Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County No. 06SF0412, Dan McNerney, Judge.
Dennis P. Gaughan 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
MOORE, ACTING P. J.
After a plea-bargain, defendant was sentenced to the upper term of four years for a Vehicle Code violation. Although the trial court based the upper term on defendant’s prior convictions, he claims this is unconstitutional under Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham). We disagree and affirm.
I
FACTS AND PROCEDURAL BACKGROUND
In April 2006, defendant was the driver of a vehicle involved in an accident which caused serious, permanent injury to two victims. Defendant failed to stop his vehicle, or to provide identification to law enforcement or assistance to the victims.
In July 2006, defendant was charged with hit and run causing permanent bodily injury to two victims. (Veh. Code, § 20001, subds. (a), (b)(2).) Defendant pled not guilty at that time. In January 2007, the district attorney filed a supplement to the information, alleging that in August 2005, defendant had been convicted of violating Vehicle Code section 23152, subdivision (a). He had been placed on probation for three years. Defendant filed a demurrer to the supplement.
On February 6, the court addressed this matter with the parties, and asked them to further discuss and submit authorities on a number of issues related to sentencing. Court resumed on February 7, and at that time, defendant changed his plea to guilty on the sole count in the information. The plea bargain form submitted by defendant acknowledged he could be sentenced to up to four years in prison. The district attorney withdrew the supplement to the information, rendering defendant’s demurrer moot.
Before sentencing, the parties briefed the applicability of recent changes in sentencing law. The prosecution argued that under Cunningham, supra, 127 S.Ct. 856, and Almendarez-Torres v. U. S. (1998) 523 U.S. 224 (Almendarez-Torres), the court could find two factors in aggravation without submitting them to a jury: defendant’s prior convictions and the fact that defendant was on probation at the time of the current offense. Defendant argued that Almendarez-Torres was either wrongly decided or should be strictly limited to its facts, and because there was no legislation authorizing a jury trial on sentencing factors, the highest sentence defendant could receive was the middle term.
The trial court, however, found that Cunningham did not eliminate a judge’s power to consider prior convictions, and therefore concluded it could use defendant’s priors to impose the aggravated term. The prosecutor offered certified copies of documents evidencing defendant’s prior convictions. These convictions demonstrated a lengthy history of driving-related crimes.
In considering the appropriate sentence, the court indicated it would consider several factors in mitigation, but only defendant’s prior convictions in aggravation. “It would appear that the only factor that the court can put on the aggravated . . . side of the scale against all the other mitigated evidence that in the court’s view remains in play after Cunningham are the prior convictions. [¶] The prior convictions in this case appear to span a ten-year period leading up to just a matter of a few months prior to this horrible collision and flight. The court doesn’t put a lot of weight or consideration to the couple minor thefts up in Oregon. . . . [¶] But subsequent to that, it appears that the defendant’s prior record for repeated driving violations of a very serious and dangerous nature has been ongoing over some period of time. The first incident from ’97, which resulted in a conviction three years later; second incident in ’98, which also resulted in a conviction; and then again in 2005, which also resulted in a conviction. [¶] . . . [¶] In weighing this history of prior convictions for driving offenses against his acknowledgment prior to trial of responsibility for the offense, in the court’s view the aggravating factors outweigh the mitigating factor by a substantial amount.” The court thus sentenced defendant to the upper term of four years. Defendant now appeals, arguing that under Cunningham, defendant should have been sentenced to the middle term.
II
DISCUSSION
Defendant argues that the factors on which the court relied on to sentence him to the upper term are constitutionally impermissible. While defendant attempts to frame these “factors” more broadly, the court clearly said it was relying only on defendant’s prior convictions. Nothing in the court’s subsequent discussion of those convictions requires us to conclude otherwise.
We briefly address the question of whether a certificate of probable cause is necessary to maintain this appeal, and find that it is not. Generally, a certificate of probable cause is required to file an appeal following a guilty plea. (Pen. Code, § 1237.5.) This requirement does not apply, however, when the appeal is based on “Grounds that arose after entry of the plea and do not affect the plea’s validity.” (Cal. Rules of Court, rule 8.304 (b)(4)(B).) Unlike the cases respondent cites, this is not a situation where a specific sentence was agreed to in the plea-bargain, although defendant did acknowledge the maximum sentence of four years. Defendant’s challenge to the court’s exercise of its discretion post-Cunningham does not impact the validity of the plea itself, and therefore no certificate of probable cause is required.
Thus, we have a defendant who, in his written plea-bargain, acknowledged that he could be sentenced to an upper term of four years. After Cunningham, may the trial court consider the fact of prior convictions to determine that an upper term is appropriate?
In the pre-Cunningham era, courts had broad discretion in determining whether to impose the upper, middle, or lower term at sentencing. (See, e.g., People v. Scott (1994) 9 Cal.4th 331, 349.) Under Cunningham, however, before the court can sentence defendant to an upper term based on aggravating facts, a jury must find that any aggravating factors are true beyond a reasonable doubt. (Cunningham, supra, 127 S.Ct. at p. 873.) There is an exception, however, reaffirmed in Cunningham, for prior convictions. (Cunningham, supra, 127 S.Ct. 856 [“The Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.”] (italics added).)
Defendant argues that the facts of his case are different from any case that has been decided to date. Indeed, we do not find a published, post-Cunningham case wherein the defendant pled guilty, acknowledged he could be sentence to the upper term, and was sentenced to the upper term based on prior convictions. Contrary to defendant’s belief, however, we are perfectly able to analogize the existing law to his situation.
Under the current law, prior convictions remain an exception that need not be proved to a jury. (Cunningham, supra, 127 S.Ct. 856.) Although defendant valiantly tries to persuade us otherwise, none of the cases currently under review by our Supreme Court squarely address this situation. Frankly, this is unsurprising, as the current state of the law adequately addresses these facts.
The only case under review that squarely addresses plea bargains does not address the situation where, as here, the grounds for the aggravated sentence were prior convictions. (People v. French, review granted Feb. 7, 2007, S148845.)
In People v. Black (2007) 41 Cal.4th 799 (Black II), the court held that the statutory maximum is the upper term if there is any aggravating factor found true by the jury or admitted by the defendant, or if the aggravating factor related to a prior conviction. Black II is, of course, binding on this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendant has prior convictions, and the court used these as the basis for imposing an aggravated sentence. Under Cunningham and the cases since, this is permissible, and the court did not err by imposing the upper term.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: FYBEL, J., IKOLA, J.