The California Supreme Court reaffirmed the principals articulated in the landmark case of  Cunningham , supra, by ruling that a defendant was entitled to attack the court’s imposition of the upper term in because, under the circumstances of this case, an express waiver of jury trial on aggravating circumstances was required and no such waiver occurred; and further, that in pleading no contest pursuant to a plea agreement providing for a sentence not to exceed a stipulated maximum and further stipulating to a factual basis for the plea, defendant neither waived his right to a jury trial on aggravating circumstances nor admitted facts that established an aggravating circumstance.  

LESSONS FOR THE UNWARY CRIMINAL DEFENSE LAWYER

The case points out the following lessons for criminal defense attorneys:

1. A waiver of trial rights on aggravating factors should NEVER be given at the time that defendant enters a plea of guilty or not contest unless clearly bargained for in a plea-agreement AND expressly waived in open court with a fully informed and knowing understanding of what is being waived.

2. Carefully consider the factual basis for the plea together with any judicial admission made on behalf of or by the criminal defendant; these words will come back to bite. The attorney must guard against unnecessarily having the client admit to the existence of any aggravating factor, either generally or specifically. 

 3. Cases that proceed to a jury trial will require careful consideration of what aggravating and mitigating factors should be specifically put forward to the jury for their determination; special verdict forms must be crafted depending on the dictates on the case together with tactical considerations.

In this way, an attorney can possibly protect their client against the prosecutor reaching the maximum sentence.  

The court began by noting that in Cunningham, 549 U.S. ____ [127 S.Ct. 856]  the high court held that California’s determinate sentencing law (DSL) violates a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by assigning to the trial judge, rather than the jury, the authority to make the factual findings that subject a defendant to the possibility of an upper term sentence

In the case before the California Court, the trial court sentenced defendant to the upper term of eight years on one charge and one-third of the six-year midterm on each of the other five charges (child molestation), with all terms to be served consecutively, for a total term of 18 years.  The trial court selected the upper term because “[d]efendant took advantage of a position of trust and confidence to commit the crime pursuant to Rule 4.421(a)(11),” and imposed consecutive terms because the crimes were committed on different occasions or at separate locations.  (Cal. Rules of Court, rule 4.425(a)(3).)

At the time that defendant entered his plea of no contest, he expressly waived his right to a jury trial on the substantive offenses, but this waiver did not encompass his right to a jury trial on any aggravating circumstances. Moreover, the defendant did not admit to the existence of any aggravating factor, either generally or specifically.

Decisions of the United States Supreme Court acknowledge that a defendant’s sentence may be increased above the statutory maximum based upon “ ‘facts . . . admitted by the defendant.’ ”  (Cunningham, supra, 127 S.Ct. at p. 865, quoting Blakely, supra, 542 U.S. at p. 303.)  As discussed above, defendant’s plea of no contest constituted an admission to the elements of the charged offenses only, and not to any additional aggravating circumstances.  The Attorney General argued, that defendant’s stipulation to the factual basis for the plea as described by the prosecutor constituted an admission to the aggravating circumstance that defendant took advantage of a position of trust in committing the offense.  The court concluded otherwise.     

As I predicted, the California Supreme Court expanded the definition of robbery. The facts as stated by the Court involve the “defendant seized property from the victim’s business while the victim was not present. The victim arrived on the scene before defendant departed and followed him as he was leaving. As the victim followed, defendant shot at him. Did defendant commit a robbery? Yes.”

The Court began by restating the definition of robbery. Section 211 defines robbery as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” Robbery is, therefore, a species of aggravated larceny. Theft by larceny may be committed without force or the threat of violence and may be completed without the victim ever being present. (See § 484, subd. (a).) To elevate larceny to robbery, the taking must be accomplished by force or fear and the property must be taken from the victim or in his presence.In robbery, the elements of larceny are intertwined with the aggravating elements to make up the more serious offense. The issue here is the temporal point at which the elements must come together. The answer lies in the fact that robbery, like larceny, is a continuing offense. All the elements must be satisfied before the crime is completed.