Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE230196, Herbert J. Exharos, Judge.
HUFFMAN, J.
In December 2003, John Barba was placed on felony probation in case SCE230196 (original case) as a result of his conviction, after a jury trial, of two felonies (Pen. Code, §§ 69 & 12020, subd. (a)(1)), and three misdemeanor counts. On October 25, 2006, Barba admitted he violated the terms of his probation because of a conviction for a new felony offense in case SCE262793 (second case).
All further statutory references are to the Penal Code unless otherwise specified.
In January 2007, Barba was sentenced in both cases. In the second case, in accordance with a plea agreement, Barba was sentenced to the middle term of two years in prison, to be served concurrently with the sentence in the original case. In the original case the court imposed the upper term of three years on each felony count to be served concurrently with each other and concurrently with the sentence in the second case. Barba was sentenced to time served for the misdemeanor counts in the original case.
Barba filed a timely notice of appeal and obtained a certificate of probable cause in case SCE230196.
It is unclear why the certificate of probable cause was filed in case SCE230196 since that case arises from a conviction after jury trial and an appeal from the revocation of probation. The record does not contain a certificate of probable cause in case SCE262793. However, Barba has not challenged his guilty plea in the latter case and challenges only his sentence in SCE230196. Accordingly, we will disregard the certificate of probable cause.
Barba appeals contending the plea agreement in the second case required the total sentence for both the original and the second case to be no more than two years. Barba also contends the selection of the upper term of three years in the original case violates the Sixth Amendment as applied in Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856]. We find the three-year sentence in this case was lawfully imposed and affirm the judgment.
DISCUSSION
I
Barba first contends the three-year sentence imposed in the original case violated the terms of his plea agreement in the second case. In essence he argues the plea bargain in the second case, for a two-year concurrent sentence served as a limitation on the sentence the court could impose upon revocation of probation in the original case. Although Barba obtained a certificate of probable cause in the second (guilty plea) case, he does not challenge the sentence or the plea in the second case. Thus, to the extent his challenge to the three-year term is based on an alleged violation of a plea bargain, he seeks specific performance of such alleged bargain. We find the plea agreement in the second case only required that Barba receive a concurrent, two-year term in that case; which he received. He was not entitled to limit the court's ability to impose a concurrent upper term sentence in the original, probation revocation case.
While on probation, Barba was charged with a felony for animal cruelty. The trial court's statement to Barba at the time of his guilty plea for that case included the limitation that he would be sentenced "to no more than the middle term of two years in state prison, concurrent with his probation violation." Nowhere in the change of plea form or in the transcript of the change of plea was there any statement that the total sentence in both cases would not exceed two years. The limitation on the court's sentencing power applied only in the case in which Barba pleaded guilty.
Plea bargaining is an accepted practice in California and the parties, together with the court can agree to a limitation on the sentence to be imposed. (People v. West (1970) 3 Cal.3d 595, 604; People v. Mancheno (1982) 32 Cal.3d 855, 859-860; People v. Superior Court (Gifford) (1997) 53 Cal.App.4th 1333, 1337.)
The trial court carefully reviewed the change of plea in this case. Indeed, it took two sessions with the court before the trial judge was satisfied with the basis for the plea. Nothing in the record of the change of plea gives the slightest suggestion the plea in that case was intended as some sort of global settlement that would bind the court in the original case. (People v. Vargas (1990) 223 Cal.App.3d 1107, 1109-1111.)
Although we have found no error in the imposition of the sentence in this case, we do agree with the Attorney General that any challenge to the three-year sentence in the original case has been waived by failure to raise any objection in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 351.) The only challenge to the sentence made in the trial court was the certificate of probable cause filed as part of the notice of appeal. As we have already observed, the original case, on which this appeal was based was not the result of a guilty plea. Further, there is no challenge on this appeal to the plea in the second case. Whatever the effect of the certificate of probable cause may be, it does not serve to preserve a challenge to the three-year sentence on the basis of an alleged violation of a plea agreement in a different case. Had there been a timely challenge in the original case the trial court would have had the opportunity to address it and to take testimony on the subject if there had been any basis for a challenge. Instead we are left with a record devoid of any indication that the three-year sentence violated any promises made to Barba at the time of his guilty plea in the second case. We find this challenge to the sentence to be waived.
II
Following the revocation of probation in the original case the trial court imposed an upper term sentence of three years based on (1) the defendant's numerous prior convictions; (2) that he was armed with a knife at the time of the offense; (3) that the defendant was on probation at the time of the offense; (4) that the defendant had poor performance on probation, and (5) the defendant's criminal history. Barba contends the imposition of the upper term sentence violated his Sixth Amendment rights as defined in Cunningham, supra, 127 S.Ct. 856. Barba recognizes the California Supreme Court has found the use of recidivist factors in selecting upper term sentences does not violate the Sixth Amendment limitations on sentencing defined by Cunningham. (People v. Black (Black II) (2007) 41 Cal.4th 799, 812, 819; see also People v. Thomas (2001) 91 Cal.App.4th 212, 220-223.) Barba recognizes the California Supreme Court authority, but argues its opinions were wrongly decided. We are obliged to follow the decisions of the Supreme Court. (Auto Equity Sales Inc. v. Superior Court (1962) 57 Cal.2d 450.)
Applying the principles of Black II, supra, 41 Cal.4th 799, we find no error in the selection of the upper term sentence for the original case. The record demonstrates Barba had numerous prior convictions and was on probation at the time of the offenses in the original case. The jury found he was armed with a knife at the time of the felony offense. Thus the jury findings and Barba's criminal history justified the imposition of the upper term in the original case. There was no error.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J. AARON, J.