Supreme Court of California Justia
Citation 43 Cal. 4th 36, 178 P.3d 1100, 73 Cal. Rptr. 3d 605

People v. French

Filed 3/27/08

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S148845
v.
Ct.App. 3 C050785
WESLEY DAVID FRENCH,
) Sacramento
County
Defendant and Appellant.
Super. Ct. No. 02F07203

Defendant pleaded no contest to six counts of lewd and lascivious conduct
with a child (Pen. Code, § 288, subd. (a))1 pursuant to a plea agreement under
which six additional counts alleging that offense, as well as a sentencing
enhancement allegation (§ 667.61, subd. (b)), were dismissed. The trial court
sentenced him to the upper term of eight years on one count and one-third the
middle term on the other five counts, for a total sentence of 18 years, the
maximum term available under the plea agreement. Defendant contends
imposition of the upper term violated his Sixth Amendment right to a jury trial as
established in Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856]

1
All further statutory references are to the Penal Code unless otherwise
indicated.


(Cunningham). We granted review to address issues involving the application of
Cunningham to cases in which the defendant has pleaded guilty or no contest.
After defendant’s plea was entered, but before he was sentenced, the United
States Supreme Court issued its decision in Blakely v. Washington (2004) 542
U.S. 296 (Blakely), holding that a criminal defendant’s Sixth Amendment right to
jury trial was violated in a case in which a Washington State trial court imposed
“an exceptional sentence” beyond the “standard range” under Washington’s
sentencing reform act, based upon facts neither proved to a jury beyond a
reasonable doubt, nor admitted by the defendant. (Blakely, at pp. 303-304.)
Subsequently, we concluded that Blakely did not apply to California’s determinate
sentencing law. (People v. Black (2005) 35 Cal.4th 1238 (Black I).) We held 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 I, supra, 35 Cal.4th at p. 1244.)
On appeal, defendant claimed that the upper term here was imposed in violation of
his Sixth Amendment rights. The Court of Appeal rejected that contention,
relying upon our decision in Black I. The appellate court also concluded that
“[w]here, as here, a defendant agrees [as part of a plea agreement] that the court
has the authority to sentence that defendant to an upper term, he is deemed to have
admitted that his conduct, as a matter of fact, can support that term.”
While defendant’s petition for review was pending in this court, the United
States Supreme Court issued its decision in Cunningham, supra, 549 U.S. ____
[127 S.Ct. 856]. As we recently explained in People v. Black (2007) 41 Cal.4th
799 (Black II), the high court disagreed with our decision in Black I and “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,
2
the authority to make the factual findings that subject a defendant to the possibility
of an upper term sentence.” (Black II, at p. 805.) We conclude that (1) defendant
was not required to obtain a certificate of probable cause in order to raise his claim
of Cunningham error on appeal, because that claim implicates his sentence only
and does not constitute a challenge to the plea agreement; (2) defendant did not
forfeit his Cunningham claim by failing to raise it in the trial court because, under
the circumstances of this case, an express waiver of jury trial on aggravating
circumstances was required and no such waiver occurred; (3) 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; and (4) imposition of
the upper term sentence violated defendant’s Sixth Amendment right to a jury
trial, and the constitutional error was not harmless beyond a reasonable doubt.
I.
Defendant was charged with 12 counts of lewd and lascivious conduct with
a child under the age of 14 years, involving three victims. That offense is
punishable by imprisonment for a term of three, six, or eight years. (§ 288, subd.
(a).) The information alleged that defendant committed the offenses against more
than one victim, within the meaning of section 667.61, subdivisions (b) and (e), an
allegation which, if found true, would increase the punishment for each offense to
a term of imprisonment of 15 years to life.
On June 8, 2004, defendant pleaded no contest to six of these counts, under
an agreement whereby he would receive a sentence of no more than 18 years in
prison and the remaining six counts and the section 667.61 allegation would be
dismissed. At the hearing at which defendant’s plea was entered, the prosecutor
stated that the maximum sentence defendant could receive were he to be convicted
3
on all 12 counts was imprisonment for 180 years to life. The court explained that
if defendant accepted the prosecutor’s offer the sentence would not exceed 18
years “under any circumstances,” and that the prosecution was recommending that
the full 18-year term be imposed. Defense counsel stated he had explained to
defendant the elements of the charged offenses, the possible defenses he might
have, and the consequences of the plea. Defendant pleaded no contest to counts
1 and 2 (involving victim Brandon B.), counts 9 and 10 (involving victim
Brittany P.), and counts 11 and 12 (involving victim Zachary L.).
The prosecutor set forth the factual basis for the plea by briefly describing
the acts underlying these six counts. When the court inquired of defense counsel
whether he believed there was a sufficient factual basis for the plea, counsel
stated, “I believe the People have witnesses lined up for this trial that will support
what the D.A. read in terms of the factual basis . . . .” The court informed
defendant that the alternate sentences provided for these offenses are three, six, or
eight years and that the court had agreed to a sentence of no more than 18 years.
Defendant said he understood. After the court inquired whether defendant also
understood and waived his right to a speedy and public jury trial defendant, after
consulting with counsel, said he did. The court explained, and the defendant
relinquished, his rights to cross-examine witnesses, to remain silent, and to present
a defense. The court accepted defendant’s plea of no contest and found defendant
guilty on the six counts to which he had entered that plea.
A presentence report, based upon police reports, indicated that the victims
had been charges at an in-home daycare center run by defendant’s daughter, whom
defendant sometimes assisted in the operation of the center. When interviewed by
the probation officer who prepared the report, defendant denied committing the
offenses. Defendant’s only prior criminal convictions were two misdemeanor
4
offenses for which he had been placed on three years’ probation, a condition of
which was that he serve 50 days in county jail.
The presentence report identified three circumstances in aggravation: the
manner in which the offenses were carried out indicated planning (Cal. Rules of
Court, rule 4.421(a)(8)); defendant took advantage of a position of trust or
confidence (id., rule 4.421(a)(11); and the crime involved multiple acts against
multiple victims (id., rule 4.408). The report identified one circumstance in
mitigation: defendant’s prior record did not involve significant criminal conduct.
(Id., rule 4.423(b)(1).)
At the sentencing hearing, defendant’s wife testified on his behalf and a
number of defendant’s friends submitted letters that were read and considered by
the trial court. The mother of victim Brandon B. made a statement explaining the
impact of the offenses upon her son. The district attorney asked the court to
impose a sentence of 18 years, based upon the circumstances of the offenses,
including what was related in the statement of Brandon’s mother. The trial court
sentenced defendant to the upper term of eight years on count 1 (involving
Brandon B.) and one-third of the six-year midterm on each of the other five
counts, 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).)
5
II.
A. Certificate of Probable Cause
The Attorney General contends this appeal must be dismissed because the
trial court did not issue a certificate of probable cause for appeal. Such a
certificate was not required.
Section 1237.5 provides that an appeal may not be taken after a plea of
guilty or no contest unless the defendant has filed a statement showing reasonable
grounds for appeal and the trial court has executed and filed a certificate of
probable cause. This requirement does not apply, however, if the appeal is based
upon grounds that arose after entry of the plea and that do not affect the validity of
the plea. (Cal. Rules of Court, rule 8.304(b)(4)(B).) In People v. Panizzon (1996)
13 Cal.4th 68 (Panizzon), we held that a certificate of probable cause was required
in a case in which the defendant claimed on appeal that his negotiated sentence
constituted cruel and unusual punishment. In Panizzon, the defendant had agreed
to plead no contest to certain charges, and further agreed to a sentence of life
imprisonment with the possibility of parole plus 12 years, in exchange for the
dismissal of additional charges. On appeal, the defendant asserted that this
sentence violated state and federal prohibitions against cruel and unusual
punishment, but the Attorney General argued that the appeal should be dismissed
because the defendant had not complied with the requirements of section 1237.5.
We explained: “In determining whether section 1237.5 applies to a
challenge of a sentence imposed after a plea of guilty or no contest, courts must
look to the substance of the appeal: ‘the crucial issue is what the defendant is
challenging, not the time or manner in which the challenge is made.’ [Citation.]
Hence, the critical inquiry is whether a challenge to the sentence is in substance a
challenge to the validity of the plea, thus rendering the appeal subject to the
requirements of section 1237.5.” (Panizzon, supra, 13 Cal.4th at p. 76.) Although
6
the defendant in Panizzon purported not to contest the validity of his negotiated
plea, we concluded that his challenge to the sentence to which he had agreed was
an attack upon “an integral part of the plea” and “in substance, a challenge to the
validity of the plea, which requires compliance with the probable cause certificate
requirements of section 1237.5 and rule [8.304(b)].” (Panizzon, supra, 13 Cal. 4th
at p. 73.)
In People v. Shelton (2006) 37 Cal.4th 759 (Shelton), we held that a
defendant’s claim — that the sentence imposed by the trial court, which was
within the agreed-upon maximum term, violated the multiple punishment
prohibition of section 654 — constituted an attack upon the validity of the plea
and required a certificate of probable cause. The defendant in Shelton had pleaded
guilty to two of the charged counts and agreed to a maximum sentence of three
years eight months in exchange for dismissal of three other counts, reserving the
right to argue for a sentence lower than the maximum but not reserving the right to
argue that the agreed-upon maximum was an unauthorized sentence. The trial
court sentenced the defendant to the maximum term of three years eight months,
imposing the upper term on one count and a consecutive term on the other count.
In challenging his sentence pursuant to section 654, the defendant argued that the
trial court lacked authority to impose the agreed-upon maximum term. We
explained that “inclusion of a sentence lid [in a plea agreement] implies a mutual
understanding and agreement that the trial court has authority to impose the
specified maximum sentence and preserves only the defendant’s right to urge that
the trial court should or must exercise its discretion in favor of a shorter term.
Accordingly, a challenge to the trial court’s authority to impose the lid sentence is
a challenge to the validity of the plea requiring a certificate of probable cause.”
(37 Cal.4th at p. 763.)
7
On the other hand, we have held that the certificate requirement does not
apply when the defendant “assert[s] only that errors occurred in the . . . adversary
hearings conducted by the trial court for the purpose of determining the degree of
the crime and the penalty to be imposed.” (People v. Ward (1967) 66 Cal.2d 571,
574.) Accordingly, “a certificate of probable cause is not required to challenge the
exercise of individualized sentencing discretion within an agreed maximum
sentence. Such an agreement, by its nature, contemplates that the court will
choose from among a range of permissible sentences within the maximum, and
that abuses of this discretionary sentencing authority will be reviewable on appeal,
as they would otherwise be. Accordingly, such appellate claims do not constitute
an attack on the validity of the plea, for which a certificate is necessary.”
(People v. Buttram (2003) 30 Cal.4th 773, 790-791.)
A certificate of probable cause is not required in the present case, because
defendant’s claim does not constitute an attack upon the validity of the plea
agreement. In contrast to a case in which the maximum term under the plea
agreement would be unlawful under section 654, the Sixth Amendment would not
render an upper term unlawful for defendant’s crimes under all circumstances.
Whether an upper term sentence was permissible for defendant’s offenses depended
upon whether aggravating factors were established at the sentencing hearing, and not
upon the facts of the offenses themselves. Even without a jury trial on aggravating
circumstances, the upper term would have been authorized if the prosecution had
established an aggravating factor at the sentencing hearing based upon defendant’s
prior convictions or upon his admissions. (See People v. Sandoval (2007) 41 Cal.4th
825, 836-837 (Sandoval).) Defendant’s claim is that the upper term was not
authorized because the prosecution failed to establish an aggravating circumstance at
the sentencing hearing in the manner required by the Sixth Amendment. Such a
claim does not affect the validity of the plea agreement.
8
Furthermore, we held in Sandoval, supra, 41 Cal.4th at pages 845-852, that
a defendant who has established prejudicial Sixth Amendment error under
Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856], is entitled to be resentenced
under a scheme in which the trial court has full discretion to impose the upper,
middle, or lower term, unconstrained by the requirement that the upper term may
not be imposed unless an aggravating circumstance is established. Under our
holding in Sandoval, if a defendant is successful in establishing Cunningham error
on appeal, the trial court is not precluded from imposing the upper term upon
remand for resentencing. The defendant is entitled only to be resentenced under a
constitutional scheme and is afforded the opportunity to attempt to persuade the
trial court to exercise its discretion to impose a lesser sentence. In contrast to the
claims raised in Panizzon and Shelton (Panizzon, supra, 13 Cal.4th 68; Shelton,
supra, 37 Cal.4th 759), defendant’s claim, if successful, would not deprive the
People of the benefit of the plea agreement, because they still would have the
opportunity to convince the trial court that the full 18-year term should be
imposed. Accordingly, defendant is entitled to have his Cunningham claim
addressed on appeal.
B. Forfeiture of Sixth Amendment Claim by Failure to Object
The Attorney General contends that defendant has forfeited his Sixth
Amendment claim because he failed to raise it at the sentencing hearing, which
was conducted two weeks after the United States Supreme Court issued its opinion
in Blakely, supra, 542 U.S. 296. Ordinarily, an appellate court will not consider a
claim of error if an objection could have been, but was not, made in the lower
court. (People v. Saunders (1993) 5 Cal.4th 580, 589-590 (Saunders).) The
reason for this rule is that “[i]t is both unfair and inefficient to permit a claim of
error on appeal that, if timely brought to the attention of the trial court, could have
been easily corrected or avoided.” (People v. Vera (1997) 15 Cal.4th 269, 276
9
(Vera); Saunders, supra, 5 Cal.4th at p. 590.) “[T]he forfeiture rule ensures that
the opposing party is given an opportunity to address the objection, and it prevents
a party from engaging in gamesmanship by choosing not to object, awaiting the
outcome, and then claiming error.” (People v. Kennedy (2005) 36 Cal.4th 595,
612.)
We also have recognized, however, that a “[d]efendant’s failure to object
also would not preclude his asserting on appeal that he was denied his
constitutional right to a jury trial. (Cal. Const., art. I, § 16; People v. Holmes
(1960) 54 Cal.2d 442, 443-444.)” (Saunders, supra, 5 Cal.4th at p. 589, fn. 5.)
Our state Constitution requires that waiver of jury trial in a criminal case be made
“by the consent of both parties expressed in open court by the defendant and the
defendant’s counsel.” (Cal. Const., art. I, § 16.)
The requirement of an express waiver applies to the constitutional right to a
jury trial, but not to jury trial rights that are established only by statute. (Vera,
supra, 15 Cal.4th at p. 278; Saunders, supra, 5 Cal.4th at p. 589, fn. 5.) In Vera,
after the defendant was found guilty of the charged offenses, the trial court, under
the belief that the defendant wished to waive his right to a jury trial on allegations
that he had served prior prison terms, dismissed the jury and decided those
allegations at the subsequent sentencing hearing. We held that the defendant
forfeited his right to a jury trial on those allegations when he failed to object to the
trial court’s dismissal of the jury. We explained that “[t]he right to have a jury
determine the truth of a prior conviction allegation does not flow from the jury
trial provision of article I, section 16 of the California Constitution or the Sixth
Amendment of the United States Constitution. It is derived from statute.” (Vera,
supra, 15 Cal.4th at p. 277.) Therefore, the failure to obtain an express waiver of
the right to a jury trial did not violate the state constitutional mandate that the
waiver of the right to jury trial be made “by the consent of both parties expressed
10
in open court by the defendant and the defendant’s counsel.” (Cal. Const., art. I,
§ 16.)
Although we held in Vera that the defendant had forfeited his statutory
right to a jury trial on prior-prison-term allegations by failing to object, we clearly
implied that an express waiver would have been required if the right to a jury trial
on those allegations had been based upon the state or federal Constitution. (See
Vera, supra, 15 Cal.4th at p. 278.)2 In contrast to the statutory right to a jury trial
at issue in Vera, the jury trial right at issue in the present case is one that is
guaranteed by the federal Constitution. When the constitutional right to jury trial
is involved, we have required an express waiver even in cases in which the
circumstances make it apparent that all involved — the trial court, the prosecutor,
defense counsel, and the defendant — assumed that the defendant had waived or
intended to waive the right to a jury trial. (See, e.g., People v. Ernst (1994) 8
Cal.4th 441 [no valid waiver when counsel stated the defense was prepared to
waive trial by jury and, at a subsequent proceeding, counsel indicated that the right
to a jury had been waived, but defendant never expressly waived that right];
People v. Holmes, supra, 54 Cal.2d at pp. 443-444 [no valid waiver when counsel
informed the court that trial would be by the court, the court explained defendant’s
rights to him, and defendant stated he understood those rights but never said he
waived his right to a jury trial].)3

2
Because we decided Vera before the United States Supreme Court issued
its decision in Apprendi v. New Jersey (2000) 530 U.S. 436 (Apprendi), we
concluded at that time that there was “no Sixth Amendment right to jury trial on
sentence enhancement allegations.” (Vera, supra, 15 Cal.4th at p. 281.)

3
The Attorney General contends that the rule requiring an express waiver of
the right to jury trial applies only to a total failure to provide a jury trial on all the
elements of the offenses and that the right to a jury trial on aggravating
(Footnote continued on next page.)
11


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. The absence
of such an explicit waiver is not surprising. When defendant entered his plea,
Blakely had not yet been decided, and prior to that decision “it was widely
assumed that for the purposes of the rule established in Apprendi, the maximum
term authorized by the jury’s verdict was the upper term.” (Black II, supra, 41
Cal.4th at p. 811.) Defendant pleaded no contest only to the offenses charged and
did not admit any sentencing factors. Defendant’s waiver of jury trial on the
offenses in connection with his no contest plea cannot reasonably be interpreted to
extend to proof of aggravating circumstances when, at the time of the plea, no
right to a jury trial on such circumstances had been recognized. Defendant did not
forfeit his Sixth Amendment right by failing to request a jury trial on the
aggravating circumstances, and his claim must be addressed on the merits.4

(Footnote continued from previous page.)

circumstances may be forfeited without an express waiver. He cites no case that
has so held. To support this argument, the Attorney General relies upon cases
holding that Apprendi or Blakely error is subject to harmless error review. (See
Washington v. Recuenco (2006) 548 U.S. 212 [126 S.Ct. 2546, 2553] (Recuenco);
People v. Sengpadychith (2001) 26 Cal.4th 316, 327.) These cases are inapposite
to the question of whether the error can be forfeited by a defendant’s failure to
object.

4
Under circumstances, like those in the present case, in which the law is in a
state of flux and the scope of the defendant’s Sixth Amendment rights is unclear,
the People are not without means to avoid the risk of error even if the defendant
does not object to imposition of the upper term in the trial court. Any potential
constitutional error arising out of the application of Blakely to the California
sentencing scheme could have been eliminated had the People sought and obtained
(Footnote continued on next page.)
12


C. Establishment of Aggravating Circumstances by Defendant’s Admissions
1.
Plea Agreement
Contrary to the conclusion reached by the Court of Appeal in the present
case, we hold that defendant, by entering into a plea agreement that included the
upper term as the maximum sentence, did not implicitly admit that his conduct
could support that term. The determinate sentencing law contemplates that issues
related to the trial court’s decision whether to impose the upper, middle, or lower
term will be litigated at a posttrial (or postplea) sentencing hearing. (See § 1170,
subd. (b).) The defendant must be provided with notice of potential aggravating
and mitigating circumstances prior to the hearing, by means of the probation
report. (§ 1203.72.) Any statement in aggravation filed by the prosecution, the
victim, or the victim’s family must be submitted four days prior to the hearing.
(§ 1170, subd. (b).) In imposing sentence, the trial court may consider those
documents as well as any additional evidence introduced at the sentencing
hearing. (Id.) A defendant who enters into an agreement to plead guilty or no
contest, with a sentence to be imposed within a specified maximum, reasonably
expects to have the opportunity to litigate any matters related to the trial court’s
choice of sentence — including the existence of aggravating and mitigating
circumstances — at the sentencing hearing.
The trial court in the present case directed the probation department to
prepare a presentence report after defendant entered his plea of no contest. A date
was set for imposition of judgment and sentence, at which time the trial court

(Footnote continued from previous page.)

an explicit waiver of defendant’s right to jury trial on aggravating circumstances
or an admission of aggravating facts.

13


stated it would hear argument by the attorneys as to the appropriate sentence in
this case. The record does not contain any suggestion that either party understood
that defendant, by pleading no contest, thereby admitted any factual issue relevant
to imposition of sentence. In Blakely, the defendant pleaded guilty in the trial
court but the United States Supreme Court concluded that the facts supporting the
exceptional sentence he received were not admitted by his guilty plea, because
under Washington law the reasons used to justify an exceptional sentence must
take into account factors other than those used in computing the standard sentence
range for the offense. (Blakely, supra, 542 U.S. at pp. 303-304.) California law is
analogous to Washington law in that it requires that an aggravating circumstance
be based upon a fact other than an element of the crime. (Cal. Rules of Court, rule
4.420(d).) Although defendant’s no contest plea on six counts constituted an
admission to all the elements of those offenses (see People v. Hoffard (1995) 10
Cal.4th 1170, 1177), it did not constitute an admission to any aggravating
circumstance.
The three cases upon which the Court of Appeal relied to support its
conclusion that defendant’s plea constituted an admission to the existence of
aggravating circumstances do not support that proposition. People v. Hester
(2000) 22 Cal.4th 290, 295, held that a defendant’s acceptance of a plea agreement
that includes a specified sentence constitutes an implicit waiver of his or her right
to contend that the sentence imposed violates section 654. A sentencing
agreement pursuant to which the defendant pleads guilty or no contest with the
understanding that he or she will receive a sentence within an agreed-upon
maximum term, by contrast, “contemplates that the court will choose from among
a range of permissible sentences within the maximum . . . .” (People v. Buttram,
supra, 30 Cal.4th at pp. 790-791.) In the present case, defendant did not agree that
a specified sentence would be imposed; his plea agreement contemplated that the
14
trial court would have discretion to impose any appropriate sentence up to the
maximum of 18 years imprisonment. Our decision in People v. Thomas (1986)
41 Cal.3d 837, 842-843, held that the defendant’s admission he previously had
been convicted of a serious felony (burglary) was legally sufficient even without a
specific admission of the facts that would render the burglary conviction a serious
felony (such as burglary of a residence, inflicting great bodily injury, or use of a
firearm or deadly weapon). Thomas establishes that a defendant’s admission of an
alleged enhancement is valid even if it does not include specific admissions of
every factual element required to establish the enhancement. The present case is
distinguishable because defendant did not admit to the existence of any
aggravating factor, either generally or specifically. Finally, People v. Hoffard,
supra, 10 Cal.4th at pages 1181-1182, is not on point. That case held merely that
the trial court has no duty to inquire into the factual basis of a guilty plea when the
defendant pleads guilty to the charged offenses unconditionally, as opposed to
when the plea is entered pursuant to a plea agreement.
2.
Stipulation to Factual Basis
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 contends, however, 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. We disagree.
15
Before accepting a guilty or no contest plea pursuant to a plea agreement in
a felony case, the trial court is required to determine that a factual basis for the
plea exists. (§ 1192.5; People v. Holmes (2004) 32 Cal.4th 432, 440-442.) “The
purpose of the requirement is to protect against the situation where the defendant,
although he realizes what he has done, is not sufficiently skilled in law to
recognize that his acts do not constitute the offense with which he is charged.
[Citation.] Inquiry into the factual basis for the plea ensures that the defendant
actually committed a crime at least as serious as the one to which he is willing to
plead.” (People v. Watts (1977) 67 Cal.App.3d 173, 178.) A defendant is not
required to personally admit the truth of the factual basis of the plea, which may
be established by defense counsel’s stipulation to a particular document, such as a
police report or a preliminary hearing transcript. (People v. Holmes, supra, 32
Cal.4th at p. 436.)
The factual basis as stated by the prosecutor does not clearly establish an
aggravating circumstance in the present case. The prosecutor indicated that
defendant committed the offenses against Brandon B.— including the count on
which defendant received the upper term sentence — when he took the victim to a
bathroom located in a park. The prosecutor did not state that Brandon B. had been
entrusted to defendant’s care. The prosecutor did state regarding victim Zachary
L. that the offenses occurred “while Zachary was in [defendant’s] daughter’s care
at the daycare,” but defendant did not receive an upper term sentence on the
counts involving Zachary L. and, in any event, the prosecutor did not specify what
defendant’s role was in relation to his daughter’s daycare operation.
Furthermore, nothing in the record indicates that defendant, either
personally or through his counsel, admitted the truth of the facts as recited by the
prosecutor. Defense counsel stated that he had discussed the facts of the case at
length with defendant and that he had allowed defendant to view a portion of the
16
tapes of interviews of the victims, which had been provided to the defense in
discovery. As noted earlier, when asked by the trial court whether he believed
there was a sufficient factual basis for the no contest pleas, defense counsel stated,
“I believe the People have witnesses lined up for this trial that will support what
the D.A. read in terms of the factual basis, and that’s what they’ll testify to.”
Indeed, counsel was careful to state that he agreed that witnesses would testify to
the facts as recited by the prosecutor; he did not stipulate that the prosecutor’s
statements were correct. Under the circumstances of this case, defense counsel’s
stipulation to the factual basis cannot reasonably be construed as an admission by
the defendant sufficient to satisfy the Sixth Amendment requirements established
in Cunningham, supra, 127 S.Ct. 856.5
The Attorney General contends that People v. Wallace (2004) 33 Cal.4th
738, 749-750, stands for the proposition that a defendant who has pleaded guilty
or no contest may not contest the version of events presented in the factual basis
recited for the plea. In Wallace, a magistrate dismissed a charge of willful
discharge of a firearm after the preliminary hearing, finding the evidence was
insufficient. Subsequently, the charge was refiled and the defendant pleaded no
contest. In a later prosecution, the defendant’s prior conviction for discharging a
firearm was alleged as a strike under the “Three Strikes” law. The trial court

5
Defendant also contends that a defendant’s admission cannot be used to
establish an aggravating circumstance under Blakely and Cunningham unless the
defendant knowingly, voluntarily, and intelligently waives his or her right to a jury
trial on the facts admitted. Cases from several other jurisdictions have so held.
(See, e.g., State v. Brown (Ariz. 2006) 129 P.2d 947, 952-953; People v. Isaaks
(Colo. 2006) 133 P.2d 1190; State v. Dettman (Minn. 2006) 719 N.W.2d 644,
650-651.) In light of our conclusion that no admission occurred in the present
case, we need not reach the question whether (or under what circumstances) a
knowing and intelligent waiver is required before a defendant’s admission can be
used to satisfy Sixth Amendment requirements under Cunningham.
17


dismissed the strike allegation based upon the magistrate’s conclusion in the prior
case that the evidence presented at the preliminary hearing had been insufficient to
support the charge. We held that the trial court erred in viewing the defendant’s
conviction as one “ ‘in form rather than substance’ ” and in dismissing the
allegation of the prior conviction under the Three Strikes law. (33 Cal.4th at
p. 749.) We explained: “In light of defendant’s express stipulation as to the
factual basis of his plea and his acknowledgement that his offenses constituted
strikes, the trial court was not free to look beyond defendant’s no contest plea . . .
nor could the trial court properly give dispositive weight to the magistrate’s
evaluation of the evidence at some earlier period in the prior proceeding.” (Id. at
p. 750.) We did not hold that such a stipulation would be dispositive in all
circumstances, and indeed explicitly declined to decide whether a trial court could
strike a prior-conviction allegation “based upon proof of factual innocence of the
prior offense, and if so, what types of evidence the court may consider for this
purpose.” (Wallace, supra, 33 Cal.4th at p. 754, fn. 3.) Wallace does not stand
for the broad proposition asserted by the Attorney General; namely, that a
defendant’s stipulation to a factual basis constitutes a binding admission for all
purposes.
D.
Harmless Error Analysis
Because the aggravating circumstance upon which the trial court relied was
neither admitted by defendant nor established by a jury verdict, defendant’s Sixth
Amendment right to a jury trial was violated by his sentence to the upper term on
count 1. “Failure to submit a sentencing factor to the jury, like failure to submit an
element [of the crime] to the jury, is not structural error.” (Recuenco, supra, 548
18
U.S. 212, ___ [126 S.Ct. 2546, 2553].)6 Such an error does not require reversal if
the reviewing court determines it was harmless beyond a reasonable doubt,
applying the test set forth in Chapman v. California (1967) 386 U.S. 18. (Neder v.
United States (1999) 527 U.S. 1, 15 (Neder).) In the context of Cunningham
error, that test requires us to determine “whether, if the question of the existence of
an aggravating circumstance or circumstances had been submitted to the jury, the
jury’s verdict would have authorized the upper term sentence.” (Sandoval, supra,
41 Cal.4th at p. 838.) If we conclude, beyond a reasonable doubt, that a “jury,
applying the beyond-a-reasonable-doubt standard, unquestionably would have
found true at least a single aggravating circumstance had it been submitted to the
jury, the Sixth Amendment error properly may be found harmless.” (Id. at p. 839.)
The failure to submit a sentencing factor to a jury may be found harmless if the
evidence supporting that factor is overwhelming and uncontested, and there is no
“evidence that could rationally lead to a contrary finding.” (Neder, supra, 527
U.S. at p. 19; see also People v. Epps (2001) 25 Cal.4th 19, 29-30 [denial of
defendant’s statutory right to jury trial on prior-conviction allegations was
harmless under the state harmless error standard, where defendant did not contest
the issue at trial and the records of prior convictions before the court
presumptively established that they had occurred].)

6
We previously have concluded that the denial of a defendant’s
constitutional right to jury trial on a charged offense constitutes structural error
that requires reversal without consideration of the strength of the evidence. (See,
e.g., People v. Ernst, supra, 8 Cal.4th 441, 449.) Nonetheless, the high court
made clear in Recuenco, supra, 126 S.Ct at page 2553, that the denial of the Sixth
Amendment right to a jury trial on sentencing factors is subject to harmless error
analysis. (See Sandoval, supra, 41 Cal.4th at p. 838.)
19


Defendant contends automatic reversal is required because in the present
case — unlike Recuenco, Neder, and Sandoval — there was no jury trial and,
consequently, there is no trial evidence that may be subjected to harmless-error
analysis. We need not decide whether Cunningham error ever can be found
harmless in a case in which the defendant pleads guilty or no contest, because we
conclude that the record in defendant’s case does not support the conclusion that
the error was harmless beyond a reasonable doubt.
In Sandoval, we noted that even when there has been a jury trial, a
prejudice assessment of Cunningham error would be problematic because “the
reviewing court cannot necessarily assume that the record reflects all of the
evidence that would have been presented had aggravating circumstances been
submitted to the jury.” (Sandoval, supra, 41 Cal.4th at p. 839.) The defendant in
Sandoval received a jury trial on the charged offenses, but the aggravating
circumstances were not directly at issue during the trial. (Ibid.) “Furthermore,
although defendant did have an incentive and opportunity at the sentencing
hearing to contest any aggravating circumstances mentioned in the probation
report or in the prosecutor’s statement in aggravation, that incentive and
opportunity were not necessarily the same as they would have been had the
aggravating circumstances been tried to a jury. First, the standard of proof at the
sentencing hearing was lower; the trial court was required to make a finding of
one or more aggravating circumstances only by a preponderance of the evidence.
(Cal. Rules of Court, rule 4.420(b).) Second, because the trial court had broad
discretion in imposing sentence, a finding by the court concerning whether or not
any particular aggravating circumstance existed reasonably might have been
viewed by defense counsel as less significant than the court’s overall assessment
of defendant’s history and conduct. Counsel’s strategy might have been different
had the aggravating circumstances been tried under a beyond-a-reasonable-doubt
20
standard of proof to a trier of fact that was responsible only for determining
whether such circumstances were proved (and not for making the ultimate
sentencing decision). Accordingly, a reviewing court cannot always be confident
that the factual record would have been the same had aggravating circumstances
been charged and tried to the jury.” (Sandoval, supra, 41 Cal.4th at pp. 839-840.)
When a defendant pleads guilty or no contest, a prejudice assessment is
even more problematic, because the record generally does not contain a full
presentation of evidence concerning the circumstances of the offense. The
statutory scheme that governs a sentencing proceeding does not require an
evidentiary hearing; rather, it permits the trial court to base its sentencing decision
on “the record in the case, the probation officer’s report, other reports . . . and
statements in aggravation or mitigation submitted by the prosecution, the
defendant, or the victim, … and any further evidence introduced at the sentencing
hearing.” (§ 1170, subd. (b).)
Although defendant did not specifically contest that he abused a position of
trust, we cannot say the evidence on that point was overwhelming. The
aggravating circumstance that defendant took advantage of a position of trust
could have been established by evidence that defendant committed these offenses
when taking care of victim Brandon B. at his daughter’s daycare business. The
record, however, contains no evidence of the type that would have been
admissible had the issue been tried to a jury. Because there was no preliminary
hearing, the record does not reflect how witnesses might have testified had there
been a trial. The probation report recited the facts of the offenses based upon
multiple hearsay: it contained information obtained from the police reports, which
indicated that the mother of victim Brandon B. told the authorities that her child
was under the supervision of an at-home daycare center operated by defendant’s
daughter, Lisa, and that the offenses occurred when defendant was helping to care
21
for the children. Brandon B.’s mother spoke at the sentencing hearing concerning
the impact of the molestation upon her son and stated her view that he now was
being punished “for trusting a person that was supposed to help take care of him,”
but she gave no specific facts regarding defendant’s role. Furthermore, she did not
testify under oath and was not subject to cross-examination. On the record before
us, we cannot conclude that the Sixth Amendment error was harmless beyond a
reasonable doubt.
III.
For the reasons stated above, we reverse the decision of the Court of
Appeal insofar as it affirmed defendant’s sentence, and remand to the Court of
Appeal with directions to remand the case to the trial court for resentencing in
accordance with this opinion and Sandoval, supra, 41 Cal.4th at pages 843-857.
GEORGE, C. J.
WE CONCUR:
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

22
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. French
__________________________________________________________________________________

Unpublished Opinion

XXX NP opn. filed 10/30/06 – 3d Dist.
Original Appeal
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.

S148845
Date Filed: March 27, 2008
__________________________________________________________________________________

Court:

Superior
County: Sacramento
Judge: Maryanne G. Gilliard

__________________________________________________________________________________

Attorneys for Appellant:

William J. Arzbaecher III, under appointment by the Supreme Court, and Gregory Marshall, under
appointment by the Court of Appeal, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette,
Chief Assistant Attorneys General, Mary Jo Graves and Michael P. Farrell, Assistant Attorneys General,
Janis Shank McLean, David A. Rhodes, Lawrence M. Daniels, Clayton S. Tanaka and Jeffrey M.
Laurence, Deputy Attorneys General, for Plaintiff and Respondent.


23

Counsel who argued in Supreme Court (not intended for publication with opinion):

William J. Arzbaecher III
Central California Appellate Program
2407 J Street, Suite 301
Sacramento, CA 95816
(916) 441-3792

Jeffery M. Laurence
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5897

24


Petition for review after the Court of Appeal affirmed a judgment of conviction of criminal offenses. French, Hernandez, Mvuemba, Pardo, and Sandoval present the following issues in different factual contexts: (1) Did the trial court violate defendant's Sixth Amendment right to a jury trial, as interpreted in Cunningham v. California (Jan. 22, 2007, No. 05-6551) 549 U.S. __ [2007 WL 135687], by imposing an upper term sentence based on aggravating factors not found true by the jury? (2) If so, what is the proper remedy?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 03/27/200843 Cal. 4th 36, 178 P.3d 1100, 73 Cal. Rptr. 3d 605S148845Review - Criminal Appealclosed; remittitur issued

PEOPLE v. PARDO (S148914)
PEOPLE v. SANDOVAL (S148917)
PEOPLE v. HERNANDEZ (S148974)
PEOPLE v. MVUEMBA (S149247)
PEOPLE v. PLASCENCIA (S149251)
PEOPLE v. MYERS (S149657)
PEOPLE v. BESWETHERICK (S149804)
PEOPLE v. BERRY (S149842)
PEOPLE v. COSTA (S151236)
PEOPLE v. JONES (S151379)
PEOPLE v. BAUGHMAN (S152470)
PEOPLE v. HEIMS (S152922)
PEOPLE v. MAYZES (S153247)
PEOPLE v. RODRIGUEZ (S153436)
PEOPLE v. SELITSCH (S153575)
PEOPLE v. SOTO (S154293)
PEOPLE v. VASQUEZ (S156297)
PEOPLE v. AYALA (S157148)
PEOPLE v. LACERDA (S157590)
PEOPLE v. YATES (S157935)
PEOPLE v. ALLISON (S158278)
PEOPLE v. MCMILLON (S159136)
PEOPLE v. MARBLE (S159324)
PEOPLE v. TILLEY (S159328)


Parties
1French, Wesley David (Defendant and Appellant)
Represented by William Joseph Iii Arzbaecher
Central California Appellate Program
2407 "J" Street, Suite 301
Sacramento, CA

2French, Wesley David (Defendant and Appellant)
Represented by Central California Appellate Program
2407 "J" Street, Suite 301
2407 "J" Street, Suite 301
Sacramento, CA

3French, Wesley David (Defendant and Appellant)
Represented by Gregory R. Marshall
Attorney at Law
P.O. Box 996
Palo Cedro, CA

4The People (Plaintiff and Respondent)
Represented by Jeffrey Michael K. Laurence
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

5The People (Plaintiff and Respondent)
Represented by David A. Rhodes
Office of the Attorney General
P.O. Box 944255
Sacramento, CA

6District Attorney Of San Diego County (Opinion Modification Requestor)
Represented by Charles Edward Nickel
Office of the District Attorney
P.O. Box 121011
330 W. Broadway, Suite 920
San Diego, CA


Opinion Authors
OpinionChief Justice Ronald M. George

Disposition
Mar 27 2008Opinion: Reversed

Dockets
Dec 15 2006Received untimely petition for review
  Wesley David French, Defendant and Appellant. Gregory Marshall, CA-appointed
Dec 18 2006Application for relief from default filed
  By counsel for appellant
Dec 20 2006Petition for review filed with permission
 
Dec 20 2006Record requested
 
Dec 21 2006Received Court of Appeal record
  one doghouse
Feb 7 2007Petition for review granted (criminal case)
  To facilitate expedited consideration and resolution of the issues presented, the court establishes the following briefing schedule: The opening brief on the merits shall be served and filed in the San Francisco office of the Supreme Court on or before February 28, 2007. Within 21 days after the opening brief on the merits is filed, the answer brief on the merits shall be served and filed in the San Francisco office of the Supreme Court. Within 7 days after the answer brief on the merits is filed, a reply brief may be served and filed in the San Francisco office of the Supreme Court. Any person or entity wishing to file an amicus curiae brief must file an application for permission to file such brief, accompanied by the proposed brief, by March 21, 2007. Any amicus curiae brief accepted for filing will be considered by the court in reviewing each of the cases presenting issues related to the effect of the decision in Cunningham v. California (Jan. 22, 2007, No. 05-6551) 549 U.S. __ [2007 WL 135687] and multiple copies of amicus briefs need not and should not be submitted in each case. Because it is important for the administration of justice that the trial courts of California be provided timely guidance, the court notes that its action in this case is not intended to dissuade the Legislature from promptly revising the existing California sentencing statutes in light of the United States Supreme Court's decision in Cunningham v. California, supra. Votes: George, C. J., Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
Feb 14 2007Counsel appointment order filed
  Upon request of appellant for appointment of counsel, the Central California Appellate Program is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before Febraury 28, 2007.
Feb 28 2007Opening brief on the merits filed
  Wesley David French, Appellant by William J. Arzbaecher, counsel
Feb 28 2007Request for judicial notice filed (granted case)
  Wesley David French, Appellant by William J. Arzbaecher, counsel
Mar 21 2007Received:
  Oversized Answer Brief on the Merits The People, Respondent by Jeffrey M. Laurence, counsel
Mar 21 2007Application to file over-length brief filed
  The People, Respondent by Jeffrey M. Laurence, counsel
Mar 21 2007Answer brief on the merits filed
  with permission.
Apr 2 2007Received:
  ovwesize reply brief on the merits, Wesley French, defendant and appellant William Arzbaecher, counsel
Apr 3 2007Reply brief filed (case fully briefed)
  Filed with permission
Dec 4 2007Case ordered on calendar
  Tuesday, January 8, 2008, at 9:00 a.m., in San Francisco
Dec 19 2007Filed:
  Letter from counsel for appellant dated December 17, 2007, regarding additional authorities for oral argument.
Jan 8 2008Cause argued and submitted
 
Mar 26 2008Notice of forthcoming opinion posted
 
Mar 27 2008Opinion filed: Judgment reversed
  and remanded to the Court of Appeal with directions. Majority Opinion by George, C.J. --------------------joined by Kennard, Baxter, Werdegar, Chin, Moreno, Corrigan, JJ.
Apr 9 2008Request for modification of opinion filed
  District Attorney of San Diego County, non-party Bonnie Dumanis, Deputy D.A.
Apr 23 2008Opinion modified - no change in judgment
 
Apr 23 2008Order filed
  The request for modification of the opinion is granted. George, C.J., was absent and did not participate.
Jun 10 2008Remittitur issued (criminal case)
 
Sep 17 2008Compensation awarded counsel
  Atty Arzbaecher - Central California Appellate Program

Briefs
Feb 28 2007Opening brief on the merits filed
 
Mar 21 2007Answer brief on the merits filed
 
Apr 3 2007Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 27, 2010
Annotated by bneitzel

Issues: Right to jury trial, Sentencing, Sixth Amendment, Plea-bargaining, Blakely, Cunningham

Summary:

A unanimous Court ruled that sentencing defendant to the upper term, without first proving aggravating circumstances to a jury, violated his Sixth Amendment rights as established in Cunningham v. California. 549 U.S. 270 (2007). After defendant entered his plea in this case, but before his sentence was imposed, the United States Supreme Court issued its ruling in Blakely v. Washington, 542. U.S. 296 (2004), which held that a defendant cannot be sentenced to a term beyond the standard range based on facts that have neither been proved to a jury beyond a reasonable doubt nor admitted by the defendant. And although the California Supreme Court initially concluded that Blakely did not apply to California’s determinate sentencing law, see People v. Black, 35 Cla.4th 1238 (2005), the high court disagreed. In Cunningham—decided while the instant appeal was pending before the California Supreme Court—the United States Supreme 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 [federal 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.” Thus, because the trial court in this case sentenced defendant to the upper term based on an aggravating factor that defendant did not admit and that the prosecution did not prove to a jury, the Court found that his Sixth Amendment rights had been violated.

Facts:

Defendant was charged with 12 counts of lewd and lascivious conduct with a child under the age of 14. Three victims were involved. Each count is punishable by a term of three, six, or eight years—depending on the circumstances of the offense. On June 8, 2004, defendant pleaded no contest to six of the counts, in exchange for an agreement under which he would receive no more than 18 years in prison. At defendant’s hearing, the prosecutor established the factual basis for the plea, briefly describing the acts underlying each of the six counts. After defendant acknowledged that he understood the plea and that he waived his right to a jury trial, the court entered the plea agreement. A probation officer prepared a pre-sentence report that indicated three aggravating circumstances, but none of those circumstances was argued or proved by the prosecution at defendant’s sentencing hearing. Nonetheless, the trial court sentenced defendant to the upper term of eight years for one count, and one-third of the six-year midterm on each of the other five counts, for a total of 18 years. According to the judge, he sentenced defendant to the upper term because of an aggravating factor listed in the PO’s report: “defendant took advantage of a position of trust and confidence to commit the crime.”

Procedural Posture:

Defendant appealed his sentence, arguing that the upper term was imposed in violation of his Sixth Amendment rights. The Court of Appeal rejected his claim, however, based on People v. Black (see above). Defendant then appealed to the California Supreme Court, which accepted his case after the United States Supreme Court issued its decision in Cunningham.

Holding and Court Order:

“Because the aggravating circumstance upon which the trial court relied was neither admitted by defendant nor established by a jury verdict, defendant’s Sixth Amendment right to a jury trial was violated by his sentence to the upper term.” And because the evidence supporting that aggravating factor was not “overwhelming and uncontested,” the error was not harmless beyond a reasonable doubt. Accordingly, the Court reversed the decision of the Court of Appeal concerning defendant’s sentence and remanded the case to the appellate court with instructions to remand to the trial court for resentencing.

Reasoning:

The Attorney General claimed that defendant’s appeal should be dismissed for three reasons. The Court addressed and rejected each argument in turn.

1. The Attorney General argued that the appeal should be dismissed because the trial court did not issue a certificate of probable cause for appeal. Section 1237.5 of the California Penal Code states that no appeal from a plea of guilty or no contest will be accepted unless “[t]he trial court has executed and filed a certificate of probable cause for such appeal.” According to the Court, “[t]his requirement does not apply, however, if the appeal is based upon grounds that arose after entry of the plea and that do not affect the validity of the plea.” In other words, because Blakely and Cunningham were decided after defendant’s plea was entered, and because defendant’s claim “does not constitute an attack upon the validity of the plea agreement,” the certificate was not required for defendant to appeal his sentence.

2. The Attorney General also argued that defendant forfeited his Sixth Amendment claim because he failed to object to the upper-term sentence at the sentencing hearing. And because the hearing was conducted two weeks after Blakely was decided, he should have known about the new Sixth Amendment requirements, and thus that he had to raise his claim at the hearing or lose the opportunity to do so. The problem with this argument is that California’s Constitution requires that a criminal defendant’s waiver of his right to a jury trial be made by express consent in open court. Thus, although defendant explicitly waived his right to a jury trial on the question of guilt or innocence, that waiver did not extend to his right to a jury trial on aggravating circumstances. The Court notes that the absence of this express waiver is hardly surprising, because Blakely had not yet been decided when defendant entered his plea. “Defendant’s waiver of a jury trial on the offenses in connection with his no contest plea cannot reasonably be interpreted to extend to proof of aggravating circumstances when, at the time of the plea, no right to a jury trial on such circumstances had been recognized.”

3. Finally, the State claimed that defendant implicitly admitted aggravating factors by entering into a plea agreement that included the upper term and/or by stipulating to the factual basis for that plea. But a defendant who enters into a plea agreement “reasonably expects to have the opportunity to litigate any matters related to the trial court’s choice of sentence—including the existence of aggravating and mitigating circumstances—at the sentencing hearing.” This is particularly clear in California, where the law requires that an aggravating circumstance be based upon a fact other than an element of the crime. Therefore, while defendant’s plea served as an admission to the substantive elements of the six counts, “it did not constitute an admission to any aggravating circumstance.” Moreover, the factual basis for the plea—as stated by the prosecutor in this case—did not clearly establish an aggravating circumstance, nor does the record show that defendant “admitted the truth of [those] facts as recited by the prosecutor.” In sum, neither defendant’s plea agreement nor defense counsel’s stipulation to the factual basis for the plea “can reasonably be construed as an admission by defendant sufficient to satisfy the Sixth Amendment requirements established in Cunningham.”

By Beth Neitzel