People v. Waymire

• Decision Date: 20 April 2007
• Docket Number: No. C051736.,C051736.
• Citation: People v. Waymire, 149 Cal.App.4th 1448, 60 Cal.Rptr.3d 271 (Cal. App. 2007)
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert Earl WAYMIRE, Defendant and Appellant.

60 Cal.Rptr.3d 271

149 Cal.App.4th 1448

The PEOPLE, Plaintiff and Respondent, v. Robert Earl WAYMIRE, Defendant and Appellant.

No. C051736.

Court of Appeal, Third District.

April 20, 2007.

As Modified on Denial of Rehearing May 18, 2007.

Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., and Bill Lockyer, Attorneys General, Dane R. Gillette and Robert R. Anderson, Chief Assistant Attorneys General, Michael P. Farrell and Mary Jo Graves, Senior Assistant Attorneys General, Stephen G. Herndon and Wanda Hill Rouzan, Supervising Deputy Attorneys General, Wanda Hill Rouzan, Deputy Attorney General, for Plaintiff and Respondent.

ROBIE, J.

This case raises a number of sentencing issues which have arisen since the United States Supreme Court's decision in Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403.

Defendant Robert Earl Waymire pled guilty to manufacturing methamphetamine, and the trial court granted him probation. Defendant later admitted he violated probation by failing to contact his probation officer, failing to participate in a substance abuse counseling program, and possessing methamphetamine. Finding that the aggravating circumstances (numerous prior convictions of increasing seriousness, being on probation when the offense was committed, and prior unsatisfactory performance on probation) outweighed the sole mitigating circumstance (addiction to a narcotic at the time of the offense), the trial court sentenced defendant to the upper term of seven years on the manufacturing charge. We affirm.

DISCUSSION

Relying on Blakely, defendant claims the trial court's imposition of the upper term violated his federal constitutional right to a jury trial because the trial court "impos[ed] an upper term based on its own finding that [defendant's crimes were increasing in seriousness and that [his] prior performance on probation was unsatisfactory," rather than based on findings by a jury beyond a reasonable doubt. As will be seen, we find no prejudicial error.

In People v. Black (2005) 35 Cal.4th 1238, 29 Cal.Rptr. 3d 740, 113 P.3d 534, the California Supreme Court rejected a claim of Blakely error similar to defendant's, concluding "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, at p. 1244, 29 Cal. Rptr.3d 740, 113 P.3d 534.) In Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856, 166 L.Ed.2d 856, however, the United States Supreme Court held that under Blakely and other decisions, California's determinate sentencing law does "violate[ ] a defendant's right to trial by jury safeguarded by the Sixth and Fourteenth Amendments" to the extent the law allows a judge to impose an upper term sentence "based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant." (Cunningham v. California, supra, 549 U.S. at p. ___, 127 S.Ct. at p. 860, 166 L.Ed.2d at p. 864.)

I Forfeiture Or Waiver

Initially, the People contend defendant either forfeited his claim of Blakely error because he did not object to his sentence on that basis in the trial court or waived his claim of Blakely error when he waived his rights to a jury trial on the underlying offense and to a formal hearing on the revocation of his probation. We find no merit in either contention.

In some circumstances, "a party may forfeit a right to present a claim of error to the appellate court if he did not do enough to `prevent[ ]' or `correct[ ]' the claimed error in the trial court." (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6, 69 Cal.Rptr.2d 917, 948 P.2d 429.) However, "Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence." (People v. Welch (1993) 5 Cal.4th 228, 237, 19 Cal. Rptr.2d 520, 851 P.2d 802.)

Defendant was sentenced on January 17, 2006. At that time, our Supreme Court's decision in Black remained good law, and the trial court was bound by it.¹ (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) Accordingly, a Blakely objection at the time of defendant's sentencing would have been futile.

Notwithstanding the foregoing, the People urge us to find a forfeiture. Quoting United States v. Booker (2005) 543 U.S. 220, 268, 125 S.Ct. 738, 769, 160 L.Ed.2d 621, 665, the People argue that in reviewing claims of Blakely error, appellate courts must apply "ordinary prudential doctrines, determining, for example, whether the issue was raised below." We agree, but what the People fail to recognize is that the futility exception to the requirement of an objection in the trial court is one such "ordinary prudential doctrine." Thus, defendant did not forfeit his claim of Blakely error because making a Blakely objection in the trial court at the time of his sentencing would have been futile in light of Black.

We are likewise unpersuaded by the People's claim of waiver. Essentially, the People contend defendant knowingly and intentionally relinquished his right under Blakely to have a jury decide the aggravating circumstances on which the upper term was based either by waiving his right to a jury trial on the offense or by waiving a formal probation revocation hearing.

The waiver of a right to a jury trial must be knowing and intelligent—that is, it must be made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. (People v. Collins (2001) 26 Cal.4th 297, 305, 109 Cal.Rptr.2d 836, 27 P.3d 726.) Here, it does not appear from the record that when defendant waived his right to a jury trial on the offense, he was aware the right he was abandoning included the right to have a jury decide any aggravating circumstances used to impose an upper term sentence if he was convicted. At the change of plea hearing the trial court explained defendant's right to a jury trial as follows: "That's where 12 individuals would be selected from a cross-section of people in our community and they would hear all the evidence in your case. If they were not convinced beyond a reasonable doubt of your guilt, they would then return a not guilty verdict for you." At no point was defendant informed he had a right to have a jury decide any aggravating circumstances that might be used to sentence him. Accordingly, there is no basis for concluding defendant knowingly and intelligently waived that right.

As for the People's assertion that defendant waived his rights under Blakely by waiving his right to a formal probation revocation hearing, that argument is a non sequitur. Contrary to what the People seem to think, it does not matter that in waiving his right to a "formal" probation revocation hearing—that is, a hearing at which evidence would be presented—defendant acknowledged he could receive up to seven years in prison at the time of sentencing. The question is whether defendant ever knowingly agreed he could be sentenced to the upper term of seven years without the jury findings required by Blakely. He did not do so. What the People characterize as defendant's waiver of "the right to any formal due process at a formal probation hearing" did not include a waiver of his rights under Blakely at the sentencing hearing to follow.

II Sentencing At A Probation Revocation Hearing

The People next contend there was no Blakely error here "because [defendant] was sentenced at a probation [revocation] hearing." According to the People, "Blakely does not apply to probation hearings" because such hearings are "not considered a stage of the criminal process that is subject to stringent due process considerations" like the right to a jury trial. The People rely on Gagnon v. Scarpelli (1973) 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 to support their argument, but that reliance is misplaced.

At issue in Gagnon was whether "a previously sentenced probationer" was entitled to a hearing and appointed counsel when his probation was revoked. (Gagnon v. Scarpelli supra, 411 U.S. at p. 779, 93 S.Ct. at p. 1758, 36 L.Ed.2d at p. 660, italics added.) Gagnon does not speak to what rights apply to a probationer who has not yet been sentenced It appears to us self-evident that (as defendant contends) "once the court revoked [defendant's] probation and proceeded to impose sentence on the underlying charges, [defendant] was entitled to the same constitutional protections at sentencing [that] he would have received had the court imposed sentence at the time of the plea and suspended its execution."

III Sufficiency Of A Prior Conviction Finding

The People next argue defendant's sentence was proper under Blakely "because it was based on a prior conviction" and "a single aggravating factor can justify the imposition of an upper term." According to the People, "[b]ecause the court correctly considered the prior conviction as an aggravating factor ..., it was not required to consider the other factors, and Blakely was not implicated." The flaw in this argument is that even if the trial court could have imposed the upper term on defendant based solely on one or more of his prior convictions, that is not what the court did. Instead, the court imposed the upper term on defendant after finding three aggravating circumstances outweighed one mitigating circumstance. Thus, while the court may not have been required to consider any aggravating circumstance other than a single prior conviction, it plainly did so. The question for us to decide is whether what the court did was error, not whether the court could have (hypothetically) reached the same result without committing error.

As we have noted, Blakely and Cunningham allow a judge to impose an upper term sentence...