Opinion
C054178
9-12-2007
THE PEOPLE, Plaintiff and Respondent, v. VICTOR JOSEPH HERNANDEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant Victor Joseph Hernandez entered a "straight-up" plea of guilty to evading a peace officer with willful disregard for the safety of others (Veh. Code, § 2800.2, subd. (a)—count I), and misdemeanor driving with a revoked or suspended license for a prior driving under the influence conviction (id., § 14601.2, subd. (a)—count II), and admitted three prior convictions for driving with a revoked or suspended license (id., §§ 14601, 14601.1, 14601.2, 14601.5), two of which occurred within the past five years.
The trial court denied probation and sentenced defendant to the upper term of three years in prison on count I and a concurrent term of one year in jail on count II.
Defendant appeals, contending (1) he was not advised of the consequences of his plea, and (2) imposition of the upper term violates the Sixth Amendment to the United States Constitution as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham v. California (2007) 549 U.S. ___ (Cunningham). Disagreeing with both contentions, we shall affirm the judgment.
DISCUSSION
Defendants appellate counsel initially filed an opening brief that set forth the facts of the case and requested this court review the record and determine whether there were any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Thereafter, in accordance with this courts Miscellaneous Order No. 2007-003, defendant filed a supplemental brief arguing that imposition of the upper term is unconstitutional under Cunningham. (Ct. App., Third App. Dist., Misc. Order No. 2007-003.) With our permission, defendant later filed his own supplemental letter brief arguing that his plea was involuntary and imposition of the upper term is unconstitutional under Cunningham. Because defendant has raised "specific issues," we need not examine the entire record, and, therefore, limit our consideration to the issues raised in the parties briefs. (Wende, supra, at p. 441.)
I
Defendant asserts that the trial court "rendered a sentence that significantly exceeded [his] reasonable understanding of the consequences at the time of the plea," and therefore, his plea was involuntary. In support of his assertion, he states that he (1) "entered the plea [to count I] with the understanding that probation was an option, worst case two years," and (2) "was never advised, at all, to count [II]."
Defendants claim that his plea was involuntary is not reviewable on appeal because he failed to obtain a certificate of probable cause. (Pen. Code, § 1237.5 ["No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty . . . except where" the defendant has sought and obtained a certificate of probable cause]; see also People v. Panizzon (1996) 13 Cal.4th 68, 76.) Even if his claim were reviewable, it fails on the merits.
Prior to entering his guilty plea, defendant was advised that "[t]he maximum amount of prison time that can be imposed for [a violation of section] 2800.2 is three years in state prison or a fine of $10,000 plus penalty assessments or both the fine and the prison time," and the maximum penalties for a violation of section 14601.2 with one or more prior violations of section 14601, 14601.1, 14601.2 or 14601.5 in the past five years is "1 year in the county jail with a mandatory non-suspendable minimum of 10 days AND a fine of not less than $1,750 or more than $7,000 (including penalty assessments and fees). . . ." Defendant was sentenced in accordance with these advisements.
II
Defendant contends imposition of the upper term violates the Sixth Amendment under Apprendi, Blakely, and Cunningham.
Apprendi held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490 .) For this purpose, the statutory maximum is the maximum sentence a court could impose based solely on facts reflected by a jurys verdict or admitted by the defendant; thus, when a courts authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. at pp. 303-305 [159 L.Ed.2d at pp. 413-414].)
Accordingly, in Cunningham, supra, 549 U.S. at p. ___ , the United States Supreme Court held that by "assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated `upper term sentence," Californias determinate sentencing law "violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments." (Ibid., overruling People v. Black (2005) 35 Cal.4th 1238 (Black I) on this point, vacated in Black v. California (2007) ___ U.S. ___ .)
Applying Cunningham, in People v. Black (2007) 41 Cal.4th 799 (Black II), our Supreme Court recently held "that imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions." (Id. at p. 816.)
As a preliminary matter, we reject the Peoples assertion that defendants claim is "procedurally barred" by his failure to obtain a certificate of probable cause. The People rely on People v. Shelton (2006) 37 Cal.4th 759 (Shelton), and our subsequent decision in People v. Bobbit (2006) 138 Cal.App.4th 445 (Bobbit) in support of their assertion. In Shelton, the court held that "`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." (Shelton, supra, at p. 766, quoting Panizzon, supra, 13 Cal.4th at p. 79.) In doing so, the court used "general contract principles" to interpret "the language of the plea agreement concerning sentencing" (Shelton, supra, at p. 767) and observed that "the 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." (Id. at p. 768.) "Of course, a prosecutor and a defendant may enter into a negotiated disposition that expressly recognizes a dispute or uncertainty about the trial courts authority to impose a specified maximum sentence . . . and preserves the defendants right to raise that issue at sentencing and on appeal." (Id. at p. 769.)
In Bobbit, this court applied the foregoing reasoning in Shelton to dismiss a defendants appeal where he raised sentencing error under Blakely without preserving the issue and obtaining a certificate of probable cause. (Bobbit, supra, 138 Cal.App.4th at pp. 447-448.) There, we examined the language of the plea agreement, and found it "did not preserve, either at sentencing or on appeal, the issue that the court did not have the authority to impose an upper term sentence in the absence of a jury finding of one or more aggravating circumstance(s)." (Id. at p. 448.) "Without a certificate of probable cause, the appeal [had to be] dismissed." (Ibid.)
The difference here is that defendant did not enter a negotiated plea. He entered a "straight-up" guilty plea to both counts charged in the complaint and admitted all three prior convictions alleged therein. He was not promised anything in exchange for his plea. Accordingly, there was no "contract" from which to derive the parties "mutual understanding" as to the trial courts authority to sentence defendant to the upper term. Thus, defendants challenge to his upper term sentence is not in substance a challenge to the validity of his plea, and he does not need a certificate of probable cause to raise it on appeal. (Shelton, supra, 37 Cal.4th at pp. 766, 768.)
The People next assert that the upper term was validly imposed because the trial court based it on defendants prior convictions, a well-settled exception to the rule of Apprendi, Blakely, and Cunningham. (Cunningham, supra, 549 U.S. at p. ___ .) We agree.
As pointed out in Apprendi, Blakely, and Cunningham, the Sixth Amendment does not apply to prior convictions that are used to impose greater punishment. (E.g., Cunningham, supra, 549 U.S. at p. ___ .) In deciding to impose the upper term in this case, the trial court relied on, among other things, defendants numerous prior convictions as an adult and sustained juvenile petitions, which were increasing in seriousness. Defendant argues that even assuming the trial court could properly determine whether he had suffered a prior conviction, he was entitled to a jury trial on whether his prior convictions are numerous or increasingly serious. The court rejected an identical argument in Black II, explaining that such a determination "require[s] consideration of only the number, dates, and offenses of the prior convictions alleged," which "is `quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court." (Black II, supra, 41 Cal.4th at p. 819.) Accordingly, the trial courts reliance on defendants prior convictions did not conflict with the Sixth Amendment.
The trial courts reliance on additional factors is of no consequence. A defendants constitutional right to a jury trial is not violated by the trial courts imposition of the upper term sentence where at least one aggravating factor was established by means that satisfy the requirements of the Sixth Amendment. (Black II, supra, 41 Cal.4th at pp. 805-806.) Because defendants prior convictions rendered him eligible for the upper term sentence, "he was not legally entitled to the middle term, and his Sixth Amendment right to jury trial was not violated by imposition of the upper term" on count I. (Id. at p. 820.)
DISPOSITION
The judgment is affirmed.
We concur:
ROBIE, J.
BUTZ, J.