Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. FCR213128
Margulies, J.
Defendant pleaded no contest to a charge of attempted murder and admitted an enhancement for personal use of a firearm. At the time of sentencing, defendant moved to withdraw his plea, claiming that he did not understand the terms of the plea bargain when he accepted it. The trial court denied the motion and imposed a prison term of 19 years, purportedly the sentence negotiated as part of the plea. Defendant contends the trial court erred in denying his motion to withdraw his plea, his attorney provided ineffective assistance of counsel in connection with his motion to withdraw the plea, and the sentence was imposed in violation of Blakely v. Washington (2004) 542 U.S. 296 (Blakeley). The appeal from defendant’s motion to withdraw his plea is dismissed for failure to file a certificate of probable cause, but we reverse the imposition of sentence and remand for resentencing pursuant to Blakely.
I. BACKGROUND
Defendant was charged in an amended information, filed April 20, 2006, with three counts of attempted murder (Pen. Code, § 664), three counts of assault with a firearm (§ 245, subd. (a)(2)), one count of shooting from a motor vehicle (§ 12034, subd. (d)), and one count of shooting at an occupied vehicle (§ 246). The amended information also alleged several enhancements, including that the acts were committed in association with the activities of a criminal street gang (§ 186.22, subd. (b)(1)), that defendant personally used a firearm (§§ 1203.06, subd. (a)(1) & 12022.5, subd. (a)), and that he inflicted great bodily injury on a victim (§ 12022.7, subd. (a)).
All statutory references are to the Penal Code.
Evidence was presented at the preliminary hearing that defendant became involved in an argument with Daniel Maldonado at a convenience store in Vacaville. The conflict occurred because defendant and Maldonado were members of different street gangs, and defendant was “trespassing” on territory claimed by Maldonado’s gang. The two men exited the store at the same time. Defendant, driving a van, left with his sister, while Maldonado remained behind in the store parking lot. Soon after, Maldonado and two others left the parking lot in a car. When Maldonado’s car next encountered defendant’s van, Maldonado saw defendant, resting the barrel of a rifle on his forearm, fire three or four shots into Maldonado’s car from the driver’s side of the van. The driver of Maldonado’s car, his girlfriend, received two nonfatal bullet wounds.
Defendant eventually pleaded no contest to the attempted murder of Maldonado’s girlfriend and admitted the gang affiliation allegation “for purposes of establishing” the personal use of a firearm allegation. The remaining counts were dismissed. A form executed by defendant acknowledging waiver of his constitutional rights upon entering the plea contained a line reading, “The maximum punishment which the court may impose based upon this plea is ______.” The blank was filled in with “19 years.” The form contained a sworn declaration by defendant’s attorney that, based on discussions with defendant, the plea was made freely and voluntarily, with a full understanding of its consequences.
At sentencing, defendant contended that he did not admit that he was the shooter, but only that a firearm was used in the attack.
At the plea hearing, defendant acknowledged that he had executed the waiver form and that he understood its contents. Defendant’s counsel was asked by the court whether he “stipulate[d] there is a factual basis,” and counsel so stipulated. Based on the stipulation, the court accepted defendant’s plea and dismissed the remainder of the charges. Other than the statement in the waiver form, there was no mention of the sentence agreed to in the plea bargain.
Defendant later sought to withdraw his plea, and a second attorney was appointed to assist him. At the sentencing hearing, both defendant’s original attorney and the specially appointed attorney were present. The second attorney told the court she had “been appointed I think about four weeks ago on his request for a motion to withdraw the plea. I have had the absolute pleasure of meeting with [defendant] on multiple occasions . . . and up until this morning I was unable to locate any proper legal grounds to bring the motion before the Court and not wanting to be sanctioned for bringing a meritless motion, I’ve discussed that with my client; however, just this morning he did advise me of three things he would like me to bring to the Court’s attention and, then, based on that, I think that we’ll submit. [¶] . . . [T]hat he just learned how to read in the year 2002 while he was incarcerated, that he was in special education classes his entire life, and that he thought the plea agreement was up to 19 years, not exactly 19 years. So based on those grounds, he’s asking the Court to consider his request for a motion to withdraw.”
After the prosecutor told the court that he made the terms of the plea bargain clear to defendant’s attorney, and the court commented that defendant had stated that he understood his plea at the hearing, the second attorney told the court that defendant had just told her that “at the time he entered the plea, that he had a medical issue with his hearing and was hard of hearing at that time.”
The court denied the motion and imposed a sentence consisting of the upper term of 9 years on the attempted murder charge and a 10-year enhancement, noting that he was doing so “[p]ursuant to the understanding of the Court and counsel and the agreement entered into when the plea was entered.” The court cited no other reason for imposing the upper term. During the imposition of sentence, defendant was represented by the defense attorney who had negotiated the plea agreement. That attorney made no objection to the sentence or the manner of its imposition.
II. DISCUSSION
A. Certificate of Probable Cause
The Attorney General contends that defendant’s appeal must be dismissed because it was not accompanied by a certificate of probable cause. Under section 1237.5, a defendant may not appeal from a plea of guilty or no contest unless “[t]he defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings” and “[t]he trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.” (See, e.g., In re Chavez (2003) 30 Cal.4th 643, 650.) “The purpose for requiring a certificate of probable cause is to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty and nolo contendere pleas. [Citations.] The objective is to promote judicial economy ‘by screening out wholly frivolous guilty [and nolo contendere] plea appeals before time and money is spent preparing the record and the briefs for consideration by the reviewing court.’ [Citations.]” (People v. Panizzon (1996) 13 Cal.4th 68, 75–76.) Defendant acknowledges that the record does not contain a certificate of probable cause.
Defendant first argues that he was not required to file a certificate of probable cause because his appeal does not challenge the trial court’s denial of a motion to withdraw his plea, but, rather, his attorney’s failure to file a motion to withdraw at all. Defendant relies on People v. Osorio (1987) 194 Cal.App.3d 183 (Osorio), in which the court found a certificate of probable cause unnecessary to challenge the refusal of a defense attorney to file a motion to withdraw the defendant’s plea. (Id. at p. 187.)
In contrast to Osorio, defendant’s attorney did not refuse to file a motion. On the contrary, at the beginning of the sentencing hearing, counsel related three grounds raised by defendant himself, which she asked the court to consider as grounds for withdrawing his plea, eventually adding a fourth during the course of argument. After stating the grounds, counsel submitted the issue of withdrawal of the plea to the court for decision. Thereafter, the prosecutor argued against withdrawal, and the court ruled, “I’m going to deny his request . . . to set aside the plea.” Clearly, all parties believed that a request to withdraw defendant’s plea had been tendered, and the court actively considered and denied the request. This is not a situation in which, as in Osorio, defense counsel refused to make a motion on defendant’s behalf.
Defendant also argues that he should be excused from filing a timely certificate of probable cause under the doctrine of constructive filing, citing In re Benoit (1973) 10 Cal.3d 72 (Benoit). The petitioner in Benoit had asked his attorney to file a notice of appeal from his conviction following a trial, but the attorney did not file the notice on time. (Id. at pp. 76–77.) The petitioner subsequently filed a petition for a writ of habeas corpus, explaining the reasons for his late filing and seeking a declaration that a late-filed notice of appeal would be deemed timely under the doctrine of constructive filing. The court held that when a defendant has been diligent in attempting to cause a notice of appeal to be filed on time but has been thwarted by circumstances beyond his or her control, the defendant may take advantage of the doctrine of constructive filing. (Id. at p. 89.)
It is arguable that the doctrine of constructive filing should not be applied to appeals under section 1237.5. Because appeal from a criminal conviction is a matter of right, nothing is required to trigger appeal other than the filing of the notice. In contrast, to trigger an appeal from a plea of guilty or no contest, a defendant must secure a certificate of probable cause from the trial court. Application of the doctrine of constructive filing would effectively bypass the trial court’s exercise of its discretion to issue a certificate of probable cause, since it would deem an appeal perfected merely from the late filing of a statement of reasonable grounds, without any separate evaluation of the validity of that statement.
We need not reach that issue, however, because defendant has failed to demonstrate entitlement to the doctrine under Benoit. Unlike Benoit, this is an appeal rather than a writ petition. The appellate record contains no evidence of the reason a certificate of probable cause was not filed. We have no evidence that defendant was diligent in seeking his attorney’s assistance in obtaining a certificate, nor any evidence that circumstances beyond his control prevented its filing. Defendant asks us to presume, from the mere fact that a notice of appeal was filed, that defendant asked his attorney to take the steps necessary to perfect an appeal from the denial of the motion to withdraw his plea and that counsel failed to follow through. Such a presumption would, however, effectively void the requirements of section 1237.5, since the same presumption can be made any time a notice of appeal is filed after a plea of guilty or no contest without a certificate of probable cause. In the absence of evidence explaining defendant’s failure to file a certificate of probable cause, his appeal from the denial of his motion to withdraw his plea must be dismissed.
For reasons discussed below, we do not dismiss defendant’s appeal from the imposition of sentence.
B. Adequacy of Plea
Although we conclude that defendant’s challenge to the denial of his motion to withdraw his plea must be dismissed, that portion of the appeal is, in any event, without merit. Defendant first contends that his plea of no contest was entered in violation of his constitutional rights because the record does not demonstrate (1) that he was aware of the consequences of his plea, in particular that he would be sentenced to 19 years; (2) that he was aware of the elements of the charge of attempted murder; and (3) that there was a factual basis for the charge of attempted murder and the firearm enhancement.
When entering into a negotiated plea, a criminal defendant must be advised of certain constitutional rights he or she is waiving by entering the plea. (People v. Wash (1993) 6 Cal.4th 215, 268.) In addition, by statute the defendant must be informed of the “consequences” of his plea, such as the maximum sentence that can be imposed. (In re Evans (1996) 49 Cal.App.4th 1263, 1269.) Contrary to defendant’s claim, however, there is no requirement that the trial judge personally inform the defendant of those rights and consequences at the time the plea is taken. Rather, although “the record must contain on its face direct evidence that the accused was aware, or made aware [of these rights and of the nature of the charges and the consequences of the plea]” (In re Tahl (1969) 1 Cal.3d 122, 132, disapproved on other grounds in People v. Howard (1994) 1 Cal.4th 1132, 1177–1178), the trial judge is entitled to rely on an appropriate written waiver to demonstrate that proper admonishment has occurred. (In re Ibarra (1983) 34 Cal.3d 277, 285–286 (Ibarra), disapproved on other grounds in People v. Howard, at pp. 1177–1178 [waiver of rights]; People v. Panizzon, supra, 13 Cal.4th at pp. 83–84 [direct consequences].) As the Supreme Court noted in Ibarra, at page 286, “a defendant who has signed a waiver form upon competent advice of his attorney has little need to hear a ritual recitation of his rights by a trial judge. The judge need only determine whether defendant had read and understood the contents of the form, and had discussed them with his attorney.”
We review the trial court’s acceptance of the plea for abuse of discretion, asking whether the record affirmatively demonstrates that the plea was voluntary and intelligent under the circumstances. (People v. Wash, supra, 6 Cal.4th at p. 268.) As noted above, the record contains a waiver form executed by defendant containing a particularized statement of rights and a declaration by his attorney stating that the attorney had thoroughly discussed the plea with defendant and that the plea was made freely and voluntarily, with a full understanding of its consequences. The trial judge questioned defendant about this waiver before accepting his plea, satisfying himself that defendant understood its contents. The mere fact that months later defendant told a second attorney that he did not understand the full terms of his plea agreement and that he did not understand all the charges is insufficient to demonstrate, in the totality of circumstances presented, that his plea was not voluntary and intelligent.
In arguing that the record and the plea hearing were inadequate, defendant relies exclusively on federal authority, including the Federal Rules of Criminal Procedure, without acknowledging that the Supreme Court in Ibarra expressly noted that “we find no need to follow federal practice which requires the trial court personally to admonish a defendant of his or her constitutional rights before accepting a guilty plea.” (Ibarra, supra, 34 Cal.4th at p. 286.)
Pursuant to section 1192.5, a trial judge, when accepting a negotiated plea, must satisfy himself or herself through inquiry that there is a sufficient factual basis in the record for the plea. (E.g., People v. Holmes (2004) 32 Cal.4th 432, 438 (Holmes).) The trial court is permitted to do this either through direct inquiry of the defendant or through inquiry of defense counsel. “If the trial court inquires of defense counsel regarding the factual basis, counsel may stipulate to a particular document that provides an adequate factual basis, such as a complaint, police report, preliminary hearing transcript, probation report, grand jury transcript, or written plea agreement.” (Id. at p. 442.)
We agree with defendant that the trial court’s inquiry was inadequate here. The trial court merely asked defense counsel whether there was a factual basis in the record for defendant’s plea, without receiving any stipulation as to the location in the record of that factual basis. This was error. (People v. Willard (2007) 154 Cal.App.4th 1329, 1334; cf. People v. Marlin (2004) 124 Cal.App.4th 559, 572 [counsel stipulated that factual basis was contained in preliminary hearing transcript].) Nonetheless, the error was harmless if the record, in fact, contains a factual basis for the plea. (Holmes, supra, 32 Cal.4th at p. 443.)
The preliminary hearing transcript unquestionably establishes a factual basis for defendant’s plea. The officers at the hearing testified that they had been told by witnesses, including Maldonado, that defendant and Maldonado were in rival street gangs, that they had argued over gang-related turf issues, that defendant had driven up next to the car carrying Maldonado, and that he had personally fired a gun repeatedly at the car.
Defendant contends that there was no factual basis in the record for a finding that defendant had the specific intent to kill Maldonado’s girlfriend, as opposed to Maldonado himself. Defendant’s decision to shower the Maldonado vehicle with bullets, however, provides evidence sufficient to make a prima facie case of specific intent to murder all its occupants. As noted in People v. Bland (2002) 28 Cal.4th 313 (Bland) at pages 329–330, “ ‘The intent is concurrent . . . when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim’s vicinity. For example, . . . . consider a defendant who intends to kill A and, in order to ensure A’s death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire or an explosive device devastating enough to kill everyone in the group. The defendant has intentionally created a “kill zone” to ensure the death of his primary victim, and the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim. When the defendant escalated his mode of attack from a single bullet aimed at A’s head to a hail of bullets or an explosive device, the factfinder can infer that, whether or not the defendant succeeded in killing A, the defendant concurrently intended to kill everyone in A’s immediate vicinity to ensure A’s death.’ ”
Defendant also argues the evidence was insufficient to support the use of firearms enhancement, but that argument depends entirely on the purported lack of evidence to support intent to murder.
Defendant argues that the “kill zone” doctrine is inapplicable here, citing People v. Stone (2008) 160 Cal.App.4th 937. In Stone, however, the defendant shot once in the general direction of a crowd of people standing outdoors, apparently aiming above their heads. (Id. at p. 941.) There is a vast difference between a single shot directed at no one in particular, and perhaps no one at all, and several shots directed into an occupied car. In the latter case, it is a permissible inference that “whether or not the defendant succeeded in killing A, the defendant concurrently intended to kill everyone in A’s immediate vicinity to ensure A’s death.” (Bland, supra, 28 Cal.4th at p. 330.)
The fact that defendant later contended that he was not the person who fired the weapon and that he did not intend to kill the car’s occupants does not change the fact that the record contains an adequate prima facie factual basis for the charges. (Holmes, supra, 32 Cal.4th at p. 441.) Because the record contains an adequate factual basis for defendant’s plea, the trial court’s error in failing to determine the location of that basis in the record is harmless.
C. Inadequate Assistance of Counsel
Defendant also contends that he received inadequate assistance of counsel because the attorney retained to consult regarding a motion to withdraw did not more forcefully advocate his cause, based on the disclosures she reported to the court.
“The standard for showing ineffective assistance of counsel is well settled. ‘In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] A reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. [Citations.] If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus.’ ” (People v. Gray (2005) 37 Cal.4th 168, 206–207.) Even a attorney’s decision to present virtually no defense will not be found to constitute ineffective assistance of counsel when there is a possible tactical explanation for the decision. (See, e.g., People v. Carter (2005) 36 Cal.4th 1114, 1188–1189 [attorney failed to make opening statement, present evidence on behalf of defendant, or make substantive arguments on closing].)
There is no evidence in the record that defendant’s attorney was asked why she failed to advocate more aggressively on his behalf when she made the motion to withdraw, nor is there any other evidence bearing on her conduct, other than her remarks to the trial court. In those remarks, she stated that she had met repeatedly with defendant and “up until this morning I was unable to locate any proper legal grounds to bring the motion before the Court.” Expressly noting that she did “not want[] to be sanctioned for bringing a meritless motion,” counsel presented “three things [defendant] would like me to bring to the Court’s attention and, then, based on that, I think that we’ll submit.” After repeating the claims made to her by defendant, counsel stated, “based on those grounds, he’s asking the Court to consider his request for a motion to withdraw.”
This careful presentation plainly was not the result of inadvertence, carelessness, or neglect by counsel. She met several times with defendant in an attempt to find grounds to support his desire to withdraw his plea, but she apparently was unable to locate any compelling grounds. On the morning of the hearing, defendant made three factual arguments to her that she felt bound to present to the court. Nonetheless, she did not argue for those assertions and characterized her presentation as defendant’s request to withdraw his plea, suggesting that she did not sponsor the motion.
There is a plausible tactical explanation for this conduct. Counsel certainly had reason to doubt the accuracy of the factual arguments defendant asked her to present to the court, since their implications were contradicted by the declaration of the trial attorney included in the waiver form, stating that the plea was made freely and voluntarily, with a full understanding of its consequences. Aggressively pressing those arguments, as defendant now contends, could have resulted in harmful contradictory statements by defendant’s trial attorney, who was present in court. By presenting them in the manner selected, counsel allowed the trial attorney to remain silent. Because this is a “satisfactory explanation” for counsel’s conduct, there is no basis for finding her conduct to constitute inadequate representation on direct appeal.
To the extent defendant also contends that counsel’s representation was inadequate because she failed to raise other grounds that have been discussed above, such as the lack of an adequate factual basis in the record, we have found no merit in those contentions. The failure to raise them necessarily did not constitute inadequate representation.
D. Defendant’s Sentence
Defendant claims that the manner of his sentencing, which resulted in the imposition of the aggravated term on the charge of attempted murder, violated the requirement in Blakely, supra, 542 U.S. 296 and its progeny that the facts on which an upper term is based must be either admitted by the defendant or found by a jury. (See, e.g., People v. French (2008) 43 Cal.4th 36, 52 (French).)
In Blakely, the Supreme Court extended the rule articulated in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) that a defendant’s constitutional right to a jury is violated when a judge makes a factual finding relevant to sentencing and “impose[s] a sentence greater than the maximum he could have imposed under state law without the challenged factual finding.” (Blakely, supra, 542 U.S. at p. 303.) In Blakely, the court defined “the ‘statutory maximum’ for Apprendi purposes” as “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations.] In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” (Id. at pp. 303–304.)
In Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856], the Supreme Court applied this doctrine to California’s determinate sentencing law. Overruling People v. Black (2005) 35 Cal.4th 1238 , the court held, “In accord with Blakely, therefore, the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum. [Citation.] . . . Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt [citation], the [California determinate sentencing law] violates Apprendi’s bright-line rule: Except 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.’ ” (Cunningham, at p. ___ [127 S.Ct. at p. 868].)
In French, the defendant pleaded no contest to six counts of lewd conduct, on the condition that his cumulative sentence would not exceed 18 years. (French, supra, 43 Cal.4th at p. 42.) In sentencing the defendant, the trial court imposed the upper term on the first count, based on facts stated in the presentence report. (Id. at p. 43.) In finding that the sentence was unlawful, the Supreme Court held that by entering into a plea agreement, a defendant does not implicitly admit that his or her conduct could support an upper term sentence. Rather, the court concluded, in pleading guilty or no contest a defendant admits only the elements of the crime. (Id. at p. 49.) As a result, the imposition of an upper term sentence is subject to Blakely and must be supported by facts that are either admitted, beyond the bare entry of a guilty plea, or found by a jury. (French, at p. 52.)
French also held that a Blakely claim raised with respect to a sentence imposed following a plea of guilty or no contest is appealable without a certificate of probable cause, reasoning that a Blakely claim is not a challenge to the negotiated sentence but to the manner of its imposition, which necessarily occurs after entry of the plea. (French, supra, 43 Cal.4th at pp. 43–45.) For that reason, this claim is not barred by defendant’s failure to obtain a certificate of probable cause.
Because defendant’s upper term sentence was imposed without a trial and without his admission of any facts beyond his plea of guilty, it necessarily violated Blakely. The Attorney General asserts that defendant waived his Blakely rights when he agreed to a fixed 19-year sentence as part of the plea agreement. While we accept the premise of the argument—that a defendant’s agreement to a sentence of a specific term of years waives his or her Blakely rights—we find insufficient evidence on the record before us to support the claim that such a plea agreement existed.
There was no mention of a fixed 19-year sentence at the time defendant’s plea was accepted by the trial court. On the contrary, the only evidence of an agreed sentence at that time was the written waiver of rights, which states, “The maximum punishment which the court may impose based upon this plea is 19 years.” None of the parties present when the trial court accepted defendant’s plea placed the terms of the agreement on the record, and the minute order entered that day reflects no particular sentence. Nor is there any mention of a fixed 19-year sentence in the later-prepared probation report, which recommended a total sentence of 17 years, based on imposition of the middle term sentence.
There is no suggestion in the record that the agreed term was fixed at 19 years until the hearing on defendant’s motion to withdraw. At that time, defendant told his attorney that his understanding at the time he entered the plea was consistent with the disclosure in the waiver form—that he would have a maximum of 19 years, but the possibility of a lesser sentence. It was only at this point that a fixed 19-year term was mentioned. The prosecutor stated, “I know that I made it very clear that the offer was for 19 years. I’m sure [his attorney at the time] explained that to him.” The only other evidence of a 19-year agreement is the court’s statement that its sentence was rendered “[p]ursuant to the understanding of the Court and counsel and the agreement entered into when the plea was entered.” As noted, any such agreement made “when the plea was entered” is not reflected in the record of those proceedings, which suggest only a maximum term of 19 years. While we recognize that the trial court’s comments at the time of the sentencing hearing indicate that the court believed an agreement for a fixed 19-year term had been reached, we are not persuaded that there is sufficient evidence in the record before us to support that belief. We cannot deny defendant’s Blakely rights on the basis of an assumption by the court that is otherwise unsupported in the record.
Because of the limited scope of aggravating factors that can be considered in the absence of a stipulation or jury finding, we cannot find the Blakely error to have been harmless. Accordingly, on the record before us, the trial court’s imposition of an upper term sentence must be vacated, and we remand the matter for a resentencing consistent with Blakely.
By a separate order issued concurrently with this decision, we have denied defendant’s petition for a writ of habeas corpus, case No. A121125.
III. DISPOSITION
The portion of defendant’s appeal taken from the denial of his motion to withdraw his plea is dismissed. The imposition of sentence is reversed, and the matter is remanded to the trial court for resentencing consistent with the requirements of Blakely, supra, 542 U.S. 296 and French, supra, 43 Cal.4th 36.
We concur: Marchiano, P.J. Swager, J.