Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. Nos. CR 5244 & CR032574
MEMORANDUM OPINION
Marchiano, P.J.
This case has been transferred to us by the California Supreme Court for reconsideration in light of People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). We reverse and remand for resentencing.
Defendant Nicholas John Martinez, Jr. pleaded no contest to one count of committing a lewd and lascivious act on the body of a child under 14. (Pen. Code, § 288, subd. (a).) The trial court denied probation and imposed the upper (or aggravated) term of eight years in state prison.
Subsequent statutory citations are to the Penal Code.
We need not restate the facts set forth in our previous opinion. The statement of facts in our slip opinion in People v. Martinez (Nov. 19, 2004, A104728) [nonpub. opn.], which remains on file with this court, is hereby incorporated by reference into this opinion. But a summary of the facts is appropriate given our disposition of this case.
The victim, 12-year-old Ciara K., lived with her mother and her mother’s fiancée, Kevin G. At the time of the offenses, Kevin had known defendant for five or six years, treated him like a son, and allowed him to stay in his house on several occasions.
In December 2000, defendant stayed at the victim’s home for about a week. He was 20 years old, married, and on leave from the Army. He was 5 feet 10 inches and a stocky 255 pounds. While wrestling with the victim on the floor, he placed his hands under her shirt and bra and fondled her breasts for two to three minutes.
In April 2001, while again on leave from the Army, defendant came to the victim’s home, played cards with the victim’s mother, ate dinner with the family, and played computer games with the victim after the rest of the family went to bed. Defendant asked the victim to join him for a walk. She agreed because defendant was unfamiliar with the neighborhood. During the walk defendant told the victim “he had sexual feelings for her,” and began to kiss her lips and fondle her breasts. The victim was “shocked because she was only 12 years old.” Defendant told the victim either to “give him head” or “suck his dick.” Defendant ignored the victim’s protests, unzipped his pants, and forced her to kneel and orally copulate him. The copulation ceased when a car approached. Defendant twice told the victim to deny the molestation. He later admitted it to Kevin G.
Defendant was charged as follows: count 1, lewd and lascivious conduct with a child under 14 (§ 288, subd. (a)) for the December 2000 incident; count 2, a similar charge for the April 2001 incident; and count 3, forcible oral copulation of a child under the age of 18 (§ 288, subd. (b)(1)) for the April 2001 incident.
Defendant entered a negotiated no contest plea to count 1, the lewd and lascivious act committed in December 2000. Counts 2 and 3 were dismissed—but defendant entered a Harvey waiver on count 2. That Harvey waiver consists of the following:
People v. Harvey (1979) 25 Cal.3d 754.
“THE COURT: Mr. Martinez, you understand that although Count Two is going to be dismissed, the factual circumstances of that dismissed count may be used by the sentencing judge in determining what sentence you do get for Count One; you understand that?
“THE DEFENDANT: Yes, sir.”
The trial court denied probation and imposed the upper (or aggravated) term of eight years in state prison. In imposing the upper term, the trial court relied on two aggravating factors: “. . . first, the victim was particularly vulnerable; and second, the defendant took advantage of a position of trust in order to commit the offense.” Defendant did not specifically admit these aggravating circumstances when he entered his plea. Neither were they found to be true beyond a reasonable doubt by a jury.
The court mentioned the use of force, but did not designate force as a separate, third aggravating factor.
Defendant raised three sentencing issues on appeal, including a contention that under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), he was entitled to proof before a jury beyond a reasonable doubt of the factors in aggravation used to increase his sentence beyond the middle term.
We initially held that the imposition of the aggravated term violated Blakely because the aggravating factors were neither admitted by defendant in the course of entering his plea, nor decided by a jury beyond a reasonable doubt. We also held that the error cannot be harmless in this case. Accordingly, we reversed and remanded for resentencing. (People v. Martinez (Nov. 19, 2004, A104728) [nonpub. opn.].)
We resolved the other two sentencing issues against defendant. They are no longer at issue in this case.
On January 26, 2005, the California Supreme Court granted review. On September 7, 2005, that court transferred this matter to us with directions to vacate our decision and reconsider the cause in light of People v. Black (2005) 35 Cal.4th 1238 (Black I). We vacated our initial decision, reconsidered the matter, and concluded that under Black I the judicial factfinding that determined the aggravating factors did not violate defendant’s Sixth Amendment right to a jury trial under the principles set forth in Blakely and related cases. Accordingly, we affirmed the judgment and sentence. (People v. Martinez (Dec. 21, 2005, A104728) [nonpub. opn.].)
We originally filed our opinion on September 28, 2005. We vacated that opinion and reissued it on December 21, 2005, for reasons we need not now discuss.
On February 20, 2007, the United States Supreme Court issued an order in this case granting certiorari, vacating the judgment, and remanding to this court for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham).
Pursuant to this mandate, we recalled the remittitur and re-examined our initial opinion in this case (People v. Martinez (Nov. 19, 2004, A104728) [nonpub. opn.]). Cunningham applies Blakely to California sentencing law, and essentially vacates the contrary holding of Black I. Cunningham confirmed the validity of our initial holding that defendant’s sentence was invalid. Accordingly, we followed the procedure used in City of Long Beach v. Bozek (1983) 33 Cal.3d 727, 728, and reiterated our initial opinion in its entirety. (People v. Martinez (Apr. 20, 2007, A104728) [nonpub. opn.].)
On June 27, 2007, the California Supreme Court granted review. On July 19, 2007, that court decided Black II and Sandoval. On September 12, 2007, the California Supreme Court transferred this matter to us for reconsideration in light of Black II and Sandoval. We have received supplemental letter briefs from the parties.
In Black II, the court held: “Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’ ” (Black II, supra, 41 Cal.4th at p. 813.)
In other words, if there is a single aggravating circumstance which satisfies Blakely, “any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to [a] jury trial.” (Black II, supra, 41 Cal.4th at p. 812.)
Black II and Sandoval confirm the rule of Blakely and Cunningham that the facts supporting an aggravating circumstance—or at least one aggravating circumstance—must be found beyond a reasonable doubt by the jury, unless the facts are admitted by the defendant or the aggravating circumstance involves recidivism, i.e., a prior conviction or a history of numerous prior convictions of increasing seriousness. (Black II, supra, 41 Cal.4th at pp. 809, 815, 818-820; Sandoval, supra, 41 Cal.4th at pp. 835-837.)
We realize that the exact scope of the recidivist exception to Blakely is an issue currently before the California Supreme Court.
The aggravating factors in this case—vulnerability of the victim and taking advantage of a position of trust—were not based on facts found by the jury. They were not admitted by defendant, and they do not involve recidivism. We therefore conclude that the imposition of the upper term violated defendant’s Sixth Amendment right to a jury trial.
The Attorney General argues that defendant’s Harvey waiver amounts to a waiver of his right to a jury trial on the aggravating factors. Under the circumstances of this case, we cannot agree.
The Harvey court held that “it would be improper and unfair to permit the sentencing court to consider any of the facts underlying [a] dismissed count . . . for purposes of aggravating or enhancing [a] defendant’s sentence.” (Harvey, supra, 25 Cal.3d at p. 758.) When a defendant enters a negotiated plea in exchange for dismissal of other counts, the Harvey court believed that “[i]mplicit in such a plea bargain . . . is the understanding (in the absence of any contrary agreement) that [the] defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count.” (Ibid.)
In the wake of Harvey, prosecutors adopted the common practice of conditioning a negotiated plea on the defendant’s agreement that the sentencing court can consider the facts underlying dismissed counts. This agreement is known as a “Harvey waiver.” (See People v. Myers (1984) 157 Cal.App.3d 1162, 1167.) A Harvey waiver “permits a trial court to consider facts underlying dismissed counts in determining the appropriate disposition for the offense of which the defendant was convicted.” (People v. Moser (1996) 50 Cal.App.4th 130, 132-133.)
The Attorney General relies on two recent decisions of the Third District, People v. Linarez (2007) 155 Cal.App.4th 1393 (Linarez) and People v. Munoz (2007) 155 Cal.App.4th 160 (Munoz). Both of these cases find that a Harvey waiver amounts to an admission of facts supporting an aggravating circumstance sufficient to satisfy the requirements of Blakely and Cunningham.
We are not prepared to agree that a general Harvey waiver, which is a remnant from a previous system of sentencing, is the functional equivalent of an explicit admission of specific facts sufficient to supplant a defendant’s constitutional right to a jury trial on an aggravating circumstance.
We note that the Attorney General, as well as the Munoz decision (155 Cal.App.4th at p. 166), rely on this sentence from Blakely: “ ‘When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding.’ . . .” (Blakely, supra, 542 U.S. at p. 310, italics added.) But this sentence cites as authority passages from Apprendi v. New Jersey (2000) 530 U.S. 466, 488;and Duncan v. Louisiana (1968) 391 U.S. 145, 158, which only state broadly that a defendant is free to plead guilty or to waive a jury trial on the issue of guilt. We think it is quite possible that the Blakely court was referring to a defendant’s consent to judicial factfinding on a specific factual issue identified as an aggravating circumstance—not a broad, general Harvey waiver.
But we need not decide the issue in this case. In both Linarez and Munoz, the dismissed counts provided factual material necessary to support an aggravating circumstance. (Linarez, supra, 155 Cal.App.4th at pp. 1396-1398; Munoz, supra, 155 Cal.App.4th at pp. 165-168.) In the present case, there are no facts underlying count 2 which add anything to a factual determination of the aggravating circumstances. In each incident, the one underlying count 1 and the one underlying count 2, the facts supporting victim vulnerability and abuse of a position of trust were simply not determined by the jury or admitted by defendant.
Under Sandoval we must conclude that the error in this case is not harmless. As a reviewing court, we “cannot necessarily assume that the record reflects all of the evidence that would have been presented had aggravating circumstances been submitted to the jury.” (Sandoval, supra, 41 Cal.4th at p. 839.) The factual issues surrounding whether the victim was particularly vulnerable, and whether, as an apparent family friend, defendant abused a position of trust in committing the offenses, simply were not explored. In his supplemental letter brief, the Attorney General does not argue otherwise—indeed, despite Sandoval’s focus on harmless error, the Attorney General presents no harmless error analysis at all.
We also note that the aggravating factors in this case “rest[] on a somewhat vague or subjective standard,” such that “it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court. The sentencing rules that set forth aggravating circumstances were not drafted with a jury in mind.” (Sandoval, supra, 41 Cal.4th at p. 840.) The Sandoval court explicitly noted that the aggravating circumstance that the victim was particularly vulnerable “require[s] an imprecise quantitative or comparative evaluation of the facts.” (Ibid.)
We cannot conclude “beyond a reasonable doubt[] that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, . . .” (Sandoval, supra, 41 Cal.4th at p. 839.)
The judgment is reversed and the matter is remanded for resentencing.
We concur: Stein, J., Swager, J.