Metropolitan News-Enterprise


Monday, September 17, 2007


Page 1


C.A. Upholds Use of Stipulated Facts to Impose Upper-Term Sentence

Justices Cite Waiver, Reject Claim That Right to Jury Trial Was Violated


STEVEN M. ELLIS, Staff Writer


The Third District Court of Appeal ruled Friday that when a defendant signs a Harvey waiver, the trial court’s use of facts that were stipulated in a plea deal dismissing the charges resulting from those facts as aggravating circumstances to impose an enhanced sentence does not violate the defendants’ Sixth Amendment rights to trial by jury or proof beyond a reasonable doubt.

The California Supreme Court in its 1979 decision in People v. Harvey held that, in imposing sentence under a plea bargain, a court may not consider evidence of any crime as to which charges were dismissed as a “circumstance in aggravation” supporting the upper term on the remaining counts.

The Third District Friday said that Butte Superior Judge Steven J. Howell properly applied Harvey in sentencing Edgardo Munoz to 19 years in prison, including the upper term of nine years for attempted murder, plus an enhancement of 10 years for using a firearm.

‘Aggrevating Acts’

Justice Tani Cantil Sakauye said the trial judge did not violate the Sixth Amendment when he used acts from other incidents that underlay dismissed charges as part of the plea deal as “aggravating acts” to sentence Munoz to the upper terms because Munoz had specifically waived his right to have the facts submitted to a jury and proven beyond a reasonable doubt as part of his plea agreement.

The justice rejected defense arguments that Howell should have allowed a jury to decide whether Munoz’s history of violence and increasingly dangerous behavior justified the enhanced sentence.

According to Munoz’s probation report, John Masters, a former member of the Sureno criminal street gang, had been driving on June 27, 2005 when he saw Munoz, a member of the Norteno criminal street gang, begin to follow him in another vehicle.  Masters tried to lose Munoz, but Munoz pulled next to his car and attempted a collision, causing Masters to swerve and crash onto the berm. 

Munoz approached with three others, struck Masters several times on the head, back and side with a pipe, and stabbed him in the arm with a knife or screwdriver.  One of Munoz’s companions stole the stereo, and the group broke more windows and fled.

Police officers responding to a report of shots fired and robbery in progress found Masters with a head injury and bleeding from his left arm. 

Conflicting Stories

Munoz claimed he had followed Masters’ car in anger after Masters had thrown hand signals and flipped him off.  Providing conflicting stories as to what happened next, Munoz first said that he had left after the accident, but then admitted stopping and claimed he had grabbed a “tool” from the car and swung it at Masters to protect himself when Masters pulled a knife.

Two months later, on Aug. 27, officers again responded to a report of shots fired, finding a car flipped over and resting on its roof, and Masters and two minor passengers being treated by medical personnel.  Masters told officers that Munoz had pulled up behind him and started shooting while driving at high speed, and that he had lost control of the car and flipped when going down an embankment after Munoz rammed him. 

When officers arrested Munoz, they found a .22-caliber revolver.  He claimed that Masters had “disrespected” him by flashing gang signs, and that Masters had caused the accident by slamming on his brakes. 

He said he left the scene because “there were three of them,” and he admitted to being a gang member.

Munoz later denied his gang membership, and said that he had been chasing Masters when he realized his friend was driving behind them, shooting a gun.  Changing his story again, he also claimed that Masters, after slamming on the brakes, had sped up and come towards him, at which point both cars collided and spun in circles before Masters’ car went off the cliff.

He further claimed that he was high on crystal methamphetamine at the time of the incident and later arrest.

Attempted Murder Charges

Munoz was charged with assault with a deadly weapon and felony vandalism for the June 27 incident.  He was alleged to have committed the assault for the benefit of a street gang.

He was also charged with attempted murder for the Aug. 27 incident, with a special allegation that he personally inflicted great bodily injury during the commission of the offense; two additional counts of attempted murder with respect to Masters’ two passengers, with an allegation that he personally and intentionally discharged a firearm in the commission of the attempted murders and committed them for the benefit of a street gang; and charged with shooting an occupied vehicle, again allegedly for the benefit of a gang.

Pursuant to the plea agreement, he pled no contest to the attempted murder of Masters and admitted he had used a firearm in committing the offense, a lesser gun enhancement than the one charged.  In exchange for his plea, all the remaining counts and enhancements were dismissed.

The plea resulted in dismissal of two additional cases against Munoz.  In September 2004, he was charged with misdemeanor battery in connection with an incident where he allegedly head-butted his girlfriend during a domestic dispute.  In May 2005, he allegedly pulled a knife on his girlfriend, threatened to kill her, attempted to slash her, held her against her will for 15 minutes, and disabled the telephone when she tried to call for help.

Munoz expressly agreed that he understood his sentence would be determined solely by the judge, and that the judge could consider his prior criminal history and the entire factual background of the case, including any unfilled, dismissed or stricken charges or allegations, when granting probation, ordering restitution or imposing sentence.

Munoz argued that, in imposing sentence, Howell had violated the standards set forth in recent U.S. Supreme Court decisions holding that facts, other than prior convictions, that result in an increase in what would otherwise be the maximum sentence must be determined by a jury unless admitted by the defendant.

  Sakauye, however, said that prosecutors often conditioned plea bargains to avoid Harvey’s rule that a trial court may not consider evidence of a dismissed charge as a “circumstance in aggravation” supporting the upper term on the remaining counts.

She wrote:

“The Harvey waiver that defendant entered in this case was explained in extremely broad terms.  The waiver encompassed not only the entire factual background of the case, including any unfiled, dismissed or stricken allegations, charges, or cases, but also encompassed defendant’s criminal history, which included several additional instances of violence charged in separate cases… Further, defendant specifically understood the judge alone, not a jury, would determine his sentence.”

Because Munoz had effectively stipulated to the relevant facts necessary to impose the upper term, thereby waiving his right to have a jury trial and proof beyond a reasonable doubt on those facts, his rights were not violated and he could not now complain of error, the justice said.

Sakauye was joined in her opinion by Presiding Justice Arthur G. Scotland and Justice Fred K. Morrison.

Munoz’s counsel, Candace Hale, said that the court’s decision misapplied Harvey.

“A Harvey waiver allows the sentencing court to consider elements of dismissed offenses – but it can’t confer a broader scope of consideration than the court would have had the offense been a conviction. “

Hale did not indicate whether her client planned to seek review in the California Supreme Court.

The case is People v. Munoz, 07 SOS 5745.


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