Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Monterey County Super. Ct. Nos. SS041818A and SS041349A
ELIA, J.
Judith Moore was sentenced to an aggregate determinate prison term of 12 years and eight months in two cases, Case No. SS041818A and Case No. SS041349A. On appeal, she urges us to independently review the reporter's transcripts of in camera proceedings and determine whether the trial court erroneously denied her motion to unseal the sealed portion of a search warrant affidavit and to quash and traverse the search warrant in Case. No. SS041818A. Defendant Moore also argues that the two-year enhancement term under Penal Code section 12022.1 must be stricken because she did not admit the alleged enhancement (Case No. SS041818A) and the sentence on count one (Health & Saf. Code, § 11352) (Case No. SS041818A) must be modified to the middle term because imposition of the upper term violated Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856], Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531], and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348]. We affirm.
All further statutory references are to the Penal Code unless otherwise stated.
A. Procedural History
On April 22, 2004, a criminal complaint was filed against defendant. It alleged two counts of receiving and concealing stolen property (Pen. Code, § 496, subd. (a)), which were allegedly committed on or about April 3, 2004 and on or about April 21, 2004, respectively. The complaint further alleged a prior strike conviction (§ 1170.12) and three prior prison terms (§ 667.5, subd. (b)). An amended complaint, filed on June 9, 2004, added an allegation of possession of cocaine in violation of Health and Safety Code section 11350 committed on or about April 20, 2004. A second amended complaint filed on June 30, 2004 renumbered the counts.
In a separate case, Case No. SS041818A, defendant was charged by information filed on June 29, 2004 with two offenses committed on or about June 16, 2004. In count one, defendant was charged with transportation and sale of cocaine base in violation of Health and Safety Code section 11352. In count two, she was charged with possession of cocaine base for sale in violation of Health and Safety Code section 11351.5. The information alleged, following count two, that she committed "the above offense" while "released from custody on . . . her own recognizance or on bail" for criminal violations of Health and Safety Code section 11350 and Penal Code section 496, subdivision (a), within the meaning of section 12022.1. As to both counts, the information alleged a 1991 residential burglary conviction (§ 1170.12, subd. (c)(1)) and three prior prison terms (§ 667.5, subd. (b)).
"Any person arrested for a secondary offense which was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years in state prison which shall be served consecutive to any other term imposed by the court." (§ 12022.1, subd. (b).)
By information filed on July 20, 2004, defendant was then charged, in Case No. SS041349A, with receiving and concealing stolen property (Pen. Code, § 496, subd. (a)) on or about April 3, 2004 (count one) and with receiving and concealing stolen property (Pen. Code, § 496, subd. (a)) on or about April 21, 2004 (count two). The information further alleged a 1991 residential burglary conviction (§ 1170.12, subd. (c)(1)) and three prior prison terms (§ 667.5, subd. (b)).
In bifurcated proceedings in Case No. SS041818A, a jury found defendant guilty of the crime of transportation of a controlled substance in violation of Health and Safety Code section 11352 (count one), not guilty of possession of cocaine base for sale in violation of Health and Safety Code section 11351.5 (count two), and guilty of the crime of possession of a controlled substance in violation of Health and Safety Code section 11350 (lesser included offense of count two). The court accepted an admission of the special allegation under section 12022.1. Following trial on the remaining allegations, the jury found the prior strike allegation (§ 1170.12, subd. (c)(1)) and the three prior prison term allegations (§ 667.5, subd. (b)) true.
The probation report detailed a prior criminal record going back to 1988. It also disclosed that defendant had been repeatedly unsuccessful on probation. The probation report stated no factors in mitigation.
At sentencing in Case No. SS041818A on June 7, 2006, the trial court commented: "[I]t's clear to me and I think it is clear to you that you had a drug problem for some time. As a result of that, not only are you a victim of your own substance abuse but you have victimized a lot of people including and maybe especially your family members . . . . You had the opportunity . . . quite some time ago to get serious about rehabilitation and get your sobriety back. But for whatever reason you chose not to go down that path." Before imposing the upper term on the crime of transportation of a controlled substance (Health & Saf. Code, § 11352) (count one), the court expressly found no factors in mitigation. As to aggravating circumstances, the court stated: "I do think the manner in which the crime was committed does indicate some sophistication of planning based on the presence of 16 rocks of cocaine and the presence of a scanner and money. Your prior convictions as an adult are numerous. They aren't necessarily of increasing seriousness but they are numerous. You have served prior prison terms. Your prior performance on probation was unsatisfactory or parole [sic]." The court concluded that the factors in aggravation clearly outweighed the factors in mitigation.
The court sentenced defendant to an upper term of five years, doubled to 10 years under Three Strikes Law (§ 1170.12, subd. (c)(1)), on count one (Health & Saf. Code, § 11352) and stayed imposition of sentence on the lesser included offense of count two (Health & Saf. Code, § 11350) pursuant to section 654, pending completion of the sentence imposed on count one. As to the section 12022.1 allegation attached to count two and the three prior prison term allegations, the court stated: "I think it would be appropriate for the Court and I will stay the enhancement, the three prior prison terms especially in light of the fact that I've considered that as one of the factors in aggravation. So there will not be any additional time imposed for that allegation under [§] 12022.1, legally has to be stayed until we get the other case resolved that you were out on bail on when this offense was committed." Accordingly, the court sentenced defendant to a total prison term of 10 years.
An abstract of judgment in Case No. SS041818A was filed on June 19, 2006. On June 26, 2006, defendant filed a notice of appeal.
The abstract of judgment incorrectly shows that defendant was convicted of violating Health and Safety Code section 11351.5.
On July 13, 2006, in Case No. SS041349A, defendant entered a plea of no contest to count one (§ 496, subd. (a)) pursuant to a negotiated plea agreement providing imposition of a prison term consecutive to the sentence already imposed in Case No. SS041818 and resulting in the lifting of the stay on imposition of the enhancement term under section 12022.1 in Case No. SS041818A. Defendant indicated that she understood that her plea would result in additional prison time of two years and eight months in the two cases.
On August 23, 2006, the court resentenced defendant in Case Nos. SS041349A and SS041818A. (See 1170.1, subd. (a); Cal. Rules of Court, rule 4.452.) In Case No. SS041818A, the court again sentenced defendant to an upper term of five years, doubled to 10 years pursuant to section 1170.12, subd. (c)(1), on count one, imposed a two-year enhancement term on the section 12022.1 allegation, and stayed imposition of sentence on the count two offense and the prior prison term allegations (§ 667.5, subd. (b)). It pronounced a total prison term of 12 years in Case No. SS041818A. The court then imposed eight months, one-third of the two year middle term (§§ 18, 496, subd. (a), 1170.1, subd. (a)), on count one in Case No. SS041349A to be served consecutively to the 12 year term imposed in Case No. SS041818A. The court dismissed the remaining charge and allegations in Case No. SS041349A.
In pronouncing a single aggregate sentence for a determinate sentence consecutive to a prior determinate sentence, the judge in the current case may not change the discretionary decisions of the judge in the previous case, including the decision to impose the upper term. (Cal. Rules of Court, rule 4.452 (3).)
On October 3, 2006, defendant filed a notice of appeal. It stated: "The appeal in Case No. SS041818, is from a judgment of conviction entered upon the verdict of a jury. As for the appeal in Case No. SS041349, a certificate of probable cause pursuant to Penal Code section 1237.5 is not required as the appeal relates to matters that occurred after entry of the plea and does not challenge the validity thereof."
An amended abstract of judgment was filed on July 16, 2007. It reflects the total sentence of 12 years and eight months pronounced in the two cases on August 23, 2006.
The abstract of judgment mistakenly shows defendant convicted of Health and Safety Code section 11351.5 rather than Health and Safety Code section 11350 and must be corrected.
B. Motion to Unseal and to Quash, and Traverse Search Warrant
In Case No. SS041818A, defendant moved to unseal the sealed portion of the search warrant affidavit, discover information "concerning the informant relied upon in the affidavit," and traverse and quash the warrant. Following an in camera hearing, the trial court denied defendant's motions on the record.
On appeal, defendant asks this court to "independently review the transcripts of the in camera hearings to determine whether the trial court erred." The People agree that the request is appropriate under People v. Hobbs (1994) 7 Cal.4th 948. Our review of the appellate record, including the in camera hearing, does not disclose error.
"Subdivision (d) of section 12022.1 addresses procedures applicable when, as here, the secondary offense is tried and the proceedings result in a conviction and sentence prior to trial of, and conviction on, the primary felony offense." (People v. Meloney (2003) 30 Cal.4th 1145, 1156.) Section 12022.1, subdivision (d), provides: "Whenever there is a conviction for the secondary offense and the enhancement is proved, and the person is sentenced on the secondary offense prior to the conviction of the primary offense, the imposition of the enhancement shall be stayed pending imposition of the sentence for the primary offense. The stay shall be lifted by the court hearing the primary offense at the time of sentencing for that offense and shall be recorded in the abstract of judgment. If the person is acquitted of the primary offense the stay shall be permanent."
Citing People v. Bryant (1992) 10 Cal.App.4th 1584, defendant now asserts that she never actually admitted the section 12022.1 enhancement allegation in Case No. SS041818A and, therefore, the term imposed under section 12022.1 must be stricken. Defendant is not arguing on appeal that she did not voluntarily and intelligently waive her rights, including the right to jury trial. She states that during the colloquy, "the court advised appellant of her trial rights and obtained waivers . . . ."
Assuming defendant's Bryant contention is cognizable, we now reject it. In Bryant, the defendant entered no contest pleas to all charges of a seven-count information during a change of plea proceeding but was never specifically asked to admit certain special allegations. (10 Cal.App.4th. at pp. 1589-1590, 1593-1594) It was clear the defendant had not explicitly admitted "the [former Penal Code] section 208, subdivision (d) allegations of counts 1 and 5, or the [Penal Code] section 667.8, subdivision (a) allegation of count 2." (Id. at p. 1594.)
It has not been suggested on appeal that a certificate of probable cause was required to raise this issue because the lifting of the stay on the section 12022.1 enhancement in Case No. SS041818A was an aspect of the plea agreement under which defendant pleaded no contest to a violation of section 496, subdivision (a), in Case No. SS041349A. Neither has it been urged that defendant is estopped from complaining about the enhancement because of the plea bargain.
The appellate court in Bryant concluded that an enhancement term under Penal Code section 667.8, subdivision (a), could not stand because due process required the allegation to be pleaded and proven (id. at p. 1594) and "the trial court failed to obtain an adequate admission." (Id. at p. 1595.) The court also determined that the sentence imposed under what is now former subdivision (d) of Penal Code section 208 could not stand because the defendant had not expressly admitted the requisite intent (kidnapping committed with the intent to commit rape, oral copulation, sodomy, or rape by instrument) and "the trial court's summaries of the various charges were so confusing" that it was "impossible to say with certainty that Bryant understood what he was being asked to admit." (Id. at p. 1596.)
In this case, unlike Bryant, there was no confusion as to which allegation was being admitted since only a single enhancement allegation was at issue. However, as the People acknowledge, defendant did not directly admit the allegation. The question is whether defendant affirmatively adopted her counsel's statement that she wished to admit the allegation, as argued by the People.
The People maintain defendant satisfied the requirements of Penal Code section 1018, which requires personal entry of a plea, "by waiving her various trial rights" and agreeing that a two-year consecutive enhancement term applied to that admission. They point to People v. Reeves (1966) 64 Cal.2d 766. Reeves had argued on appeal that his defense counsel had "reduced the proceedings to 'a farce or a sham' by offering or entering into various waivers and stipulations, and that the court committed prejudicial error by accepting such waivers and stipulations assertedly in the absence of a showing that defendant 'intelligently understood' their import and possible consequences." (Id. at p. 772.) The California Supreme Court rejected this contention, even though Reeves had not formally pleaded himself: "Although the words of the plea were spoken by defense counsel, the trial judge questioned defendant personally in open court and defendant voiced his concurrence therein. This is sufficient compliance with the requirement of Penal Code section 1018 that 'every plea must be put in by the defendant himself in open court.' [Citations.] No error appears in the court's acceptance of the plea under these circumstances." (Ibid.)
Section 1018 provides in pertinent part: "Unless otherwise provided by law, every plea shall be entered or withdrawn by the defendant himself or herself in open court." The California Supreme Court some time ago explained: "It is true that convictions have been set aside on habeas corpus for failure of the trial court to require compliance with the provision in section 1018 of the Penal Code that a plea must be put in by defendant personally, even though the plea was entered by defendant's counsel in defendant's presence and without objection by him. (In re Breen, 162 Cal.App.2d 235 . . .; In re Brain, 70 Cal.App. 334 . . . .) . . . The purpose of the requirement that a plea be entered by defendant personally is to ensure that the plea is his own. If it is, the purpose of that requirement is accomplished . . . . Accordingly, in those cases the court should not have declared the judgment void without determining that the defendant had not authorized or adopted counsel's statement of his plea. If he had authorized or adopted counsel's statement of his plea, no purpose other than admonition was served by setting aside the judgment on habeas corpus. In re Breen, 162 Cal.App.2d 235 . . ., and In re Brain, 70 Cal.App. 334 . . ., are therefore disapproved to the extent that they hold that a judgment must be vacated even if the defendant authorized or adopted counsel's statement of his plea." (In re Martinez (1959) 52 Cal.2d 808, 815.)
Defendant maintains that she did not expressly concur and, therefore, Reeves is distinguishable. She asserts that "compliance with Penal Code section 1018 requires that a defendant make some expression in open court which authorizes her change of plea." We conclude that the statutory requirements of section 1018 have been satisfied.
In preparation for a separate trial on the "strike" allegation (§ 1170.12, subd. (c)(1)), the three prior prison term allegations (§ 667.5, subd. (b)), and the section 12022.1 allegation in Case No. SS041818A, a discussion took place between the prosecutor and the court regarding admission of the bail bond into evidence. Defense counsel informed the court that defendant wished to admit the section 12022.1 allegation that she was out on bail at the time she committed the offense and to "waive her right to a jury trial or trial by court in order to do so." Counsel also told the court: "She understands she has a right to present witnesses on that. She waives those rights as well."
The trial court told defendant that it needed to make sure that she understood the exact rights she was giving up and told her she had the same rights with regard to the enhancement allegation as she did with respect to charges just tried. The court explained that defendant had a right to a jury, a right to confront witnesses, a right to present evidence, a right to remain silent, and a right to make the prosecution prove the allegation beyond a reasonable doubt. When asked if she understood, defendant replied, "Yes, Sir." The court then stated, "If you admit that allegation, the jury will not be deciding that issue. That issue will be off the table and the consequence of that is there's a two-year consecutive enhancement that would apply to that admission. Do you understand that?" Defendant answered, "Yes." The court then asked defense counsel, "You join in her waiver?" Counsel, replied, "I do." The court said, "And do you agree, based on the information as well as the documentary evidence, there's a factual basis for the entry of the admission?" Counsel responded, "Yes." The court then asked defendant, "You understand your rights as to that?" Defendant answered, "Yes I do." The court stated: "You now give up those rights and you understand there are consequences."
Defendant insists that she "never expressly adopted" her trial counsel's statement that she was admitting the section 12022.1 enhancement allegation and her situation is more similar to People v. Vanley (1974) 41 Cal.App.3d 846 than to Reeves. In Vanley, defense counsel simply entered a plea of not guilty by reason of insanity without the involvement of the defendant. (Id. at p. 854.) Vanley's "cooperation with respect to the insanity plea was not requested until much later when it was pointed out to him that in submitting the issue of insanity on the doctor's reports, he would be waiving his right to a jury trial on that issue." (Id. at p. 855.) The appellate court in Vanley found that, unlike the circumstances in Reeves, the defendant had not expressly authorized or adopted counsel's statement of his plea and there was no compliance with the requirement of section 1018. (Ibid.)
As construed, section 1018 imposes no technical requirement that a defendant formally concur in a defense's counsel's statement of a plea. Unlike Vanley, defendant Moore was involved in the process of admitting the allegation. Although she was never directly asked whether she concurred in her counsel's statement that she was admitting the section 12022.1 allegation, her oral assent to the judge's questioning, done in open court, manifests her adoption of the admission and satisfies the requirement of section 1018 that "every plea shall be entered . . . by the defendant himself or herself in open court." (Cf. People v. Weaver (2001) 26 Cal.4th 876, 964.)
D. Imposition of the Upper Term
Defendant argues that the upper term sentence violated Blakely v. Washington, supra, 542 U.S. 296 (Blakely) and Apprendi v. New Jersey, supra, 530 U.S. 466 (Apprendi). As is now familiar, Apprendi declared: "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." (Apprendi, supra, 530 U.S. at p. 490.) Blakely applied the rule of Apprendi to the State of Washington's determinate sentencing law and concluded that the defendant's constitutional rights had been violated because the state judge had imposed a sentence greater than the "statutory maximum" as the result of judicial fact-finding. (See Blakely, supra, 542 U.S. at pp. 303-305 [" '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"].) Most recently, the United States Supreme Court held that California's determinate sentencing law," by placing sentence-elevating factfinding within the judge's province, violates a defendant's right to trial by jury safeguarded by the Sixth and Fourteenth Amendments." (Cunningham v. California, supra, ___ U.S. at p. ___ [127 S.Ct. at p. 860].)
Defendant is correct that her Blakely/Apprendi claim was not forfeited by failing to raise it at the time of the sentencing hearing on June 7, 2006 since any objection would have been futile under People v. Black (2005) 35 Cal.4th 1238 (Black I), which had determined that "the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant's Sixth Amendment right to a jury trial" (id. at p. 1244) and was controlling law (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) until abrogated by the United States Supreme Court in Cunningham v. California, supra, ___ U.S. ___ [127 S.Ct. 856], decided January 22, 2007. (See People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.) For the same reason, we must reject defendant's ineffective assistance claim that her counsel should have objected under Blakely to the court's selection of the upper term. (See Strickland v. Washington (1984) 466 U.S. 668, 687-688, 692, 694 [To prevail on claim of ineffective assistance of counsel, a defendant must show "counsel's representation fell below an objective standard of reasonableness" "under prevailing professional norms" and the deficient performance by counsel resulted in prejudice, that is "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"].)
In this case, defendant Moore maintains that "the court's selection of the upper term was tainted by Blakely error and renders [her] sentence unconstitutional." She acknowledges that some of the aggravating factors were arguably related to recidivism but insists that the "prior conviction exception" under Apprendi "is read very narrowly and applies only to the mere fact of a prior conviction." All of these arguments must be rejected in light of the recent decisions by the California Supreme Court in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), which are controlling. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
In Black II, the California Supreme Court determined that "as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant's right to jury trial." (Black II, supra, 41 Cal.4th at p. 812.) The court also interpreted Apprendi's "prior conviction" exception broadly. (Id. at pp. 819-820.) The court stated: "[N]umerous decisions from other jurisdictions have interpreted the Almendarez-Torres exception to include 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. (See cases cited in McGee, supra, 38 Cal.4th at pp. 703-706 . . .; see also United States v. Smith (6th Cir.2007) 474 F.3d 888, 892 [no right to a jury trial concerning the circumstance whether defendant's criminal history was ' "extensive and egregious" '].)" (Id. at p. 819, fn. omitted.)
As to prior convictions, the California Supreme Court observed: "The determinations whether a defendant has suffered prior convictions, and whether those convictions are 'numerous or of increasing seriousness' (Cal. Rules of Court, rule 4.421(b)(2)), 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. This type of determination is 'quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court. (McGee, supra, 38 Cal.4th at p. 706 . . . .)" (Black II, supra, 41 Cal.4th at pp. 819-820, fn. omitted.) The California Supreme Court rejected the defendant's argument that "the evidence of his prior convictions consisted only of hearsay statements, contained in the probation report, which are insufficient as a matter of law to prove the prior convictions beyond a reasonable doubt" because the court implicitly concluded that prior convictions need only be proved by a preponderance of the evidence, the standard presumably applied by the trial court. (Id. at p. 820, fn. 9.)
In Sandoval, supra, 41 Cal.4th 825, 838-839, the California Supreme Court reiterated its reasoning in Black II and used it to articulate a harmless error analysis. "In Black II, . . . we hold that there is no Sixth Amendment error in a case in which one or more aggravating circumstances have been established in accordance with Sixth Amendment requirements. As we explain in Black II, 'the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies only to a fact that is "legally essential to the punishment" (Blakely, supra, 542 U.S. at p. 313 . . .), that is, to "any fact that exposes a defendant to a greater potential sentence" than is authorized by the jury's verdict alone (Cunningham, supra, --- U.S. at p. ---- [127 S.Ct. at p. 863]).' (Black II, supra, 41 Cal.4th at p. ---- . . . .) 'Accordingly, 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. ----. . . .) By the same reasoning, if a reviewing court concludes, 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, the Sixth Amendment error properly may be found harmless." (Id. at pp. 838-839.)
In this case, defendant's numerous prior convictions rendered her eligible for an upper term sentence under Black II and Sandoval. (See Rules of Court, rule 4.421(b)(2) ["The defendant's prior convictions . . . are numerous or of increasing seriousness"].) She was also eligible for an upper term by virtue of her criminal record, which revealed that she had served prison terms as a result of her repeated violations of probation. (See Rules of Court, rule 4.421(b)(5) ["The defendant's prior performance on probation . . . was unsatisfactory"].) Consequently, the sentencing court was entitled to "rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term . . . regardless whether the facts underlying those circumstances ha[d] been found to be true by a jury." (Black II, supra, 41 Cal.4th at p. 839.)
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.
Defendant also asserts that her trial counsel was ineffective in failing to object to the imposition of an upper term sentence without a statement of reasons. This contention is not supported by any legal argument or citation to authority. " '[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]' [Citations.]" (People v. Stanley (1995) 10 Cal.4th 764, 793.) Since the claim was perfunctorily made, we deem it waived.