People v. McGee CA5 ( 2022 )

Filed 9/26/22 P. v. McGee CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081736
Plaintiff and Respondent,
(Super. Ct. Nos. CRF55189,
v. CRF55565, CRF60031, CRF62594)
MICHAEL JERRYDUANE MCGEE II,
OPINION
Defendant and Appellant.
THE COURT *
APPEAL from judgments of the Superior Court of Tuolumne County. Kevin M.
Seibert, Judge.
Erica Gambale, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and
Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Peña, J. and Snauffer, J.
Defendant Michael JerryDuane McGee II pled guilty to eight offenses across
four criminal cases. He was sentenced on all four cases on the same date to an aggregate
term of eight years. The sentence included imposition of the upper term on one count 1.
On appeal, he contends his sentence must be vacated in light of Senate Bill No. 567
(2021–2022 Reg. Sess.) (Senate Bill 567), which modified Penal Code section 1170,
subdivision (b),1 to require that the circumstances in aggravation be found true by a jury
beyond a reasonable doubt or be stipulated to by the defendant and to require imposition
of the middle term of imprisonment unless circumstances in aggravation justify
imposition of a greater sentence. (Stats. 2021, ch. 731, § 1.3.) Defendant contends his
sentence must be vacated because he did not stipulate to the truth of the circumstances in
aggravation and the trial court did not find them true beyond a reasonable doubt. The
People disagree, arguing that defendant waived his right to a jury trial on aggravating
circumstances. Defendant responds that his limited waiver to the right to a jury trial on
sentencing factors did not extend to waiving the benefits that had not yet been conferred
by Senate Bill 567.
We vacate defendant’s sentence and remand for resentencing consistent with
amended section 1170, subdivision (b). In all other respects, we affirm.
PROCEDURAL SUMMARY
On December 19, 2017, the Tuolumne County District Attorney filed a criminal
complaint in Tuolumne County Superior Court case No. CRF55189, charging defendant
with inflicting corporal injury to a person who was in a dating relationship with defendant
(§ 273.5, subd. (a); count 1), misdemeanor disobeying a court order (§ 166, subd. (a)(4);
count 2), and two counts of misdemeanor battery (§ 242; counts 3 & 4). On January 31,
2018, the complaint was deemed an information.
1 All further statutory references are to the Penal Code unless otherwise stated.
2.
On February 5, 2018, the Tuolumne County District Attorney filed a criminal
complaint in Tuolumne County Superior Court case No. CRF55565, charging defendant
with failure to appear (§ 1320, subd. (b); count 1). The complaint further alleged that
defendant was released from custody on bail or on his own recognizance in case
No. CRF55189 on the date of commission of count 1 (§ 12022.1). On February 21, 2018,
defendant waived a preliminary hearing on the complaint and the trial court deemed the
complaint an information.
On April 2, 2018, defendant pled guilty to all counts in case Nos. CRF55189 and
CRF55565 and admitted the on-bail or own recognizance allegation in case
No. CRF55565, all pursuant to a negotiated plea agreement. 2 The plea agreement
provided that defendant would be granted a five-year term of probation and would serve
one year in county jail as a condition of probation.
On May 1, 2018, in case Nos. CRF55189 and CRF55565, the trial court suspended
imposition of sentence and granted defendant probation for five years. Among the terms
and conditions of probation was the requirement that defendant serve one year in county
jail (nine months in case No. CFR55189 and three consecutive months in case
No. CRF55565).
On June 18, 2019, defendant’s probation officer filed petitions in case
Nos. CRF55189 and CRF55565, alleging that defendant violated probation.
2 On the same date, defendant also pled guilty to other offenses which are not the
subject of this appeal in Tuolumne County Superior Court case Nos. CRM54998 and
CRM55121. Defendant was later sentenced regarding those other cases on the same date
that he was sentenced in case Nos. CRF55189 and CRF55565 and violated supervision in
those other cases on the same date that he violated probation in case Nos. CRF55189 and
CRF55565.
3.
On July 3, 2019, defendant admitted violations of probation in case
Nos. CRF551893 and CRF55565.
On August 2, 2019, the Tuolumne County District Attorney filed an information in
Tuolumne County Superior Court case No. CRF60031, charging defendant with
unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a); count 1) and
receiving a stolen vehicle (§ 496d, subd. (a); count 2).
On December 9, 2019, defendant pled guilty to counts 1 and 2 of case
No. CRF60031 without a plea agreement. The trial court released defendant on his own
recognizance with the requirement that he return for sentencing on January 6, 2020.
Defendant did not appear at the sentencing hearing on January 6, 2020.
On February 27, 2020, the Tuolumne County District Attorney filed a complaint in
Tuolumne County Superior Court case No. CRF62594, alleging defendant failed to
appear for court on January 6, 2020, as required (§ 1320, subd. (b); count 1). The
complaint further alleged that defendant was released from custody on bail or his own
recognizance on the date he committed the offense (§ 12022.1). On May 8, defendant
waived a preliminary hearing on the complaint and the trial court deemed the complaint
an information.
On July 6, 2020, defendant pled guilty to count 1 in case No. CRF62594 pursuant
to a negotiated plea agreement. The plea agreement provided that in exchange for
defendant’s guilty plea the People would move to strike the section 12022.1 enhancement
and seek an eight-month term of imprisonment to run consecutive to the sentence
imposed in case No. CRF60031.
On August 17, 2020, the trial court sentenced defendant on case Nos. CRF55189,
CRF55565, CRF60031, and CRF62594 to a total term of imprisonment of eight years as
3 The trial court referred to case No. CRF55189 as “55181.” However, the minute
order correctly reflects that the trial court was referring to case No. CRF55189.
4.
follows: on count 1 of CRF55189, four years (the upper term); on counts 2, 3, and 4 of
case No. CRF55189, 180 days concurrent to the sentence on count 1; on count 1 of case
No. CRF55565, eight months (one-third of the middle term), plus a two-year
enhancement pursuant to section 12022.1, consecutive to the sentence in case
No. CRF55189; on count 1 of case No. CRF60031, eight months (one-third of the middle
term), consecutive to the sentence in case No. CRF55565; on count 2 of case
No. CRF60031, eight months (one-third of the middle term), stayed pursuant to
section 654; and on count 1 of case No. CRF62594, eight months (one-third of the middle
term), consecutive to the sentence in case No. CRF60031.
On August 27, 2020, defendant filed a notice of appeal in case No. CRF60031.
On June 2, 2021, on defendant’s motion, this court construed defendant’s notice of appeal
to be an appeal from case Nos. CRF55189, CRF55565, CRF60031, and CRF62594.
DISCUSSION 4
Defendant contends the upper term on count 1 of case No. CRF55189 must be
vacated and remanded for resentencing in light of Senate Bill 567’s amendments to
section 1170, subdivision (b). Specifically, he argues that the People did not prove to a
jury beyond a reasonable doubt, and he did not admit the truth of, the aggravating factors
relied upon by the trial court in imposing the upper term. The People contend that
defendant waived his right to a jury trial on sentencing factors pursuant to Apprendi v.
New Jersey (2000) 530 U.S. 466 and Blakely v. Washington (2004) 542 U.S. 296(Blakely). Defendant replies that at the time he entered his guilty plea in case No.
CRF55189, April 2, 2018, the right to a jury trial on all aggravating factors to be proved
beyond a reasonable doubt did not exist and he therefore could not have voluntarily
4 Defendant’s argument on appeal relates only to sentencing issues. For that reason,
we omit any summary of the facts relating to the offenses of conviction.
5.
waived that right. We agree with defendant. We remand defendant’s case for
resentencing.
I. Background
On April 2, 2018, defendant entered a plea agreement in case No. CRF55189,
which contained, among other things, the following waiver:
“Apprendi-Blakely Waiver: I hereby give up the right to a jury or
court trial as to any sentencing factors that may be used to increase my
sentence on any count, sentencing enhancement or allegation to the upper
or maximum term provided by law. I hereby give up the right to a jury or
court trial on any sentencing factors and consent to the judge determining
the existence of any sentencing factors with the judge’s discretion as
allowed by existing statutes and rules of court. I also agree this waiver
shall apply to any future sentence imposed following the revocation of
probation.”
Defendant initialed the boxes indicating that he “underst[oo]d this right [and] …
g[a]ve up this right.” Defendant further acknowledged during the change of plea
colloquy that he initialed those boxes.
On August 17, 2020, at the sentencing hearing for case Nos. CRF55189,
CRF55565, CRF60031, and CRF62594, the trial court imposed the upper term of
four years on count 1 of case No. CRF55189 and outlined the following circumstances in
aggravation:
“[(1)] [D]efendant took advantage of a position of trust and
confidence when he committed the offense. [(2)] His prior convictions are
numerous and increasing in seriousness[.] [(3)] [H]e had served a prior
[section] 1170[, subdivision] (h) … term. [(4)] He was on probation [and]
mandatory supervision when this crime was committed, and [(5)] his prior
performance on probation and mandatory supervision was unsatisfactory.”
The trial court found no circumstances in mitigation. None of the aggravating
circumstances were proved to a jury.
6.
II. Analysis
From March 30, 2007, to January 1, 2022, California’s determinate sentencing law
specified that “[w]hen a judgment of imprisonment [wa]s to be imposed and the statute
specifie[d] three possible terms, the choice of the appropriate term … rest[ed] within the
sound discretion of the court.” (§ 1170, former subd. (b).)
Effective January 1, 2022, Senate Bill 567 amended section 1170, subdivision (b).
(Stats. 2021, ch. 731, § 1.3.) Section 1170, subdivision (b)(2) now provides, “[t]he court
may impose a sentence exceeding the middle term only when there are circumstances in
aggravation of the crime that justify the imposition of a term of imprisonment exceeding
the middle term, and the facts underlying those circumstances have been stipulated to by
the defendant, or have been found true beyond a reasonable doubt at trial by the jury or
by the judge in a court trial.” (§ 1170, subd. (b)(2).) As an exception to the general rule,
a trial court is permitted to rely upon a certified record of conviction to determine prior
criminality for purposes of sentencing without submitting the prior conviction to a jury.
(§ 1170, subd. (b)(3).) Further, section 1170, subdivision (b)(5) requires the trial court to
“set forth on the record the facts and reasons for choosing the sentence imposed.”
As a threshold matter, the parties agree, as do we, Senate Bill 567 is retroactive to
cases not yet final on appeal pursuant to In re Estrada (1965) 63 Cal.2d 740 (see People
v. Flores (2022) 73 Cal.App.5th 1032, 1038–1039 [remanding for resentencing under
another ameliorative amendment to section 1170 by Senate Bill 567]) and defendant’s
sentence is not yet final on appeal. However, the parties’ agreement does not extend to
the appropriate outcome in this case.
The People correctly chart the legal landscape that preceded Senate Bill 567:
From 1977 to March 29, 2007, California’s former determinate sentencing law provided,
in relevant part, that “the court shall order imposition of the middle term, unless there are
circumstances in aggravation or mitigation of the crime.” (§ 1170, former subd. (b).)
The United States Supreme Court considered former section 1170, subdivision (b), in
7.
Cunningham v. California (2007) 549 U.S. 270 (Cunningham), where it held that
California’s former determinate sentencing law violated the Sixth Amendment right to a
jury trial because it permitted a trial judge to determine facts (other than a prior
conviction) that would allow imposition of a sentence in excess of the statutory
maximum,5 as prohibited in Apprendi and Blakely, to name only two. (Cunningham,
supra, 549 U.S. at pp. 275–276.) As Cunningham explained, the Supreme Court had
long held that any fact that permitted imposition of a sentence beyond the statutory
maximum had to be proved to a jury beyond a reasonable doubt. (Id. at p. 281.) Under
the then-existing statutory scheme, the circumstances in aggravation or mitigation—and
the underlying facts related to those circumstances—were to be determined by the trial
court, not the jury. (Id. at p. 278.) The Supreme Court therefore determined that the
imposition of an upper term without having the facts underlying the aggravating
circumstances proved to a jury beyond a reasonable doubt violated the Sixth Amendment.
(Id. at p. 293.)
In response to Cunningham, our Legislature modified section 1170, as noted
above, to place the determination between the upper, middle, and lower terms “within the
sound discretion of the court.” (§ 1170, former subd. (b); Stats. 2007, ch. 3, § 2; see
People v. Wilson (2008) 164 Cal.App.4th 988, 992.) In exercising its discretion under
former section 1170, California Rules of Court, former rule 4.420(b) provided that “the
sentencing judge may consider circumstances in aggravation or mitigation, and any other
factor reasonably related to the sentencing decision.” But the rule contained no
requirement that those circumstances be proved to a jury or admitted by the defendant.
5 In the Sixth Amendment context, the statutory maximum “ ‘is not the maximum
sentence a judge may impose after finding additional facts, but the maximum he may
impose without any additional findings.’ ” (Cunningham, supra, 549 U.S. at p. 275,
quoting Blakely, supra, 542 U.S. at pp. 303–304.)
8.
(Cal. Rules of Court, former rule 4.420(b).) That was the law in effect at the time of
defendant’s sentencing in this case.
In 2022, Senate Bill 567 returned the determinate sentencing law to a
pre-Cunningham form, with the modification that circumstances in aggravation must be
proved to a jury beyond a reasonable doubt, stipulated to by the defendant, or be facts of
prior criminality based on certified records of conviction. (§ 1170, subd. (b)(2), (3).)
The People emphasize that a defendant is permitted to waive his right to a jury
trial on sentencing factors that permit a trial court to impose a sentence above the
statutory maximum. (See Blakely, supra, 542 U.S. at p. 310.) However, the People
ignore the fact that at the time of defendant’s change of plea, he had no right to a jury
trial on aggravating circumstances. Defendant’s Apprendi/Blakely waiver arguably
waived little, if anything, when it was agreed to in April 2018, but the circumstances (and
defendant’s rights) were markedly different in January 2022 when Senate Bill 567
became effective.
Further, the plea agreement did not purport to include a waiver of future unknown
ameliorative changes in the law. Even if it had, such a waiver would be invalid and void
as against public policy. Section 1016.8, subdivision (a)(4) provides: “A plea bargain
that requires a defendant to generally waive unknown future benefits of legislative
enactments, initiatives, appellate decisions, or other changes in the law that may occur
after the date of the plea is not knowing and intelligent.” (§ 1016.8, subd. (a)(4).)
Subdivision (b) further provides: “A provision of a plea bargain that requires a defendant
to generally waive future benefits of legislative enactments, initiatives, appellate
decisions, or other changes in the law that may retroactively apply after the date of the
plea is void as against public policy.” (§ 1016.8, subd. (b).) Thus, even if the People
were correct that defendant’s Apprendi/Blakely waiver extended to his right to be
resentenced under the ameliorative provisions of Senate Bill 567, such a waiver would
9.
not be knowing and intelligent and would be “void as against public policy.” (§ 1016.8,
subd. (b).)
In sum, defendant did not, and could not, have waived the benefit of the
ameliorative change in law effected by Senate Bill 567 when he pled guilty in 2018.
Turning to the impact of amended section 1170, subdivision (b), we review the
aggravating circumstances relied upon by the trial court. The trial court found that
“[(1)] defendant took advantage of a position of trust and confidence when he committed
the offense[,] [(2)] [h]is prior convictions [were] numerous and increasing in seriousness,
… [(3)] he had served a prior [section] 1170[, subdivision] (h) … term[,] [(4)] [h]e was
on probation [and] mandatory supervision when this crime was committed, and [(5)] his
prior performance on probation and mandatory supervision was unsatisfactory.” None of
those factors were proved true to a jury beyond a reasonable doubt and the record does
not demonstrate that the trial court relied on any certified record of defendant’s
convictions or that defendant stipulated to the truth of any aggravating circumstances
save for admitting violations of mandatory supervision and probation. 6 Because the
upper term was imposed on count 1 of case No. CRF55189, however, the facts
underlying the aggravating circumstances were not proved in compliance with amended
section 1170, subdivision (b), defendant’s sentence must be vacated and the matter
remanded to the trial court for resentencing.7
6 The record does indicate that defendant faced a petition that alleged he had
violated mandatory supervision in two cases on the date he waived a preliminary hearing
in case No. CRF55189. He admitted those violations of mandatory supervision.
However, the record does not contain those petitions or the allegations regarding how
defendant violated mandatory supervision in those prior cases.
The record also indicates that defendant admitted violations of probation in case
Nos. CRF55189 and CRF55565 for failing to complete a domestic violence program and
failing to participate in the day reporting center program, respectively.
7 The People do not argue that the error was harmless and we do not consider the
issue.
10.
DISPOSITION
Defendant’s sentences in case Nos. CRF55189, CRF55565, CRF60031, and
CRF62594 are vacated, and the matters are remanded for resentencing in light of
amended section 1170, subdivision (b). In all other respects, we affirm.
11.