P. v. McMillon

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Filed 11/8/07 P. v. McMillon 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
JAMAHL RASHAD MCMILLON,
Defendant and Appellant.
C053763
(Super. Ct. No.
CM024710)
Defendant Jamahl Rashad McMillon pleaded no contest to rape
by use of drugs (Pen. Code, § 261, subd. (a)(3); count 2)1 and
oral copulation of a person under age 18 (§ 288a, subd. (b)(1);
count 4). In exchange, counts of forcible rape (§ 261, subd.
(a)(2) (count 1)) and rape by use of drugs (count 3) were
1 Further undesignated statutory references are to the Penal
Code.

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dismissed with a Harvey2 waiver. Defendant was sentenced to
state prison for 10 years, consisting of the upper term of eight
years on count 2, eight months consecutive on count 4, and eight
months consecutive in each of two controlled substance cases in
which probation had been revoked. He did not obtain a
certificate of probable cause.
On appeal, defendant contends his upper term sentence
violates Apprendi, Blakely and Cunningham,3 and he claims it is
cognizable on appeal despite his failure to obtain a certificate
of probable cause. Defendant also contends, and the Attorney
General concedes, he was not convicted of a violent felony and
his in-prison conduct credits are not limited by section 2933.1.
We affirm the judgment.
FACTS4
Early on the morning of July 3, 2005, Butte County
Sheriff’s deputies were dispatched to Oroville Hospital
regarding a reported rape. Deputies contacted the victim, 17-
year-old A.G., who informed them that she had been raped by
defendant, a family friend, after drinking and playing video
games with defendant at her residence the previous evening. The
2 People v. Harvey (1979) 25 Cal.3d 754.
3 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).
4 Because defendant pleaded no contest, our statement of
facts is taken from the probation officer’s report.

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victim told deputies that she became very intoxicated and passed
out in her bed after drinking “Mad Dog 20/20” supplied by
defendant. She awoke between 3:00 and 3:30 a.m., and found him
on top of her with his penis in her vagina. Although she
demanded that he get off of her, he continued his sexual assault
until he ejaculated inside of her. He then left the room. She
pulled up her pajama bottoms and went back to sleep.
Approximately 10 minutes later, A.G. was again awakened by
defendant. She was on her stomach with her pajama bottoms down,
and he was behind her with his penis in her vagina from behind.
A few minutes later, he performed oral sex on her.
After defendant left the residence, A.G. telephoned a
friend who took her to Oroville Medical Center. Rape kits for
A.G. and defendant were obtained and forwarded to the state
Department of Justice (DOJ) for analysis. DOJ later reported
that DNA samples collected from defendant matched those taken
from the victim’s rape exam.
DISCUSSION
I
Defendant contends his upper term sentence was imposed in
violation of Apprendi, Blakely and Cunningham. In a separate
argument, he claims the issue is cognizable despite his failure
to obtain a certificate of probable cause.
Defendant acknowledges this court’s holding in People v.
Bobbit (2006) 138 Cal.App.4th 445 (Bobbit), that a Blakely claim
requires a certificate of probable cause, but he claims the

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present case is distinguishable. The Attorney General
disagrees.
Bobbit explained: “The ultimate issue raised on appeal
relates to the trial court’s authority to impose an upper term
sentence in light of [Blakely, supra,] 542 U.S. 296. [¶] This
argument is not cognizable on appeal because defendant did not
obtain a certificate of probable cause. ‘“[A] challenge to a
negotiated sentence imposed as part of a plea bargain is
properly viewed as a challenge to the validity of the plea
itself” and thus requires a certificate of probable cause.
[Citation.]’ (People v. Shelton (2006) 37 Cal.4th 759, 766
(Shelton), quoting People v. Panizzon (1996) 13 Cal.4th 68, 79.)
‘[T]he specification of a maximum sentence or lid in a plea
agreement normally implies a mutual understanding of the
defendant and the prosecutor that the specified maximum term is
one that the trial court may lawfully impose and also a mutual
understanding that, absent the agreement for the lid, the trial
court might lawfully impose an even longer term.’ (Shelton,
supra, at p. 768.) ‘[A] provision recognizing the defendant’s
right to “argue for a lesser term” is generally understood to
mean only that the defendant may urge the trial court to
exercise its sentencing discretion in favor of imposing a
punishment that is less severe than the maximum punishment
authorized by law.’ (Ibid.) ‘Of course, a prosecutor and a
defendant may enter into a negotiated disposition that expressly
recognizes a dispute or uncertainty about the trial court’s
authority to impose a specified maximum sentence -- because of

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Penal Code section 654’s multiple punishment prohibition or for
some other reason -- and preserves the defendant’s right to
raise that issue at sentencing and on appeal.’ (Shelton, supra,
at p. 769; italics added & omitted.)” (Bobbit, supra, 138
Cal.App.4th at pp. 447-448.)
Defendant claims Shelton is distinguishable because its
section 654 claim, if successful, would have precluded
imposition of the agreed-to maximum sentence; whereas his
Cunningham claim and the Blakely claim in Bobbit do not preclude
imposition of the maximum term, provided the sentencing court
finds aggravating circumstances true beyond a reasonable doubt.
The suggested distinction is unavailing.
Whether barred outright or barred only pending further
factual findings, the agreed-to maximum term would not be one
that the court could “lawfully impose” based on the record of
the plea hearing alone. (Bobbit, supra, 138 Cal.App.4th at p.
447.) An Apprendi-Blakely-Cunningham claim posits that,
contrary to the understanding of all concerned at the hearing,
the plea agreement did not fully resolve the disputed factual
issues of the case. Thus, defendant’s Cunningham claim
effectively challenges the plea.
This court noted in Bobbit that “Blakely[,] supra, 542 U.S.
296, was decided on June 24, 2004. The negotiated disposition
was placed on the record on February 2, 2005, and sentencing
took place on March 2, 2005, both of which occurred well after
the highly publicized decision, which dispels any doubt that the

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issue was not preserved through the oversight of defense
counsel.” (Bobbit, supra, 138 Cal.App.4th at p. 448.)
Defendant claims that by the time of his plea and
sentencing (Aug. & Sept. 2006), a Blakely claim had been
foreclosed by People v. Black (2005) 35 Cal.4th 1238 (Black I).
He reasons the “absence of a Blakely waiver in the five-page
written plea agreement in this case [citation] strongly suggests
that the parties did not regard the plea bargain as including
such waiver.” (Fn. omitted.) We disagree.
The written plea agreement included defendant’s stipulation
that “the sentencing judge may consider my prior criminal
history . . . when . . . imposing sentence.” (Unnecessary
capitalization omitted.) Thus, defendant stipulated that the
court could consider his two misdemeanors in 2001 and 2004,
followed by his two felonies in 2005. Because the stipulated
priors were numerous and of increasing seriousness (Cal. Rules
of Court, rule 4.421(b)(2)), and a single aggravating factor is
sufficient to impose the upper term (§ 1170, subd. (b)), the
priors were sufficient to expose defendant to an aggravated
sentence under the reasoning of Justice Kennard’s concurring and
dissenting opinion in Black I (Black I, supra, 35 Cal.4th at p.
1270), later adopted by the court in People v. Black (2007) 41
Cal.4th 799 (Black II). Had defense counsel intended to
preserve a Blakely claim following the February 2006 grant of
certiorari in Cunningham (546 U.S. 1169 [164 L.Ed.2d 47]), he
would not have consented to this express provision of the plea
agreement.

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Because he failed to obtain a certificate of probable
cause, defendant’s Apprendi-Blakely-Cunningham claim is not
properly before us.
II
Defendant contends, and the Attorney General concedes,
section 2933.1 does not apply to this case because none of his
crimes is a “violent felony” under section 667.5, subdivision
(c). We accept the Attorney General’s concession.
The probation officer’s report addressed the issue of
resentencing on the two prior controlled substance cases as
follows: “With regard to [the two prior cases] it appears the
defendant is incarcerated in state prison and has never been
paroled, and therefore, it appears resentencing is appropriate.
As such, it appears the defendant should be sentenced to
consecutive eight month terms in each case. In light of the
defendant’s new violent felony conviction in [the present case,]
the defendant’s custodial credits in both [prior cases] shall
also be limited to no more than 15% of good time/work time
pursuant to § 2933.1 PC as they will be served during the same
period of confinement.” (Italics added.)
Citing In re Reeves (2005) 35 Cal.4th 765, the prosecutor
concurred with probation that the credit limitation would apply
to the subordinate terms for the two drug offenses.
Defense counsel countered that credits for the prior drug
cases should be calculated pursuant to section 4019, rather than
section 2933.1, because those credits had been earned prior to
the convictions in the present case. Later, addressing the

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sentence for the present crimes, defense counsel mistakenly
conceded that defendant was “standing before the Court for a
very serious crime. It’s considered a violent felony in the
State of California. It’s considered one of the most horrendous
crimes there is.” (Italics added.) Still later, defense
counsel remarked, “I believe that the law is clear that from
this point forward there’s a credit limitation. Even though
those offenses are non-violent offenses, they’re attached to and
run consecutive to a violent term.” (Italics added.) Counsel
reiterated that the court should award presentence credit in the
prior cases pursuant to section 4019.
In each prior case, the trial court awarded custody credits
and calculated conduct credits pursuant to section 4019. At
the trial court’s request, the probation officer calculated the
maximum amount of in-prison credit defendant could earn against
his 10-year sentence with the 15 percent limitation.
The presentence custody and conduct credits were recorded
on the abstract of judgment. The maximum amount of in-prison
credit was not included.
Because none of defendant’s crimes is a violent felony, the
Attorney General properly concedes that “the limitations of
section 2933.1 are inapplicable to [defendant’s] future worktime
credits.” The concession does not require modification of the
abstract of judgment, which properly reflects presentence
custody awarded pursuant to section 4019.

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DISPOSITION
The judgment is affirmed.
NICHOLSON , J.
I concur:
CANTIL-SAKAUYE , J.
I concur in the result:
SCOTLAND , P.J.

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