Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 04F11030, 03F10812
CANTIL-SAKAUYE, J.
In return for dismissal of additional charges, defendant, Lucian Gragos Burcea, pled no contest in case No. 03F10812 to spousal battery (Pen. Code, § 273.5, subd. (c)) and received five years’ formal probation. In case No. 04F11030, he pled no contest to possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and received a drug treatment referral.
A year later, the court found defendant had violated his probation in both cases. It sentenced him to the upper term of four years for spousal battery, and sentenced him to a consecutive eight months in prison (one-third the midterm) for possessing a controlled substance.
Defendant appeals, contending imposition of the upper term in case No. 03F10812 and consecutive sentence in case No. 04F11030, based on factors not determined by a jury beyond a reasonable doubt, violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution. On February 29, 2008, we issued an opinion dismissing defendant’s appeal in case No. 03F10812 for failure to obtain a certificate of probable cause (Pen. Code, § 1237.5), and finding his challenge to the consecutive sentence in case No. 04F11030 to be without merit.
On June 11, the Supreme Court granted defendant’s petition for review and transferred the matter back to this court with directions to vacate our opinion and reconsider the matter in light of People v. French (2008) 43 Cal.4th 36 (French). We have done so and now conclude, contrary to our earlier opinion, that defendant was not required to obtain a certificate of probable cause to raise his Sixth and Fourteenth Amendment challenge to the sentence. However, we further conclude defendant’s appeal is without merit and affirm the judgment.
BACKGROUND
Case No. 03F10812
According to the probation reports, in October 2003, defendant met his ex-wife at a gas station, forced her into her car, and kept her there until the following day, as he forced her to take money from an ATM, hit her in the head with his fist and a metal box, and threatened to kill her. He was charged (among other things) with spousal abuse, robbery, and kidnapping.
In exchange for dismissal of the other charges, defendant pled no contest to spousal battery on June 9, 2004. In open court, the court informed defendant that, on his spousal battery conviction, “the potential prison sentence is two, three, or four years. [¶] The understanding is that you’re not going to go to prison. You’ll be placed on probation with certain conditions. If you later violate probation, you could then go to prison for up to four years. Following any prison sentence you would be on parole supervision for up to five years. Do you understand?” Defendant responded, “Yes.”
Case No. 04F11030
In December 2004, officers responding to a report by defendant’s ex-wife that he was confronting her with a knife determined defendant to be under the influence of methamphetamine. Following his arrest, they found a baggie of methamphetamine in his wallet and he was charged with one count of possessing the drug.
On December 22, 2004, he entered a plea of no contest to the possession charge, “with a promise of [the] low term of 16 months state prison stayed and a Prop[osition] 36 referral[,]” together with a reinstatement of his probation in case No. 03F10812. Defendant responded, “I understand” after the court explained that the potential consequences of his no contest plea included a potential state prison sentence of 16 months, two years, or three years. Defendant also responded, “I understand” when the court explained that “if you violate the terms and conditions of your probation, you may then be sentenced to state prison for a stipulated prison term of 16 months.”
Probation Revocation and Sentencing
Following revocation of defendant’s probation in both cases, the trial court imposed the upper term for the spousal battery offense in case No. 03F10812 -- four years’ imprisonment -- after finding eight factors in aggravation, including that “defendant’s criminal conduct is of increasing seriousness” and “defendant was on two grants of probation at the time the crimes underlying these violations of probation were committed.” (Cal. Rules of Court, rule 4.421(b)(2) & (b)(4).) It also sentenced him to eight months (one-third the midterm) on the methamphetamine possession conviction in case No. 04F11030 and ordered consecutive sentencing because the crimes in the two cases were committed at different times or separate places and their objectives were predominantly independent of one another.
The probation report reveals that defendant was convicted in 1996 of petty theft; in 1998 of misdemeanor theft; in 2001 of driving under the influence of alcohol or drugs and possessing controlled substance paraphernalia; in 2002, of misdemeanor assault with a deadly weapon; and felony unauthorized taking of a vehicle; in 2003 of misdemeanor spousal battery; in 2004 of intentionally violating a protective order and spousal abuse; and in 2005 of possessing a controlled substance.
DISCUSSION
Defendant contends the trial court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution by imposing the upper term based on facts not submitted to the jury and proved beyond a reasonable doubt.
In Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490 [147 L.Ed.2d at p. 455].) In Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham), the Supreme Court applied Apprendi to California’s determinate sentencing law (DSL) and held that by assigning to the trial judge the authority to find the facts that expose a defendant to an upper term sentence, the DSL violates the defendant’s Sixth and Fourteenth Amendment rights. (Cunningham, supra, at p. ___ [166 L.Ed.2d at p. 876], overruling on this point People v. Black (2005) 35 Cal.4th 1238 (Black I), vacated in Black v. California (2007) __ U.S. __ [167 L.Ed.2d 36].)
I.
The People contend defendant’s Cunningham claim is not cognizable on appeal because he failed to obtain a certificate of probable cause. They argue defendant acknowledged as part of his plea that the maximum penalty the court may impose is four years and, therefore, his challenge to that sentence is a challenge to the plea itself. We must disagree.
When a defendant enters a plea of guilty or no contest, he may not challenge the validity of the plea on appeal unless he “has sought, and the trial court has issued, a certificate of probable cause ‘showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.’” (People v. Emery (2006) 140 Cal.App.4th 560, 562; see Pen. Code, § 1237.5.) Only two types of issues may be raised without a certificate of probable cause: “(1) search and seizure issues for which an appeal is provided under [Penal Code] section 1538.5, subdivision (m); and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. [Citations.]” (People v. Panizzon (1996) 13 Cal.4th 68, 74-75.)
Normally, issues regarding sentencing decisions fall within this second category and may be raised without a certificate of probable cause. However, “‘a challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself’ and thus requires a certificate of probable cause. [Citation.]” (People v. Shelton (2006) 37 Cal.4th 759, 766 (Shelton).)
In Shelton, supra, 37 Cal.4th 759, the defendant entered into a plea agreement providing for dismissal of four of six felony counts in exchange for a plea of no contest to the remaining two counts. The parties further agreed the defendant would be sentenced to state prison for a term not to exceed three years eight months. The defendant was thereafter sentenced to state prison for three years eight months. He appealed without obtaining a certificate of probable cause, arguing his prison sentence violated Penal Code section 654, the statutory prohibition against double punishment.
The California Supreme Court held the defendant was required to obtain a certificate of probable cause, because the issue raised was effectively an attack on the validity of his plea. The court explained that a negotiated plea agreement is a form of contract to be interpreted according to general contract principles. (Shelton, supra, 37 Cal.4th at p. 767.) Applying those principles, the court explained: “[T]he specification of a maximum sentence or lid in a plea agreement normally implies a mutual understanding of the defendant and the prosecutor that the specified maximum term is one that the trial court may lawfully impose and also a mutual understanding that, absent the agreement for the lid, the trial court might lawfully impose an even longer term.” (Id. at p. 768.) A defendant may thereafter raise a claim that the court abused its discretion in failing to impose a sentence less than the agreed-upon lid. However, a claim that the court lacked the legal authority to impose the lid is a challenge to the plea itself and is precluded without a certificate of probable cause.
In French, supra, 43 Cal.4th 36, the high court addressed a claim by the defendant, without a certificate of probable cause, that his upper-term sentence of 18 years violated Cunningham. The sentence was imposed pursuant to a plea agreement whereby the defendant pled no contest to six counts of lewd and lascivious conduct in exchange for dismissal of six other counts and enhancements and a sentencing lid of 18 years. (French, supra, at p. 42.) The defendant argued on appeal that, although the sentence imposed was within the stated maximum, the sentencing court considered factors not determined by the jury on proof beyond a reasonable doubt in imposing the upper term. (Id. at p. 43.)
The Supreme Court concluded the defendant’s claim was cognizable on appeal without a certificate of probable cause. Distinguishing Shelton, the court explained: “A certificate of probable cause is not required in the present case, because defendant’s claim does not constitute an attack upon the validity of the plea agreement. In contrast to a case in which the maximum term under the plea agreement would be unlawful under section 654, the Sixth Amendment would not render an upper term unlawful for defendant’s crimes under all circumstances. Whether an upper term sentence was permissible for defendant’s offenses depended upon whether aggravating factors were established at the sentencing hearing, and not upon the facts of the offenses themselves. Even without a jury trial on aggravating circumstances, the upper term would have been authorized if the prosecution had established an aggravating factor at the sentencing hearing based upon defendant’s prior convictions or upon his admissions. [Citation.] Defendant’s claim is that the upper term was not authorized because the prosecution failed to establish an aggravating circumstance at the sentencing hearing in the manner required by the Sixth Amendment. Such a claim does not affect the validity of the plea agreement.” (French, supra, 43 Cal.4th at p. 45.)
The present matter is controlled by French. In case No. 03F10812, defendant entered into a plea agreement in which he acknowledged that he could receive a sentence of up to four years if he violated probation. After he violated probation, he was sentenced to the upper term of four years. The absence of a certificate of probable cause does not preclude him from raising a Cunningham challenge to his sentence.
II.
As we noted above, Cunningham held that, except for a prior conviction, any fact that increases the penalty for a crime beyond the middle term must be tried to the jury and proved beyond a reasonable doubt. Applying Cunningham, in People v. Black (2007) 41 Cal.4th 799(Black II), this state’s highest court recently held that, “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, at p. 816.)
Black II also held that the constitutional right to jury trial is not implicated by the trial court’s imposition of consecutive sentences. (Black II, supra, 41 Cal.4th at pp. 821-823.)
We are obliged to follow Black II. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Here, in imposing the upper term, the trial court relied on, among other things, the fact of defendant’s “increasing[ly] serious[]” criminal history. That recidivism factor alone sufficed to render defendant eligible for the upper term. (Black II, supra, 41 Cal.4th at p. 816.)
However, the trial court also relied on another recidivism factor: that defendant was on probation when he committed the current offense. The California Supreme Court has interpreted the recidivism exception broadly to include not only the fact that a prior conviction occurred, but also other recidivism-related aggravating factors, including whether defendant committed the current offense while on probation or parole. (People v. Towne (2008) 44 Cal.4th 63; Black II, supra, 41 Cal.4th at p. 819; People v. McGee (2006) 38 Cal.4th 682, 703-706, and cases cited therein; see also United States v. Corchado (10th Cir. 2005) 427 F.3d 815, 820.) Defendant’s probationary status necessarily arose from one or more of his prior convictions, and can be determined by reviewing court records pertaining to defendant’s prior convictions, sentences, and grants of probation or parole. These are the types of determinations more appropriately undertaken by a court than a jury. (People v. Towne, supra, at p. 78.)
Based on the trial court’s use of two recidivism factors in aggravation, imposition of the upper term did not violate defendant’s Sixth Amendment rights. There was no error.
By supplemental brief, defendant insists that reconsideration by this court in light of French, supra, 43 Cal.4th 36, requires remand of this case for resentencing. It does not. In French, the trial court found the existence of facts to support imposition of the upper term in the circumstances of defendant’s guilty plea, which the court of appeal found did not constitute an admission within the meaning of Cunningham. Here, by contrast, the trial court based its imposition of the upper term on recidivism factors. No remand is required.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J., BUTZ, J.