Opinion
NOT TO BE PUBLISHED
Super. Ct. No. S04CRF0333
BLEASE, Acting P. J.
In June 2005 defendant Juan Carlos Lopez Ramirez pleaded no contest to three counts of lewd conduct with a child under 14 years of age (Pen. Code, § 288, subd. (a) -- counts V, VI, VII) in exchange for a state prison sentence ranging from eight to 12 years and the dismissal of four other counts. In September the court sentenced defendant to 12 years, consisting of the upper term of eight years on count V and two two-year consecutive terms on counts VI and VII. The court dismissed the remaining four counts.
Hereafter references to undesignated sections are to the Penal Code.
The dismissed counts consisted of one count of continuous sexual abuse of a child (§ 288.5 -- count I) and three counts of aggravated child abuse (§ 269, subd. (a)).
Defendant appealed and we affirmed the convictions, but vacated the sentence and remanded the case for further proceedings because the aggravating factors used by the trial court to impose the upper term had been found by the court rather than, as required by Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856], having been admitted by defendant or found true beyond a reasonable doubt by a jury (Id. at p. 280 [166 L.Ed.2d at p. 868]).
We grant the People’s request that we take judicial notice of the records in defendant’s prior appeal, case No. C053201.
Following the issuance of our remittitur, but prior to defendant being resentenced, the California Supreme Court filed its opinion in People v. Sandoval (2007) 41 Cal.4th 825, holding that resentencing for Cunningham error should be “conducted in a manner consistent with the amendments to the DSL adopted by the Legislature.” (People v. Sandoval, supra,at pp. 845-846.) That manner, essentially, eliminates a presumptive middle term and provides for a range of terms from which the trial court has discretion to choose, but must state the reasons for its choice on the record. (Id. at pp. 846-848.) Relying on Sandoval, the trial court reimposed the same 12-year term.
Defendant again appeals, contending (1) reimposition of the same sentence previously ruled unconstitutional by this court violated both the remittitur and the law of the case; (2) retroactive increase in the statutory maximum violates ex post facto and due process principles; (3) adherence to the sentencing scheme in existence at the time of the plea was an implicit term of the bargain; (4) no competent evidence supported the court’s exercise of its sentencing discretion; (5) consideration of dismissed charges violated the plea bargain; (6) counsel rendered ineffective assistance by arguing against a circumstance in mitigation; and (7) the no-contact order was unauthorized. Except for the last claim, we reject defendant’s contentions.
Defendant has obtained a certificate of probable cause.
DISCUSSION
I
Relying on People v. Dutra (2006) 145 Cal.App.4th 1359 (Dutra), defendant contends that the trial court’s reimposition of the same 12-year sentence, based essentially on the same facts it had previously used and which use this court had found to be unconstitutional, was beyond the court’s jurisdiction as defined by the remittitur. The contention fails because defendant’s supporting argument suffers a fatal factual flaw.
In Dutra, we found that an upper term sentence had been imposed in violation of the proscription in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] against increasing a defendant’s sentence by use of contested factors found only by the court and issued a remittitur ordering a sentencing trial. (Dutra, supra, 145 Cal.App.4that pp. 1361-1362.) While the sentencing trial was pending, the California Supreme Court issued its decision in People v. Black (2005) 35 Cal.4th 1238, holding that California’s Determinate Sentencing Law did not violate Blakely. (Dutra, supra,145 Cal.App.4that p. 1362.) The trial court concluded that because of Black’s holding it was no longer bound by our remittitur and declined to conduct the ordered trial and reimposed the same sentence. (Ibid.)
The defendant appealed and we concluded that notwithstanding Black, the superior court’s jurisdiction was limited to acting only in accordance with our remittitur. (Dutra, supra, 145 Cal.App.4that pp. 1368-1369.) Consequently, we vacated the sentence and remanded the cause for proceedings consistent with the opinion. (Id. at p. 1369.)
Defendant claims he is in the same position as the defendant in Dutra, arguing as follows: When he was originally sentenced, the aggravating factors found by the court were “(1) the victim was ‘very vulnerable,’ (2) the victim was only eight years old whereas defendant was 35 years old, (3) defendant took advantage of a position of trust, and (4) defendant was on felony probation for violation of Penal Code section 273.5,” the latter condition being the equivalent of having a prior felony conviction. When defendant was resentenced the trial court used essentially the same facts, including the fact he had a prior felony conviction. Defendant concludes that because we had determined in his first appeal that these aggravating factors had been unconstitutionally found, the trial court had no jurisdiction to simply reimpose them at resentencing, but instead was required to follow the direction of our remittitur, which was to impose the middle term or to conduct a sentencing trial.
Defendant’s argument is factually flawed because when he was initially sentenced the trial court did not use his prior felony conviction as a reason for imposing the upper term. The record of the initial sentencing hearing shows that after considering factors relating to probation, the court stated as follows: “The Court should also consider the age of [the] victim, which in this case... was about eight years old, which is quite young. [¶] And even if there was no agreement as to stated prison, based on the facts of this case, the Court would have to send him to prison, and I would based on the facts, no matter what, even if there are -- and I was trying to see if there is statutory provisions that prohibit it, but even if there were not, I just would not sentence a person who committed these kind of offenses to a county jail sentence. But the agreement was that he would not be asking for local time, and that he would be sentenced to prison. [¶]... The Court would also note that he was on felony probation on a 273.5 when he committed this offense, and that’s a serious offense as well... [¶] And so what the Court will do on this case is the following: [¶] The Court would find, number one, that the victim in this case was very vulnerable. She’s eight years old. Two, she was eight years old, and I forget how old [the defendant] is, but obviously she was... much young than him. I assume he’s about 35. [¶] [¶]... The Court has to consider those factors. The Court has to consider the fact that he was in a position of trust. Maybe it wasn’t his daughter, but it was like a stepdaughter. And the Court has to consider all those factors as well as other factors. [¶] So based on everything I’ve considered, the Court would deny probation as agreed upon by all parties. The Court, on Count V... would order that he serve 8 years in the California Department of Corrections for the reasons stated. [¶] Number one, she was vulnerable. Number two... she was 8. Number two, the type of conduct that was stated that had occurred... is more aggravated than the normal type of cases. And somewhat maybe planning and sophistication, because if you’re a defendant or a man or whatever and you commit this type of crime over and over and over again... that shows some sophistication, so the Court would impose the upper term of 8 years.” (Italics added.)
The most reasonable reading of this record is that the trial court’s sole reference to defendant’s having a prior conviction was made simply to explain to defendant why the court would not grant probation even if probation had been a possibility. Consequently, the trial court did not use defendant’s prior felony conviction at his initial sentencing, but it did do so at his second.
This conclusion is the same one reached by the court in defendant’s first appeal: “In the present case, the trial court imposed an upper term for the principal offense, citing a number of facts. None of these, however, involved any recidivism on the defendant’s part.”
In Apprendi v. New Jersey (2000) 530 U.S. 466 at page 490 [147 L.Ed.2d 435, 455], the court stated: “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.” This was the law at the time of defendant’s initial and subsequent sentencing. “[I]f 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.’” (People v. Black (2007) 41 Cal.4th 799, 813, fn. omitted.) Because a defendant’s prior felony conviction constitutes a proper aggravating factor, and because our remittitur simply required a new sentencing hearing, the sentencing procedure followed by the trial court conformed to the remittitur.
II
Defendant contends that if Sandoval operated to increase the statutory maximum sentence after the crime was committed, it violated ex post facto and due process principles. Recognizing that we are bound by law to follow Sandoval, defendant states that he is raising the challenge to preserve the issue for future federal review. The issue is preserved.
III
Defendant contends that an implied part of his plea bargain was that he would be sentenced in accordance with the law as it was at the time he entered his plea. Even assuming that this is true, as noted in section I the law at the time defendant entered his plea permitted the court to use his prior felony conviction to impose the upper term, which is what the court did at resentencing. Since defendant was resentenced in accordance with the law as it existed at the time of his plea, his complaint is rejected.
IV
Defendant contends that because there was no probation report at either his initial or subsequent sentencing, defendant having waived these reports, there was no competent evidence to support the court’s exercise of its sentencing discretion. We disagree. Defendant’s argument neglects to take into account the trial court’s citing of his prior felony conviction, which in-and-of-itself is competent evidence supporting the upper term.
V
Defendant contends that the trial court’s consideration of dismissed counts violated the plea bargain by (A) imposing the upper term in violation of the rule of People v. Harvey (1979) 25 Cal.3d 754, and (B) considering his favorable plea bargain as a circumstance in aggravation. We reject both claims.
A.
Harvey held that absent an agreement to the contrary, an implied term of a plea bargain is that in determining a defendant’s punishment a trial court may not consider dismissed counts which are nontransactionally related to the admitted offense or offenses. (People v. Harvey, supra, 25 Cal.3d at p. 758; People v. Valenzuela (1995) 40 Cal.App.4th 358, 364.)
Absent an advisement by the court that if the court does not substantially adhere to the terms of the plea bargain the defendant may withdraw his plea (see § 1192.5), a defendant’s silence to a violation of the bargain does not forfeit the issue for appeal. (People v. Walker (1991) 54 Cal.3d 1013, 1024-1025.) Here, although defendant never objected on the grounds for which he now seeks review, he neither gave a Harvey waiver nor received the section 1192.5 advisement. Hence, the issue is reviewable.
Defendant contends that Harvey was violated and that the dismissed counts and the admitted counts “could not have been transactionally related” because the four dismissed counts were charged in the information as occurring on September 15, 2004, and the three amended counts to which defendant pleaded were charged as occurring on between December 1, 2002, and January 10, 2003. Again, defendant’s argument fails because it is factually incorrect.
The criminal complaint was filed on October 8, 2004, and charged defendant with one count of continuous sexual abuse of a child and three counts of sexual assault on a child, each count having occurred between December 1, 2002, and January 10, 2003. Defendant waived a preliminary hearing and the charges were filed as an information on December 10, 2004; however, each offense now was charged as occurring on September 15, 2004.
On June 23, 2005, pursuant to the negotiated settlement, the information was amended to add the three charges of lewd conduct to which defendant pled. The transcript of the plea reflects that in considering the factual basis for the plea the court expressed its concern that because the information charged all offenses as occurring on September 15, 2004, it could present a problem in imposing consecutive terms. The prosecutor suggested wording each offense as having occurred “between December 1st and the 10th of January.” Counsel explained that the prosecutor who had filed the information had “erred in the dates,” and had subsequently filed an amended information to make the dates match those of the criminal complaint. The parties were unable to find the amended information and it is not contained within the appellate record. Defendant then stipulated that the three amended counts occurred between December 1, 2002, and January 10, 2003, that they were separate offenses occurring on separate dates and, as so stipulated, he entered his pleas.
The court accepted three specific acts, which defense counsel conceded that defendant had admitted, as the factual basis for the offenses. Namely, masturbation, oral copulation, and inappropriate conduct, all of which occurred within the same time frame as the dismissed counts. Consequently, defendant has not carried his burden of establishing the error of which he complains (People v. Sullivan (2007) 151 Cal.App.4th 524, 549), which in this case is a violation of the Harvey rule, and his contention is rejected.
B.
Defendant also contends that the trial court improperly considered his favorable plea bargain as a circumstance in aggravation. The record does not support the contention.
The court did comment that defendant had received a favorable plea bargain when it said that the prosecutor had made “a fair offer” by permitting defendant to plead to three counts of section 288 when defendant was facing a potential 45 years-to-life sentence. However, the favorable plea was not one of the factors specified by the court as a reason for imposing the upper term. Indeed, as observed by defendant, the reasons stated by the court for selecting the upper term at resentencing were defendant’s prior recidivism, his abuse of a position of trust, crimes showed sophistication and planning, and the victim was particularly vulnerable. None of these conditions, which defendant has correctly recited, involve defendant having received a favorable plea bargain. Thus, the record does not support defendant’s contention.
VI
Defendant contends he received ineffective assistance of counsel when his counsel argued against a circumstance in mitigation, namely, that defendant had voluntarily acknowledged wrongdoing at an early stage of the proceedings. (See Cal. Rules of Court, rule 4.423(b).) Again, the record does not support the claim.
Defendant’s argument is based upon the following statements made by his counsel at the resentencing hearing. “[W]hen [defendant] was confronted by police, he acknowledged his wrongdoing, and it looked to me as if he was cooperative with Officer Tappen and in admitting these very embarrassing, awful things that he did to [the victim].... The fact that he acknowledged his wrongdoing does not in any way mitigate his responsibility for these terrible things that are going to stay in [the victim’s] mind for the rest of her life, so we’re not here to suggest that -- that that should mitigate his culpability in any respect.”
Defendant views counsel’s statements as argument “that an early admission of wrongdoing could not serve as a circumstance in mitigation.” In so arguing, defendant fails to distinguish responsibility for a crime from mitigation of punishment for the crime. The two are different.
Responsibility for a crime refers to a defendant’s having committed the crime. Circumstances in aggravation or mitigation relate to the degree punishment is to be imposed for the crime. Prior to the courts ever considering circumstances in aggravation or mitigation, the defendant’s responsibility for having committed the offense must have been established. Here, counsel was simply pointing out for the court that he was not arguing that defendant’s early acknowledgment of wrongdoing lessened or mitigated defendant’s responsibility for the crime, which it clearly did not. Consequently, counsel was not arguing against a mitigating circumstance.
Defendant also claims that his counsel was ineffective because while counsel “acknowledged” that when defendant was confronted by the police he admitted his wrongdoing, “counsel did not admit evidence at the sentencing hearing” supporting the assertion. The argument is not persuasive. The police report contained in the file supported counsel’s claim, and the trial court, prior to imposing sentence, stated that it had “review[ed] the entire file.” Thus, the court was aware of the basis for counsel’s assertion.
VII
At the resentencing hearing the trial court ordered defendant “not to have any contact” with the victim. Defendant contends, and the People agree, the order exceeds the statutory authority for the order and should be stricken. We agree the order exceeds the court’s jurisdiction, but disagree that striking the condition, rather than modifying it, is the appropriate remedy.
The parties agree that the only statutory authority governing contact orders for persons sent to state prison is section 1202.05. For purposes of this appeal, we accept this position. Section 1202.5 provides in pertinent part: “(a) Whenever a person is sentenced to the state prison... for violating Section... 288... and the victim of one or more of those offenses is a child under the age of 18 years, the court shall prohibit all visitation between the defendant and the child victim.” The section does not authorize the court to prohibit all contact, only “visitation.” Consequently, the court’s order exceeded its jurisdiction. Nevertheless, striking of the condition would be inappropriate since the court obviously meant to prohibit all contact, which would include visitation. We shall modify the condition to conform with section 1202.05. (See § 1260, authorizing this court to modify a judgment.)
DISPOSITION
The condition prohibiting the defendant from having any contact with the victim is hereby modified to read that defendant is to have no visitation with the victim. The superior court is directed to amend its records to reflect this change and to forward a copy to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
We concur: HULL, J., ROBIE, J.