People v. Plascencia, H029862 (Cal. App. 10/21/2008)
| Decision Date | 21 October 2008 |
| Docket Number | H029862 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JAIME A. PLASCENCIA, Defendant and Appellant. |
Appeal from the Santa Clara County, Nos. CC589323 and CC590481.
This case has been transferred to us from the Supreme Court (S149251) with directions that we vacate our prior decision (People v. Plascencia (Nov. 28, 2006) H029862 [nonpub.]) and reconsider the case in light of People v. French (2008) 43 Cal.4th 36 (French). In November 2005, we affirmed the judgment of conviction against defendant Jaime A. Plascencia following his plea of guilty to two separate felony complaints. In that appeal, defendant asserted, inter alia, a Blakely challenge1 to the court's imposition of an upper term sentence on his conviction of presenting a false or fraudulent insurance claim (Pen. Code, § 550).2 He claimed that the court's sentence deprived him of his right to a jury trial and of his right to application of the proof beyond a reasonable doubt standard under the Sixth and Fifth Amendments to the United States Constitution, respectively, as made applicable to the states by the Fourteenth Amendment. Applying the then-controlling law on the issue, People v. Black (2005) 35 Cal.4th 1238 (Black I), we rejected defendant's constitutional challenge.
In accordance with the Supreme Court's direction, we reconsider the matter in light of French, supra, 43 Cal.4th 36, and conclude that the court erred in imposing the upper term sentence and that this error was not harmless. We therefore reverse the judgment and remand the case to the trial court for the limited purpose of resentencing.3
Between 1985 and 1995, defendant was married to Susana Plascencia; they had two children together. Defendant was ordered to pay child support for the two children of $1,255 per month. As of April 2005, he was $133,187.03 in arrears.
Between 1989 and 1994, defendant also had a relationship with Bertha G.; they had three children together. He was ordered to pay child support of $1,641 per month for those three children. He owed a total of $300,400.79 in unpaid child support as of April 2005.
From March 2001 to May 2005, defendant used his minor son's name and/or social security number while he was employed at various construction companies. He was employed for nearly the entire period, and his total wages during that time were $126,303.63. Defendant had also used his son's social security number to acquire credit cards and loans. In September 2002, a credit report revealed outstanding balances on several credit cards, a loan for $7,923, and a vehicle loan for $37,000. The credit report also listed two other vehicle loans that had been secured using the name of defendant's minor son that had been paid off. After his arrest in Las Vegas, defendant admitted using his son's name and social security number to avoid having to pay child support.
After defendant's coworker at an asphalt plant in Las Vegas severed the tip of his finger in a workplace accident, defendant purchased the recovered fingertip for $100. He told his coworker that he would have his wife (Anna Ayala) put it in some food.
On March 22, 2005, Ayala and other family members went to a Wendy's restaurant on Monterey Road in San Jose and ordered chili. (Defendant was not present at that time.) After being served, Ayala claimed to have bitten into a fingertip found in her chili. She showed the fingertip to other restaurant patrons and warned them not to eat the chili. Ayala retained an attorney and garnered a great deal of publicity for her alleged injury. At some point, defendant told his coworker that Ayala had placed the fingertip in the chili; he offered the coworker a quarter million dollars (from the anticipated lawsuit) in exchange for his silence about what Ayala had done with the fingertip.
The Wendy's corporation lost an estimated one million dollars per day for at least a month. Sales were down at various Wendy's locations, and many employees lost significant wages and bonuses.
On May 3, 2005, defendant was charged by a six-count felony complaint in Santa Clara County case number CC590481. He was charged with four counts of abandonment or nonsupport of his minor children (Vanessa, Alejandro, Ariana and James; counts 1-4) in violation of section 271a. He was also charged with false personation (§ 529; count 5,), and with using personal identifying information without authorization (§ 530.5; count 6).
On May 24, 2005, defendant was charged by a second amended felony complaint in Santa Clara County case number CC589323,5 with one count of presentation of a false or fraudulent insurance claim (§ 550), and one count of attempted grand theft (§§ 664/484-487, subd. (a)). The complaint alleged further that in the commission of the crimes charged in both counts, defendant damaged and destroyed property of a value exceeding $2,500,000 (§ 12022.6, subd. (a)(4)).
On September 9, 2005, defendant pleaded guilty to all eight counts charged in the two cases. He also admitted the enhancements charged in case number CC589323. Sentencing memoranda were filed by both sides.
On January 18, 2006, the trial court sentenced defendant to a total term of 12 years, four months. In case number CC589323, the court sentenced defendant to the five-year upper term for presentation of a false insurance claim, plus a four-year consecutive term for the excessive takings enhancement, and stayed sentence under section 654 for attempted grand theft. In case number CC590481, the court sentenced defendant to eight-month consecutive terms for the four nonsupport counts and the false personation count, and to a two-year concurrent term for using personal identifying information.
Defendant filed a timely appeal. We filed our original opinion in this appeal on November 28, 2005, rejecting defendant's three claims of error and affirming the judgment. Defendant filed a petition for review, which the Supreme Court granted on February 7, 2007. On June 11, 2008, the high court ordered that the matter be transferred to this court for reconsideration of the appeal in light of French, supra, 43 Cal.4th 36.6
In imposing the upper term of five years in prison on defendant's conviction in case number CC589323 for violation of section 550 (), the trial court cited two factors in aggravation, as provided in rule 4.421 of the California Rules of Court:7 (1) defendant acted with a high degree of callousness, and (2) the crime demonstrated planning and sophistication. Defendant asserts that under Blakely, supra, 542 U.S. 296, he was deprived of his Sixth and Fourteenth Amendment right to a jury trial and his Fifth and Fourteenth Amendment right to application of the proof beyond a reasonable doubt standard when the trial court imposed this aggravated sentence. We conclude, based upon the application of the high court's recent decision in French, supra, 43 Cal.4th 36 that defendant's challenge has merit: there was prejudicial Blakely error requiring reversal.
In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi ), the United States Supreme Court held unconstitutional a law that permitted an enhancement that could have resulted in potentially double the maximum sentence for possession of a firearm in the event that the judge determined by a preponderance of the evidence that a hate crime had been committed. It concluded that "[o]ther 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.) This principle, the court explained, derives from two constitutional rights, namely, the right to trial by jury, and the prohibition against depriving a person of liberty without due process of law. (Id. at pp. 476-477; see also Ring v. Arizona (2002) 536 U.S. 584, 603-609.)
In Blakely, supra, 542 U.S. 296, the Supreme Court considered Washington determinate sentencing laws under which the trial court had determined that the defendant "had acted with `deliberate cruelty' " (id. at p. 298), and accordingly had "imposed an exceptional sentence of 90 months—37 months beyond the standard maximum." (Id. at p. 300.) The Supreme Court concluded that the statute was unconstitutional: (Id. at pp. 303-304.) The judge had relied on a fact not found by the jury or admitted by the defendant; accordingly the Supreme Court concluded that the sentence in Blakely was invalid. (Id. at p. 304; see also United States v. Booker (2005) 543 U.S. 220 (Booker) [].)
In Black I, supra, 35 Cal.4th 1238, the California Supreme Court considered the effect of Blakely and Booker on upper term sentencing under California's determinate sentencing law (DSL). The trial court had imposed an upper term sentence of 16 years, based upon " `the nature, seriousness, and circumstances of the crime.' " (Black I, supra, at p. 1245.) The Supreme Court, rejecting the defendant's Blakely challenge, held that the imposition of an upper term sentence under California's DSL was not unconstitutional, reasoning that ...
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