P. v. Hill

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Filed 6/21/07 P. v. Hill 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
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THE PEOPLE,
Plaintiff and Respondent,
v.
RYLAND GEORGE HILL, JR.,
Defendant and Appellant.
C052249
(Super. Ct. No.
CM017845)
Defendant Ryland George Hill, Jr., who is both a college
graduate and a veteran of the criminal justice system, contends
he was duped into entering a no contest plea to one count of
forgery (Pen. Code, § 470, subd. (d)) in exchange for the
dismissal of four other counts of forgery. He claims his lawyer
had assured him he would be placed on probation, but instead he
was sentenced to the upper term of three years in state prison.
Finding no abuse of discretion, we affirm the order denying
defendant’s request to withdraw his plea. We agree with
defendant, however, that his aggravated term must be reversed
and the case remanded to the trial court for resentencing

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because we cannot say the court’s judicial fact-finding in
violation of the Sixth Amendment is harmless beyond a reasonable
doubt.
FACTS SURROUNDING THE PLEA
The prosecution alleged that defendant was in possession of
the victim’s stolen checkbook, forged his signature, and cashed
several checks in 2002. He was arrested in Michigan and
extradited to California in 2005. On multiple occasions, he
expressed his dissatisfaction with trial counsel and his desire
to get the California case “out of the way” so he could return
to Michigan. After his Marsden1 motions were denied, he entered
a no contest plea to one count of forgery. The only facts
material to the issues before us involve the entry of the plea.
Defendant and his trial lawyer testified at an evidentiary
hearing on defendant’s motion to withdraw his plea. Defendant
testified he graduated from Chico State University, he has no
difficulty reading, and he was not under the influence of any
drugs or alcohol when he entered his plea. This was not his
first plea agreement; he had entered other agreements in the
past. But he was hurt, disappointed, and angry when he
discussed the prosecution’s offer with his lawyer, who
“hollered” at him and told him that he, defendant, was “the
master of this situation.” He explained that he felt coerced
and threatened, even though he had expressly assured the trial
1 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

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judge that he had read and understood the agreement, he had no
questions about it, and he was entering the plea freely and
voluntarily. He understood from his lawyer that he was going to
be granted probation “and I would be able to get on with my
life.”
The plea agreement states: “Probation will be granted only
if the sentencing judge finds this to be an unusual case (prison
presumptive).” There is an X in the box next to this statement.
The agreement also provides, “I do understand that the matter of
probation and sentence is to be determined solely by the
superior court judge.” Defendant initialed this statement. At
his hearing, he stated he had not had an adequate opportunity to
review the form before he signed it, and he was unable to get
clarification from his lawyer about the meaning of its
provisions.
His lawyer contradicted defendant’s recollection of the
circumstances surrounding the plea agreement. Although he
acknowledged that he had a heated conversation with defendant at
another time, he testified that “at the time that Mr. Hill
agreed to accept the plea bargain, his response was, ‘I prayed
about it,’ and I got something to the effect of, ‘God told me
what to do, and I am going to accept the deal’.” The lawyer
believed defendant understood the nature of the charges against
him and he had no concerns about defendant’s competency.
The lawyer discussed the term “prison presumptive” with
defendant and that he would not get probation unless the court
found his case to qualify as “unusual.” But he also emphasized,

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as was his practice, that he could not guarantee probation
because the court alone would ultimately make the sentencing
decision.
The court ruled as follows: “The court carefully reviewed
the testimony in this case. The motion to withdraw the plea
will be denied. The record is clear that there was no offer of
probation, that there was no county lid offer, that the
defendant was prison presumptive, that is he had suffered two
prior felonies which would make him ineligible for probation
except in an unusual case.
“Any statements that he might be considered for probation
were not promises; they were simply statements of fact based
upon the legal context of the case.
“The court, in sentencing the defendant, will regard this
as a case where he might be eligible for probation, and I will
look carefully at whether there are any unusual circumstances
that might justify a grant of probation. The motion being
denied will proceed to sentencing.”
DISCUSSION
I
Defendant contends the record discloses clear and
convincing evidence that he was not properly advised by counsel
prior to the entry of his plea, and as a consequence, he was
ignorant and mistaken about the possibility that he would
receive probation. He understands his burden of proving good
cause to withdraw his plea by clear and convincing evidence
(People v. Wharton (1991) 53 Cal.3d 522, 585), but he ignores

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the deferential scope of appellate review and misreads the
record.
We must sustain the trial court’s assessment of good cause,
absent a flagrant abuse of discretion. (People v. Nance (1991)
1 Cal.App.4th 1453, 1456.) Here the record belies defendant’s
contention that the trial court abused its discretion since
there is ample evidence to support the trial court’s factual
findings. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)
In short, at all times throughout these proceedings, defendant
presented himself as intelligent, competent, and able to
understand the nature of the charges and the implications of
entering into a plea agreement. His lawyer’s testimony supports
the trial court’s conclusion that defendant was never promised
probation; rather, his lawyer explained the possibility that a
judge might grant probation if he found the case unusual but
there were no guarantees because the judge had sentencing
discretion. The agreement defendant signed stated expressly
that he was “prison presumptive.”
A trial court has the discretion to allow a defendant to
withdraw a plea to promote justice. (People v. Superior Court
(Giron) (1974) 11 Cal.3d 793, 796-797.) Here the court
determined that justice would not be served by allowing
defendant to renege on his agreement in the absence of any facts
suggesting that he was misled, that because of language or other
barriers he did not understand the consequences of his plea, or
that his lawyer had failed to adequately represent the law. We
can find no abuse of discretion in this record.

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II
Defendant contends the court’s imposition of the upper term
violated his right to a jury trial as guaranteed by the Sixth
Amendment to the United States Constitution. (Apprendi v. New
Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi);
Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]
(Blakely); Cunningham v. California (2007) 549 U.S. ___
[166 L.Ed.2d 856] (Cunningham).) Because, as pointed out in
Apprendi, Blakely, and Cunningham, the Sixth Amendment jury
trial guarantee does not apply to prior convictions that are
used to impose greater punishment and defendant concedes the
court based its imposition of the upper term in part on his
prior convictions, we are presented with the difficult task of
determining whether the trial court’s reliance on other
aggravating factors constitutes harmless error. We conclude
that to the extent the court transgressed the Sixth Amendment by
relying on the fact that defendant’s performance on probation
was unsatisfactory, we cannot say the error was harmless beyond
a reasonable doubt. (Washington v. Recuenco (2006) 548 U.S. ___
[165 L.Ed.2d 466] (Recuenco).)
The trial court imposed a three-year upper term based on
defendant’s numerous prior convictions, which were increasing in
seriousness; his being on probation when the offense was
committed; and his prior unsatisfactory performance on
probation. In Cunningham, the United States Supreme Court
overruled the California Supreme Court’s holding in People v.
Black (2005) 35 Cal.4th 1238, 1244 that the judicial fact-

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finding necessary to impose an upper term does not violate
Blakely. Yet Blakely’s proscription does not apply to the use
of prior convictions to increase the penalty for a crime.
(Cunningham, supra, 166 L.Ed.2d at p. 869.) Here the trial
court relied on defendant’s prior convictions to increase his
punishment, and one valid aggravating factor is sufficient to
expose defendant to the upper term. (People v. Cruz (1995)
38 Cal.App.4th 427, 433.)
Nevertheless, the court erred by relying on defendant’s
poor performance while on probation, a fact a jury did not find
to be true. The United States Supreme Court recently held that
Blakely error is not structural but is reviewed under a
harmless-beyond-a-reasonable-doubt standard. (Recuenco, supra,
165 L.Ed.2d 466.) While we can say that it is highly unlikely
or more probable than not that the court will again impose the
upper term on remand based on defendant’s prior convictions, we
cannot say the record convinces us beyond a reasonable doubt.
The record is too murky to withstand constitutional scrutiny.
Defendant urged the court to impose probation based on the
unusual nature of his case. He argued that his prior
convictions were “substantially less serious than the
circumstances typically present in other cases” in which
probation was unavailable based on prior convictions. He
pointed out to the court that he successfully completed
probation for his first felony conviction, which had occurred
14 years earlier. Moreover, he also was placed on probation for

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his later driving under the influence and felony possession of a
controlled substance convictions.
The court itself bolstered defendant’s argument. The court
stated: “In reviewing this, and I think I have his entire
record here, it appears that in the case of his prior felonies,
he was not sentenced to state prison. He received probation.
It appears that he’s been placed on probation several times, but
I don’t see too many indications here, if any, that he’s
violated his probation in the past. He seems to have received
an initial grant of probation with some significant jail time in
a number of cases; 207 days, 6 months, 90 days, 60 days,
120 days, but I don’t see notations that he’s been sent to state
prison following a violation of probation, or sent to state
prison as an initial matter on any of his prior felonies.” The
court acknowledged that defendant had violated probation in one
instance.
Admitting that it was a “close case,” the court explained
“that this probably is a case where the current offense is less
serious than the priors, and because of the age of his initial
felony, you could safely say that his priors are less serious
than typically present. He didn’t go to state prison on either
of those priors.” The court concluded, however, that
defendant’s case was not “unusual” under a second requirement
that he remain free of serious crime and free of incarceration
for a substantial period.
This record puts us in a difficult position. It is true
the court’s comments were made in the context of determining

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whether defendant’s case was “unusual” for the purpose of
granting probation, and not in the context of determining
whether the upper term should be imposed. Nevertheless, the
court’s comments reflect that it seriously considered granting
probation. It acknowledged the case was “close.” We therefore
are unable to conclude beyond a reasonable doubt that the court
would have imposed the aggravated term of three years if it had
discounted defendant’s performance on probation. Given the age
of one of the felonies, the nonviolent nature of the prior
crimes, and the court’s conclusion that his prior convictions
were less serious than prior convictions generally giving rise
to the probation limitation, we cannot say with the requisite
certainty what the trial court will do on remand. As a
consequence, we must reverse the sentence and remand the case to
the trial court for resentencing.
DISPOSITION
The sentence is reversed and the case remanded to conduct a
new sentencing hearing consistent with the requirements set
forth in Cunningham, supra, 166 L.Ed.2d 856. In all other
respects, the judgment is affirmed.
RAYE , J.
We concur:
DAVIS , Acting P.J.
HULL , J.

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