reduce a "wobbler" to a misdemeanor. (People v. Tran (2015) 242 Cal.App.4th 877.) In such a case, "the prosecution is not attempting to prove an enhancement allegation to increase defendant's sentence. Rather, defendant is seeking leniency from the court to reduce his offense. 'The withholding of a privilege not amounting to a constitutionally guaranteed right does not constitute punishment.' " (Id. at p. 890.) "[A]s with other discretionary sentencing decisions where the defendant has had an opportunity to review the post plea probation report and challenge its contents, including its statement of the facts and circumstances of the offense, the trial court is entitled to consider the information in that report in determining whether to reduce a felony conviction to a misdemeanor." (Id. at p. 887; cf. People v. Benitez (2005) 127 Cal.App.4th 1274, 1278 ["Finding a defendant ineligible for probation is not a form of punishment, because probation itself is an act of clemency on the part of the trial court. [Citation.] Because defendant's eligibility for probation results in a reduction rather than an increase in the sentence prescribed for his offenses, it is not subject to the rule of Blakely."].)
Defendant's second argument is that the court could not consider the facts relating to offenses charged in the first three counts of the complaint because in entering his plea he did not enter a so-called Harvey waiver. Assuming that Harvey has any application, since no counts were dismissed in connection with defendant's plea and imposition of sentence was suspended, defendant acknowledges that Harvey does permit consideration of the facts of dismissed charges that are transactionally related to the admitted offenses. He argues that there is no such transactional relationship here. But whether or not there is such a relationship—as there well may be—the court's comments quoted above make clear that "for purposes of sentencing" the court was relying not on the offenses charged in the first three counts of the complaint but on defendant's conduct "driving around with a loaded rifle with an extended magazine and other firearms in the car." The court made clear that it was not considering "that offense conduct to which Mr. Le Bleu has not pled guilty." Relevant to defendant's offenses, the victim of the robbery count identified defendant as being the driver of the black Camaro, and that was apparent from the fact that defendant was driving when the police stopped the car and found defendant's weapons in the back seat. There was no violation of Harvey or of any other provision of law when the court denied the motion to reduce defendant's offenses to misdemeanors and placed defendant on probation.
Disposition
The judgment is affirmed.
Pollak, J. We concur: Siggins, P.J.
Ross, J.
Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------