P. v. Tilley 12/17/07 CA3

SUPREME COURT CASES

Laws-info.com » Cases » California » Court of Appeal » 2008 » P. v. Tilley 12/17/07 CA3

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: C055089

Case Date: 02/20/2008

Preview:Filed 12/17/07

P. v. Tilley CA3

NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta) ----

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL WILLIAM TILLEY, Defendant and Appellant.

C055089 (Super. Ct. No. 06F1483)

After pleading guilty to 19 different sex crimes against two minor victims pursuant to a plea agreement, defendant Michael William Tilley was sentenced to an agreed-upon "lid" of 40 years in prison, which included an upper term sentence on one molestation count as the principal term. contends: On appeal, defendant

(1) the trial court violated his Sixth Amendment

rights in imposing the upper term sentence based on facts not admitted by him or found true by a jury and (2) the factors the trial court used to impose the upper term sentence and to run all of the subordinate terms consecutively were invalid under California law.

1

We conclude that defendant's appeal must be dismissed because he failed to obtain a certificate of probable cause. FACTUAL AND PROCEDURAL BACKGROUND On January 4, 2007, as part of a plea agreement that called for the dismissal of three counts and two enhancements, defendant pled guilty to 19 different sex crimes involving two different victims (both of whom were minors) and admitted two enhancements. lid." The agreement called for a 40-year "state prison

Given the possible prison terms for the crimes defendant

admitted, the 40-year lid could be reached only if defendant received the upper term of eight years for one of his crimes and all of the terms for the other crimes were ordered to run consecutively. At the time of defendant's plea, People v. Black (2005) 35 Cal.4th 1238 had not been overruled. In Black, the California

Supreme Court rejected the argument that Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) applied to California's determinate sentencing law and 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." 1244.) (People v. Black, 35 Cal.4th at p.

On January 22, 2007, however, the United States Supreme

Court decided Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856], in which the court rejected Black and held that California's determinate sentencing law "violates a defendant's right to trial by jury safeguarded by the Sixth and Fourteenth 2

Amendments" to the extent the law allows a judge to impose an upper term sentence "based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant." (Id. at p. ___ [166 L.Ed.2d at p. 860].) Defendant's sentencing was originally scheduled for February 9. Two days before the hearing, however, the court

continued the sentencing, in part based on defense counsel's request for time to review the Cunningham decision. At sentencing on February 23, 2007, the prosecutor argued that defendant had "waiv[ed] . . . any jury trial right on aggravating factors" by "stipulat[ing] to being sentenced up to 40 years," which could be reached only by imposing an upper term on one of the charges. The trial court asked the prosecutor

whether it was "in anyone's real interest to add two years to the prison term if it creates the potential that the case would be sent back by an appellate court for resentencing." When the

prosecutor insisted on imposition of an upper term, the court reiterated its "concerns . . . about the Cunningham decision," but ultimately agreed with the prosecutor that by waiving his right to a jury trial in light of a lid that could be reached only with the imposition of an upper term sentence, defendant "knowingly waived [his] right to a jury trial on the aggravation factor that would a achieve a 40-year sentence." The court

proceeded to find a number of aggravating circumstances and imposed the upper term on one of the charges, then ordered all of the other terms to be served consecutively, for an aggregate term of 40 years. 3

Defendant filed a notice of appeal "based on the sentence or other matters occurring after the plea." Defendant did not

seek, and did not obtain, a certificate of probable cause. DISCUSSION Relying on Cunningham, defendant argues that the trial court violated his Sixth Amendment right to a jury trial by imposing the upper term based on findings not made by a jury.1 Consistent with the decision in People v. Bobbit (2006) 138 Cal.App.4th 445 (Bobbit), the People contend this argument amounts to a challenge to the validity of defendant's plea and cannot be considered on appeal without a certificate of probable cause, which defendant neither requested nor received. with the People. Generally, a defendant who has entered a plea of guilty or no contest must obtain a certificate of probable cause from the trial court to appeal. (Pen. Code,

Download P. v. Tilley 12/17/07 CA3.pdf