People v. Hall

316 Cal.Rptr.3d 192

97 Cal.App.5th 1084

The PEOPLE, Plaintiff and Respondent,

v.Gary Marcus HALL, Defendant and Appellant.

A165406

Court of Appeal, First District, Division 1.

Filed December 13, 2023

As Modified on Denial of Rehearing January 8, 2024

Trial Court: Del Norte County Superior Court, Trial Judge: Hon. Darren McElfresh (Del Norte County Super. Ct. No. CRF219022)

Christopher Stansell under appointment by the Court of Appeal for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jefferey M. Laurence, Senior Assistant Attorney General, Masha A. Dabiza and Arthur P. Beever, Deputy Attorneys General for Plaintiff and Respondent.

I. Introduction

Banke, Acting PJ.

In this case we consider a negotiated disposition entered into after the effective date of the recent amendments to Penal Code section 1170,¹ subdivision (b) made by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567), and the sentence passed in accordance therewith. Defendant Gary Marcus Hall pleaded no contest to two counts of committing lewd or lascivious acts on a child under the age of 14 years (§ 288, subd. (a)). Consistent with the negotiated disposition, the trial court sentenced him to 10 years in prison, which included the upper term on one of the two counts.

Defendant challenges his sentence on three grounds—(1) the court (and the parties) mistakenly assumed he was presumptively ineligible for probation; (2) the aggravating factors found by the court were not pleaded; and (3) the court erred in finding aggravating factors in the absence of his personal waiver in open court of his right to jury trial on the facts supporting such factors. As to the latter ground, defendant advances only a Sixth Amendment challenge and has expressly disavowed any challenge on the basis of the recent amendments to section 1170, subdivision (b).

In addressing his arguments we consider, among other issues, the following: the distinction drawn by our Supreme Court between a constitutionally sufficient general jury trial waiver and the sufficiency of a waiver of statutory jury trial rights; forfeiture of the "certified record" evidentiary requirement imposed by the recent amendments to section 1170, subdivision (b) by failing to object to use of the probation report to establish defendant’s prior convictions; whether one prior conviction can, in this particular case, constitute a factor in aggravation under California Rules of Court rule 4.421(b)(2); and whether People v. Black (2007) 41 Cal.4th 799, 62 Cal.Rptr.3d 569, 161 P.3d 1130 (Black II) remains controlling as to whether an aggravated sentence comports with the Sixth Amendment when one aggravating factor has been found in a constitutionally permissible manner and the trial court has found no factors in mitigation.

We conclude the judgment should be affirmed.

II. Background²

Defendant, a registered sex offender, was friends, and resided, with the two victims’ grandfather. The victims were under the age of 14 at the time of the molestations. One recalled approximately 20 incidents of abuse, including instances of defendant fondling his penis, masturbating him, and orally copulating him. The last incident occurred when he was 12 or 13 years old. The other victim recalled four instances where defendant molested him when he was under or around 10 years old. Defendant variously sodomized him, laid in bed with him and pulled down his underwear, and grabbed his penis over his clothes.

In 2021, the People charged defendant with sodomy of a child 10 years old or younger (§ 288.7, subd. (a)); two counts of continuous sexual abuse of a child (§ 288.5, subd. (a)); and failure to register as a sex offender (§ 290.018). The continuous sexual abuse counts included an enhancement allegation of a prior conviction of section 288 (§ 667.51, subd. (a)). Defendant faced a potential sentence of 25 years to life on the sodomy count, 16 years each on the continuous abuse counts plus five years each for the related enhancements, and one year on the failure to register count—in sum, 68 years to life.

At the preliminary hearing, the trial court admitted evidence of a 1995 misdemeanor conviction for violation of section 288, subdivision (c)—lewd or lascivious acts on a child 14 or 15 years old—which required defendant to register as a sex offender.

In February 2022, pursuant to a negotiated disposition, the People filed an amended information, adding two felony counts of committing lewd acts upon a child under the age of 14 (§ 288, subd. (a))—one count for each victim—to which defendant pleaded no contest. As summarized on the change of plea form, the disposition provided that the trial court "could grant probation with time in jail all the way up to 10 years in prison (base term plus 1/3 the middle term for the 2nd count if ran [sic] consecutive)." Defendant initialed the provision of the form that stated, "I understand that I am not eligible for probation in this case. Presumptively ineligible."

Defendant also initialed the provision of the change of plea form stating, "I understand the Court will not decide whether to accept a plea or sentence bargain or to impose sentence or extend probation: until a Probation Officer makes an investigation and reports on my background, prior record (if any) and the circumstances of the case."

He additionally initialed the provisions of the form waiving his rights, to among other things, a jury trial. These provisions stated, in pertinent part, "10. I understand that, as to each charge I plead to and each special allegation and/or sentence enhancement I admit to be true, I have the following rights: [¶] … [¶] b. A speedy and public trial by jury. c. Representation by an attorney at all times. d. See, hear, and question all witnesses who testify against me. [¶] … [¶] 11. I understand that by this plea and any admissions I am making, I give up all the rights which are listed above except the continuing right to be represented by an attorney."

At the change of plea hearing, the prosecutor summarized the plea agreement as follows: "A plea of no contest to Count 5 and a plea of no contest to Count 6. All sentencing options would be open to the Court. The Court could consider all aggravating factors. That’s the stipulation under 1170(b)"—a maximum potential exposure of 10 years. Defense counsel agreed. Defendant, himself, also stated that was his understanding of the negotiated disposition.

Prior to accepting defendant’s no contest pleas, the court reviewed the plea form with him, and defendant personally confirmed that he read and understood it and had given up all the rights as stated therein, including his "right to have a jury trial." Counsel then stipulated that the preliminary hearing transcript could be used as a factual basis for the plea, with defense counsel stating defendant was "not admitting guilt in any way." The prosecutor also asked that the record specifically reflect "the parties’ stipulation under Penal Code section 1170(b)(2) as to what the Court can consider at sentencing," and specifically "all aggravating factors" "in [California Rules of Court] [r]ule 4.421."³ Defense counsel concurred. The trial court then specifically asked defendant whether he had heard the recited terms of the disposition, including that the "Court could consider all aggravating factors," and defendant confirmed that he had and these were, indeed, the terms of the proposed disposition. The trial court then proceeded to admonish defendant that the disposition included his giving up rights, including the right to jury trial, and defendant expressly stated, "Yes," he was giving up that right.

At the sentencing hearing, counsel confirmed the stipulation that the trial court would consider all sentencing factors, both mitigating and aggravating. Defense counsel agreed there was a "[s]tip to all aggravating factors for the Court to be considered," so "[t]he options open to the Court are probation with jail time all the way up to the ten years. And that would be the eight years with one-third the middle term of two if the Court decided to run it consecutive.".

Victim statements were given by a close friend of the victims’ grandmother, who had known the victims all their lives, and one of the victims appeared.

The prosecution urged the court to impose the upper term, pointing out "[i]t only takes one factor [in aggravation] under the case law to—for the Court to do an aggravated sentence." He then urged the court to find applicable all the factors in aggravation recommended in the probation report, as well as several additional aggravating factors. The probation officer emphasized the "long-term emotional, mental, and psychological ramifications" for the victims.

At the conclusion of the prosecution’s presentation, defendant spoke, stating "The kids are lying. I have said that from the beginning, and I still say it…. [T]heir behavior isn’t from anything I have done. They have been rotten behavior from the get-go…. [¶] … They didn’t like the way I disciplined…. [¶] It’s not me that didn’t show remorse. I didn’t do it …. " Defense counsel agreed her client had maintained he was innocent from "day one," and acknowledged "he is angry; he is upset." She also acknowledged that his prior section 288 conviction "made this a very difficult case," and stated the only reason he agreed to a negotiated disposition was to avoid the risk of a potential life sentence. Counsel asked the court to consider a midterm and not impose consecutive sentences; "[a]gain, my client is adamant that he’s been falsely accused."

The probation officer then provided further testimony, stating when he asked defendant about his prior section 288 conviction, he said that case "was all lies, and he was railroaded in that case." "[F]or some reason the young men in this case as well as the counselors in that [prior case] were out to get him for some reason."

The court found defendant...