People v. Urias, F051312 (Cal. App. 3/4/2008)

• Decision Date: 04 March 2008
• Docket Number: F051312
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. LARRY MICHAEL URIAS, Defendant and Appellant.

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THE PEOPLE, Plaintiff and Respondent, v. LARRY MICHAEL URIAS, Defendant and Appellant.

F051312

Court of Appeals of California, Fifth Appellate District

March 4, 2008

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Madera County, No. MCR021966, John W. DeGroot, Judge.

Julia L. Bancroft, 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, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

DAWSON, J.

Larry Michael Urias (appellant) pled no contest to one count of heroin possession (Health & Saf. Code, § 11350, subd. (a)), and admitted that he had served three prior prison terms (Pen. Code, § 667.5, subd. (b)), and had one prior strike conviction (Pen. Code, § 667, subds. (b)-(i)). In exchange, the trial court placed appellant on Proposition 36 probation. After appellant violated probation on various occasions, the trial court sentenced appellant to the upper term of six years in prison, plus three years for the three prior prison terms, and imposed various fees and fines.

On appeal, appellant contends: (1) that the upper term imposed violated Cunningham v. California (2007) 549 U.S. __ (Cunningham); (2) that trial counsel was ineffective; (3) that the trial court abused its discretion when it denied his Marsden¹ motion; (4) that the trial court abused its discretion when it denied his Romero² motion; (5) that the trial court erred when it denied his request for California Rehabilitation Center (CRC) treatment; (6) that the cause must be remanded to correct the abstract of judgment; and (7) that there was cumulative error. We agree only with appellant's contention that the cause must be remanded to correct the abstract of judgment, and in all other respects affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

During a June 10, 2005, traffic stop, an officer found heroin in appellant's front pants pocket. Thereafter, appellant was charged with possession of heroin, and it was alleged that he had three prior prison terms and one prior strike. Appellant pled no contest to the count and admitted the allegations. On October 3, 2005, the trial court suspended imposition of sentence, imposed felony probation for a term of three years under Proposition 36, imposed various terms and conditions of probation, and imposed various fines and fees.

In December of 2005, a probation officer alleged appellant violated two terms of his probation. On February 6, 2006, appellant admitted a drug-related violation of probation. The court ordered appellant to enter a one-year in-patient drug treatment program, revoked and reinstituted probation for a period of five years from the original date of October 3, 2005, and discharged appellant on Proposition 36 probation.

On April 13, 2006, the probation officer again alleged that appellant had violated conditions of his probation in that (1) he did not notify his probation officer that he had moved, (2) he failed to report to the probation officer for a scheduled appointment, and (3) he tested positive for opiates on March 8 and 15. A second amended allegation included the claim that appellant had missed a court date as well.

On June 12, 2006, appellant admitted violating probation by driving on a suspended license on May 11, 2006, and by possessing drug paraphernalia on April 20, 2006.³ The trial court revoked probation and reinstated it for a term of five years and ordered appellant to serve 90 days in jail, with credit for five days in custody.

A hearing was held August 4, 2006, on the April 2006 alleged violations of probation. Following testimony, the trial court found appellant failed to appear for his probation appointment on March 22, and that he moved from his residence without notifying probation within 24 hours—both non-drug-related violations of probation. The court also found appellant tested positive for drugs on March 8 and 15, and failed to appear for his April 3 drug court review, which the court found was appellant's "second drug related violation of probation." The trial court thereafter revoked probation, sentenced appellant to a total term of nine years, with 481 days' credit, and imposed various fines and fees.

Discussion

1. Did the trial court err when it imposed the upper term?

The trial court sentenced appellant to nine years in state prison, consisting of the upper term of three years, doubled pursuant to the three strikes law, plus 3 one-year terms for prior convictions. Relying on Cunningham, supra, 549 U.S.__ , Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), appellant contends the trial court violated his right to trial by jury and to due process under the Sixth and Fourteenth Amendments to the United States Constitution. We disagree.

As a threshold matter, we address the People's contention that appellant is precluded from challenging his sentence because it was a negotiated component of his plea agreement.

"The rule that defendants may challenge an unauthorized sentence on appeal even if they failed to object below is itself subject to an exception: Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process." (People v. Hester (2000) 22 Cal.4th 290, 295.)

Appellant contends that, although he signed a change of plea form, the form indicated a minimum exposure time of six years and no maximum amount of exposure. But we note that the court explained, when taking appellant's plea, that although "you have 6 years here but with 3 prison priors it's going to be 9 years." When asked if appellant understood that, he replied, "Yes, I understand it." The court then reiterated, "With your record achievement you would get 9 years if you violated probation and were sentenced to the State Prison. Do you understand that?" Appellant again replied, "Yes, Your Honor."

Appellant contends that the maximum amount of nine years was unclear in that the court, immediately after the above mentioned exchange, said to appellant, "You could probably work a deal for a lot less if you wanted to, but that's up to you" and "[T]he problem is, you're at risk, quite frankly, violating probation and you could end up in State Prison for 9 years." (Italics added.) But both of these comments were made in the context of discussing appellant's ongoing drug addiction and questioning whether he thought he could follow through on the Proposition 36 treatment.

In any event, we find no Cunningham violation in the trial court's imposition of the upper term. In Cunningham, the Supreme Court reaffirmed Apprendi, Blakely, and United States v. Booker (2005) 543 U.S. 220, but overruled People v. Black (2005) 35 Cal.4th 1238 (Black I) and held California's determinate sentencing law violates a defendant's constitutional right to a jury trial to the extent it authorizes the trial judge to find facts that expose a defendant to an upper term sentence by a preponderance of the evidence. "This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence." (Cunningham, supra, 549 U.S. at p. __ .)

The United State Supreme Court has recognized two exceptions to a defendant's Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury's verdict. (Blakely, supra, 542 U.S. at p. 303.) Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. (Id. at p. 301; see Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States (1998) 523 U.S. 224.)

At the sentencing hearing, the trial court stated that it had considered the report and recommendation of the probation officer and, although it had discretion to strike appellant's prior strike, it did not do so because of appellant's "long record." As noted by the trial court, "even after receiving the strike, he continue[d] to commit new offenses and violate probation and parole." The trial court found appellant's drug problem, which stretched back to when appellant was a juvenile in the 1960's, to be "unevaded and untreatable."

The trial court then revoked appellant's probation and sentenced him to the aggravated term of six years plus 3 one-year terms for prison priors for reasons it stated were "obvious": appellant's prior convictions were numerous, he served a prior prison term that was not utilized as an enhancement, he was on parole when the crime was committed, and his prior performance on probation and parole was unsatisfactory. The court found in mitigation that appellant completed two prior grants of summary probation, from 1972 through 1974 and 1991 through 1994, but found the factors in aggravation outweighed those in mitigation.

We find the trial court relied, and properly so, on appellant's prior criminal history in imposing the upper term. Appellant's criminal history is quite lengthy and dates back to the beginning of 1969. It consists of some 20 plus offenses and numerous violations of probation and parole. The probation report lists four...