Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County., No. BF109892A Lee P. Felice, Judge.
Laura Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Amanda D. Cary, Deputys Attorney General, for Plaintiff and Respondent.
OPINION
Before Gomes, Acting P.J., Dawson, J., and Kane, J.
Appellant, Jaime Aguilar Burciaga, pled no contest to inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)) and assault with a deadly weapon (§ 245, subd. (a)(1)) and admitted a great bodily injury enhancement (§ 12022.7) and allegations that he had a prior domestic violence conviction (§ 273.5 subd. (e)(1)). On January 18, 2007, the court sentenced Burciaga to the aggravated term of five years on his inflicting corporal injury on a spouse conviction, a five-year great bodily injury enhancement (§ 12022.7, subd. (e)), and a one-year term on his assault conviction.
All further statutory references are to the Penal Code, unless otherwise indicated.
On appeal, Buricaga contends the court committed Cunningham error. (Cunningham v. California (2007) 549 U.S. 270 (Cunningham).) We will affirm.
FACTS
On April 3, 2005, Burciaga was acting strangely and began arguing with his wife, Alma, after stating that they should leave their residence. Burciaga then began stabbing Alma with a box cutter. Alma’s mother, Maria G., and sister, Marilyn G., attempted to intervene and also were stabbed by Burciaga. Burciaga left with his two minor children but was arrested the following day. All three women suffered minor stab wounds as a result of the attack.
On April 6, 2005, the district attorney filed a complaint charging Burciaga with one count each of attempted murder (count 1/§§ 664 & 187, subd. (a)), inflicting corporal injury on a spouse (count 2/§ 273.5, subd. (a)), child endangerment (count 7/§ 273a, subd. (a)), two counts each of assault by means of force likely to produce great bodily injury (counts 3 & 4/§ 245, subd. (a)(1)), and two counts of kidnapping (counts 5 & 6/ § 207, subd. (a)). Counts 1 through 4 alleged a great bodily injury enhancement (§ 12022.7, subd. (e)). Counts 1 and 2 alleged an arming enhancement (§ 12022.1. subd. (b)(1)). Count 3 also alleged that Burciaga had a prior domestic violence conviction (§ 273.5, subd. (e)).
On September 13, 2006, Burciaga entered his plea in exchange for a stipulated term of 11 years consisting of the aggravated term of five years on his domestic violence offense, a five-year great bodily injury enhancement, and a one-year term on his assault offense, one-third the middle term of three years. During the change of plea hearing, the following colloquy occurred:
“MR. SCHULTZ [DEFENSE COUNSEL]: My understanding is there’s going to be a plea to Count 2. There’s going to be an admission of the 273.5 allegation and the GBI allegation. There’s going to be a stipulated agreement to 11 years, which would require an additional plea to a 245[, subdivision] (a), which, I believe, is Count 3.
“THE COURT: Okay. And admit the GBI on that count, also?
“MR. SCHULTZ: No.
“THE COURT: No? So the upper term, five plus five years for the GBI on Count 1?
“MR. SCHULTZ: Correct.
“THE COURT: And then a third of the mid-term on Count 3?
“MR. SCHULTZ: Yes.
“THE COURT: For a stipulated term of 11 years?
“MR. SCHULTZ: That’s correct.” (Italics added.)
Later in explaining the terms of the plea agreement to Burciaga, the court stated:
“The charges that you’re pleading no contest to, sir, a violation of Penal Code Section 272.5 [sic.] [, subdivision] (a), because of the prior conviction for 273.5, it has a sentencing range of two years, four years, or five years in prison.
“You’re going to be admitting that you inflicted great bodily injury which has a sentencing range of three years, four years, or five years which would be tacked onto whatever the Court were to select for the underlying conviction--or underlying violation. The maximum sentence for that count with the great bodily injury enhancement would be 10 years. You’re going to be pleading no contest to Count 3 as amended, assault with a deadly weapon and be sentenced to a stipulated consecutive term of one year[], and the agreement is that the Court will sentence you to 10 years on Count 2, and one year on Count 3 for an 11-year sentence.” (Italics added.)
On January 18, 2007, the court sentenced Burciaga to the stipulated 11-year term.
DISCUSSION
Relying on Cunningham, supra, 549 U.S. 270, Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Burciaga contends he did not enter his plea knowingly, intelligently or voluntarily because he did not waive his right to a jury trial with respect to the facts used to impose the upper term. We disagree.
In Cunningham, the Supreme Court reaffirmed Apprendi, Blakely, and United States v. Booker (2005) 543 U.S. 220, but overruled People v. Black (2005) 35 Cal.4th 1238 and held California’s determinate sentencing law violates a defendant’s constitutional right to a jury trial to the extent it authorizes the trial judge to find facts that expose a defendant to an upper term sentence by a preponderance of the evidence. “This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence .” (Cunningham, supra, 549 U.S. at pp. 863-864.)
The United State Supreme Court has recognized two exceptions to a defendant’s Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury’s verdict. (Blakely, supra, 542 U.S. at p. 303.) Second, the right to a jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. (Id. at p. 301; see Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States (1998) 523 U.S. 224.)
Plea bargaining is a judicially and legislatively recognized procedure that provides reciprocal benefits to the People and the defendant. (People v. Masloski (2001) 25 Cal.4th 1212, 1216; People v. Orin (1975) 13 Cal.3d 937, 942-943; § 1192.5.) When a defendant enters a plea of guilty or no contest, he or she is admitting the sufficiency of the evidence for the offense. Issues going to guilt or innocence are removed from consideration upon entry of the plea. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) The California Supreme Court observed long ago that when a defendant waives the right to a jury trial, he or she is deemed to have consented to a trial of all the issues in the case before the court sitting without a jury. (People v. Berkutko (1969) 71 Cal.2d 84, 94.) It logically follows that a defendant waiving a right to a jury trial as a precursor to a guilty plea and in exchange for a specified upper term sentence has waived the right to a jury trial on all issues. A sentence within the maximum allowed by facts admitted by a defendant does not violate Blakely. (United States v. Lucca (8th Cir. 2004) 377 F.3d 927, 934; United States v. Saldivar-Trujillo (6th Cir. 2004) 380 F.3d 274, 279.)
We therefore conclude that the United States Supreme Court’s recent decision in Cunningham, supra, 549 U.S. 270 is inapplicable to Burciaga’s sentence. In light of his waiver of a right to a jury trial and his consent to the precise sentence imposed, the constitutionality of his upper term sentence under Cunningham and Blakely is not an issue in the case. Generally, “[w]here the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process.” (People v. Hester (2000) 22 Cal.4th 290, 295, italics added.)
Burciaga’s claim that he is challenging only the validity of his plea, not the sentence imposed, does not change our analysis. According to Burciaga, cases like Hester in which the court rejected a defendant’s challenge to a stipulated sentence are inapposite because he is challenging his plea not his sentence. We need not discuss this contention because Burciaga has not proffered any argument or authority to support it. (People v. Gionis (1995) 9 Cal.4th 1196, 1214.) Nevertheless, we note that irrespective of how Burciaga characterizes his contention, it challenges both his plea and his sentence.
Burciaga agreed he would be sentenced to a stipulated 11-year prison term as a result of his plea and, in fact, he ultimately received that sentence. His plea in effect admitted the existence of facts necessary to impose the upper term on his domestic violence conviction and the great bodily injury enhancement attached to that count. Burciaga therefore waived his right to complain about the upper term as potentially invalid under Blakely and Cunningham because he accepted a negotiated plea bargain for a specified term that allowed him to avoid a potentially harsher sentence. (People v. Hester, supra, 22 Cal.4th at p. 295.) The trial court carefully advised Burciaga of the consequences of his plea and his constitutional rights. The parties stipulated to a factual basis for appellant’s plea, as well as to his sentence. Burciaga received the stipulated sentence. We find no error in the trial court’s advisement of rights, appellant’s waiver of rights and admissions, or in the trial court’s imposition of sentence.
DISPOSITION
The judgment is affirmed.