People v. Ackerman
| Decision Date | 18 November 2004 |
| Docket Number | No. H026899.,H026899. |
| Citation | 21 Cal.Rptr.3d 142,124 Cal.App.4th 184 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Joseph William ACKERMAN, Defendant and Appellant. |
Elaine Forrester, under appointment by the Court of Appeal. for Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Stan Helfman, Supervising Deputy Attorney General, Jeffrey M. Laurence, Deputy Attorney General, for Respondent.
Defendant Joseph William Ackerman entered a guilty plea to one count of failing to register as a sex offender (Pen.Code,1 § 290, subd. (g)(2)) and admitted two prior felony convictions for lewd and lascivious conduct with a minor (§ 288, subd. (a)), which qualified as "strikes" under the Three Strikes Law (§§ 667, subds.(b) — (i); 1170.12). Defendant also admitted a "prison prior" within the meaning of section 667.5, subdivision (b).
Defendant filed a motion to dismiss the two "strikes" pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 (Romero). The court granted defendant's Romero motion in part and struck one of the "strike" priors. The court sentenced defendant to seven years in state prison (the three-year upper term on the section 290 offense, doubled pursuant to the Three Strikes Law (§ 1170.12, subd. (c)(1)), plus one year for the "prison prior").
Defendant filed an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071. We reviewed the entire record and concluded that there was no arguable issue on appeal.
The day before we filed our original opinion in this case, the United States Supreme Court decided Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, (Blakely). Defendant filed a petition for rehearing in which he argued that his sentence violated the standards set forth in Blakely and Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (Apprendi) because the court imposed the upper term based on factual findings that were neither admitted by defendant nor found by a jury. He also argued that in making its findings, the court applied the preponderance of the evidence standard rather than the proof beyond a reasonable doubt standard required by Blakely. We granted rehearing and requested supplemental briefing on the Blakely issues.
Upon rehearing, we conclude that defendant has not forfeited his claim of Blakely error by failing to object to the imposition of the upper term on the basis of Apprendi in the trial court. We also hold that since defendant was a Three Strikes offender, his maximum statutory sentence under Blakely was 25 years to life. We conclude that since his seven-year sentence was less than the statutory maximum, the sentence does not violate Blakely. We will therefore affirm the judgment.
Prior to the preliminary examination, defendant pleaded guilty to one count of failing to register as a sex offender. He also admitted the two prior felony convictions for molesting his daughter and step-daughter (§ 288, subd. (a)), which qualified as "strikes" under the Three Strikes Law, and a "prison prior" within the meaning of section 667.5, subdivision (b).
As noted previously, at the sentencing hearing, the court granted defendant's Romero motion in part and struck one of the "strike" priors. In the papers filed in support of his Romero motion, defendant had acknowledged that he had violated his parole "because he did not notify his parole agent that he got a truck and he was out at night." He also stated he had "several other parole violations for dirty drug tests." According to the probation report, defendant violated parole four times by being under the influence of methamphetamine. According to the prosecutor, defendant's parole violations occurred in 1998, 2000, 2001, and 2002.
The probation report listed circumstances in aggravation and mitigation for the court to consider in sentencing defendant. The aggravating factors included: (1) defendant had served a prior prison term (Cal. Rules of Court, rule 4.421(b)(3)) and (2) defendant's prior performance on parole was unsatisfactory due to his drug addiction and his violations of parole (Cal. Rules of Court, rule 4.421(b)(5)). The only mitigating factor listed in the probation report was the fact that defendant had "voluntarily acknowledged wrongdoing ... at an early stage of the criminal process" (Cal. Rules of Court, rule 4.423(b)(3)).
Defense counsel asserted that the fact that defendant had already been discharged from parole when he committed the current offense was an additional mitigating factor the court should consider. Defense counsel argued that probation was not "out of the realm of probability" and that it was inappropriate to impose the aggravated term.
After reviewing the probation report and hearing oral arguments, the court sentenced defendant to seven years in prison, based on the following: the three-year upper term on the section 290 offense, doubled pursuant to the Three Strikes Law, plus a one-year enhancement for the "prison prior." The court based its choice of the upper term on the probation officer's report that defendant's prior performance on parole had been unsatisfactory. The trial judge did not rely on the prior prison term as an aggravating factor in choosing the upper term because he used the prison prior to enhance the sentence pursuant to section 667.5, subdivision (b). In deciding to impose the upper term, the court stated that defendant's prior poor performance on parole outweighed the factors favorable to defendant.
Defendant contends his sentence violates Blakely because the court imposed the upper term based on factual findings that were not admitted by his plea nor found by a jury. He also contends the trial court erred because, in making its findings, it applied the preponderance of the evidence standard rather than requiring proof beyond a reasonable doubt. Defendant argues that he did not waive his claim of Blakely error by failing to object on the basis of Apprendi in the trial court and that the error was prejudicial.
The Attorney General argues that defendant has forfeited his claim of Blakely error by failing to object on the basis of Apprendi at the sentencing hearing. He also argues that Blakely does not apply to upper term sentences imposed under California's determinate sentencing law. He asserts further that since defendant was a Three Strikes offender, the statutory maximum sentence for the purpose of Blakely was a life sentence and that since defendant was sentenced to seven years, his sentence did not violate Blakely. The Attorney General also contends defendant's sentence does not run afoul of Blakely because defendant admitted the truth of the single aggravating factor that the court relied on in imposing the upper term sentence in his Romero motion.
While this case was pending on appeal, the United States Supreme Court decided Blakely, supra, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, which held that a sentence that exceeded the statutory maximum of the standard range for the offense based on factual findings that were made by the court, rather than factual findings that were made by a jury or admitted by the defendant, violated the defendant's Sixth Amendment right to trial by jury. (Id. at pp. 2536-2538.)
The defendant in Blakely pleaded guilty to second degree kidnapping involving domestic violence and the use of a firearm. The facts admitted in his plea, standing alone, supported a maximum sentence of 53 months under Washington law. (Blakely, supra, 124 S.Ct. at pp. 2534-2535.) Washington law provides that the court may impose a sentence above the standard range if the court finds substantial and compelling reasons justifying the exceptional sentence. After hearing the victim's description of the ordeal, the court imposed a 90-month sentence on the ground that the defendant had acted with "deliberate cruelty," one of the statutorily enumerated grounds for departing from the standard sentencing scheme. (Id. at p. 2535.)
Faced with a more than three-year increase in his sentence, the defendant objected. The court therefore conducted a three-day bench trial on the issue of deliberate cruelty and concluded that there were sufficient facts to support its initial finding. (Blakely, supra, 124 S.Ct. at pp 2535-2536.) The defendant appealed, arguing that this sentencing procedure deprived him of his federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence.
The United States Supreme Court agreed and reversed. The court applied the rule of Apprendi, supra, 530 U.S. at p. 490, 120 S.Ct. 2348 which provides: "`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.'" (Blakely, supra, 124 S.Ct. at p. 2536.) The court explained, (Id. at p. 2537.) Summarizing previous cases on this issue, the court explained that ...
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