Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA306678, Anne H. Egerton, Judge.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
BACKGROUND
In an amended information, the People charged defendant Gabriel Camey with forcible rape (Pen. Code, § 261, subd. (a)(2); count 1), committing a forcible lewd act upon a child under the age of 14 (§ 288, subd. (b)(1); count 2) and aggravated sexual assault of a child under the age of 14 by a perpetrator more than 10 years older than the child (§§ 261, subd. (a)(2) & 269, subd. (a)(1); count 3). As to all counts, the People alleged that defendant inflicted great bodily injury upon the victim (§ 12022.8) and, as to count 1, the People alleged a felony sex offense enhancement (§ 667.61, subd. (b)), which if found true would mandate imposition of an indeterminate sentence of 15 years to life in prison.
All further statutory references are to the Penal Code.
The alleged victim in all counts was defendant’s 12-year-old half sister, whom he impregnated.
At the People’s request, the information subsequently was amended by interlineation to add a section 667.61, subdivision (b), enhancement allegation to count 2.
The People further alleged, as factors in aggravation, that the victim was particularly vulnerable within the meaning of California Rules of Court, rule 4.421(a)(3), that the crimes alleged in counts 1, 2 and 3 “involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty” within the meaning of rule 4.421(a)(1), and that defendant took advantage of a position of trust or confidence to commit counts 1, 2 and 3 within the meaning of rule 4.421(a)(11).
On May 15, 2007, the People announced that a plea agreement with defendant had been reached. In accordance with this agreement, the People amended the information to add a fourth count, alleging a violation of section 245, subdivision (a)(1), assault by means of force likely to produce great bodily injury. In exchange for a disposition of 17 years in state prison, defendant waived his constitutional rights, pled no contest to counts 2 and 4 and, as to count 2, admitted the truth of the allegation pursuant to section 12022.8 that he inflicted great bodily injury upon the victim—the injury being her pregnancy and the birth of a child. Defendant further waived his right to challenge his sentence pursuant to section 654, despite the fact that counts 2 and 4 arose out of the same set of facts, and he acknowledged that he was entering a plea of no contest because he believed it was in his best interest to do so in order to avoid a potential sentence of 20 years to life in prison.
Defendant entered his plea of no contest pursuant to People v. Otterstein (1987) 189 Cal.App.3d 1548.
As agreed, the trial court sentenced defendant to state prison for a total of 17 years, consisting of the upper term of 8 years on count 2, plus an additional 5-year enhancement pursuant to section 12022.8, and a consecutive upper term of 4 years on count 4. The trial court imposed various fines, ordered defendant, among other things, to register as a sex offender, and awarded defendant a total of 313 days presentence custody credit. At the People’s request, the trial court dismissed counts 1 and 3.
Defendant, acting in pro. per., thereafter filed a notice of appeal, which specified that he was appealing from “the complaint and/or information,” “final judgment of conviction,” the “sentence” and the “order denying probation.” Defendant did not request or obtain a certificate of probable cause. (§ 1237.5.)
A certificate of probable cause is required for all contentions challenging the validity of a guilty or no contest plea by appeal. (§ 1237.5; Cal. Rules of Court, rule 8.304(b); People v. Shelton (2006) 37 Cal.4th 759, 766; People v. Panizzon (1996) 13 Cal.4th 68, 76.) A challenge to a negotiated sentence imposed in accordance with a plea agreement appropriately is analyzed as a challenge to the validity of the plea. (Shelton, supra, at p. 766; Panizzon, supra, at pp. 73, 79; People v. Carr (2006) 143 Cal.App.4th 786, 793-794.) Appellate counsel has represented that this appeal “does not challenge the validity of” defendant’s plea.
DISCUSSION
We appointed counsel to represent defendant on appeal. After examining the record, counsel filed a request for an independent review of the record for arguable issues pursuant to People v. Wende (1979) 25 Cal.3d 436.
On November 15, 2007, we advised defendant that he had 30 days within which to submit personally by brief or letter any grounds of appeal, contentions or arguments that he wanted us to consider. To date, we have received no response from defendant. We have examined the entire record and are satisfied that defendant’s counsel has complied fully with her responsibilities. No arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284; People v. Kelly (2006) 40 Cal.4th 106, 119; People v. Wende, supra, 25 Cal.3d at p. 441.)
We specifically note that in this case there is no sentencing issue under Blakely v. Washington (2004) 542 U.S. 296. The California Supreme Court observed years ago that “‘where a defendant waives a jury trial he is deemed to have consented to a trial of all of the issues in the case before the court sitting without a jury.’” (People v. Berutko (1969) 71 Cal.2d 84, 94.) It follows logically that a defendant who waives his right to a jury trial as a precursor to a no contest plea and in exchange for a specified upper term sentence, waives his right to a jury trial on all issues, including sentencing issues. Thus, in light of defendant’s waiver of his right to a jury trial and his agreement to the precise sentence imposed, the constitutionality of defendant’s upper term sentence (Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856]; Blakely v. Washington, supra, 542 U.S. 296) is not an issue in this case. (See generally People v. Hester (2000) 22 Cal.4th 290, 295 [“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.”].)
The judgment is affirmed.
We concur: MALLANO, Acting P. J., VOGEL, J.