Opinion
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 01HF0418, Craig E. Robison, Judge.
Peter Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette
Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, JUDGE.
After being charged with five separate sex crimes, defendant Craig John Papero entered into a plea bargain in 2001. He pleaded guilty to one count of sexual intercourse with a minor (Pen. Code, § 261.5, subd. (c); all further statutory references are to the Penal Code), one count of oral copulation with a minor (§ 288a, subd. (b)(1)), and one count of lewd act upon a 14 or 15-year-old minor (§ 288, subd. (c)(1)). In return for his guilty plea, he agreed to probation and a suspended sentence as follows: on the sexual intercourse with a minor count, state prison for the upper term of three years; on the oral copulation with a minor count, a concurrent upper term of three years; on the lewd act, a concurrent upper term of three years.
Almost four years later, defendant violated conditions of his probation, which the court revoked and then imposed the previously suspended three-year prison sentence. It was only after this order was entered and he obtained a certificate of probable cause that defendant filed a notice of appeal. He raises only one issue: the legality of his sentence to the upper terms under Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham).
Although we have jurisdiction to consider the order revoking probation (§ 1237.5), defendant attacks the original sentence imposed in a judgment that became final more than half a decade ago. We may not deal with that issue in this appeal.
People v. Amons (2005) 125 Cal.App.4th 855 is comparable. There, in 1999 after the defendant pleaded guilty to assault with force likely to commit great bodily injury and an enhancement of infliction of great bodily injury, the court sentenced him to an upper term on the assault and an additional concurrent sentence. Sentence was stayed and defendant was put on probation. Four and a half years later his probation was revoked and the sentence was executed. His only issue on appeal was that his upper-term sentence was invalid under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403].
The court stated that, because the sentence had become final, on revocation of probation it lacked jurisdiction to modify it pursuant to Blakely. (People v. Amons, supra, 125 Cal.App.4th at p. 869.) It also held that the “[d]efendant’s belated complaint with his imposed but suspended four-year upper term sentence is not cognizable in this appeal. [Citations.] And the principles of Blakely cannot retroactively invalidate the sentence imposed upon [the] defendant by a final judgment.” (People v. Amons, supra, 125 Cal.App.4th at pp. 869-870.)
Defendant’s reliance on People v. Campbell (2004) 119 Cal.App.4th 1279 is misplaced. There the court did not impose a sentence until after the probation violation id. at p. 1282), and there is nothing in the discussion to suggest that the notice of appeal from that judgment was not filed in a timely manner. As a result, the court did not discuss that issue.
Likewise, we are not persuaded by defendant’s claim that he has the right to retroactively challenge his sentence under Cunningham. No case has held Cunningham may be applied retroactively and cases have routinely held Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] is not retroactive. (See, e.g., In re Consiglio (2005) 128 Cal.App.4th 511, 515 and cases cited therein.)
Even if Cunningham could be applied retroactively, it would not save him. Defendant agreed to imposition of the upper terms as part of his plea bargain. Thus, contrary to his claim, the trial court was not called upon to and did not make any findings that Cunningham wouldrequire be made by a jury.
The judgment is affirmed.
WE CONCUR: SILLS, P. J., FYBEL, J.