Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM024436
SCOTLAND, P.J.
In entering a negotiated plea of no contest to failing to register as a sex offender, defendant Juan Jose Sembrano signed a written plea agreement and initialed its provision stating that his plea was entered with the understanding that he would receive “NO IMMEDIATE STATE PRISON [he would be placed on probation],” but that the “‘NO IMMEDIATE STATE PRISON’ (NISP) AGREEMENT IS CONDITIONED UPON [HIS] OBEYING ALL LAWS, MAKING AN APPOINTMENT TO SEE A PROBATION OFFICER, KEEPING THAT APPOINTMENT, AND APPEARING IN COURT ON THE DATE AND TIME SET BY THE COURT FOR THE HEARING ON [HIS] APPLICATION FOR PROBATION.” The provision he initialed also stated: “I UNDERSTAND THAT SHOULD I FAIL TO DO ANY OF THESE THINGS, WITHOUT AN ACCEPTABLE EXCUSE, THAT MY NISP AGREEMENT WILL BE LOST AND MY PLEA(S) . . . OF NO CONTEST[] WOULD REMAIN IN EFFECT WITHOUT THE NISP AGREEMENT” and defendant would be subject to a maximum term of three years in state prison. This plea form signed and initialed by defendant specified as follows that it contained the terms of a plea agreement: “DEFENDANT, INITIAL ONLY IN THE BOXES PRECEDING STATEMENTS THAT YOU HAVE READ, UNDERSTAND, AND WITH WHICH YOU AGREE.” (Italics added.)
The trial court accepted the plea agreement and granted defendant’s request to be released on his own recognizance. When defendant failed to appear at the appointed time for sentencing, the court issued a bench warrant for his arrest. He was arrested in Michigan and extradited to California.
At sentencing, the prosecutor noted the “county lid offer,” i.e., NISP promise, was no longer applicable because defendant failed to appear as required by the plea agreement. The trial court imposed the upper term of three years in state prison.
On appeal, defendant contends that (1) “the trial court violated his constitutional right to the due process of the law and his statutory rights pursuant to Penal Code section 1192.5 when it imposed a greater sentence than the one to which the parties agreed[; thus, he is] entitled to either specific performance of his plea agreement [in his view, a grant of probation] or to withdraw his plea,” and (2) the court erred in imposing the upper term based on aggravating factors that were not found by a jury or admitted by the defendant.
As we will explain, the first contention is frivolous because it indisputably has no merit; any reasonable attorney familiar with the record and the law would not have raised the contention because it ignores language of the plea agreement that completely undermines the claim of error. Indeed, not only does the contention lack merit, it is not cognizable on appeal. The second claim--the trial court erred in imposing the upper term--also fails for reasons that follow. Thus, we shall dismiss the appeal in part and affirm the judgment.
DISCUSSION
I
According to defendant, he “did not agree, as part of the negotiated plea, to the imposition of a non-probationary sentence if he failed to appear following an O.R. release” and, therefore, his conviction and prison sentence cannot stand because he was not advised of his right to withdraw his plea. (Pen. Code, § 1192.5 a trial court has discretion to disapprove a plea agreement and impose a greater sentence than agreed upon; however, it must first advise the defendant of his or her right to withdraw the plea in light of the change of sentence].)
In defendant’s view, the condition that he had to timely appear at sentencing in order to receive probation “was not a part of the plea agreement”; instead, it was imposed after he entered his plea. To support his position, defendant notes that it was not until after the trial court had accepted defendant’s plea that the court and counsel described (in the words of defendant’s appellate counsel) “the ‘return or else’ sanction as a term of the plea bargain.”
This contention is frivolous because it ignores the written plea form that was initialed and signed by defendant prior to his oral entry of plea. After being advised by the written plea form to “INITIAL ONLY IN THE BOXES PRECEDING STATEMENTS THAT YOU HAVE READ, UNDERSTAND, AND WITH WHICH YOU AGREE ” (bold & italics added), defendant initialed the box explicitly stating that: “I Have Read, Understood, and Agree . [¶] . . . MY ‘NO IMMEDIATE STATE PRISON’ (NISP) AGREEMENT IS CONDITIONED UPON MY OBEYING ALL LAWS, MAKING AN APPOINTMENT TO SEE A PROBATION OFFICER, KEEPING THAT APPOINTMENT, AND APPEARING IN COURT ON THE DATE AND TIME SET BY THE COURT FOR THE HEARING ON MY APPLICATION FOR PROBATION”; that “I UNDERSTAND THAT SHOULD I FAIL TO DO ANY OF THESE THINGS, WITHOUT AN ACCEPTABLE EXCUSE, THAT MY NISP AGREEMENT WILL BE LOST AND MY PLEA[] . . . OF NO CONTEST[] WOULD REMAIN IN EFFECT WITHOUT THE NISP AGREEMENT.” (Bold and italics added.) Defendant also initialed the box stating: “I UNDERSTAND THAT I MAY SERVE THIS MAXIMUM SENTENCE AS A RESULT OF MY PLEA: THREE (3) YEARS IN STATE PRISON . . . .”
Thus, the plea form initialed and signed by defendant, and by defense counsel, the prosecutor, and the court, plainly constituted a plea agreement specifying all the terms of the negotiated plea. Moreover, the reporter’s transcript of the plea proceeding makes clear that defendant initialed and signed the plea agreement prior to the oral plea proceeding.
Accordingly, the condition of which defendant now complains was not, as his appellate counsel claims, added “after the entry of the plea . . . .” (Original italics.) To the contrary, it was an integral part of the plea agreement.
Since the sentence imposed by the trial court was authorized by the plea agreement, defendant’s challenge to the sentence is an attack on the plea itself. Consequently, it is not cognizable on appeal because defendant did not obtain a certificate of probable cause. (Pen. Code, § 1237.5 [an appeal may not be taken from a no contest plea unless the defendant has filed in the trial court a written statement under penalty of perjury showing reasonable grounds going to the legality of the proceeding, and the court has executed and filed with the clerk of the court a certificate of probable cause for the appeal]; People v. Panizzon (1996) 13 Cal.4th 68, 74-75, 79.)
In any event, the contention fails on the merits. Since a prison term was authorized by defendant’s plea because he did not appear as required by the parties’ agreement, the sentence imposed by the trial court did not exceed the plea agreement, and it was of “no consequence” that the court did not advise defendant of the provisions of Penal Code section 1192.5. (People v. Masloski (2001) 25 Cal.4th 1212, 1223.)
II
After noting defendant’s “extensive criminal history including 2 felony convictions and 12 misdemeanor convictions,” the trial court stated three reasons for imposing the upper term: defendant was unsuccessful on probation in the past; he had served a prior prison term; and he had “done little to address his addiction to alcohol, marijuana and methamphetamine until recently.”
Defendant claims that because the trial court relied on facts not submitted to a jury or admitted by defendant, the imposition of the upper term violated the Sixth Amendment to the United States Constitution as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (hereafter Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (hereafter Blakely), and (Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d. 856] (hereafter 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 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence a court could impose based solely on facts reflected by a jury’s verdict or admitted by the defendant; thus, when a court’s 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].) In Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d. at p. 864], 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,” California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Ibid., overruling People v. Black (2005) 35 Cal.4th 1238 (hereafter Black) on this point, vacated in Black v. California (2007) ___ U.S. ___ [167 L.Ed.2d 36].)
Defendant concedes that one of the factors upon which the trial court relied to impose the upper term--that defendant had served a prior prison term--is a recidivist factor that the court could consider without running afoul of Apprendi, Blakely, and Cunningham. (See People v. Black (July 19, 2007, S126182) __ Cal.4th __, __ [at pp. 21-22] (hereafter Black II); People v. Thomas (2001) 91 Cal.App.4th 212, 223; see also U.S. v. Corchado (10th Cir. 2005) 427 F.3d 815, 820 [the rule does not apply to “‘subsidiary findings’” “related to” a prior conviction, such as the defendant’s status on probation].) He also concedes that the existence of one valid aggravating factor is sufficient to expose defendant to the upper term. (Black II, supra, ___ Cal.4th at p. __ [at p. 13]; People v. Osband (1996) 13 Cal.4th 622, 728.) However, defendant contends “it cannot be determined what sentence the trial court would have imposed . . . had it understood that the majority of the aggravating factors upon which it relied were constitutionally impermissible. This is especially true because the prosecution itself had initially agreed by its plea bargain that a probationary outcome was appropriate, and the trial court had accepted the change of plea based on that agreement.” The contention fails.
Relying on People v. Hill (2005) 131 Cal.App.4th 1089, the People argue defendant forfeited this issue by failing to object on this ground in the trial court. But unlike the appellant in People v. Hill, who waived a Blakely challenge by failing to raise it at his sentencing which occurred after Blakely but before Black, defendant was sentenced after Black and before Cunningham. Since the trial court was bound by the decision in Black (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), it would have been futile for defendant to raise an Apprendi/Blakely objection. Thus, the forfeiture doctrine does not apply. (Black II, supra, __ Cal.4th at p. __ [at pp. 8-11]; People v. Welch (1993) 5 Cal.4th 228, 237 [“Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile”].)
Because defendant’s prior criminal convictions resulting in his serving a prior prison term made him “eligible for the upper term,” the Sixth Amendment “permit[ted] the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Black II, supra, ___ Cal.4th at p. __ [at p. 12]; orig. italics.)
This is so because “the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies only to a fact that is ‘legally essential to the punishment’ (Blakely, supra, 542 U.S. at p. 313), that is, to ‘any fact that exposes a defendant to a greater potential sentence’ than is authorized by the jury’s verdict alone (Cunningham, supra, __ U.S. at p. __ [127 S.Ct. at p. 863]).” (Black II, supra, ___ Cal.4th at p. __ [at p. 11].) “Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (People v. Osband[, supra,] 13 Cal.4th [at p.] 728.) Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Black II, supra, ___ Cal.4th at p. __ [at p. 13].)
Consequently, “[t]he issue to be determined in each case is whether the trial court’s fact finding increased the sentence that otherwise could have been imposed, not whether it raised the sentence above that which otherwise would have been imposed.” (Black II, supra, __ Cal.4th at p. __ [at p. 16]; orig. italics.) “As noted above, . . . the presence of one aggravating circumstance renders it lawful for the trial court to impose an upper term sentence. [Citations.] The court’s factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating facts are found by the court, the upper term remains the maximum that may be imposed. Accordingly, judicial fact finding on those additional aggravating circumstances is not unconstitutional.” (Id. at pp. __ [at pp. 16-17].)
In any event, in light of the trial court’s concern about defendant’s extensive criminal history of two felony convictions and twelve misdemeanor convictions, and the court’s reliance on the fact that defendant had served a prior prison term (a recidivism factor within the prior conviction exception articulated in Apprendi, Blakely, and Cunningham), we are satisfied beyond a reasonable doubt that the court would have imposed the upper term based solely upon defendant’s recidivism. Thus, any error in considering defendant’s substance abuse and prior poor performance on probation was harmless. (See Washington v. Recuenco (2006) 548 U.S. ___, ___ [165 L.Ed.2d 466, 473, 476-477].)
The plea agreement contemplated that a state prison term would be appropriate if defendant failed to comply with all the provisions of the agreement by, among other things, failing to appear as ordered for sentencing. Therefore, the fact that the prosecutor and the court agreed probation would be proper, if defendant complied with the terms of the plea agreement, does not suggest that an upper term would be inappropriate if defendant failed to do so.
DISPOSITION
The appeal is dismissed as to defendant’s claim that the sentence violates the plea agreement. The judgment is affirmed.
We concur: MORRISON, J., BUTZ, J.