Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF163000B. Patrick O’Hara, Judge.
S. Lynne Klein, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HARRIS, Acting P.J.
INTRODUCTION
Appellant Jorge Rodriguez and two codefendants were charged with multiple felony counts arising from a vandalism incident and a drive-by shooting of someone believed to be an associate of a rival gang. Appellant pleaded no contest pursuant to a negotiated disposition to count I, attempted murder, count VIII, vandalism, and count IX, possession of a firearm, and admitted the gang enhancements, for a term of 19 years 8 months. Appellant then moved to withdraw his pleas and admissions and claimed his codefendants manipulated him to enter the pleas. The court denied the motion and imposed the sentence. On appeal, appellant contends his pleas and admissions were not knowing, intelligent, and/or voluntary, but for reasons different from those he raised in his motion to withdraw his pleas. He asserts he was not advised of the meaning of his “no contest” pleas or about the elements of the offenses and enhancements. He also contends the court failed to obtain the appropriate waiver to impose the upper term in violation of Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham). Finally, he asserts the court failed to find a factual basis for his pleas. We will reverse and remand for resentencing only.
FACTS
Count VIII—Vandalism
On the afternoon of April 18, 2006, K.D. left her residence in Visalia to go shopping. Around 2:00 p.m., about an hour later, K.D. returned and saw two Hispanic men in the alley behind her house. One man, later identified as codefendant Ramiro Moran, appeared to act as a lookout while the other man, later identified as codefendant Paul Molina, was standing by the garage. Molina was wearing a blue jersey and writing Sureno graffiti with a can of blue spray paint on the garage and fence. As K.D. approached, Moran called out to Molina, and they walked toward a white Thunderbird which had been parked nearby. They met a third individual who was standing outside the car and wearing a baseball cap. Molina and Moran got into the car, and the third individual entered the driver’s side of the vehicle and drove away. K.D. wrote down the vehicle’s license plate number and contacted the police department.
Given appellant’s pleas in this case, the following facts are taken entirely from the preliminary hearing testimony.
Counts I and IX—Attempted Murder and Possession of a Firearm
Around 2:55 p.m., Andrew “Smiley” Morales was riding his bicycle at Lincoln Oval Park in Visalia. He left his bicycle on the grass and walked across the street toward a market. As he walked to the market, witnesses saw a white Thunderbird maneuver between two other cars so that there was a direct line between the vehicle’s passenger side and Morales. The witnesses noticed the white car stop and then they heard two or three gunshots. Morales fell to the ground and the white vehicle sped away from the area.
The witnesses thought the gunshots were fired from the front passenger side of the white vehicle. One witness saw two Hispanic males in the front seats of the car, with thin builds and shaved heads, and the driver was wearing a ball cap. This witness did not notice anyone in the vehicle’s back seats.
Morales suffered a gunshot wound in the left side of his back, and the bullet was lodged in his body. The police found a .25-caliber bullet embedded in the wall of the market building toward which Morales had been walking, and did not find any spent casings in the area. There was a red bandana tied around Morales’s bicycle.
Around 3:00 p.m., police officers responded to the residence in Visalia where codefendant Molina lived with his parents. A white 1994 Thunderbird registered to appellant Jorge Rodriguez was parked nearby. The back windows were tinted. There was a can of blue spray paint in the car. The police found a spent .25-caliber shell casing between the front passenger seat and the front passenger door.
The police located appellant, codefendant Molina, codefendant Moran, and Daniel Romo at the Molina residence. Molina’s father said that Molina and the others had arrived about 10 minutes earlier and went into Molina’s bedroom. The police found a .25-caliber semi-automatic handgun and a box of .25-caliber ammunition hidden in an air vent in Molina’s bedroom. The gun was loaded with an eight-round magazine, but only six rounds were in the clip. There was black tape wrapped around the gun. The police found several papers and notebooks in Molina’s bedroom which contained the words “187 on a busters,” referring to homicide and the derogatory term for Nortenos.
At the preliminary hearing, it was stipulated that appellant and codefendants Moran and Molina were associated with the Sureno gang, the Surenos identified with the color blue, the Nortenos were the rivals of the Surenos and claimed the color red, and “busters” was the derogatory term for Nortenos.
Officer Paul Esquibel interviewed Daniel Romo, who said they had been driving around town in appellant’s white Thunderbird. Romo said he was sitting in the left rear seat, appellant was driving, Molina was in the front passenger seat, and Moran was in the right rear passenger seat. Romo said that as they drove by the park, appellant pointed to someone and said, “hey, there’s a buster,” using the derogatory term for a Norteno. Appellant slowed down the car, and Moran pointed a gun out the right rear passenger window and fired at least two rounds at Morales. Romo saw that Morales was hit. Romo said they drove to Molina’s house and hid the gun in an air vent in Molina’s bedroom, and the police arrived shortly afterwards.
Detective Randy Lentzner advised appellant of the rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and appellant agreed to answer questions. Appellant said he was driving the others around in his white Thunderbird, Molina was in the front passenger seat, Romo was in the left rear seat, and Moran was in the right rear seat. Appellant said that as he drove by the park, he suddenly heard two loud gunshots fired from the right rear passenger side of his car, where Moran was sitting. Appellant knew about the red bandana on the victim’s bicycle, believed the victim was a Norteno, and said the shooting was gang-related. Appellant said he kept driving and they went to Molina’s house.
One of the shooting witnesses subsequently identified appellant and Molina as the two men sitting in the front seat of the white Thunderbird during the shooting. This witness could not identify Romo or Moran.
PROCEDURAL HISTORY
On April 20, 2006, a felony complaint was filed in the Superior Court of Tulare County charging appellant and codefendants Molina and Moran with multiple felony counts arising from the drive-by shooting and vandalism incidents. On May 23, 2006, a first amended complaint was filed. On May 26, 2006, Judge O’Hara conducted the joint preliminary hearing, and appellant and codefendants were held to answer.
On June 7, 2006, the information was filed which charged appellant, and codefendants Molina and Moran, with multiple felony counts. We will focus on the counts alleged against appellant.
In count I, appellant and Moran were charged with attempted willful, deliberate, and premeditated murder of Andrew Morales on April 18, 2006 (Pen. Code, §§ 664/187), with special allegations as to appellant that a principal discharged a firearm (§ 12022.53, subds. (d), (e)(1)) and the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(C)).
All further statutory citations are to the Penal Code unless otherwise indicated.
In count II, appellant and Moran were charged with discharge of a firearm from a vehicle and at a person (§ 12034, subd. (c)), with a special allegation that a principal discharged a firearm (§ 12022.53, subds. (d)(1), (e)) and the gang enhancement. In count IV, appellant was charged with assault with a semi-automatic firearm (§ 245, subd. (b)), with a special allegation for use of a firearm (§ 12022.5, subds. (a), (d)) and the gang enhancement.
In count VIII, appellant, Molina, and Moran were charged with felony vandalism with under $400 in damage, in that they willfully and maliciously defaced with graffiti and other inscribed material and otherwise damaged or destroyed real and personal property, the garage and fence of K.D. (§ 594, subd. (a)), along with the gang enhancement.
On June 9, 2006, appellant and the codefendants appeared together, pleaded not guilty, and denied the special allegations.
On September 21, 2006, Judge O’Hara convened the pretrial hearing, and appellant and the codefendants appeared together. The prosecutor advised the court that there were no dispositions, they had some discussions in chambers, and codefendant Moreno’s attorney had made an offer but the prosecutor needed a few days to review it. The prosecutor did not know whether appellant and Molina were “going to make offers,” but knew that appellant’s attorney wanted “some time to speak to his client.” The prosecutor asked to continue the pretrial for one week. The court agreed and said, “This is a high-stakes case. Perhaps some reasonable offer is in the books.” The prosecutor advised the parties that his office needed to know by the next day as to “any potential offers if they are going to make an offer to the DA’s office.” The court asked if the attorneys would have the opportunity to talk to their clients. The attorneys for appellant and codefendant Molina thought they could talk to their clients by the next day. The prosecutor was not sure about another continuance “[i]f it is not a package deal” or whether his office “will want to split this case off.” The court advised the prosecutor to give the parties more time and continued the matter.
On September 28, 2006, codefendant Moran entered pleas pursuant to a negotiated disposition. The record is silent as to the exact nature of the disposition.
Also on September 28, 2006, Judge O’Hara convened the continued pretrial hearing for appellant and codefendant Molina, who were present with their attorneys. Mr. Allen, appellant’s attorney, stated he had “relayed an offer to the People” on appellant’s behalf, and they were waiting for a response. Molina’s attorney stated there had not been any offers involving his client because the prosecutor believed Molina had been undercharged. The prosecutor asked for a continuance because he was waiting for the ballistic results. The court agreed to continue the matter because it wanted “the attorneys to have the opportunity to talk and I want to talk about this and see if we can settle the case.”
The Plea Proceedings
On October 5, 2006, Judge O’Hara convened a change-of plea hearing for appellant. Appellant was present with his attorney, Mr. Allen, who also represented him at the preliminary hearing. The record does not reflect that either of the codefendants were present.
The prosecutor stated that appellant was going to enter into a negotiated disposition and the court had already given “an indicated” sentence of 19 years 8 months. The prosecutor stated appellant would plead to count I, attempted murder, and the premeditation allegation would be dismissed “so that would be attempted second degree murder [in] the five, seven, nine range. The Court would give it aggravated nine [years].” The prosecutor stated appellant would admit the gang enhancement as to count I “which [would] add ten years. That’s how we [would] get the 19 [years].” The prosecutor stated that appellant would also plead to count VIII, felony vandalism, “[as] charged, and that would add an additional and consecutive eight months.”
The prosecutor next moved to add count IX, a violation of section 12031, possession of a firearm, with a gang enhancement pursuant to section 186.22, subdivision (b)(1)(A). The prosecutor stated appellant would plead to count IX, the term would be stayed pursuant to section 654, and count IX would represent “a second and additional strike that he’s pleading to.”
Mr. Allen, defense counsel, stated:
“That appears to be appropriate, your Honor. My client is not happy about it. However, he’s willing to enter a plea to 19 years, eight months under People versus West. He does not want to take the risk of going to trial and suffering a more serious exposure. He is looking at about 42 years to life.”
People v. West (1970) 3 Cal.3d 595 (West), held that when a defendant pleads not guilty, a trial court lacks jurisdiction to convict the defendant of an offense that is neither charged nor necessarily included in the alleged crime. However, the court may accept a bargained plea of guilty or nolo contendere to any lesser offense reasonably related to the offense charged. (Id. at pp. 611-613.) West observed that if a defendant knowingly and voluntarily enters such a plea, the defendant “can hardly claim that he is unaware that he might be convicted of the offense to which he pleads; his plea demonstrates that he not only knows of the violation but is also prepared to admit each of its elements.” (Id. at p. 612.) Under these circumstances, the court’s jurisdiction is not limited to the offenses charged or necessarily included in those charged. (Id. at p. 613.)
The court had the following exchange with appellant:
“THE COURT: Mr. Rodriguez, you’ve had time to talk to your lawyer?
“[APPELLANT]: Yes, I did.
“THE COURT: Now, the West plea, which he’s told you, means you are not admitting guilt but entering into this negotiated plea because you believe it is in your best interest because if you take a chance of going to trial and you lose, you could get 42 years to life.
“[APPELLANT]: Yes, your Honor.
“THE COURT: And that’s a legitimate way for me to take a plea. [¶] You need to understand that would be the same as a guilty plea as far as I’m concerned, for my purposes. [¶] Do you understand that, sir?
As we will discuss post, appellant cites to the italicized language and argues the court did not properly advise him about the meaning and impact of a “no contest” plea.
“[APPELLANT]: Yes, your Honor.
“THE COURT: Had anybody offered you anything or threatened you in any manner in order to get you to change your plea, except what we talked about here in open court?
“[APPELLANT]: No, your Honor.” (Italics added.)
The court advised appellant that he was pleading to strike offenses, which meant that he could face an enhanced term of 25 years to life if he committed another felony, and appellant said he understood. The court advised appellant of his right to a jury trial, to confront and cross-examine witnesses, and the right not to incriminate himself. Appellant said he understood and waived his rights.
The court took appellant’s plea as to count I, attempted murder:
“THE COURT: It is alleged here, sir, in count number one, that on April 18, 2006, you did willfully and unlawfully attempt to murder one Andrew Morales, a human being. [¶] How do you plead?
“[APPELLANT]: No contest.”
The court stated the no contest plea was entered pursuant to West, and the attempted murder charge did not carry allegations of premeditation and deliberation.
The prosecutor clarified that as to count I, appellant would admit the gang enhancement “as is alleged.”
“THE COURT: Okay. I got it. [¶] It’s furt[]her alleged that on that same day that you committed this offense for the benefit of, at the direction of, in association with a criminal street gang, with the specific intent to further assist criminal conduct by gang members. This is a ten-year gang enhancement. [¶] How do you plead—or do you admit that?
“[APPELLANT]: I admit.”
The court further advised appellant that the gang enhancement required him to register as an active gang member, and appellant said he understood.
“THE COURT: And do you still wish to enter your plea?
“[APPELLANT]: Yes.”
The court next turned to count VIII.
“THE COURT: [¶] It is alleged in Count Number 8 on April 18, 2006, you did willfully and unlawfully commit the crime of vandalism, property belonging to [K.D.]. [¶] How do you plead, sir?
“[APPELLANT]: No contest.
“THE COURT: And it is further alleged that you committed that crime for the benefit of, at the direction of, in association with a criminal street gang, with the specific intent to further promote or assist in criminal conduct by gang members. [¶] How do you plead, sir?
“[APPELLANT]: I admit.”
The court then turned to count IX, which had not been alleged in the information, but which the prosecutor added as part of the negotiated disposition.
“THE COURT: [¶] Count Number 9, it is alleged on the same day you did willfully and unlawfully have in your possession, a firearm which was unregistered, in violation of Section 12031 of the Penal Code. [¶] How do you plead?
“[APPELLANT]: No contest.
“THE COURT: And it is further alleged that this took place at the direction of, for the benefit of, in association with a criminal street gang. [¶] Do you admit that, sir?
As we will discuss post, appellant contends the court failed to explain the elements of count IX and the attached gang enhancement.
Thereafter, the court advised appellant of the possible immigration consequences of his no contest pleas and admissions, and asked whether he still wished to enter his pleas, and appellant said yes.
“THE COURT: I have done the preliminary hearing in this case. I have had more than one discussion with counsel. There’s a factual basis for this plea.”
The court referred the matter to the probation department. The prosecutor noted that codefendant Moran already entered his pleas and was scheduled to be sentenced on October 26, 2006, and asked to have the sentencing hearings on the same day. The court rejected the request because of the time required to prepare appellant’s probation report.
The Probation Report
A probation report was prepared which contained a statement from the victim, Morales, about the circumstances of the shooting. Morales said he was walking up to the store when he heard a sound like a firecracker. He immediately fell to the ground as if one of his legs gave out. He then realized he was shot and unable to stand up. Morales said he felt his back and realized he was bleeding. Morales could not recall any details about the vehicle or any possible suspects. He did not know of anyone or any reason why someone would want to hurt him. Morales was treated at the hospital and his injuries were not life-threatening.
The probation report stated appellant did not have any known prior criminal or juvenile record. He had graduated from high school and was previously employed.
The probation report listed the following aggravating factors: the crime involved great violence and great bodily harm, disclosing a high degree of cruelty, viciousness, or callousness (Cal. Rules of Court, rule 4.421(a)(1)); the victim was particularly vulnerable as he was unarmed (rule 4.421(a)(3)); the manner in which the crime was committed indicated planning and sophistication (rule 4.421(a)(8)); and appellant engaged in violent conduct indicating a serious danger to society (rule 4.421 (b)(1)). There was one mitigating factor, that appellant had no known prior criminal record (rule 4.423(b)(1)).
The probation report noted appellant pleaded no contest with an indicated sentence of 19 years 8 months, and recommended the indicated sentence because appellant had not taken responsibility for his actions and shown a disregard for the safety of the community.
Appellant’s Motion to Withdraw the Pleas
On November 28, 2006, appellant filed a motion to withdraw his no contest pleas and admissions, and argued the pleas were induced by mistake or ignorance regarding the nature and effect of the pleas. Appellant was represented by another attorney, Antonio Reyes.
The motion was supported by appellant’s sworn declaration, that he had been reluctant to enter the pleas because of his “factual innocence,” and he did not know the right rear passenger in his car had a weapon “until the shots were fired.” Appellant denied that he pointed out anyone as a “‘buster.’”
Appellant further declared that at the time of his pleas, his codefendants “were placing pressure on me to accept the offer more for their benefit than mine.” Appellant declared his parents were present in court that day, he had “tremendous misgivings about what to do, and I recall my attorney also discussing the plea with my parents. Mr. Allen advised me of my parents concerns however, it was the pressure from the co-defendants that cause[d] me to ultimately decide to accept the plea bargain.”
On December 4, 2006, the prosecutor filed opposition and argued the transcript showed appellant entered into the pleas and admission to avoid possible exposure to a term of 42 years to life, appellant said he had not been threatened or forced to enter the pleas, and the same judge who conducted the preliminary hearing found a factual basis for the pleas. The prosecutor pointed out that codefendant Moran had already accepted a separate plea offer on September 28, 2006, it was not a package deal based on appellant’s acceptance, and the prosecutor never offered any disposition to codefendant Molina.
The Court’s Hearing
On December 8, 2006, the court conducted a hearing on appellant’s motion to withdraw his pleas and admissions. Appellant was present with Mr. Reyes. Appellant testified he was 19 years old and had an 11th grade education. He had been working when he was arrested.
Appellant testified that on the day he entered his pleas, he felt pressure from his codefendants, Molina and Moran, about “[t]he time we were looking at, I just felt, you know—I don’t know. I felt manipulated.” Appellant testified his codefendants manipulated him “[b]y taking a deal that they had offered me,” and that’s why he entered the pleas. Appellant admitted Moran entered a plea one week before appellant’s plea hearing, and Molina never had a plea offer. Appellant insisted both codefendants were in court when he entered his own pleas, even though appellant was the only person who entered pleas that day. Appellant conceded that he had talked to his parents and his attorney about whether he should take the plea, his attorney spoke to his parents about it, and his attorney told appellant what his parents were saying.
Appellant testified he also wanted to withdraw his pleas because he was “completely” and factually innocent. Appellant admitted he was driving the car, denied that he slowed down just before the shots were fired, and testified he did not know someone was going to fire a gun. Appellant admitted he drove to Molina’s house after the shooting and they went into Molina’s bedroom, but he did not see where the others hid the gun.
Appellant was asked if there was anything else bothering him when he entered the pleas. Appellant testified that “this is too much time that I’m looking at.” Appellant further testified: “The time that I wouldn’t take the deal, it is going to go to trial. If I lose, I was looking at 45 to life.” Appellant testified he tried to talk to his attorney but did not say anything about his misgivings “[b]ecause from my understanding, I couldn’t do anything about it.” Appellant testified he spoke to the police when he was arrested “because I don’t want anything to do with this.” Appellant testified he was beaten in custody on November 17, 2006.
The court heard argument on the motion, and Mr. Reyes asserted the court failed to advise appellant of the fine and parole consequences as a result of the pleas. Mr. Reyes further argued appellant wanted to withdraw his pleas because he was adamant he did not know someone in the car was going to commit this offense. The prosecutor replied that appellant’s declaration and testimony only set forth two reasons to withdraw his pleas: he was pressured by the codefendants and he was factually innocent. The prosecutor noted appellant did not claim the fine and parole consequences had an impact on his pleas. The prosecutor further argued that during the plea hearing, the court asked if anyone threatened him to change his plea, and appellant said no. As for his factual innocence argument, the prosecutor reminded the court that it heard the preliminary hearing testimony, Daniel Romo and a witness to the shooting implicated appellant as the driver, and Romo stated that appellant slowed down and pointed out the victim just before the shooting. In response, Mr. Reyes stated that there was a stop sign on the street adjacent to the park, a car traveling on that road could not drive at a high speed, and most vehicles would have to slow down at that location.
The court denied appellant’s motion to withdraw the pleas. The court reviewed the transcript from the plea hearing and noted that appellant’s then-attorney, Mr. Allen, was familiar with the issues and advised the court that appellant was “not happy about it, however, he’s willing to enter a plea to 19 years, eight months under People versus West. He does not want to take the risk of going to trial and suffer a more serious exposure. He’s looking at about 42 years to life.” The court noted that as part of accepting the plea, it asked appellant whether anyone offered anything or threatened him in any manner to enter the plea, except for what was discussed in open court, and appellant said no. The court found:
“This is not, in my recollection, a package offer. One of the co-defendants pled no contest the week before. This was an offer to this particular defendant. He had a number of times—this offer had been talked about on more than one occasion. He entered a plea here. So I find there’s no basis to withdraw the plea at this time.”
Thereafter, the court conducted the sentencing hearing and noted the indicated term was 19 years 8 months. Mr. Reyes argued appellant completely cooperated with the police, denied gang affiliation, and had no prior record or contacts with the police, except for asking to be placed with the Surenos when he was booked in this case. Mr. Reyes did not dispute that appellant was driving the vehicle during the vandalism incident but there was no evidence he knew what the other individuals were doing. Mr. Reyes asked the court to impose a lesser sentence. The prosecutor replied that appellant entered into a negotiated plea and stipulated sentence, and there was no basis to deviate from it.
The court again reviewed the transcript of the plea hearing and that the indicated sentence was 19 years 8 months pursuant to the negotiated disposition. The court denied probation and, pursuant to the stipulated sentence, imposed the upper term of nine years for count I, attempted murder, with 10 years for the gang enhancement, and a consecutive term of eight months (one-third the midterm) for count VIII, vandalism. As to count IX, possession of a firearm, the court imposed the midterm of two years, with an additional three-year term for the gang enhancement, and stayed the sentence pursuant to section 654. As the court imposed the sentence, it did not review the probation report, make any findings as to aggravating or mitigating circumstances, or state reasons for the imposition of the upper term for count I aside from the terms of the negotiated disposition.
The court acknowledged it did not advise appellant about the possible fines when he entered his pleas, and imposed the minimum restitution fine of $200 pursuant to section 1202.1, with the section 1202.45 fine stayed pending successful completion of probation. The court ordered victim restitution of $1,167 to K.D. pursuant to section 1202.4, subdivision (f).
Appellate Issues
On January 9, 2007, appellant filed a timely notice of appeal and requested a certificate of probable cause. On January 11, 2007, the superior court issued the certificate of probable cause.
On appeal, he does not contend that the court should have granted his motion to withdraw the pleas based upon the issues he raised below. Instead, he raises four new contentions as to why his pleas and admissions were not knowing, intelligent, and voluntary as a matter of law and that his pleas violated due process. Appellant asserts the court failed to advise him of the meaning of his “no contest” pleas, and about the elements of the offenses and enhancements. Appellant also contends the court failed to obtain a waiver to permit judicial factfinding and the imposition of the upper term for count I, in violation of Blakely and Cunningham. Finally, appellant asserts the court accepted the pleas and admissions without a sufficient factual basis
DISCUSSION
I.
VALIDITY OF PLEAS AND ADMISSIONS
We begin with the basic principles as to whether a defendant’s pleas and admissions are knowing, intelligent, and voluntary. “Plea negotiation ... is an accepted and integral part of our criminal justice system. [Citation.] Plea agreements benefit the criminal justice system by providing speed, economy and finality of judgments. [Citation.] Defendants also benefit from plea agreements by gaining concessions from the People. [Citation.]... [¶] Negotiated plea agreements do ‘not violate the Constitution, even though a guilty plea waives important constitutional rights. [Citation.]…’” (People v. Vargas (1993) 13 Cal.App.4th 1653, 1658.)
A plea of no contest, or nolo contendere to a crime punishable as a felony, is the same as a plea of guilty for all purposes. (§ 1016, subd. (3).) A plea of guilty or no contest amounts to an admission of every element of the crime and is the equivalent of a conviction. (People v. Jones (1995) 10 Cal.4th 1102, 1109, disapproved on other grounds in In re Chavez (2003) 30 Cal.4th 643, 656; People v. Wallace (2004) 33 Cal.4th 738, 749; People v. Borland (1996) 50 Cal.App.4th 124, 128.) Upon such a plea, the court “shall ascertain whether the defendant completely understands” that the no contest plea “shall be considered the same as a plea of guilty.” (§ 1016, subd. (3).)
When a defendant pleads guilty or nolo contendere, whether or not the plea is pursuant to a plea bargain, he must be advised of and waive his rights of self-incrimination, confrontation and jury, and must be advised of the direct consequences of the plea, including the maximum possible penalty. (Boykin v. Alabama (1969) 395 U.S. 238, 242-243; In re Tahl (1969) 1 Cal.3d 122, 132-133; Bunnell v. Superior Court (1975) 13 Cal.3d 592, 604-605; People v. Lytle (1992) 10 Cal.App.4th 1, 4 (Lytle).)
A plea of guilty or no contest is valid if the record demonstrates the plea was voluntarily and intelligently made. (People v. Howard (1992) 1 Cal.4th 1132, 1178 (Howard); Lytle, supra, 10 Cal.App.4th at p. 4.) The defendant’s waiver of constitutional rights “not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” (Brady v. United States (1970) 397 U.S. 742, 748 (Brady).) To that end, it must appear from the totality of the circumstances that the defendant understood the nature of the charges against him and the scope of his plea, and that he was advised of and waived his right against self-incrimination, his right to confront witnesses, and his right to a jury trial. (Howard, supra, 1 Cal.4th at pp. 1175-1176, 1178-1180; Lytle, supra, 10 Cal.App.4th at p. 4.) There are no “‘talismanic’” words that must be used (Howard, supra, 1 Cal.4th at p. 1180), and if express waivers are incomplete, we review the record for affirmative evidence that the admission was voluntary and intelligent under the “totality of the circumstances,” such that any error in the advisement before the waiver is harmless. (Howard, supra, 1 Cal.4th at p. 1178; People v. Allen (1999) 21 Cal.4th 424, 437-438.) A defendant’s “‘[s]olemn declarations in open court carry a strong presumption of verity[,]’ [citations], and ‘[c]ourts generally consider such responses to be strong indicators of the voluntariness of the [defendant’s] guilty plea.’ [Citation.]” (Ralbovsky v. Kane (C.D. Cal. 2005) 407 F.Supp.2d 1142, 1156.)
A plea is involuntary when induced by threats, misrepresentation, or improper promises. (Brady, supra, 397 U.S. at p. 755.) “A plea may be involuntary either because the accused does not understand the nature of the constitutional protections that he is waiving [citation], or because he has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt. Without adequate notice of the nature of the charge against him, or proof that he in fact understood the charge, the plea cannot be voluntary in this latter sense. [Citation.]” (Henderson v. Morgan (1976) 426 U.S. 637, 645, fn. 13 (Henderson).)
A guilty plea that is not made knowingly or intelligently is involuntary, and has been obtained in violation of due process and cannot form the basis of a criminal conviction. (Henderson, supra, 426 U.S. at pp. 644-645; McCarthy v. United States (1969) 394 U.S. 459, 466; U.S. Const., 5th & 14th Amends.) However, a defendant cannot attack his guilty plea merely because he “made what turned out, in retrospect, to be a poor deal.” (Bradshaw v. Stumpf (2005) 545 U.S. 175, 186 (Bradshaw).)
In the instant case, appellant moved to withdraw his pleas and admissions and argued his codefendants pressured him to enter the pleas and the stipulated sentence was too long since he was “factually” innocent. The trial court conducted an evidentiary hearing and denied the motion. On appeal, appellant has not argued that the trial court should have granted his motion to withdraw on the grounds raised therein, but instead raises new issues as to whether his pleas and admissions were knowing, intelligent, and voluntary, such that his waiver of rights violated due process. Respondent asserts appellant cannot raise issues that were not before the trial court. However, the voluntariness of a waiver is a question of law which appellate courts review de novo. (People v. Panizzon (1996) 13 Cal.4th 68, 80.) We may thus consider appellant’s constitutional challenges to the validity of his pleas and waivers.
We further note, however, that given appellant’s declaration and testimony at the hearing to withdraw the plea, “[w]hen a defendant is represented by counsel, the grant or denial of an application to withdraw a plea is purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result. [Citations.] On appeal, the trial court’s decision will be upheld unless there is a clear showing of abuse of discretion. [Citations.]” (People v. Shaw (1998) 64 Cal.App.4th 492, 495-496.) “Moreover, a reviewing court must adopt the trial court’s factual findings if substantial evidence supports them. [Citation.]” (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) We are thus bound by the trial court’s factual findings on any overlapping issues as to the validity of his pleas and admissions. To the extent that appellant raises new factual issues about the circumstances of his pleas that were not raised below or contained in the instant record, his remedy lies in a petition for a writ of habeas corpus. (See, e.g., People v. Thomas (1986) 41 Cal.3d 837, 844.)
II.
ADVISEMENT ABOUT “NO CONTEST” PLEAS
Appellant asserts the court failed to properly advise him about the meaning of his “no contest” pleas because the court said that he was “not admitting guilt.” As noted ante, a plea of no contest to a crime punishable as a felony is the same as a plea of guilty for all purposes. Upon such a plea, the court “shall ascertain whether the defendant completely understands” that the no contest plea “shall be considered the same as a plea of guilty.” (§ 1016, subd. (3).)
The entirety of the record demonstrates the court properly advised appellant of the meaning of his no contest pleas.
“THE COURT: Mr. Rodriguez, you’ve had time to talk to your lawyer?
“[APPELLANT]: Yes, I did.
“THE COURT: Now, the West plea, which he’s told you, means you are not admitting guilt but entering into this negotiated plea because you believe it is in your best interest because if you take a chance of going to trial and you lose, you could get 42 years to life.
“[APPELLANT]: Yes, your Honor.
“THE COURT: And that’s a legitimate way for me to take a plea. [¶] You need to understand that would be the same as a guilty plea as far as I’m concerned, for my purposes. [¶] Do you understand that, sir?
“[APPELLANT]: Yes, your Honor.” (Italics added.)
Appellant’s argument herein is based upon the court’s statements in the first italicized section, ante, that appellant was “not admitting guilt.” The court’s statements, however, were not incorrect since “a plea of no contest [citation] ... does not constitute an express admission of guilt but only a consent to be punished as if guilty. (North Carolina v. Alford (1970) 400 U.S. 25, 35-36, fn. 8; People v. West (1970) 3 Cal.3d 595.)” (People v. Bradford (1997) 15 Cal.4th 1229, 1374.) In any event, appellant fails to consider the impact of the rest of the court’s advisements, that his no contest plea “would be the same as a guilty plea as far as I’m concerned, for my purposes.” Appellant stated he understood, and he was properly advised as the meaning of his no contest pleas.
III.
ADVISEMENT ABOUT ELEMENTS OF THE OFFENSES AND ENHANCEMENTS
Appellant next contends his no contest pleas to attempted murder, vandalism, and possession of a firearm, and admissions of the gang enhancements, were not knowing, intelligent, and voluntary because the court failed to advise appellant as to the elements of the offenses and enhancements as required by the United States Supreme Court in Henderson and Bradshaw.
“A guilty plea operates as a waiver of important rights, and is valid only if done voluntarily, knowingly, and intelligently, ‘with sufficient awareness of the relevant circumstances and likely consequences.’ [Citation.] Where a defendant pleads guilty to a crime without having been informed of the crime’s elements, this standard is not met and the plea is invalid. [Citation.]” (Bradshaw, supra, 545 U.S. at p. 183.)
In Henderson, the accused pleaded guilty to second degree murder but was not advised by his attorney or the trial court, at any time, that an intent to cause death was an essential element of that offense. (Henderson, supra, 426 U.S. at pp. 638-640.) Defense counsel did not explain to the defendant the element of intent, and at the plea hearing there was no discussion of the elements of the crime, no indication that the nature of the offense was ever discussed with the defendant, and no reference of any kind to the requirement of an intent to cause death. (Id. at pp. 642-643.)
Henderson applied the totality of the circumstances test and found: “There is nothing in this record that can serve as a substitute for either a finding after trial, or a voluntary admission, that [defendant] had the requisite intent. Defense counsel did not purport to stipulate to that fact; they did not explain to him that his plea would be an admission of that fact; and he made no factual statement or admission necessarily implying that he had such intent. In these circumstances it is impossible to conclude that his plea to the unexplained charge of second-degree murder was voluntary.” (Henderson, supra, 426 U.S. at p. 646.)
Henderson also cited the unique circumstances regarding the defendant’s low mental capacity: he had been committed to a state school for mental defectives, classified as “retarded,” and described by the court as “substantially below average intelligence,” which provided a reasonable explanation for counsel’s oversight. (Henderson, supra, 426 U.S. at pp. 641-642, 647.) The government argued that invalidating the guilty plea would invite a flood of collateral attacks, since frequently the record will not contain a complete enumeration of elements of the offense to which the accused pleads guilty, but the court found those fears exaggerated. (Id. at pp. 646-647.) Henderson rejected this argument:
“Normally the record contains either an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused. Moreover, even without such an express representation, it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit. This case is unique because the trial judge found as a fact that the element of intent was not explained to [the defendant]. Moreover, [defendant’s] unusually low mental capacity provides a reasonable explanation for counsel’s oversight .…” (Henderson, supra, 426 U.S. at p. 647.)
Since the defendant “did not receive adequate notice of the offense to which he pleaded guilty, his plea was involuntary and the judgment of conviction was entered without due process of law.” (Ibid.)
In Bradshaw, the court rejected the defendant’s argument that the trial court’s failure to explain the specific intent element of the aggravated murder charge during a plea hearing resulted in a denial of due process. (Bradshaw, supra, 545 U.S. at pp. 182-183.)
“… While the court taking a defendant’s plea is responsible for ensuring ‘a record adequate for any review that may be later sought,’ [citation], we have never held that the judge must himself explain the elements of each charge to the defendant on the record. Rather, the constitutional prerequisites of a valid plea may be satisfied where the record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendant by his own, competent counsel. [Citation.] Where a defendant is represented by competent counsel, the court usually may rely on that counsel’s assurance that the defendant has been properly informed of the nature and elements of the charge to which he is pleading guilty.” (Bradshaw, supra, 545 U.S. at p. 183.)
The California Supreme Court has held that the requirement that a defendant understand the nature of the charges prior to entering a guilty plea is satisfied if the record “‘demonstrate[s]’” that he had fair notice of what he was asked to admit. (In re Ronald E. (1977) 19 Cal.3d 315, 324 (Ronald E.), disapproved on other grounds in Howard, supra, 1 Cal.4th at pp. 1175, 1178-1179.)
“We conclude that the Boykin-Tahl requirement that an accused be advised of the nature of the charges against him is satisfied if ... the record demonstrates that the accused had fair notice of what he was being asked to admit. The record fairly demonstrates that petitioner knowingly admitted to having engaged in a detailed course of conduct which constituted a violation of ... section 496. Although the technical elements of that offense were not explained to petitioner, there is no compulsion which requires such explanation and we can discern no persuasive reason for burdening the court with such a requirement.” (Ronald E., supra, 19 Cal.3d at pp. 324-325, fns. omitted.)
“[I]t may certainly be inferred from the fact that [the defendant] had been served with a copy of the information, had gone through a preliminary examination and was represented by able counsel, that he was aware of the nature of the charges against him. To say that he did not understand the nature of the charges against him would be to indulge in pure sophistry.” (People v. Orduno (1978) 80 Cal.App.3d 738, 749-750.)
Appellant relies on Henderson and contends the trial court’s advisements herein were similarly defective because it failed to explain the elements of the offenses and enhancements to which he entered pleas and admissions and, in contrast to Bradshaw, there is no evidence his attorney so advised him. This case, however, is inapposite to Henderson. There is no evidence to suggest that counsel failed to explain the nature of the charges to appellant, particularly since appellant and counsel indicated they had discussed the matter. There is no evidence to suggest appellant is of limited mental capacity or otherwise incapable of understanding the nature of the charges. Appellant’s declaration and testimony in support of his motion to withdraw his pleas strongly inferred that he understood the nature of the charges and enhancements, he discussed these issues with counsel and his parents, and he entered the pleas because he allegedly felt pressured by his codefendants and now believed his sentence was too long since he allegedly did not know someone in the car had a gun. Appellant never declared or testified that his attorney never explained the nature and/or elements of the charges against him. The circumstances in this case—the specific allegations in the information, appellant’s presence at the extensive preliminary hearing, the discussions between the court, counsel and appellant, and the representations from appellant and counsel that they discussed the matter—all compel the conclusion that appellant understood the nature of the charges to which he was admitting. (See, e.g., People v. Rowland (1982) 134 Cal.App.3d 1, 12.)
Moreover, the totality of the circumstances reflects the court’s advisements conveyed “the substance of the charge[s], as opposed to [their] technical elements” to appellant. (Henderson, supra, 426 U.S. at p. 644.) In count I, appellant was charged with attempted murder with premeditation and deliberation. The court advised appellant that the premeditation allegation was dismissed, that count I alleged “that on April 18, 2006, you did willfully and unlawfully attempt to murder one Andrew Morales, a human being,” and appellant pleaded no contest. In count VIII, appellant was charged with vandalism, the court advised him that “in Count Number 8 on April 18, 2006, you did willfully and unlawfully commit the crime of vandalism, property belonging to [K.D.],” and he pleaded no contest.
We note that count IX, possession of a firearm in violation of section 12031, was not charged in the information, but added as part of the negotiated disposition. Appellant asserts the court’s advisements about this charge were insufficient to satisfy due process standards. The court granted the prosecutor’s motion to amend the information to add this count, and advised appellant that “it is alleged on the same day you did willfully and unlawfully have in your possession, a firearm which was unregistered, in violation of Section 12031 of the Penal Code,” and appellant pleaded no contest.
Section 12031, subdivision (a)(1) states:
“A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.”
Section 12031, subdivision (a)(2)(F) provides the offense may be punished as either a felony or misdemeanor if the person is not the registered owner.The knowledge that a firearm is loaded is not an element of a violation of section 12031, subdivision (a). (People v. Garcia (2007) 153 Cal.App.4th 1499, 1514, fn. 3.) The entirety of the record shows the court advised appellant of the substance of count IX.
Appellant admitted gang enhancements as to the three offenses. As to count I, the court advised appellant, that it was “furt[]her alleged that on that same day that you committed this offense for the benefit of, at the direction of, in association with a criminal street gang, with the specific intent to further assist criminal conduct by gang members. This is a ten-year gang enhancement,” and appellant admitted the enhancement. As to count VIII, the court again advised appellant that it was “further alleged that you committed that crime for the benefit of, at the direction of, in association with a criminal street gang, with the specific intent to further promote or assist in criminal conduct by gang members,” and appellant admitted the enhancement. As to count IX, the court gave a briefer advisement as to the gang enhancement that it was “further alleged that this took place at the direction of, for the benefit of, in association with a criminal street gang,” and appellant admitted the enhancement. Given the extent of the court’s prior advisements on the identical enhancements, the court’s abbreviated advisement for count IX was valid.
As explained in Ronald E., “[t]here is no compulsion which requires” the record show an explanation of “the technical elements” of the offense; it is sufficient that the record fairly demonstrates that the defendant knowingly admitted to having engaged in a detailed course of conduct which constituted the violation. (Ronald E., supra, 19 Cal.3d at p. 324.) This case does not present the unique situation presented in Henderson, but rather presents a situation in which it is appropriate to presume, based upon the entirety of the record and the court’s lengthy advisements, that counsel explained, and appellant understood, the nature of the charges.
IV.
FACTUAL BASIS FOR THE PLEAS AND ADMISSIONS
Appellant next argues that the court failed to find a factual basis for each of the pleas and admissions. Respondent concedes the court failed to follow the appropriate procedural standards to find a factual basis but asserts any error is harmless.
“Pursuant to section 1192.5, the trial court is obligated to determine whether there is a factual basis for a plea of guilty or no contest when that plea arises from a negotiated resolution of the charges. [Citation.] Although not constitutionally required [citation], such an inquiry furthers constitutional considerations attending a guilty plea [citation], protects against the entry of a guilty plea by an innocent defendant, and makes a record in the event of appellate or collateral attacks on that plea. [Citation.] Given these significant policy considerations, a failure to make a sufficient inquiry, while not a constitutional or jurisdictional requirement, is one of the ‘other’ grounds going to the legality of the proceedings in the trial court. Even though a defendant may in fact be guilty of the offense to which he pleads guilty, given the policy considerations underlying the intent behind section 1192.5, an adequate inquiry into the factual basis for the plea addresses broader issues such as the voluntariness of the plea and a knowing decision to plead guilty. A sufficient factual inquiry must be considered a necessary component of the legality of the proceedings. To decide otherwise would preclude review of the factual basis for a plea of guilty or no contest thereby frustrating the policies the statute is intended to advance. Thus, [a] defendant’s claim that the factual inquiry undertaken here was insufficient is, after issuance of a certificate of probable cause, cognizable on appeal.” (People v. Marlin (2004) 124 Cal.App.4th 559, 571 (Marlin).)
“Although section 1192.5 requires the trial court to satisfy itself there is a factual basis for the plea, this can be done by having the defendant describe the conduct or answer questions, by detailing a factual basis, or by having defense counsel stipulate to a particular document such as the transcript of a preliminary hearing as providing a factual basis for a plea. [Citation.] The trial court need not obtain an element-by-element factual basis but need only obtain a prima facie factual basis for the plea. [Citations.]” (Marlin, supra, 124 Cal.App.4th at pp. 571-572; People v. Holmes (2004) 32 Cal.4th 432, 441 (Holmes).)
“[A] trial court possesses wide discretion in determining whether a sufficient factual basis exists for a guilty plea. The trial court’s acceptance of the guilty plea, after pursuing an inquiry to satisfy itself that there is a factual basis for the plea, will be reversed only for abuse of discretion. [Citation.] A finding of error under this standard will qualify as harmless where the contents of the record support a finding of a factual basis for the conditional plea. [Citations.]” (Holmes, supra, 32 Cal.4th at p. 443.) The preliminary hearing may provide a factual basis for a plea. (Id. at p. 444; Marlin, supra, 124 Cal.App.4th at p. 572.)
The proper section 1192.5 standard requires the trial court to “garner information regarding the factual basis either from the defendant or defense counsel. If the trial court examines the defendant regarding the factual basis for the plea, the court may have the defendant describe the conduct that gave rise to the charge [citation], or may question the defendant regarding the detailed factual basis described in the complaint or written plea agreement. [Citation.] 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. [Citation.]” (Holmes, supra, 32 Cal.App.4th at p. 442.)
As to the factual basis in this case, the court broadly stated: “I have done the preliminary hearing in this case. I have had more than one discussion with counsel. There’s a factual basis for this plea.”
Respondent concedes the court’s failure to question either appellant or his attorney as to the factual basis constitutes error, and that defense counsel never stipulated to a factual basis, but argues the error was harmless given the entirety of the record.
Appellant pleaded no contest to count I, attempted murder, count VIII, vandalism, and count IX, possession of a firearm, with gang enhancements. Judge O’Hara presided over the entirety of this case, including the preliminary hearing and the plea proceedings. The lengthy preliminary hearing testimony, as set forth ante, provides more than a sufficient factual basis for the charges in this case. First, the parties stipulated that appellant and his codefendants were associated with the Surenos, they claimed blue, and their rivals were the Nortenos who claimed red. Second, the hearing evidence revealed that codefendants Moran and Molina were identified as the men who vandalized K.D.’s fence and garage with Sureno graffiti; Molina was wearing a blue jersey and using blue spray paint. They left in a white Thunderbird driven by a man wearing a baseball cap. Less than one hour after the vandalism incident, the white Thunderbird was seen maneuvering between two other vehicles and coming to a stop just before the gunshots were fired at Morales. The witnesses said the driver was wearing a baseball cap. Morales displayed a red bandana on his bicycle. Romo later stated that appellant was driving the Thunderbird, pointed at Morales, and said there was a “buster,” using the derogatory term for a Norteno, that appellant slowed down and Moran fired the gunshots, and they went to Molina’s house and hid the gun. Appellant later admitted he was driving the Thunderbird that day, denied slowing down or knowing that anyone was going to fire gunshots, but admitted they went to Molina’s house to hide the gun.
As to attempted murder and possession of a firearm, the preliminary hearing evidence further established that appellant was driving the vehicle, he pointed out the victim as associated with the rival gang, he maneuvered the vehicle so the passenger side was in a direct line with the victim, the witnesses saw the vehicle stop just before the gunshots were fired, the vehicle sped away after the shots, and they went to Molina’s house and hid the gun. While appellant insisted that he did not know the gunshots were going to be fired, the witnesses watched the vehicle as it maneuvered between other cars and came to a stop, ostensibly for a clear shot at the victim. Moreover, Romo described appellant’s conduct in specifically pointing to Morales, identifying him as a rival Norteno, and stopping the car just before the gunshot.
As for the vandalism charge, the preliminary hearing evidence raised the strong inference that appellant was the person in the baseball cap waiting at his car for Molina and Moran to finish their embellishment of Sureno graffiti on the garage and fence. When K.D. found them, they left in appellant’s car, the shooting occurred shortly afterwards, and the witnesses said the driver was wearing a baseball cap. The white Thunderbird was registered to appellant and the police found the blue spray paint can inside.
As for the gang enhancements, the parties stipulated at the preliminary hearing that appellant and codefendants Molina and Moran were associated with the Surenos who claimed the color blue, Molina was wearing a blue jersey, and Molina used blue paint to write Sureno graffiti on the fence and garage. It was also stipulated that the Nortenos were their rivals and claimed the color red, the police found a red bandana tied around the gunshot victim’s bicycle, and Romo testified that appellant pointed out the victim as a Norteno just before he stopped the car and the gunshots were fired.
The failure to secure an adequate factual basis before accepting a guilty plea is harmless error if the record supports a finding of a factual basis. (Holmes, supra, 32 Cal.4th at p. 443.) The detailed testimony from the preliminary hearing is more than sufficient to provide a factual basis for the substantive offenses and enhancements in this case, and the trial court’s failure to comply with section 1192.5 is harmless. (People v. Mickens (1995) 38 Cal.App.4th 1557, 1565.)
V.
BLAKELY, CUNNINGHAM, AND THE UPPER TERM
Appellant next contends the court improperly imposed the upper term for count I, attempted murder, in violation of his Sixth Amendment right to jury trial as set forth in Blakely and Cunningham. Appellant asserts the court was obliged to advise appellant that he had a right to a jury trial on facts relied upon to impose an upper term, the court should have obtained the appropriate waiver before it could impose the upper term, and the failure to so advise renders the plea invalid since it was based upon an unauthorized sentence.
A. Apprendi, Blakely, and Cunningham
Apprendi v. New Jersey (2000) 530 U.S. 466.
In Apprendi v. New Jersey, supra, 530 U.S. 466, the United States Supreme Court held: “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.” (Id. at p. 490.) In Blakely, the court held a criminal defendant's Sixth Amendment right to a jury trial was violated in a case in which a Washington State trial court imposed “an ‘exceptional sentence’” beyond the “standard range” under Washington’s sentencing reform act, based upon facts neither proved to a jury beyond a reasonable doubt, nor admitted by the defendant. (Blakely, supra, 542 U.S. at pp. 298, 303-304.)
“... [T]he ‘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. [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. When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment,’ [citation], and the judge exceeds his proper authority.” (Blakely, supra, 542 U.S. at pp. 303-304, italics in original.)
The California Supreme Court subsequently concluded that Blakely did not apply to California's determinate sentencing law, and that “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence ... under California law does not implicate a defendant's Sixth Amendment right to a jury trial.” (People v. Black (2005) 35 Cal.4th 1238, 1244 (Black I).)
In Cunningham, the United States Supreme Court disagreed with Black I and held that California’s determinate sentencing law (DSL) and provisions for upper term sentencing, based on aggravating findings made by the trial court and by a preponderance of the evidence, violated the defendant’s Sixth Amendment right to jury trial as set forth in Blakely. (Cunningham, supra, 127 S.Ct. at pp. 860, 868-871.) “Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent.” (Cunningham, supra, 127 S.Ct. at p. 871, fn. omitted.)
In People v. Black (2007) 41 Cal.4th 799 (Black II), the California Supreme Court reconsidered Black I in light of Cunningham and held: “[S]o 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.” (Black II, supra, at p. 813, italics in original.) “[I]mposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.) Black II held the prior conviction exception to the general rule, requiring jury determination of aggravating sentencing factors, applies not only to the fact that a conviction occurred, but also to determinations that a defendant has suffered numerous prior convictions of increasing seriousness. (Id. at pp. 819-820.)
In People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), decided the same day as Black II, the court held that where no factor renders a defendant eligible for the upper term, an upper term sentence that is not imposed consistent with Sixth Amendment principles as explained in Cunningham is unconstitutional. (Id. at pp. 837-838.) “None of the aggravating circumstances cited by the trial court come within the exceptions set forth in Blakely. Defendant had no prior criminal convictions. All of the aggravating circumstances cited by the trial court were based upon the facts underlying the crime; none were admitted by defendant or established by the jury’s verdict.” (Id. at pp. 837-838.)
Sandoval also held the Cunningham error should be evaluated under the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18 (Chapman). (Sandoval, supra, 41 Cal.4th at p. 838.) “[W]e must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.” (Ibid.) “[I]f 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 p. 839.)
Sandoval observed that, in making this determination, a reviewing court cannot necessarily assume that the record reflects all of the evidence that would have been presented had aggravating circumstances been submitted to the jury. A defendant at trial does not necessarily have the reason or opportunity to challenge the evidence supporting aggravating circumstances unless such a challenge would also have tended to undermine proof of an element of the offense. (Sandoval, supra, 41 Cal.4th at p. 839.) Furthermore, “to the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, 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.” (Id. at p. 840.)
Sandoval further held that where the error is not harmless, a defendant who established prejudicial Sixth Amendment error under Cunningham is entitled to be resentenced under a scheme in which the trial court has full discretion to impose the upper, middle, or lower term, unconstrained by the requirement that the upper term may not be imposed unless an aggravating circumstance is established. (Sandoval, supra, 41 Cal.4th at pp. 845-852.)
People v. French (Mar. 27, 2008, S148845) ___ Cal.4th ___ [2008 D.A.R. 4253] (French).
The California Supreme Court has just addressed the application of Blakely and Cunningham to upper terms imposed as a result of guilty or no contest pleas entered pursuant to negotiated dispositions. In French, supra, __ Cal.4th __ [2008 D.A.R 4253], the defendant was charged with 12 counts of lewd and lascivious conduct with a child under the age of 14 years, based on three victims, with an enhancement for committing the offenses against more than one victim, and faced a maximum possible sentence of 180 years to life. (Id. at p. ___ [2008 D.A.R. at p. 4253].) The defendant pleaded no contest to six counts, under an agreement whereby he would receive a sentence of no more than 18 years in prison and dismissal of the remaining counts and the enhancement. (Id. at pp. ___ [2008 D.A.R. at pp. 4253-4254].) The presentence report identified three aggravating circumstances: the manner in which the offenses were carried out indicated planning, the defendant took advantage of a position of trust or confidence, and the crimes involved multiple acts against multiple victims. There was one mitigating circumstance, that the defendant’s three prior misdemeanor convictions did not involve significant criminal conduct. (Id. at p. ___ [2008 D.A.R. at p. 4254].) At the sentencing hearing, the court imposed the upper term for one count, with consecutive subordinate midterms on the other five counts, for a total of 18 years. The court stated it selected the upper term because “‘[d]efendant took advantage of a position of trust and confidence to commit the crime,’” and imposed consecutive terms because the offenses were committed on different occasions or at separate locations. (Id. at p. ___ [2008 D.A.R. at p. 4254].)
French addressed the defendant’s argument that the trial court’s imposition of the upper term violated his Sixth Amendment right to a jury trial as established in Cunningham and Blakely, even though it was imposed pursuant to his no contest pleas and the negotiated disposition. (French, supra, ___ Cal.4th at p. ___ [2008 D.A.R. at p. 4253].) First, French rejected the People’s argument that the defendant was required to obtain a certificate of probable cause to seek appellate review of his Cunningham claim. (Id. at pp. ___ [2008 D.A.R. at pp. 4254-4255].) French held a certificate of probable cause was not required because appellant’s Cunningham claim only implicated his sentence and did not “constitute an attack upon the validity of the plea agreement.” (Id. at p. ___ [2008 D.A.R. at p. 4255].) “Defendant’s claim is that the upper term was not authorized because the prosecution failed to establish an aggravating circumstance at the sentencing hearing in the manner required by the Sixth Amendment. Such a claim does not affect the validity of the plea agreement.” (Id. at p. ___ [2008 D.A.R. at p. 4255].)
“… Under our holding in Sandoval, if a defendant is successful in establishing Cunningham error on appeal, the trial court is not precluded from imposing the upper term upon remand for resentencing. The defendant is entitled only to be resentenced under a constitutional scheme and is afforded the opportunity to attempt to persuade the trial court to exercise its discretion to impose a lesser sentence. ... [D]efendant’s claim, if successful, would not deprive the People of the benefit of the plea agreement, because they still would have the opportunity to convince the trial court that the full 18-year term should be imposed.” (French, supra, ___ Cal.4th at p. ___ [2008 D.A.R. at p. 4255].)
French further held the defendant did not forfeit his Cunningham claim by failing to raise it before the trial court, since neither Blakely nor Cunningham had been decided at the time of his pleas and no right to a jury trial on such circumstances had been recognized. (French, supra, ___ Cal.4th at pp. ___ [2008 D.A.R. at pp. 4255-4256].)
More importantly, however, French held that while the defendant pleaded no contest pursuant to a plea agreement providing for a sentence not to exceed a stipulated maximum, and further stipulated to a factual basis for the plea, he did not waive his right to a jury trial on the aggravating circumstances, and he did not admit facts that established an aggravating circumstance. (French, supra, ___ Cal.4th at p. ___ [2008 D.A.R. at p. 4253].) “The record does not contain any suggestion that either party understood that defendant, by pleading no contest, thereby admitted any factual issue relevant to imposition of sentence.” (Id. at p. ___ [2008 D.A.R. at p. 4257].) “Although defendant’s no contest plea on six counts constituted an admission to all the elements of those offenses [citation], it did not constitute an admission to any aggravating circumstance.” (Id. at p. ___ [2008 D.A.R. at p. 4257].)
French also held that the trial court’s finding of a factual basis did not clearly establish aggravating circumstances in the case, and there was nothing in the record to indicate that the defendant, either personally or through his counsel, “admitted the truth of the facts as recited by the prosecutor” in setting forth the factual basis for the pleas. (French, supra, ___ Cal.4th at p. ___ [2008 D.A.R. at p. 4258].) French rejected the People’s “broad proposition” that a defendant’s stipulation to a factual basis to a guilty or no contest plea constituted a binding admission for all purposes. (Id. at p. ___ [2008 D.A.R. at p. 4258].)
French thus concluded that since “the aggravating circumstance upon which the trial court relied was neither admitted by defendant nor established by a jury verdict, defendant’s Sixth Amendment right to a jury trial was violated by his sentence to the upper term on count 1.” (French, supra, ___ Cal.4th at p. ___ [2008 D.A.R. at p. 4258].) However, the court rejected the defendant’s argument that the failure to submit a sentencing factor to the jury constituted structural error. (Id. at p. ___ [2008 D.A.R. at p. 4258 & fn. 6].) Instead, French applied Sandoval and held that such an error does not require reversal if the reviewing court determines it was harmless beyond a reasonable doubt pursuant to Chapman, supra, 386 U.S. 18. (French, supra, ___ Cal.4th at p. __ [2008 D.A.R. at p. 4258].)
While French acknowledged the defendant had two prior misdemeanor convictions, it failed to address why the existence of those two convictions failed to render the Cunningham error harmless under Black II.
“… In the context of Cunningham error, that test requires us to determine ‘whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.’ [Citation.] If we conclude, beyond a reasonable doubt, that a ‘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.’ [Citation.] The failure to submit a sentencing factor to a jury may be found harmless if the evidence supporting that factor is overwhelming and uncontested, and there is no ‘evidence that could rationally lead to a contrary finding.’ [Citations.]” (French, supra, ___ Cal.4th at p. ___ [2008 D.A.R. at p. 4258].)
French also rejected the defendant’s argument that “automatic reversal,” rather than a harmless-error analysis, was required since “there was no jury trial and, consequently, there is no trial evidence that may be subjected to harmless-error analysis. We need not decide whether Cunningham error ever can be found harmless in a case in which the defendant pleads guilty or no contest, because we conclude that the record in defendant’s case does not support the conclusion that the error was harmless beyond a reasonable doubt.” (French, supra, ___ Cal.4th at p. ___ [2008 D.A.R. at p. 4259].) French noted Sandoval’s discussion of the difficulties in conducting a harmless error analysis, even where there had been a trial, since facts relating to aggravating circumstances are not directly at issue in a trial, and the same incentive and opportunity to contest certain facts are not necessarily the same. (Id. at p. ___ [2008 D.A.R. at p. 4259].)
“When a defendant pleads guilty or no contest, a prejudice assessment is even more problematic, because the record generally does not contain a full presentation of evidence concerning the circumstances of the offense. The statutory scheme that governs a sentencing proceeding does not require an evidentiary hearing; rather, it permits the trial court to base its sentencing decision on ‘the record in the case, the probation officer’s report, other reports ... and statements in aggravating or mitigation submitted by the prosecution, the defendant, or the victim, ... and any further evidence introduced at the sentencing hearing.’ [Citation.]” (French, supra, ___ Cal.4th at p. ___ [2008 D.A.R. at p. 4259].)
French declined to find the evidence in support of the aggravating circumstances cited by the trial court overwhelming. (French, supra, ___ Cal.4th at p. ___ [2008 D.A.R. at p. 4259].) “Because there was no preliminary hearing, the record does not reflect how witnesses might have testified had there been a trial. The probation report recited the facts of the offenses based upon multiple hearsay .... On the record before us, we cannot conclude that the Sixth Amendment error was harmless beyond a reasonable doubt.” (Id. at p. ___ [2008 D.A.R. at p. 4259].) French thus reversed the defendant’s sentence and remanded the matter for resentencing “in accordance with this opinion and Sandoval, supra, 41 Cal.4th at pages 843-857 ....” (Id. at p. ___ [2008 D.A.R. at p. 4259].)
C. Analysis
Appellant asserts that under Blakely and Cunningham, the trial court herein violated his Sixth Amendment rights because it imposed the upper term for count I without reciting any aggravating factors, and the entire negotiated disposition is invalid because it was based upon an unauthorized term since it was imposed in violation of his right to jury trial. Respondent argues appellant was bound by the term of the negotiated disposition, which included the upper term for count I, and effectively stipulated to the relevant facts to support that upper term when he entered his pleas and admissions. Both parties acknowledged the application of Blakely and Cunningham to negotiated dispositions was pending before the California Supreme Court in French at the time of briefing in this case.
We are compelled by Cunningham and French to find that the trial court herein violated appellant’s Sixth Amendment right to jury trial when it imposed the upper term for count I, even though that term was imposed pursuant to a negotiated disposition, since the court did not obtain the appropriate admission as required by Cunningham. (French, supra, ___ Cal.4th at p. ___ [2008 D.A.R. at p. 4257].) As in French, appellant has not waived review of this Cunningham issue through his failure to raise it before the trial court, since the criminal proceedings in this case occurred after Black I and before Cunningham were decided. (French, supra, ___ Cal.4th at pp. ___ [2008 D.A.R. at pp. 4255-4256].)
Black I was decided on June 20, 2005. (Black I, supra, 35 Cal.4th 1238.) Appellant’s sentencing hearing was held on December 8, 2006, and Cunningham was decided on January 22, 2007. (Cunningham, supra, 127 S.Ct. 856.) We also note that in contrast to French, appellant obtained a certificate of probable cause since he raised other issues challenging the validity of the plea.
While appellant’s negotiated disposition included the upper term for count I as part of the stipulated sentence, such a circumstance does not negate the impact of French in this case, given the court’s holding that by “entering into a plea agreement that included the upper term as the maximum sentence,” a defendant does not “implicitly admit that his conduct could support that term.” (French, supra, ___ Cal.4th at p. ___ [2008 D.A.R. at p. 4256].)
Appellant contends the Cunningham error in this case requires this court to find the entire plea bargain invalid since “the agreed upon term is an unauthorized sentence.” The defendant in French raised a similar argument, when he asserted that “automatic reversal” was required as a result of the Cunningham error. French rejected that argument and conducted the harmless-error analysis set forth in Sandoval. (French, supra, ___ Cal.4th at p. ___ [2008 D.A.R. at p. 4259].)
As in French, however, we must conclude that the Cunningham error in this case is not harmless beyond a reasonable doubt. The probation report identified four aggravating circumstances—the crime involved great violence and great bodily harm, disclosing a high degree of cruelty, viciousness, or callousness, the victim was particularly vulnerable as he was unarmed, the manner in which the crime was committed indicated planning and sophistication, and appellant engaged in violent conduct indicating a serious danger to society. While a fairly extensive preliminary hearing was held in this case, 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.’” (French, supra, ___ Cal.4th at p. ___ [2008 D.A.R. at p. 4259], quoting Sandoval, supra, 41 Cal.4th at p. 839.) Thus, we find the error is not harmless beyond a reasonable doubt because we cannot conclude that a reasonable jury “‘unquestionably would have found true at least a single aggravating circumstance’” had one been submitted to it. (French, supra, ___ Cal.4th at p. ___ [2008 D.A.R. at p. 4258], quoting Sandoval, supra, 41 Cal.4th at p. 839.)
Appellant acknowledges that Sandoval set forth the remedy for Cunningham error as remand for resentencing, and that this court is bound by Sandoval. However, he asserts such a remedy violates his due process rights and raises the issue to preserve it for federal review. We acknowledge appellant’s points but are compelled by Sandoval and French to remand the matter for resentencing in accordance with those opinions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Upon remand for resentencing under Sandoval and French, the reasons relied upon by the trial court for imposing its selected sentence need not be proven to a jury beyond a reasonable doubt, and “[t]he trial court will be required to specify reasons for its sentencing decision, but will not be required to cite ‘facts’ that support its decision or to weigh aggravating and mitigating circumstances. [Citations.]” (Sandoval, supra, 41 Cal.4th at pp. 846-847.) A statement of reasons for the court’s sentencing decision will be required, even if the middle term is imposed, and the decision will be reviewed for an abuse of discretion. (Id. at p. 847.) This sentencing scheme “may afford the trial court somewhat greater discretion to select the upper or lower term than it had under the former scheme” and “[i]t seems likely that in all but the rarest of cases the level of discretion afforded the trial court ... would lead to the same sentence as that which would have been imposed under the DSL as initially enacted.” (Id. at p. 850.)
DISPOSITION
Appellant’s sentence is reversed and the case remanded to the trial court to resentence appellant in accordance with Sandoval and French. In all other respects, the judgment is affirmed.
WE CONCUR: WISEMAN, J., GOMES, J.