The admission of appellant’s statements made during plea negotiations was harmless error. Appellant was sentenced to six years in state prison for escape from a parole halfway house, which was the upper term doubled under the Three Strikes law. On appeal, he argued that the trial court erred when it admitted a confession he made during plea negotiations. The appellate court agreed, but found the error harmless. Appellant admitted that he left the program; the only dispute was which day he actually left. Therefore, given his testimony, erroneous admission of his additional statements during plea negotiations that he left and smoked crack caused no possible prejudice.
Appellant should have been charged with the more specific statute of failure to return from a parole halfway house after an authorized absence. Appellant also contended that he should have been charged under a more specific statute which carried a lesser punishment. He was convicted of violating subdivision (b) of section 4530 (escape), and contended that he should have been convicted of subdivision (c) which proscribes failure to return after an authorized absence. The appellate court agreed and modified the conviction from a violation of subdivision (b) to subdivision (c). Although the punishments for the two offenses were identical, subdivision (c) provides that it shall not be charged as a prior felony for purposes of subsequent prosecution. The Legislature specifically intended for subdivision (c) to carry a lesser penalty by making a violation of subdivision (c) unusuable as a prior conviction. Imposition of the upper term complied with appellant’s Sixth Amendment right to trial by jury. Appellant also maintained that under Cunningham, imposition of the upper term violated his right to a jury trial. The appellate court rejected the argument, finding that only one aggravating factor is necessary, and appellant’s prior criminal history was a valid aggravating factor, amply supported by the probation report.