IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR A105113

Transcription

1 Filed 4/22/05 P. v. Roth CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR THE PEOPLE, Plaintiff and Respondent, v. RICHARD ROTH, Defendant and Appellant. A (Alameda County Super. Ct. No ) Defendant Richard Roth entered guilty pleas to: one felony count of continuous sexual abuse of a child under the age of 14 (Pen. Code, 288.5, subd. (a)); 1 40 felony counts of lewd and lascivious conduct with that same child ( 288, subd. (a)); six felony counts of lewd and lascivious conduct with a different child ( 288, subd. (a)); one felony count of distributing child pornography ( 311.2, subd. (d)); one misdemeanor count of annoying or molesting a third child ( 647.6, subd. (a)); and one misdemeanor count of possessing child pornography ( , subd. (a)). Defendant s pleas were totally open, with no sentence promised or recommended. Defendant was expressly advised that his maximum possible sentence could be as much as 109 years. The trial court sentenced defendant to state prison for an aggregate term of 18 years and eight months. The term was calculated as follows: the principal term was the mitigated term of six years for the continuous child abuse count; four consecutive twoyear terms for lewd and lascivious conduct against the first victim; two consecutive twoyear terms for lewd and lascivious conduct against the second victim; and an eight-month 1 All further statutory references are to the Penal Code. 1

2 parole. 2 Defendant filed a timely notice of appeal. He presents two claims of error. consecutive term for the felony child pornography count. Execution of sentence on all other counts was stayed. The court ordered defendant to pay a restitution fine of $80,000 ($10,000 for each of the eight felony counts on which defendant was sentenced) pursuant to section , and a parole revocation restitution fine of $80,000 pursuant to section ; the latter was ordered stayed pending defendant s successful completion of The first is that neither of the two types of fines could total more than $10,000, and that all other fines must be stricken. The Attorney General concedes It appears that appellant is correct (see, e.g., People v. Ferris (2000) 82 Cal.App.4th 1272, ) and that Accordingly, the judgment should be modified to reduce the Penal Code section , subdivision (b) restitution fine to $10,000, and the Penal Code section parole revocation restitution fine to $10,000, which should be suspended unless parole is revoked. Defendant has no objection to this proposal. However, the Attorney General also submits: In addition, the [trial] court stated that it stayed sentence on the other counts in consideration of the two $80,000 fines. The matter should be remanded so the court may determine whether to impose sentence on other counts. To this proposal he does object. He maintains the Attorney General s proposal is waived because it was not made to the trial court at the time of sentencing. (See People v. Tillman (2000) 22 Cal.4th 300, 303; People v. Hector (2000) 83 Cal.App.4th 228, 237.) Defendant is correct. Although a trial court must impose fines pursuant to sections and , imposition of more than the statutory minimums was error that is now acknowledged. The People s failure to comment at sentencing precludes the review and remand sought by the Attorney General now. (People v. Rodriguez (2000) 80 Cal.App.4th 372, ) Defendant s second contention, based on Apprendi v. New Jersey (2000) 530 U.S. 466 and Blakely v. Washington (2004) 542 U.S. [124 S.Ct. 2531] is that he was 2 The court reserved jurisdiction to determine the amount, if any, of direct victim restitution. 2

3 deprived of his state and federal constitutional rights to a jury trial and due process when the trial court imposed consecutive sentences by relying on aggravating factors found true neither by a jury nor beyond a reasonable doubt. The Attorney General submits we need not reach the merits of this claim because defendant did not preserve it for review by making the appropriate objection before he was sentenced. Blakely was not decided until after defendant was sentenced; he therefore had no reason to anticipate Blakely by challenging the court s authority to impose consecutive sentences. Moreover, even if applicable, the waiver rule would not prevent review of a claim that an unlawful sentence was imposed, and that that claim can be decided as a pure issue of law. (E.g., People v. Welch (1993) 5 Cal.4th 228, 235; People v. Andrade (2002) 100 Cal.App.4th 351, 354; People v. Williams (1999) 77 Cal.App.4th 436, 460.) Finally, the latest expression from the United States Supreme Court is that Blakely is to be applied to all cases on direct review. (U.S. v. Booker (2005) 543 U.S., [125 S.Ct. 738, 769].) Defendant s claim is properly here for decision. In Blakely, the United States Supreme Court held that 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 v. Washington, supra, 542 U.S., [124 S.Ct. 2531, 2536], quoting Apprendi v. New Jersey, supra, 530 U.S. 466, 490.) Blakely further held that the statutory maximum... is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. (Blakely v. Washington, supra, 542 U.S., [124 S.Ct. 2531, 2537].) The issue of whether Blakely applies to California s indeterminate sentencing scheme is pending in the California Supreme Court. (People v. Towne, review granted July 14, 2004, S125677; People v. Black, review granted July 28, 2004, S ) Assuming that Blakely does apply, there was no Blakely error here. We are dealing here, not with upper term sentences, but with consecutive sentences. Neither Apprendi nor Blakely actually addressed the propriety of a judge imposing consecutive sentences. (See Blakely v. Washington, supra, 542 U.S.,, 3

4 fn. 2 [124 S.Ct. 2531, 2534]; Apprendi v. New Jersey, supra, 530 U.S. 466, 474.) Neither of these decisions indicates what the statutory maximum would be for two or more offenses. California does not have a statutory maximum for consecutive sentences, leaving it to the sentencing court s discretion whether they shall be imposed. (See 669; In re Hoddinott (1996) 12 Cal.4th 992, 1000; People v. Jenkins (1995) 10 Cal.4th 234, ) Accordingly, imposition of a consecutive term is not a departure from a statutory standard or presumptive sentencing range. It is therefore not tantamount to the enhancement considered in Apprendi and the exceptional sentence imposed in Blakely. The Blakely court stated: [T]he Sixth Amendment by its terms is not a limitation on judicial power, but a reservation of jury power. It limits judicial power only to the extent that the claimed judicial power infringes on the province of the jury. (Blakely v. Washington, supra, at p. [124 S.Ct. 2531, 2540].) A defendant who commits separate crimes has no legal right to have the jury determine whether consecutive or concurrent sentences will be imposed, and that makes all the difference insofar as judicial impingement upon the... role of the jury is concerned. (Id.) 3 Finally, by pleading guilty, with no limitation or agreement as to the sentence that might be imposed, defendant impliedly admitted all of the facts necessary to impose the maximum punishment statutorily prescribed for those offenses. (See People v. Hoffard (1995) 10 Cal.4th 1170, ; People v. Palacios (1997) 56 Cal.App.4th 252, ) Thus, there was no violation of Blakely because the facts supporting imposition of 3 We also note that in sentencing defendant the trial court took pains to ensure that all of the sentences were imposed for counts that involved different victims or distinct periods of criminal activity. Count 1, the principal count, covered acts committed against victim C.D. for the period from July 21, 1995 to July 31 of 1996; Count 13, covered acts committed against the same victim but for the period between July 1 through July 31 of 1997; Count 25 dealt with the same victim for the period of July 1-31 of 1998; Count 37 covered acts committed against the same victim for the period from July 1 through September 30 of 1999; Count 41 covered the same victim but the period between July 1 and September 30 of 2000; Count 42 involved acts defendant committed on the second victim between March 1 and April 30 of 2000; Count 47 involved acts committed on the second victim between September 1 through September 30 of 2000; and Count 49, the felony child pornography charge, covered the period between July 21 through October 31 of

5 consecutive sentences were admitted by defendant (see Blakely v. Washington, supra, 542 U.S., [124 S.Ct. 2531, 2536]), and because defendant s aggregate sentence was well within the statutory maximum of more than 100 years. The judgment is modified to reduce the section , subdivision (b) restitution fine to $10,000, and the section parole revocation restitution fine to $10,000, the latter to be suspended unless parole is revoked. As so modified, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment and to forward a certified copy to the California Department of Corrections. Kay, P.J. We concur: Sepulveda, J. Rivera, J. People v. Roth, A