Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA312889, Anne H. Egerton, Judge.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Appellant Richard Briscoe pled no contest to one count of possession of marijuana for sale in violation of Health and Safety Code section 11359, and admitted that he had a prior serious or violent felony conviction within the meaning of Penal Code sections 667, subdivisions (b) through (i) and 1170.12 (the "Three Strikes" law). Pursuant to the plea agreement between the parties, the trial court sentenced appellant to 32 months in state prison, consisting of the low term of 16 months, doubled to 32 months pursuant to the Three Strikes law.
Having obtained a certificate of probable cause from the trial court, appellant appeals from the judgment of conviction, contending that the trial court abused its discretion in failing to strike his prior strike conviction. We order two additional penalties added to the Health and Safety laboratory fee previously imposed in this case, as set forth in more detail in our disposition. We affirm the judgment of conviction in all other respects.
Facts
On November 18, 2006, appellant sold small amounts of marijuana to undercover police officers in two transactions. The undercover officers used marked bills to pay for the marijuana. When appellant was arrested, the marked bills and five baggies of marijuana were found on his person.
Appellant was charged with two counts of selling marijuana and one count of possession of marijuana. Prior to trial, the People offered appellant a sentence of 32 months in exchange for a guilty plea to the marijuana possession charge and admission of the prior strike conviction. The 32 month sentence consisted of the low term doubled pursuant to the Three Strikes law. The People offered to dismiss two counts of selling marijuana as part of the bargain. Appellant rejected the offer.
On March 5, 2006, about a month after the prosecution made its offer, appellant requested that the trial court strike his prior strike conviction. The trial court denied appellant's motion. About a month later, appellant decided to accept the People's offer, which was still open.
On April 9, 2007, appellant's trial counsel informed the court that appellant was going to enter a change of plea. The court replied: "Okay. The last offer I had was low term, admit one strike, low term 16 months doubled. [¶] Is that where we are?" Appellant's counsel replied: "Yes." The court then asked appellant: "Mr. Briscoe, is that your understanding of the agreement?" Appellant replied: "Yes."
The prosecutor then advised appellant of the rights he would be giving up and the consequences of the plea. The prosecutor stated: "You will be sent to state prison for a term of 32 months." Appellant waived his rights, pled no contest to the marijuana possession charge and admitted that he had suffered a prior strike conviction. The trial court sentenced appellant to the low term of 16 months, doubled to 32 months pursuant to the Three Strikes law. The prosecutor requested and received dismissal of the sales charges.
On May 29, 2007, appellant's counsel filed his request for a certificate of probable cause to appeal this matter. The trial court granted the request on July 6 "re denial of Romero motion only."
Discussion
Appellant contends that the trial court abused its discretion in denying his March 5 motion to strike a prior strike conviction. Respondent contends that appellant has forfeited this claim, or is estopped from raising it, by his plea agreement. We agree with respondent.
"Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process. [Citations]." (People v. Hester (2000) 22 Cal.4th 290, 295.)
More specifically, "[w]hen a defendant maintains that the trial court's sentence violates rules which would have required the imposition of a more lenient sentence, yet the defendant avoided a potentially harsher sentence by entering into the plea bargain, it may be implied that the defendant waived any rights under such rules by choosing to accept the plea bargain." (People v. Couch (1996) 48 Cal.App.4th 1053, 1057 [defendant who agreed to low term of 16 months doubled pursuant to Three Strikes law was estopped from claiming on appeal that trial court failed to exercise its discretion to strike prior strike conviction].)
In essence, when a defendant challenges the imposition of a specific negotiated sentence, he challenges the validity of the plea. (People v. Panizzon (1996) 13 Cal.4th 68, 77; People v. McNight (1985) 171 Cal.App.3d 620, 622-624 [appellant who claimed that due to mitigating factors court should have imposed lower sentence than specific negotiated sentence was challenging validity of plea].) Appellant's remedy in such a situation is to withdraw his plea. (See ibid.) Appellant does not request such a remedy in this case. He requests only a reduction in his sentence. Further, the record in this case shows that appellant's plea was knowing, intelligent and voluntary. Thus, on the record before us, appellant's plea is valid and there is no basis for appellant to withdraw his plea.
To the extent that appellant contends that the trial court's issuance of a certificate of probable cause permits him to escape the above rules concerning appeal of a negotiated sentence, he is mistaken. "[A] certificate of probable cause only perfects an appeal; it does not expand or limit the cognizable issues." (People v. Hoffard (1995) 10 Cal.4th 1170, 1178; People v. Lovings (2004) 118 Cal.App.4th 1305, 1311.)
2. Fines and fees
On August 9, 2007, this Court requested that the parties brief the effect of People v. Chavez (2007) 149 Cal.App.4th 1340 on the fines imposed in this case. Chavez considers the effects of section 1465.7 and Government Code section 70372 on fines imposed in criminal cases. On August 15, 2007, the California Supreme Court granted review in Chavez, S153920. On October 5, 2007, the Governor approved Senate Bill No. 425 which was enacted to clarify that the state construction penalty is not to be imposed on restitution fines. Section 22 of that bill states that it was enacted in part to "construe and clarify the meaning and effect of existing law and to reject the interpretation given to the law in People v. Chavez (2007) 150 Cal.App.4th 1288."
The Court dismissed review and remanded the case to this Court on October 24, 2007.
Respondent contends that Government Code 70372, as amended by Senate Bill 425, requires that a $25 state court construction penalty should be added to the $50 Health and Safety Code section 11372.5, subdivision (a) laboratory fee fine and that a $10 surcharge on the laboratory fine should be imposed pursuant to section 1467.5. Appellant agrees with respondent that the state court construction penalty and the section 1467.5 surcharge apply, but contends that the amount of the construction penalty should be $15. We agree with appellant.
Following enactment of Senate Bill 425, we explained its application to a Health and Safety Code section 11372.5, subdivision (a) laboratory fee. (People v. McCoy (2007) 156 Cal.App.4th 1246.) We found that the state court construction penalty did apply to this fee. We also explained that the amount of the penalty is $15. (Id. at p. 1254.)
Disposition
A Government Code section 70372 state court construction penalty of $15 is ordered added to the Health and Safety laboratory fee. A $10 surcharge pursuant to Penal Code section 1467.5 is also ordered added to that laboratory fee. The clerk of the superior court is instructed to prepare an amended abstract of judgment reflecting these additions and to deliver a copy to the Department of Corrections and Rehabilitation.
The judgment is affirmed in all other respects.
We concur: MOSK, J., KRIEGLER, J.