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Filed 10/4/04 P. v. Gaitan CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 TWO

THE PEOPLE,

Plaintiff and Respondent,

A102560
v.

ELIAS A. GAITAN,
(Sonoma County
Super. Ct. Nos. SCR32021, SCR32048)

Defendant and Appellant.

In re ELIAS A. GAITAN,

A104091
on
Habeas
Corpus.

Elias A. Gaitan appeals from convictions entered upon his pleas of no contest to
one count of possession of a forged check and one count of possession of
methamphetamine. He challenges the trial court's refusal to allow him the opportunity to
withdraw his pleas after the court withdrew its approval of a plea agreement and its
imposition of a more severe sentence than was called for in the plea agreement. He
further contends the trial court erred in refusing to order specific performance of the plea
agreement because there was insufficient evidence to support the court's finding that he
failed to comply with the agreement. In a related petition for habeas corpus, appellant1
claims he received ineffective assistance of counsel in that his attorney did not advise him
that he had a right to withdraw his pleas.

1 For convenience, we will continue to refer to "appellant" rather than "petitioner"
when discussing the petition.

1

STATEMENT OF THE CASE

Appellant was charged by information filed on March 25, 2002, in Sonoma
County Superior Court (No. SCR-32021), with one count of possession of a forged bank
check (Pen. Code, з 475, subd. (a))2, one count of commercial burglary (з 459) and one
count of attempted petty theft (зз 664, 484, subd. (a)).

On April 8, 2002, a second information was filed in the same court (No. SCR-
32048), charging appellant with one count of possession of methamphetamine (Health &
Saf. Code, з 11377, subd. (a)), one count of misdemeanor possession of drug
paraphernalia (Health & Saf. Code, з 11364) and one count of misdemeanor resisting or
obstructing an officer (з 148, subd. (a)(1)). It was alleged that at the time he committed
the first count, appellant was on bail within the meaning of section 12022.1.

On May 10, 2002, pursuant to a plea bargain, appellant entered pleas of no contest
to the counts of possession of a forged check (No. SCR-32021) and possession of
methamphetamine (No. SCR-32048), and admitted the on-bail allegation. The court
granted the prosecution's motion to dismiss the remaining counts in both cases at the time
of sentencing. The plea agreement called for imposition of a sentence of five years eight
months, with execution of sentence suspended and appellant placed on probation, and for
appellant to be released on his own recognizance pending sentencing. As part of the plea
bargain, appellant agreed to work for and cooperate with Detective Michael Tosti of the
Santa Rosa Police Department.

On November 5, 2002, after a contested hearing, the court found appellant had
violated the terms of his plea agreement by failing to cooperate with Tosti. Appellant
was remanded into custody. On December 20, the court denied probation and sentenced
appellant to a prison term of five years eight months, consisting of the upper term of three
years on the forgery count, a consecutive one-third middle term of eight months on the
methamphetamine count, and a two year on-bail enhancement.

2 All further section references are to the Penal Code unless otherwise indicated.

2

On May 28, 2003, this court granted appellant's application for permission to file
a late notice of appeal. On June 2, appellant filed a notice of appeal and request for a
certificate of probable cause, which the trial court granted on June 12, 2003.
STATEMENT OF FACTS
Case No. SCR-32021

According to the probation report, at about 12:45 p.m. on December 26, 2001,
appellant attempted to cash a check for $410.25 at a jewelry store in Santa Rosa. The
check was determined to be part of a series of checks that had been stolen from a Rohnert
Park business approximately one week before. The burglary victim said the account had
been closed for years. An employee of the jewelry store recalled appellant having
attempted to cash two other checks from the same bank account on December 24, 2001,
one for $500, and the other for $410.25. Appellant stated that he received the check, in
the amount of $455, as payment for yard work from a woman for whom he had worked
for five days. He initially denied having attempted to cash checks at the jewelry store
before, then later admitted he had tried twice on December 24 to cash the same check he
was attempting to cash on December 26.
Case No. SCR-32048

At about 10:00 p.m. on February 24, 2002, a deputy police officer contacted
appellant, who was the passenger in a suspicious vehicle parked behind a Santa Rosa
business. The deputy determined that appellant and the driver of the car both had
outstanding arrest warrants. Appellant appeared to be trying to hide something to the
right of the passenger seat and when the deputy approached the right side of the car to
arrest him, appellant pushed open the car door and ran. After a brief foot pursuit and
struggle, appellant was arrested and a search revealed two glass drug pipes in appellant's
pockets. A plastic bag which was subsequently determined to contain 0.10 gram of
methamphetamine was found on the floor between the front passenger seat and the door.
Both appellant and the driver denied possessing the bag and suggested it must have
belonged to the person from whom they purchased the car the day before. Appellant said
he resisted arrest because he did not want to return to jail.

3

The plea agreement

On May 9, 2002, Santa Rosa Police Detective Michael Tosti met with appellant at
the county jail. They discussed "gang information" appellant was aware of regarding
"the possibility of locating an assault rifle that was stolen from the Sonoma County
Sheriff's Department." Appellant told Tosti he wanted to "cooperate with law
enforcement in certain areas." Appellant "thought he could be successful in meeting with
the individuals and obtaining information which would lead [the police] to the location of
the weapon." Appellant gave another detective a list of names of people involved in
"check" cases and narcotics cases.

On May 10, appellant withdrew his previous pleas of not guilty and pleaded no
contest to the charges of forgery and possession of methamphetamine. The prosecutor
told the court that the parties had entered an agreement "that the defendant would work
for and cooperate with law enforcement, being Detective Tosti of the Santa Rosa Police
Department, . . . in return for a sentence of execution of sentence suspended as well as
immediate release on supervised OR." The terms of the agreement included a suspended
prison term of five years eight months. Appellant was informed that once he was placed
on probation, if he violated any of the terms of probation he could be sentenced to state
prison. He was told that probation would interview him, collect other information and
report to the judge, who would make the sentencing decision, and that if the judge
determined a prison sentence was appropriate appellant would be given an opportunity to
withdraw his plea. Appellant was released from custody that day. The parties stipulated
that the plea agreement called for appellant to contact Tosti immediately upon his release
from custody and appellant knew how to do so.

Appellant did not contact Tosti immediately upon his release; Tosti called the
prosecutor, who in turn called appellant's attorney, and appellant contacted Tosti within a
day or two of his release. The two met on May 15, at which time Tosti filled out an
"informant worksheet," which included information such as how to reach appellant and
advisements about things the police were not asking appellant to do. Tosti testified that

4

as part of the agreement, he directed appellant to contact him by telephone daily,
sometime in the morning.

That same day, they began an undercover investigation which entailed appellant
wearing a wire, going to a location where the police believed there might be people with
knowledge about the stolen weapon, and engaging in conversation to get comfortable
with them. Tosti did not want appellant to move too quickly into discussion of the gun,
but rather contemplated further meetings when this could be accomplished. After
appellant talked with the people in question, Tosti told him they would do the same thing
again and that it would be "slow going to get him in." He told appellant to call him the
next day.

Appellant called Tosti on May 16, but Tosti then heard nothing from appellant
until May 29. Tosti called the phone number appellant had given him and left messages.
On May 18, Tosti learned that appellant had been involved in a domestic dispute with his
girlfriend or wife. A "stop and hold" was issued for appellant's arrest. On May 29, Tosti
participated in appellant's arrest. Appellant, woken from sleeping in his car and "crying
a little bit," apologized for not calling Tosti and said that he had tried to call and still
wanted to "do things" but had not been able to reach Tosti.

Appellant testified that when he was released from custody he was "trying to get
situated." He and his fiancщ moved to his mother's house and "it was just a matter of two
days" before he called Tosti on May 13. Asked why he did not contact Tosti between
May 15 and May 29, appellant explained that his uncle had had a stroke, went into a
coma and eventually died, and that he was trying to get money for himself and his wife to
go to San Jose to be with the family there. Appellant testified that this was the only
reason he did not contact Tosti. "I had no time. I thought this was priority over that."
Appellant also testified that he called Tosti sometime after May 15, probably after the
May 18 domestic violence incident; Tosti asked if appellant had found anything,
appellant said he was still looking and Tosti told him to call back. Appellant told Tosti
he had not been calling because he had been looking for work so he could go to see his
uncle.

5

Appellant testified that he was sleeping in his car on the morning of his arrest
because he was homeless and not because he was trying to evade the police. He testified
that he did not know there was a warrant for his arrest. Appellant acknowledged that he
knew he was supposed to be in daily contact with Tosti: "I was suppose to call him every
day. That was our--that was--that was the agreement for me to keep in contact."
Appellant also stated that he knew he had not completed his work for the police after the
one undercover meeting on May 15, 2002.
DISCUSSION
I.

Appellant contends the trial court erred in failing to allow him the opportunity to
withdraw his no contest pleas after it withdrew approval of the plea agreement and
imposed a more severe punishment than that specified in the plea agreement. He further
urges the court erred in refusing to order specific performance of the plea agreement
because there was insufficient evidence that appellant failed to comply with his
agreement to act as a cooperating witness for the police.

Section 1192.5 provides in pertinent part: "Where the plea is accepted by the
prosecuting attorney in open court and is approved by the court, the defendant, except as
otherwise provided in this section, cannot be sentenced on the plea to a punishment more
severe than that specified in the plea and the court may not proceed as to the plea other
than as specified in the plea. [╢] If the court approves of the plea, it shall inform the
defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at
the time set for the hearing on the application for probation or pronouncement of
judgment, withdraw its approval in the light of further consideration of the matter, and
(3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she
desires to do so. The court shall also cause an inquiry to be made of the defendant to
satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis
for the plea."

We consider first appellant's claim that the court erred in finding he did not
substantially comply with the terms of the plea bargain. The court gave three reasons for

6

this finding: That the agreement required appellant to be in daily contact with Tosti but
"there were significant periods of time when the contact was not made" and after May 16,
there was no contact until appellant's arrest; that appellant had a positive drug test; and
that appellant was arrested for a domestic violation incident.

Appellant addresses only one of these points, arguing that daily contact was not a
term of the plea agreement; appellant called Tosti within a day or two of his release from
custody, participated in an undercover investigation, failed to contact Tosti for less than
two weeks, and told Tosti he remained willing to participate in the investigation.

We agree that the evidence does not support the court's conclusion that daily
contact was part of the plea bargain. The discussion of the plea bargain on the record at
the time the plea was entered did not mention cooperation with the police at all:
Appellant's attorney told the court appellant was prepared to plead no contest to the
counts of forgery and possession and the on-bail enhancement, with a maximum
exposure of five years eight months, and the prosecutor agreed to have this sentence
imposed, with execution of sentence suspended, appellant released on supervised "OR"
immediately and then placed on probation, subject to conditions imposed by the court,
and the remaining charges dismissed.

Subsequently, at the hearing on the motion to enforce the plea agreement, the
prosecutor reminded the court that an agreement for appellant to "cooperate" with
Detective Tosti had been discussed between the parties and the court but intentionally
kept off the record. The prosecutor explained: "The Court probably will recall, and I
guess I'm asking for purposes of this hearing the Court take judicial notice of notes in its
file. [Defense counsel] and I met with you in chambers and asked you to place a note in
the file rather than placing it in open court on the record that we were entering into that
agreement. [╢] We asked the Court to note that we were entering into an agreement that
the defendant would work for and cooperate with law enforcement, being Detective Tosti
of the Santa Rosa Police Department, that was understood between the defendant and the
People and his counsel, the defendant's counsel, in return for a sentence of execution of
sentence suspended as well as immediate release on supervised OR."

7

Nothing in the record specifically states that daily contact between appellant and
Tosti was a term of the plea bargain. Both appellant and Tosti testified that appellant was
supposed to be in daily contact with Tosti. But Tosti's testimony suggests that this
requirement was imposed after appellant's release, when appellant and Tosti met and
began appellant's undercover work, not as part of the plea negotiations. For all that
appears in the record, the actual plea agreement specified only that appellant was to
"work" and "cooperate" with the police; Tosti then defined one parameter of the "work"
or "cooperation" by imposing the requirement of daily contact.

On this record, the court erred in finding daily contact was a term of the plea
bargain. In effect, the court delegated its discretion over the terms of a plea bargain by
permitting the police to define the specific terms of the agreement after it was entered
and approved by the court. Here, appellant faced a term of five years eight months in
prison if he failed to comply with the plea agreement. He should not face this degree of
sanction for failing to abide by a police officer's directive that was not grounded in the
terms of the plea approved by the court.

Despite this error, however, appellant ignores the larger context. Putting aside the
condition of daily contact, appellant acknowledges that the plea required him to
cooperate with Tosti within a "reasonable" time. Appellant maintains he satisfied this
condition because he was out of contact with Tosti for only 13 days. But appellant did
not voluntarily contact Tosti at this point: Rather, Tosti was present at appellant's arrest
on the domestic violence charge. The trial court was not required to assume appellant
would have contacted Tosti if the arrest had not occurred, nor to believe appellant's
explanations that he had tried unsuccessfully to reach Tosti and that he had been out of
touch because of his uncle's illness and death.

Moreover, appellant ignores the facts that he was involved in an incident of
domestic violence and submitted a positive chemical test for methamphetamine after his
release on May 10. These were unquestionably violations of the conditions of appellant's
release on OR, which justified the court in finding appellant out of compliance with the
terms of the plea bargain.

8

II.

Appellant next argues the court improperly sentenced him to prison without giving
him an opportunity to withdraw his pleas. "Under section 1192.5, if a plea agreement is
accepted by the prosecution and approved by the court, the defendant `cannot be
sentenced on the plea to a punishment more severe than that specified in the plea . . . .'
The statute further provides that if the court subsequently withdraws its approval of the
plea agreement, `the defendant shall be permitted to withdraw his or her plea if he or she
desires to do so.' (з 1192.5; People v. Johnson (1974) 10 Cal. 3d 868, 872.)" (People v.
Masloski (2001) 25 Cal.4th 1212, 1217.) When a plea bargain is violated, " `[t]he usual
remedies . . . are to allow the defendant to withdraw the plea and go to trial on the
original charges, or to specifically enforce the plea bargain . . . .' " (People v. Walker
(1991) 54 Cal.3d 1013, 1026-1027, quoting People v. Mancheno (1982) 32 Cal.3d 855,
860-861; In re Jermaine B. (1999) 69 Cal.App.4th 634, 639.)

In arguing he should have been given an opportunity to withdraw his plea,
appellant points in particular to cases in which a defendant "breached the [plea]
agreement by failing to appear for sentencing" or made misrepresentations in negotiating
the plea such that specific enforcement was precluded. In People v. Cruz (1988)
44 Cal.3d 1247, the defendant entered into a plea bargain, was released on bail, then
failed to appear for sentencing. When he was apprehended and sentenced, the court
refused to adhere to the sentence specified in the plea bargain or to allow the defendant to
withdraw his plea. Cruz held the defendant's failure to appear for sentencing was not a
breach of the plea agreement but rather a separate offense upon which the defendant was
entitled to trial. Accordingly, the trial court's determination not to follow the terms of the
plea bargain required that the defendant be given an opportunity to withdraw his plea.
(Id. at pp. 1249, 1253-1254; see People v. Morris (1979) 97 Cal.App.3d 358.) In People
v. Johnson, supra, 10 Cal.3d 868, the defendant pled guilty in exchange for a
misdemeanor sentence and probation. The court subsequently learned that the defendant
had concealed his true name and criminal history during plea negotiations and sentenced
him to prison, contrary to the terms of the plea bargain, without offering him an

9

opportunity to withdraw his plea. Johnson reversed, holding that the provisions of
section 1192.5, requiring that a defendant be given an opportunity to withdraw a plea if
the court withdraws its approval, "makes no exception for defendants who have
committed fraud in negotiating a plea bargain." (Id. at pp. 872-873.) In these cases,
although it was the defendants' conduct that made enforcement of the plea bargains
inappropriate, when the court withdrew its approval of the bargain, the defendants were
entitled to an opportunity to withdraw their pleas.

Respondent relies upon caselaw establishing that "where a defendant granted
probation as part of a plea bargain violates that probation, subsequent sentencing is not
limited by the terms of the original plea." (People v. Martin (1992) 3 Cal.App.4th 482,
487; People v. Hopson (1993) 13 Cal.App.4th 1, 3.) "A consummated plea bargain is not
a perpetual license to a defendant to violate his probation. The plea bargain does not
insulate a defendant from the consequences of his future misconduct. `A defendant gets
the benefit of his bargain only once. Like time, a plea bargain once spent is gone
forever.' (People v. Jones (1982) 128 Cal.App.3d 253, 262.) . . . If a defendant violates
probation he may be sentenced accordingly notwithstanding the terms of any plea
bargain. (People v. Allen (1975) 46 Cal.App.3d 583, 590.)" (People v. Bookasta (1982)
136 Cal.App.3d 296, 299-300.)

Unlike the situation in these cases, appellant was not on probation. His plea
bargain specified that he would be placed on probation in the future, but his failure to
cooperate with the police, and his violations of the conditions of his release, came before
sentencing occurred. Had appellant been sentenced in accordance with the plea bargain
and subsequently violated conditions of his probation, the plea bargain contemplated that
the court would simply order execution of the previously imposed sentence. Contrary to
respondent's characterization, however, this is not what the trial court did. When the
court found appellant had not complied with the bargain, the prison term had not yet been
suspended; appellant had not yet been sentenced at all. The court concluded there had
been a "failure of consideration" for the plea bargain and therefore refused to enforce the
bargain. Although the sentence it ultimately imposed was that specified in the plea

10

bargain, it was imposed only after a full sentencing hearing at which the court considered
arguments for and against probation and weighed aggravating factors.

Appellant's situation was analogous to that of the defendant in People v. Johnson,
supra, 10 Cal.3d 868, who concealed his true name and criminal history during plea
negotiations: The defendant's improper conduct precluded specific enforcement of the
plea bargain, but because the bargain could not be enforced, the defendant had to be
permitted to withdraw his plea. Appellant correctly characterizes the court as having
retracted its approval of the plea bargain. If a court withdraws its approval of a plea
agreement, the defendant must be permitted to withdraw his or her plea if he or she so
desires. (People v. Masloski, supra, 25 Cal.4th at p. 1217.)

Respondent argues that appellant had an opportunity to seek to withdraw his plea
but failed to take advantage of it. At the hearing on November 5, 2002, when the trial
court denied appellant's motion for specific performance of the plea agreement, defense
counsel asked for "some time after sentencing for execution of that sentence," noting that
the defense "may decide that we're gong to make a motion." Asked if appellant wanted a
short continuance to allow him to consider making a motion to withdraw his plea,
counsel indicated appellant "would seek a short continuance and a short turn-in date so
we can make a decision." The matter was continued. On December 19, the sentencing
hearing went forward with no further attempt by the defense to raise the issue of
appellant's plea.

This failure of the defense might well constitute a forfeiture of appellant's rights
for purposes of appeal. In a petition for writ of habeas corpus being considered with this
appeal, however, appellant urges that he was denied effective assistance of counsel
because his attorney failed to advise him of his right to withdraw his plea after the trial
court withdrew its approval of the plea agreement.

"Establishing a claim of ineffective assistance of counsel requires the defendant to
demonstrate (1) counsel's performance was deficient in that it fell below an objective
standard of reasonableness under prevailing professional norms, and (2) counsel's
deficient representation prejudiced the defendant, i.e., there is a `reasonable probability'

11

that, but for counsel's failings, defendant would have obtained a more favorable result.
(Strickland v. Washington (1984) 466 U.S. 668, 687, 694; In re Wilson (1992) 3 Cal.4th
945, 950.) A `reasonable probability' is one that is enough to undermine confidence in
the outcome. (Strickland v. Washington, supra, 466 U.S. at p. 694; In re Jones (1996)
13 Cal.4th 552, 561.)

"Our review is deferential; we make every effort to avoid the distorting effects of
hindsight and to evaluate counsel's conduct from counsel's perspective at the time. (In re
Jones, supra, 13 Cal.4th at p. 561.) A court must indulge a strong presumption that
counsel's acts were within the wide range of reasonable professional assistance.
(Strickland v. Washington, supra, 466 U.S. at p. 689.) Thus, a defendant must overcome
the presumption that the challenged action might be considered sound trial strategy under
the circumstances. (Ibid.) Nevertheless, deference is not abdication; it cannot shield
counsel's performance from meaningful scrutiny or automatically validate challenged
acts and omissions. (In re Jones, supra, 13 Cal.4th at pp. 561-562.)" (People v. Dennis
(1998) 17 Cal.4th 468, 540-541.)

Respondent, viewing appellant's claim as "frivolous," contends the record
establishes that defense counsel discussed with appellant the option of withdrawing his
plea and appellant specifically rejected it. Respondent correctly notes that defense
counsel, at the November 5 hearing, acknowledged the possibility that appellant could
seek to withdraw his plea if the trial court refused to specifically enforce the plea
bargain.3 Counsel stated, "at that point my client could at least request permission to
withdraw his plea. It's my understanding at this point that that's not his intent or

3 This subject was initially raised by the prosecutor, who stated that if the court
found appellant had not complied with the plea agreement, the prosecution would be able
to withdraw from the agreement and the defendant would be "back to square one." The
court's opinion was that if appellant had complied with the agreement, sentencing would
be in accordance with the agreement; if appellant had not, sentencing would not be bound
by the terms of the agreement. The prosecutor stated that in the latter case, "[i]f the
defendant was at that point going to make any particular motions, then the Court could
consider the motions or not."

12

desire . . . . But I don't think that it's his intent--his desire to withdraw his plea, although
that may change. But his desire was to have the Court enforce the agreement which he
thinks that he's complied with." After the court found the plea agreement could not be
enforced because appellant had not substantially complied with it, defense counsel
requested "some time after sentencing for execution of that sentence, him to be given a
turn-in date. We may decide that we're going to make a motion." Asked if appellant was
seeking a continuance to consider making a motion to withdraw his plea, counsel stated,
"probably we would seek a short continuance and a short turn-in date so we can make a
decision. But I don't know if we can consider that at this point." The court then agreed
to a continuance and granted the prosecution's motion to remand appellant into custody.

We disagree with respondent's assertion that this record establishes that appellant
specifically rejected the option of moving to withdraw his plea after discussing the matter
with his attorney. Defense counsel's statements at the November 5 hearing reflect his
understanding of appellant's position going into the hearing--that is, before the court
denied appellant's motion to specifically enforce the plea. Counsel stated that appellant
had thus far not wanted to withdraw his plea but noted that this could change and
requested a continuance in part to consider making a motion to withdraw the plea. Quite
clearly, this hearing concluded with the expectation that the defense would consider
whether appellant should move to withdraw his plea. While respondent's assumption
that counsel discussed the option with appellant is plausible enough, nothing in the record
demonstrates that he in fact did so. Rather, appellant states in a declaration that his
appointed attorney never told him he could move to withdraw his no contest pleas or that
such a motion would likely have been granted. He further states that if he had known he
could withdraw his pleas once the trial court refused to specifically enforce the plea
bargain, he would have done so. Appellant additionally submits the declaration of his
appellate attorney, who states that he spoke with the attorney who represented appellant
on his motion for specific performance and on sentencing and that attorney said he did
not discuss with appellant the option of seeking to withdraw his plea.

13

We review the petition to determine whether, if the petition's factual allegations
are true, appellant would be entitled to relief. (People v. Duvall (1995) 9 Cal.4th 464,
474-475.) As discussed above, the trial court in the present case did not impose a
previously suspended sentence, but rather refused to enforce the plea bargain. In this
situation, appellant was entitled to an opportunity to withdraw his plea. (People v.
Masloski, supra, 25 Cal.4th at p. 1217.) If, as he claims, his failure to take advantage of
this opportunity was due to his attorney's failure to inform him of it, he would appear to
have a meritorious claim for ineffectiveness of counsel. Appellant was entitled to be
informed of his right to move to withdraw his plea, so that he could make an informed
decision whether to do so. It is difficult to conceive of a tactical reason for adhering to
the plea. Appellant pled no contest to felony counts of possession of a forged check and
possession of methamphetamine, and admitted having committed the latter offense while
on bail. As part of the plea bargain, two felony counts--commercial burglary and
attempted petty theft--and two misdemeanor counts were dismissed. The sentence
appellant could have received if he had been tried and convicted on all counts, however,
would not likely have been greater than the aggravated sentence he in fact received, since
the two dismissed felony counts appear to have been based on the same conduct and
therefore would not be punished separately (Pen. Code, з 654). In light of appellant's
declaration that his attorney did not inform him that he could move to withdraw his plea,
and that he would have so moved if he had been informed, appellant has established a
prima facie case of ineffective assistance of counsel. Accordingly, an order to show
cause shall issue, returnable in the Superior Court of Sonoma County, requiring the
Department of Corrections to show cause why the relief granted in the petition should not
be granted.
III.

In a supplemental brief, appellant argues the trial court violated his constitutional
rights under Blakely v. Washington (2004) ___ U.S. ___, 124 S.Ct. 2531 (Blakely), by
sentencing him to an aggravated term based upon factors not found by a jury beyond a

14

reasonable doubt. We consider this issue as it will be relevant if appellant's petition for
habeas corpus is denied.

We recently considered the application of Blakely to the California determinate
sentencing scheme in People v. Butler (Butler) (Sept. 27, 2004, A101799)
___Cal.App.4th ___ [2004 DJDAR 12083]. We explained, "In Blakely, the [United
States] Supreme Court held that a Washington State court denied a criminal defendant his
constitutional right to a jury trial by increasing the defendant's sentence for second-
degree kidnapping from the `standard range' of 49 to 53 months to 90 months based upon
the trial court's finding that the defendant acted with `deliberate cruelty.' (Blakely,
supra, 124 S.Ct. at p. 2537.) The Blakely court found that the state court violated the rule
previously announced in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi),
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." ' (Blakely, supra, 124 S.Ct. at p. 2536.)" (Butler, supra,
___ Cal.App.4th ___ [2004 DJDAR at p. 12088].)

"Under California's determinate sentencing law, the maximum sentence a judge
may impose for a conviction without making any additional findings is the middle term.
Penal Code section 1170, subdivision (b), states that `the court shall order imposition of
the middle term, unless there are circumstances in aggravation or mitigation of the
crime.' Furthermore, [Cal. Rules of Court,] rule 4.420(b), states that `[s]election of the
upper term is justified only if, after a consideration of all the relevant facts, the
circumstances in aggravation outweigh the circumstances in mitigation.' " (Butler,
supra, ___ Cal.App.4th ___ [2004 DJDAR at p. 12088].)
As
in
Butler, the People here contend that California's sentencing system does not
violate Blakely, as the Legislature has prescribed three terms of imprisonment for each
offense and the choice between these terms is validly left to the trial court's discretion.
In the People's view, where the Legislature has established a maximum offense-specific
penalty, Blakely is not implicated as long as the defendant's sentence does not exceed
that maximum. This position, however, "is flatly contradicted by the Supreme Court's

15

holding that the statutory maximum is `not the maximum sentence a judge may impose
after finding additional facts,' but rather the sentence it may impose without making any
additional findings. (Blakely, supra, 124 S.Ct. at p. 2537.) Under California law, the
maximum sentence a judge may impose without any additional findings is the middle
term. (Pen. Code, з 1170, subd. (b); [Cal. Rules of Court,] rule 4.420.)" (Butler, supra,
___ Cal.App.4th ___ [2004 DJDAR at pp. 12088-12089].)

Also as in Butler, we reject the People's contention that appellant forfeited his
right to claim Blakely error by failing to raise this issue in the trial court. "Because of the
constitutional implications of the error at issue, we question whether the forfeiture
doctrine applies at all. (See People v. Vera (1997) 15 Cal.4th 269, 276-277 [claims
asserting deprivation of certain fundamental, constitutional rights not forfeited by failure
to object].) Furthermore, there is a general exception to this rule where an objection
would have been futile. (People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648, and
authority discussed therein.) We have no doubt that, at the time of the sentencing hearing
in this case, an objection that the jury rather than the trial court must find aggravating
facts would have been futile. (See Pen. Code, з 1170, subd. (b); rules 4.409 & 4.420-
4.421.) In any event, we have discretion to consider issues that have not been formally
preserved for review. (See 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000)
Reversible Error, з 36, p. 497.) Since the purpose of the forfeiture doctrine is to
`encourage a defendant to bring any errors to the trial court's attention so the court may
correct or avoid the errors,' (People v. Marchand (2002) 98 Cal.App.4th 1056, 1060), we
find it particularly inappropriate to invoke that doctrine here in light of the fact that
Blakely was decided after defendant was sentenced.[4]" (Butler, supra, ___ Cal.App.4th
___ [2004 DJDAR at p. 12089].)

4 "We are not persuaded otherwise by the People's misleading references to two
federal cases which, they contend, characterize Apprendi claims that were not raised in
the trial court as forfeited notwithstanding the fact that Apprendi was decided while the
cases were on appeal. (See United States v. Cotton (2002) 535 U.S. 625; United States v.
Ameline (2004) 376 F.3d 967.) As these cases illustrate, under federal appellate
procedure, characterizing a claim as forfeited does not mean that the claim may not be

16

The trial court based its decision to impose an upper term sentence on several
factors: The crime was carried out in a manner that indicated planning, as appellant went
twice to the same place to try to cash the fraudulent check (Cal. Rules of Court, rule
4.421(a)(8); appellant previously had engaged in violent conduct indicating he was a
serious danger to society (rule 4.421(b)(1); appellant's prior convictions as an adult and
sustained petitions as a juvenile were numerous (rule 4.421(b)(2)); and appellant's prior
performance on probation was unsatisfactory (rule 4.421(b)(5)). Appellant contends all
of these are factors which, under Blakely, must be found by a jury beyond a reasonable
doubt if not admitted by the defendant.

Appellant is clearly correct as to two of the aggravating factors relied upon by the
court: The determinations that the offense was carried out in a manner indicating
planning and that appellant had previously engaged in violent conduct indicating he was
a serious danger to society required factual findings beyond those "reflected in the jury
verdict or admitted by the defendant." (Blakely, supra, 124 S.Ct. at p. 2537, italics
omitted.)

The remaining two factors relied upon here--that appellant's prior convictions or
sustained juvenile petitions were numerous and that appellant's prior performance on
probation was unsatisfactory--pertain to appellant's recidivist status. "The requirement
that a fact which increases a sentence beyond the statutory maximum must be found by a
jury does not apply to the fact of a prior conviction. (Almendarez-Torres v. United States
(1998) 523 U.S. 224; Apprendi, supra, 530 U.S. at pp. 488, 490; Blakely, supra,
124 S.Ct. at p. 2536.) This prior conviction exception to the Apprendi rule has been
construed broadly to apply not just to the fact of the prior conviction, but to other issues
relating to the defendant's recidivism. (See, e.g., People v. Thomas (2001)
91 Cal.App.4th 212, 216-223.)" (Butler, supra, ___ Cal.App.4th ___ [2004 DJDAR at
p. 12089].) We are not persuaded, however, that the two findings at issue here fall within

reviewed on appeal. Rather, such a claim is reviewed for plain error. (Ibid.)" (Butler,
supra, ___ Cal.App.4th ___ [2004 DJDAR at p. 12089, fn. 7].)

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the "narrow exception" carved out by the Supreme Court. (Apprendi, at p. 490
[characterizing Almendarez-Torrez as a "narrow exception" arising from "unique facts"].)
In some cases, extrinsic facts relating to a recidivist aggravating circumstance may
implicate Apprendi, and the subjective factors involved in finding these two recidivist
circumstances appear to involve such extrinsic facts. Although clearly stemming from
the fact of a prior conviction or convictions, each of these two aggravating factor requires
additional findings which are not only factual, but subjective--that the prior convictions
were "numerous" and that appellant's performance on probation was "unsatisfactory."
These additional facts appear to us to require a jury determination and proof beyond a
reasonable doubt.
Since
the
Blakely court rested its holding on Apprendi, we measure the prejudice
resulting from Blakely error by the Chapman standard of prejudice applicable to
Apprendi. (Butler, supra, ___ Cal.App.4th ___ [2004 DJDAR at p. 12089], citing People
v. Sengpadychith (2001) 26 Cal.4th 316, 326.) Under this test, we are required to reverse
unless the error is harmless beyond a reasonable doubt. (Chapman v. California (1967)
386 U.S. 18, 24.)

We cannot find harmless error under this standard, because no jury considered--
and appellant did not admit--the factual issues underlying the aggravating factors upon
which the court relied. Moreover, the sentence could not stand even if the trial court's
reliance upon appellant's history of prior convictions and prior performance on probation
was proper. "In order to determine whether error by the trial court in relying upon
improper factors in aggravation requires remanding for resentencing `the reviewing court
must determine if "it is reasonably probable that a result more favorable to the appealing
party would have been reached in the absence of the error." (People v. Watson [(1956)]
46 Cal.2d [818, 836].)' [Citation.] However, `[t]he statutory preference for imposition of
the middle term, when coupled with the requirement that aggravating circumstances must
outweigh mitigating circumstances before imposition of the aggravated term is proper,
creates a presumption.' [Citation.] Thus, the reviewing court may not simply ask
whether the imposed sentence would be `wholly unsupported or arbitrary in the absence

18

of error' but must also reverse where it cannot determine whether the improper factor was
determinative for the sentencing court. [Citation.]" (People v. Avalos (1984) 37 Cal.3d
216, 233.)

Although under California law a single factor in aggravation is sufficient to
support imposition of an upper term sentence (People v. Osband (1996) 13 Cal.4th 622,
728; People v. Cruz (1995) 38 Cal.App.4th 427, 433; see also People v. Kelley (1997)
52 Cal.App.4th 568, 581; People v. Piceno (1987) 195 Cal.App.3d 1353, 1360; People v.
Lamb (1988) 206 Cal.App.3d 397, 401), the record in this case does not permit us to
conclude the court would have imposed the aggravated term based upon any one or more
of these factors, without the others. The transcript of the sentencing hearing
demonstrates that the court thought long and hard about whether to impose a prison
sentence at all rather than placing appellant on probation in order to permit him to
participate in a rehabilitation program. At the conclusion of the first phase of the
sentencing hearing, the court commented that "this matter presents a very difficult
dilemma for the Court. You have two prior felonies which means that I have to find
unusual factors [in order to grant probation]. [╢] You've got a history that would tell the
Court you can't or won't comply with probation. [╢] You've expressed to the Court a
very sincere deep-rooted fear of going to prison, which is a--probably a very strong
motivating factor, and I'm trying to balance all of these things." The court then put off a
decision until the next day, explaining that "there's very strong arguments on both sides
of this one, and I've had many, many discussions, but there's a lot of information here.
And I just . . . want some more time to review everything very carefully because I know
the impact this is going to have on your life." The next day, the court explained that after
reviewing the reports, it questioned appellant's seriousness about participating in a
treatment program and therefore could not find unusual circumstances permitting a grant
of probation. The court then imposed the aggravated term as described above. On this
record, we cannot determine what sentence the court would have imposed if some of the
aggravating factors it cited were not valid under Blakely, supra, 124 S. Ct.. 2531. The
matter must be remanded for resentencing.

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The matter is remanded to the trial court with instructions that appellant be
permitted to withdraw his no contest plea if he moves to do so within 30 days of the date
the remittitur is filed in the superior court. (See People v. Cruz, supra, 44 Cal.3d at
p. 1254.) If he does so move, the prosecution shall be given the opportunity to reinstate
the charges dismissed as part of the plea bargain. (See People v. Gentry (1992)
7 Cal.App.4th 1255, 1268-1269.) If appellant does not so move, the court shall
reconsider appellant's sentence in accordance with the views expressed herein.

_________________________

Kline, P.J.

We concur:

_________________________
Haerle, J.

_________________________
Lambden, J.

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