People v. French

• Citation: 178 P.3d 1100,73 Cal.Rptr.3d 605,43 Cal.4th 36
• Decision Date: 27 March 2008
• Docket Number: No. S148845.,S148845.
• Court: United States State Supreme Court (California)
• Parties: The PEOPLE, Plaintiff and Respondent, v. Wesley David FRENCH, Defendant and Appellant.

73 Cal.Rptr.3d 605

43 Cal.4th 36

178 P.3d 1100

The PEOPLE, Plaintiff and Respondent, v. Wesley David FRENCH, Defendant and Appellant.

No. S148845.

Supreme Court of California.

March 27, 2008.

William J. Arzbaecher III, under appointment by the Supreme Court, Sacramento, and Gregory Marshall, under appointment by the Court of Appeal, Palo Cedro, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Mary Jo Graves and Michael P. Farrell, Assistant Attorneys General, Janis Shank McLean, David A. Rhodes, Lawrence M. Daniels, Clayton S. Tanaka and Jeffrey M. Laurence, Deputy Attorneys General, for Plaintiff and Respondent.

GEORGE, C.J.

Defendant pleaded no contest to six counts of lewd and lascivious conduct with a child (Pen.Code, § 288, subd. (a))¹ pursuant to a plea agreement under which six additional counts alleging that offense, as well as a sentencing enhancement allegation (§ 667.61, subd. (b)), were dismissed. The trial court sentenced him to the upper term of eight years on one count and one-third the middle term on the other five counts, for a total sentence of 18 years, the maximum term available under the plea agreement. Defendant contends imposition of the upper term violated his Sixth Amendment right to a jury trial as established in Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856, 166 L.Ed.2d 856 (Cunningham). We granted review to address issues involving the application of Cunningham to cases in which the defendant has pleaded guilty or no contest.

After defendant's plea was entered, but before he was sentenced, the United States Supreme Court issued its decision in Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (Blakely), holding that a criminal defendant's Sixth Amendment right to 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, at pp. 303-304, 124 S.Ct. 2531.) Subsequently, we concluded that Blakely did not apply to California's determinate sentencing law. (People v. Black (2005) 35 Cal.4th 1238, 29 Cal.Rptr.3d 740, 113 P.3d 534 (Black I).) We held 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." (Black I, supra, 35 Cal.4th at p. 1244, 29 Cal.Rptr.3d 740, 113 P.3d 534.) On appeal, defendant claimed that the upper term here was imposed in violation of his Sixth Amendment rights. The Court of Appeal rejected that contention, relying upon our decision in Black I. The appellate court also concluded that "[w]here, as here, a defendant agrees [as part of a plea agreement] that the court has the authority to sentence that defendant to an upper term, he is deemed to have admitted that his conduct, as a matter of fact, can support that term."

While defendant's petition for review was pending in this court, the United States Supreme Court issued its decision in Cunningham, supra, 549 U.S. ___, 127 S.Ct. 856. As we recently explained in People v. Black (2007) 41 Cal.4th 799, 62 Cal.Rptr.3d 569, 161 P.3d. 1130 (Black II), the high court disagreed with our decision in Black I and "held that California's determinate sentencing law (DSL) violates a defendant's federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by assigning to the trial judge, rather than the jury, the authority to make the factual findings that subject a defendant to the possibility of an upper term sentence." (Black II, at p. 805, 62 Cal.Rptr.3d 569, 161 P.3d 1130.) We conclude that (1) defendant was not required to obtain a certificate of probable cause in order to raise his claim of Cunningham error on appeal, because that claim implicates his sentence only and does not constitute a challenge to the plea agreement; (2) defendant did not forfeit his Cunningham claim by failing to raise it in the trial court because, under the circumstances of this case, an express waiver of jury trial on aggravating circumstances was required and no such waiver occurred; (3) in pleading no contest pursuant to a plea agreement providing for a sentence not to exceed a stipulated maximum and further stipulating to a factual basis for the plea, defendant neither waived his right to a jury trial on aggravating circumstances nor admitted facts that established an aggravating circumstance; and (4) imposition of the upper term sentence violated defendant's Sixth Amendment right to a jury trial, and the constitutional error was not harmless beyond a reasonable doubt.

I.

Defendant was charged with 12 counts of lewd and lascivious conduct with a child under the age of 14 years, involving three victims. That offense is punishable by imprisonment for a term of three, six, or eight years. (§ 288, subd. (a).) The information alleged that defendant committed the offenses against more than one victim, within the meaning of section 667.61, subdivisions (b) and (e), an allegation which, if found true, would increase the punishment for each offense to a term of imprisonment of 15 years to life.

On June 8, 2004, defendant pleaded no contest to six of these counts, under an agreement whereby he would receive a sentence of no more than 18 years in prison and the remaining six counts and the section 667.61 allegation would be dismissed. At the hearing at which defendant's plea was entered, the prosecutor stated that the maximum sentence defendant could receive were he to be convicted on all 12 counts was imprisonment for 180 years to life. The court explained that if defendant accepted the prosecutor's offer the sentence would not exceed 18 years "under any circumstances," and that the prosecution was recommending that the full 18-year term be imposed. Defense counsel stated she had explained to defendant the elements of the charged offenses, the possible defenses he might have, and the consequences of the plea. Defendant pleaded no contest to counts 1 and 2 (involving victim Brandon B.), counts 9 and 10 (involving victim Brittany P.), and counts 11 and 12 (involving victim Zachary L.).

The prosecutor set forth the factual basis for the plea by briefly describing the acts underlying these six counts. When the court inquired of defense counsel whether she believed there was a sufficient factual basis for the plea, counsel stated, "I believe the People have witnesses lined up for this trial that will support what the D.A. read in terms of the factual basis...." The court informed defendant that the alternate sentences provided for these offenses are three, six, or eight years and that the court had agreed to a sentence of no more than 18 years. Defendant said he understood. After the court inquired whether defendant also understood and waived his right to a speedy and public jury trial defendant, after consulting with counsel, said he did. The court explained, and the defendant relinquished, his rights to cross-examine witnesses, to remain silent, and to present a defense. The court accepted defendant's plea of no contest and found defendant guilty on the six counts to which he had entered that plea.

A presentence report, based upon police reports, indicated that the victims had been charges at an in-home daycare center run by defendant's daughter, whom defendant sometimes assisted in the operation of the center. When interviewed by the probation officer who prepared the report, defendant denied committing the offenses. Defendant's only prior criminal convictions were two misdemeanor offenses for which he had been placed on three years' probation, a condition of which was that he serve 50 days in county jail.

The presentence report identified three circumstances in aggravation: the manner in which the offenses were carried out indicated planning (Cal. Rules of Court, rule 4.421(a)(8)); defendant took advantage of a position of trust or confidence (id., rule 4.421(a)(11)); and the crime involved multiple acts against multiple victims (id., rule 4.408). The report identified one circumstance in mitigation: defendant's prior record did not involve significant criminal conduct. (Id., rule 4.423(b)(1).)

At the sentencing hearing, defendant's wife testified on his behalf and a number of defendant's friends submitted letters that were read and considered by the trial court. The mother of victim Brandon B. made a statement explaining the impact of the offenses upon her son. The district attorney asked the court to impose a sentence of 18 years, based upon the circumstances of the offenses, including what was related in the statement of Brandon's mother. The trial court sentenced defendant to the upper term of eight years on count 1 (involving Brandon B.) and one-third of the six-year midterm on each of the other five counts, with all terms to be served consecutively, for a total term of 18 years. The trial court selected the upper term because "[d]efendant took advantage of a position of trust and confidence to commit the crime pursuant to Rule 4.421(a)(11)," and imposed consecutive terms because the crimes were committed on different occasions or at separate locations. (Cal. Rules of Court, rule 4.425(a)(3).)

II.

A. Certificate of Probable Cause

The Attorney General contends this appeal must be dismissed because the trial court did not issue a certificate of probable cause for appeal. Such a certificate was not required.

Section 1237.5 provides that an appeal may not be taken after a plea of guilty or no contest unless the defendant has filed a statement showing reasonable grounds for appeal and the trial court has executed and filed a certificate of probable...