P. v. Selitsch

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Filed 5/15/07 P. v. Selitsch CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
KARL SELITSCH,
Defendant and Appellant.
A114345
(Mendocino County
Super. Ct. No. SCUK CRCR 03-55715)
Defendant and appellant Karl Selitsch appeals the sentence imposed following his
guilty-plea conviction on the charge of conspiracy to commit burglary in the first degree,
in violation of Penal Code sections 182, 459 and 460, subdivision (a).1 Appellant
contends the trial court violated his Sixth Amendment right to a jury trial by imposing the
aggravated term of six years based on facts determined by the trial court rather than by a
jury. We agree. Accordingly, we vacate the sentence and remand for further
proceedings.
FACTS & PROCEDURAL BACKGROUND
On the morning of October 29, 2002, a Mendocino County Sheriff’s Deputy
responded to a dispatch about a shooting on Branch Road, Hopland. En route, dispatch
informed the deputy Hopland Tribal Police were already on the scene and had taken one
suspect into custody. Upon arrival, the deputy saw Raymond Fallis lying dead on his
1 Further statutory references are to the Penal Code unless otherwise noted.

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front steps. A tribal police officer on the scene informed the deputy a suspect was seen
leaving the scene of the crime and had been taken into custody at gunpoint. This suspect
was later identified as Michael Depriest.
On October 30, 2002, a detective received information from an anonymous source
stating Depriest had been overheard planning to rob Fallis of coins and currency with the
help of George Guertler and appellant. Depriest was brought from jail for questioning
about this information. Depriest admitted he’d discussed the possibility of robbing Fallis
with George Guertler and appellant, but averred it was just idle talk. Under further
questioning, however, Depriest stated he and appellant had left the tribal casino on the
day of the murder with the intention of going to Fallis’ property to rob him. Depriest said
appellant initiated the plan. According to Depriest, appellant handed him a bag
containing gloves, a walkie-talkie, and the gun used to shoot Fallis. The plan was for
Depriest to go to Fallis’ residence on foot, subdue him at gunpoint, and then call
appellant on the walkie-talkie. Appellant, parked nearby in his truck, would then come in
to help tie up Fallis and look for the gold coins, which they believed were hidden in the
residence. However, the plan went awry when Depriest shot Fallis during the course of
the robbery. 2
Subsequently, the police questioned George Guertler. Guertler said Depriest told
him he (Depriest) had been approached by appellant to help rob a man. Appellant
believed this man was storing gold coins stolen from the Shokowah Casino at his home.
Depriest told Guertler appellant had an “Italian hit gun” with a silencer, which appellant
kept at his home. According to Guertler, Depriest talked three or four times about going
to steal the coins from the casino worker. Police also questioned Michael Frenier, a close
friend of Depriest. Frenier said Depriest introduced him to appellant about one month
before the murder. Appellant “freaked out” but Depriest assured appellant Frenier “was
2 Depriest pleaded nolo contendere to a second degree murder charge, admitted the
special allegation the murder was committed during the commission of first degree
burglary, and received a sentence of 40 years-to-life.

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cool.” Appellant then outlined a plan to rob a man in Hopland. Frenier said appellant
had drawn a map of the exterior of the victim’s property. According to Frenier, the three
drove to the victim’s house to carry out the robbery, but aborted the plan because others
were present at the residence. Frenier said he later came to his senses and pulled out of
the plan.
On April 27, 2004, the People filed an information charging appellant with
premeditated murder, in violation of section 187, subdivision (a) [count 1]; first degree
robbery, in violation of sections 211 and 212.5, subdivision (a) [count 2]; first degree
burglary, in violation of sections 459 and 460, subdivision (a) [count 3]; and conspiracy
to commit robbery, in violation of section 459 [count 4]. The information alleged four
overt acts in furtherance of the conspiracy as well as two special allegations.
At a change of plea hearing on March 9, 2006, the parties announced a negotiated
plea which called for appellant to plead guilty to count 4 as amended to allege conspiracy
to commit first degree burglary, in violation of sections 182, subdivision (a)(1) and 459.
The plea also called for appellant to admit the first overt act alleged in the information as
amended to state: “Said defendant, Karl Selitsch, discussed a plan to take coins with
Michael Depriest and Michael Frenier.” Under the plea, appellant would also admit overt
act number four as amended to state: “Said defendant, Karl Selitsch, entered Raymond
Fallis’s residence with Michael Depriest and Michael Frenier to carry out the plan.” The
People agreed to dismiss all remaining counts in the interests of justice. The parties
agreed the plea was open as to the sentence to be imposed. Before accepting the plea, the
trial court advised appellant of, and appellant waived, his various constitutional rights.
Regarding sentencing, the trial court also advised appellant as follows: “. . . The offense
that you would be pleading guilty to today has a maximum confinement time of up to six
years state prison. You could be sentenced to two years which is the mitigated term, four
years which is the mid term, or six years which is the aggravated term. [¶] There would
be no promises at the outset as to any amount of time you would have to serve in custody
for this offense. [¶] You need to understand, sir, this is an offense for which you would
be presumptively ineligible for probation. It would be your burden to show the court why

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you should be granted probation, if that is your request at judgment and sentencing.
[¶] Do you understand?” [¶] Appellant replied, “Yes.”
At the end of the plea colloquy, appellant pleaded guilty to the crime of conspiracy
to commit burglary and admitted overt acts numbers one and four, as amended. The trial
court found a knowing, voluntary and intelligent waiver of rights. As to the factual basis
for the plea, the court stated: “The court has . . . reviewed a portion of the preliminary
hearing transcript which appears to supply a factual basis. [¶] And I understand that the
People are going to offer the entire transcript as further evidentiary support for the plea.
Is that correct?” Without objection from defense counsel, the prosecutor replied: “That’s
correct your honor.” But after concurring in appellant’s waiver of rights, defense counsel
stated: “. . . And the partial [two-page excerpt from the preliminary hearing] transcript
that I provided the court before, . . . I request it be made an exhibit to this proceeding and
that a transcript of the oral action of the court be transcribed, made available to the
Probation Department so that it’s clear to them what went on.” The court replied: “So
ordered. The preliminary hearing transcript which was handed to the court consisting of
two pages will be made an exhibit to the transcript of the plea today.”
At the sentencing hearing on June 16, 2006, the prosecution argued the court was
entitled to consider the entire transcript of the preliminary hearing in order to determine
factors in aggravation and mitigation. The prosecution argued the preliminary hearing
transcript showed appellant participated in the conspiracy to rob the victim right up to the
point where Depriest shot the victim. On that basis, the prosecution stated “it’s
appropriate to consider the dismissed counts because they’re transactionally related . . . to
the target offense, what [sic] happened while [appellant] was still a member of the
conspiracy,” and to “consider this an aggravated case.”
On the other hand, defense counsel stated he’d agreed to only two pages of the
preliminary hearing transcript to be admitted at the change of plea hearing as the factual
basis for the plea, not the entire preliminary hearing transcript. Defense counsel argued,
based on appellant’s admissions at the change of plea hearing, the conspiracy to rob the
victim to which appellant pleaded guilty ended when he, Depriest and Frenier aborted the

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first attempt to rob the victim. On that basis, defense counsel argued the murder was not
transactionally related to the crime to which appellant pleaded guilty—conspiracy to
commit burglary—and therefore, given appellant’s minimal criminal history, an
aggravated sentence was unwarranted.
The trial court overruled defense counsel’s objection regarding the preliminary
hearing transcript, ruling “the totality of the plea also was in effect a stipulation and
understanding that the entire [preliminary hearing] transcript would be deemed the
factual basis for the plea, despite two specific pages being appended to the plea
transcript.” Based on the preliminary hearing transcript, the court concluded the
conspiracy continued beyond the aborted robbery attempt through the day of the murder,
and therefore the “the murder of Mr. Fallis was transactionally related to the crime that
Mr. Selitsch pled guilty to.” “Accordingly,” the court continued, “the factors in
aggravation which are set forth in the probation report do apply.” The court concluded
the factors in aggravation outweighed the factors in mitigation, and sentenced appellant
to the aggravated term of six years.
DISCUSSION
Appellant contends the imposition of an upper-term sentence violates his Sixth
Amendment right to a jury trial under Blakely v. Washington (Blakely) (2004) 542 U.S.
296.3 Specifically, appellant contends “the trial court expressly relied upon disputed facts
3 In Blakely, the high court “appl[ied] the rule [] expressed in Apprendi v. New
Jersey [Apprendi], 530 U.S. 466, 490: ‘Other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.’ ” (Blakely, supra, 542 U.S.
at p. 296.) Applying the rule of Apprendi, the high court concluded the sentence imposed
under the State of Washington’s determinate sentencing scheme violated petitioner’s
Sixth Amendment right to a jury trial because he “was sentenced to more than three years
above the 53-month statutory maximum of the standard range because he had acted with
‘deliberate cruelty.’ [and] [t]he facts supporting that finding were neither admitted by
petitioner nor found by a jury.” (Blakely, supra, 542 U.S. at p. 303.)

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contained within hearsay statements which were not admitted by appellant at the time of
his plea and not subjected to a jury determination” in imposing the aggravated sentence.
A. Cunningham v. California
Subsequent to the completion of briefing in this appeal, the high court issued
Cunningham v. California (Cunningham) (2007) ___ U.S. ___, 127 S.Ct. 856, in which it
held California’s Determinate Sentencing Law (“DSL”) “violates a defendant’s right to
trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Id. at p. 860.)4
The Court observed the “DSL obliged the trial judge to sentence Cunningham to the 12-
year middle term unless the judge found one or more additional facts in aggravation.
Based on a post-trial sentencing hearing, the trial judge found by a preponderance of the
evidence six aggravating circumstances, among them, the particular vulnerability of
Cunningham’s victim, and Cunningham’s violent conduct, which indicated a serious
danger to the community. . . . In mitigation, the judge found one fact: Cunningham had
no record of prior criminal conduct. Concluding that the aggravators outweighed the sole
mitigator, the judge sentenced Cunningham to the upper term of 16 years.” (Id. at
pp. 860-861, citations omitted.)
“Under California’s DSL,” the high court noted, “an upper term sentence may be
imposed only when the trial judge finds an aggravating circumstance.” (Cunningham,
supra, 127 S.Ct. at p. 868.) In this regard, “[a]n element of the charged offense, essential
to a jury’s determination of guilt, or admitted in a defendant’s guilty plea, does not
qualify as such a circumstance [in aggravation].” (Ibid.) “Instead, aggravating
circumstances depend on facts found discretely and solely by the judge. In accord with
Blakely, therefore, the middle term prescribed in California’s statutes, not the upper term,
is the relevant statutory maximum.” (Ibid.) The Court concluded: “Because
circumstances in aggravation are found by the judge, not the jury, and need only be
established by a preponderance of the evidence, not beyond a reasonable doubt [citation],
4 However, the briefs reflect the parties knew the Cunningham decision was
pending.

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the DSL violates Apprendi’s bright-line rule: Except for a prior conviction, ‘any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.’ [citation.]” (Ibid.)
Also, the high court explicitly rejected the California Supreme Court’s conclusion
in People v. Black (2005) 35 Cal.4th 1238, that the DSL survived the rule of Apprendi.
(Cunningham, supra, 127 S.Ct. at pp. 868-870.) Rejecting the Black court’s view the
DSL was merely advisory, the high court stated: “Cunningham’s sentencing judge had
no discretion to select a sentence within a range of 6 to 16 years. His instruction was to
select 12 years, nothing less and nothing more, unless he found facts allowing the
imposition of a sentence of 6 or 16 years. Factfinding to elevate a sentence from 12 to 16
years, our decisions make plain, falls within the province of the jury employing a beyond-
a-reasonable-doubt standard, not the bailiwick of a judge determining where the
preponderance of the evidence lies.” (Cunningham, supra, 127 S.Ct. at p. 870.) Rather,
the Court held the DSL violates the Sixth Amendment because it “allocates to judges sole
authority to find facts permitting the imposition of an upper term sentence.” (Ibid.)
The trial court’s error in making the factual findings upon which it based its
decision to impose the upper term sentence, is subject to harmless error analysis.
(Washington v. Recuenco (2006) __ U.S. __; 126 S.Ct. 2546, 2547 [Apprendi/Blakely
error not “structural error” requiring automatic reversal].) This type of error is reviewed
under the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24
(Chapman). An error may be found harmless under Chapman only if, on appeal, the
Attorney General demonstrates beyond a reasonable doubt the result would have been the
same notwithstanding the error.
B. Application of Cunningham
1.
Appellant correctly notes the trial court relied on three aggravating factors set
forth in the probation report to justify imposing the aggravated sentence: (1) the crime
involved great bodily injury; (2) the victim was in his home and did not have a way to
defend himself; (3) the defendant induced others to participate and occupied a position of

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leadership. As in Cunningham, the trial court here found these factors in aggravation
outweighed “the sole mitigator” — appellant’s insignificant prior record of criminal
conduct — and sentenced him to the upper term of 6 years. (See Cunningham, supra,
127 S.Ct. at pp. 860-861.) However, because these factors in aggravation were not
submitted to a jury to be established beyond a reasonable doubt, but were found by the
trial judge by a preponderance of the evidence, they violate “Apprendi’s bright-line rule:
Except for a prior conviction, ‘any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.’ [citation]” (Cunningham, supra, 127 S.Ct. at p. 868.) Thus,
Cunningham compels the conclusion the upper-term sentence imposed on appellant was
in violation of his right to a jury trial under the Sixth Amendment.
2.
Respondent, being aware Cunningham was pending at time of briefing, contends
that “even if the rationale of Black were ultimately rejected by the United States Supreme
Court, appellant would still not be entitled to relief.” Because the rationale of Black was
in fact rejected by the high court in Cunningham, we address respondent’s contentions.
Respondent first contends “appellant forfeited any constitutional challenge to his
sentence by explicitly acknowledging when he entered his plea that the maximum
confinement time he faced was six years and by not objecting to such a sentence on
constitutional grounds.” Respondent argues appellant has waived the claim that
imposition of the upper term violates his constitutional rights because he did not raise it
at the sentencing hearing.
Black held “the judicial factfinding that occurs when a judge exercises discretion
to impose an upper term sentence or consecutive terms under California law does not
implicate a defendant’s Sixth Amendment right to a jury trial.” (People v. Black, supra,
35 Cal.4th 1238, 1244, abrogated in part by Cunningham, supra.) Decided in June 2005,
Black was the governing law in California on this issue not only when appellant was
sentenced in June 2006, but until the high court issued its Cunningham decision in

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January 2007. Accordingly, we reject respondent’s contention appellant forfeited his
right to claim error by failing to raise this issue in the trial court because under Black,
supra, any objection would have been futile. (People v. Abbaszadeh (2003) 106
Cal.App.4th 642, 648, [noting “there is a general exception to the waiver rule . . . where
an objection would have been futile”]; People v. Hill (1998) 17 Cal.4th 800, 820
[defendant excused from failing to timely object if the objection would have been
futile].) 5
Respondent also contends Cunningham does not preclude imposition of the upper
term because appellant admitted all the facts necessary for the court to impose it.
Specifically, respondent contends appellant’s “de facto stipulation that the [preliminary
hearing] transcript could be considered as the factual basis for the plea is tantamount to
an admission of the facts contained in that transcript for the purposes of sentencing. No
further admissions by appellant or jury trial was required for the court to impose an
upper-term sentence.” This contention lacks merit.
As noted above, the record is less than crystal clear on what the parties intended to
have submitted as support for the factual basis of the plea. The trial court understood
(and so ruled) there was a stipulation the entire transcript of the preliminary hearing
would be offered as the factual basis for the offense, whereas defense counsel understood
only the two-page extract appended to the plea transcript contained the factual basis for
the offense. However, even if the trial court was correct there was such a stipulation,
respondent’s contention still fails.
5 Moreover, because of the constitutional implications of the error at issue, there is a
serious question whether the forfeiture doctrine even applies in these circumstances.
(People v. Vera (1997) 15 Cal.4th 269, 276-277 [claims asserting deprivation of certain
fundamental, constitutional rights not forfeited by failure to object].) Furthermore, since
the purpose of the forfeiture doctrine is to “encourage a defendant to bring any errors to
the trial court’s attention so the court may correct or avoid the errors,” (People v.
Marchand (2002) 98 Cal.App.4th 1056, 1060), we find it inappropriate to invoke that
doctrine when appellant was sentenced almost a year after Black was decided.

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The trial court accepted the preliminary hearing transcript as providing the factual
basis for the offense of conspiracy to commit first degree burglary, or, as stated by the
trial court, “as further evidentiary support for the plea.” Nowhere in the record does
appellant admit to the truth of the testimony contained in the preliminary hearing
transcript. Indeed, the only admissions from appellant were that he “discussed a plan to
take coins with Michael Depriest and Michael Frenier” and “entered Raymond Fallis’s
residence with Michael Depriest and Michael Frenier to carry out [sic] plan.” In short,
the record does not indicate appellant’s stipulation to admit the preliminary hearing
transcript as a factual basis for the offense was anything more than his acknowledgement
that he committed the elements of the crime to which he was pleading guilty: conspiracy
to commit first degree burglary. And, as the high court noted in Cunningham, supra,
“[a]n element of the charged offense . . . admitted in a defendant’s guilty plea[] does not
qualify as such a circumstance [in aggravation].” (Cunningham, supra, 127 S.Ct. at
p. 868.)
There is another reason why the preliminary hearing transcript, even if stipulated
to by appellant as the factual basis for the offense, cannot serve as the basis for the
aggravated term: Appellant did not testify at the preliminary hearing and did not admit
the facts necessary to support the factors in aggravation the trial used to justify the
aggravated term. (Blakely, supra, 542 U.S. at p. 303 [sentence in excess of statutory
maximum must be based on facts either admitted by appellant or found by a jury].) The
factors in aggravation relied upon by the trial court—(1) the crime involved great bodily
injury; (2) the victim was in his home and did not have a way to defend himself; (3) the
defendant induced others to participate and occupied a position of leadership—were
findings based on facts adduced from the hearsay testimony of co-participant Depriest
and Frenier presented through the testimony of Detective Kevin Bailey at the preliminary
hearing. But they were not findings based on facts admitted by appellant. Indeed,
appellant stated he told Depriest he wanted nothing to do with the plan to rob the victim
and denied being with Depriest on the day of the murder. We have grave reservations
about the admissibility of the hearsay evidence contained in the preliminary hearing

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transcript to support findings which must be made beyond a reasonable doubt. We do not
mean to limit the parties from stipulating to facts from which sentencing factors may be
found; we only hold that any such stipulation must be knowingly made, clear and
unequivocal.
In sum, we conclude the trial court imposed the aggravated sentence in violation
of appellant’s Sixth Amendment right to a jury trial under Cunningham, supra, 127 S.Ct.
856. Applying the standard of Chapman v. California, supra, 386 U.S. 18, we cannot say
the error was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is vacated and the matter remanded for re-sentencing in accordance
with Cunningham.
_________________________
Parrilli, J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Siggins, J.

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