Opinion
NOT TO BE PUBLISHED
Sup. Ct. No. 05F4226
MORRISON, J.
On June 4, 2005, defendant Daniel Keith Clark, carrying a tire iron, approached the victim, demanded her car keys and, with her inside, drove her vehicle for several miles. He then drove back to her home and dropped her off unharmed. He had earlier attempted to steal her mother’s car.
Facing 67 years to life, defendant entered a plea of guilty to kidnapping for carjacking (Pen. Code, § 209.5, subd. (a); undesignated section references are to this code; count 1), kidnapping (§ 207, subd. (a); count 2), carjacking (§ 215, subd. (a); count 3) and vehicle theft (Veh. Code, § 10851, subd. (a); count 4) and admitted personal use of a deadly weapon (§ 12022, subd. (b)), three strike priors (§ 1170.12), three prior felony convictions (§ 667, subd. (a)) and one prior prison term allegation (§ 667.5, subd. (b)). The court granted the prosecution’s motion to dismiss another count (attempted vehicle theft) and a trailing case in the interests of justice.
The court denied defendant’s motion to strike the strike priors and sentenced defendant to state prison for an aggregate term of 34 years to life: carjacking (count 3), 27 years (the upper term of nine years, tripled) to life plus one year for personal use of a deadly weapon; kidnapping (count 2), 25 years to life, concurrent; counts 1 and 4, sentence stayed pursuant to section 654; one five-year enhancement for a prior felony conviction; imposed but stayed on two other five-year enhancements because the priors had not been brought and tried separately; one year for the prior prison term; and one year for the personal use of a weapon.
Defendant appeals. Defendant requested a certificate of probable cause to challenge the upper term sentence as improper, unlawful or unauthorized. His request for a certificate of probable cause (§ 1237.5) was denied.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.
We requested supplemental briefing on the following two issues:
“(1) Discuss the application, if any, of Cunningham v. California (2007) [549] U.S. ___ [166 L.Ed.2d 856] [(Cunningham)] upon the court’s imposition of sentence for carjacking (count 3), that is, life with a minimum term of 27 years (upper term of nine years, tripled).
“(2) Discuss the effect of defendant’s written waiver of his right to appeal.”
Defendant contends that Cunningham applies to the trial court’s implied finding that his three 1989 strike convictions did not arise from a single course of conduct and to the trial court’s selection of the upper term of nine years, tripled, for the minimum determinate sentence on count three, carjacking. He further contends his waiver of the right to appeal did not cover the right to challenge the constitutionality of his sentence because that issue was not within the parties’ contemplation at the time of the plea and purported waiver. If the waiver was effective, defendant alternatively argues he received ineffective assistance of counsel.
For the reasons set forth below, we find Cunningham applies to the selection of the upper term as part of the minimum term of the life term for count 3, but not to the decision not to strike a prior conviction. Because defendant’s criminal record made him eligible for the upper term, there was no Cunningham error. We find, in the circumstances of this case, there was no waiver of Cunningham rights and the issue could be raised without a certificate of probable cause. We discuss the issues in reverse order.
I. Waiver of Right to Appeal
Defendant’s plea agreement included an explicit waiver of appellate rights. Defendant, in addition to signing the agreement, initialed the paragraph that provided: “I hereby waive and give up my right to appeal from the sentence I will receive in this case.” Under acknowledgements, defendant initialed the paragraph that read: “I have discussed the negotiated plea with my attorney and my attorney has answered all my questions. I have no other questions I wish to ask my attorney before entering this plea. We have discussed possible defenses and motions and I am convinced it is in my best interest to enter this plea.”
“[A]n express waiver of the right of appeal made pursuant to a negotiated plea agreement is valid provided defendant’s waiver is knowing, intelligent and voluntary.” (People v. Vargas (1993) 13 Cal.App.4th 1653, 1659.) “‘The valid waiver of a right presupposes an actual and demonstrable knowledge of the very right being waived. [Citations.]’ [Citation.] It ‘“[i]s the intelligent relinquishment of a known right after knowledge of the facts.” [Citation.]’ [Citation.] . . . The right of appeal should not be considered waived or abandoned except where the record clearly establishes it. [Citation.]” (Id. at p. 1662.)
The issue before us is whether a waiver of the right to appeal sentencing issues includes a waiver of any Cunningham rights. Under the circumstances of this case, we conclude it does not.
At the time defendant entered his plea and signed the waiver, People v. Black (2005) 35 Cal.4th 1238 (Black I) was the law in California and defendant had no right to a jury determination of aggravating factors for sentencing. Nothing in the record indicates defendant knew he had or possibly had that right. Rather, the record indicates the contrary. The plea form contained several paragraphs. Defendant initialed some while others were marked with an “X.” The reasonable interpretation is that the “X” indicated the paragraphs were not applicable. There were “X’s” next to references to probation, California Youth Authority, driver’s licenses, and certain welfare privileges.
Also marked with an “X” were the following provisions for giving up certain constitutional rights: “I understand I have a right to a jury trial as to the existence of any sentencing factors that may be used by the court to increase my sentence to the upper or aggravated term provided by law on any count, sentencing enhancement, or allegation. I hereby give up the right to a jury trial on the existence of any sentencing factors and consent to the judge determining, by proof beyond a reasonable doubt, the existence of any aggravating sentencing factors within the judge’s discretion. I also agree this waiver shall apply to any future sentence imposed following the revocation of probation.”
In determining the scope of a waiver, we look to the language of the agreement to ascertain the parties’ expressed intent and beyond that seek to carry out the parties’ reasonable expectations. (People v. Nguyen (1993) 13 Cal.App.4th 114, 120.) The reasonable interpretation of the waiver form is that defendant believed he did not have the right to have the jury determine aggravating sentencing factors. In such case, his waiver of those rights was not knowing, intelligent and voluntary. (People v. Vargas, supra, 13 Cal.App.4th at p. 1659.)
Since we find the waiver did not apply to any Cunningham error, we need not address the claim of ineffective assistance of counsel.
II. Certificate of Probable Cause
In a footnote, the Attorney General claims that defendant’s failure to obtain a certificate of probable cause (§ 1237.5) requires dismissal of the appeal. Defendant requested a certificate of probable cause to challenge the upper term sentence, but it was denied.
Section 1237.5 provides: “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.”
“It has long been established that issues going to the validity of a plea require compliance with section 1237.5. [Citation.] Thus, for example, a certificate must be obtained when a defendant claims that a plea was induced by misrepresentations of a fundamental nature [citation] or . . . when a defendant claims that warnings regarding the effect of a guilty plea on the right to appeal were inadequate. [Citation.]” (People v. Panizzon (1996) 13 Cal.4th 68, 76 (Panizzon).) An exception to the requirement of a certificate of probable cause is when the grounds for appeal “arose after entry of the plea and do not affect the plea’s validity.” (Cal. Rules of Court, rule 8.304(b)(4)(B).)
“[T]he critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5. [Citation.]” (Panizzon, supra, 13 Cal.4th at p. 76, original italics.) Where the plea includes a negotiated sentence, a challenge to the sentence is a challenge to the validity of the plea. (Id. at p. 79.) Where the plea includes a negotiated maximum sentence or lid, a mutual understanding that the court has authority to impose such sentence is implied and a certificate of probable cause is required to challenge the court’s authority (as opposed to its exercise of discretion) to impose the lid sentence. (People v. Shelton (2006) 37 Cal.4th 759, 769.) Where the parties negotiate a maximum sentence and leave the actual sentence subject to further adversary proceedings and the court’s discretion, the exercise of the court’s discretion is reviewable without a certificate of probable cause. (People v. Buttram (2003) 30 Cal.4th 773, 785-787; People v. Cole (2001) 88 Cal.App.4th 850, 871-872.)
We find this case more similar to Buttram than Shelton; the challenge to defendant’s sentence is not a challenge to the validity of the plea. There was no negotiated sentence or even a lid; the plea stated only the maximum possible sentence of 67 years to life. Defendant expressly reserved the right to challenge the actual sentence imposed. Defense counsel stated that he planned to file a motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and to argue that “the 667s, the Court has discretion to strike those under certain circumstances, so I will make a motion to strike those as well . . . .” At sentencing, defense counsel requested something less than a life term, arguing his Romero motion. He also claimed the three strikes were all part of the same course of conduct and that section 654 applied. Unlike in Shelton, supra, 37 Cal.4th 759defendant’s challenge does not go to the trial court’s inherent authority to impose the sentence. He does not contend that the court could not impose a sentence of 34 years to life, but rather that such a sentence was not properly imposed, that is, in conformity with Blakely v. Washington (2004) 542 U.S. 296, 303-304 [159 L.Ed.2d 403, 413-414] (Blakely), and Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856]. The lack of a certificate of probable cause does not preclude review on appeal. (Buttram, supra, 30 Cal.4th at p. 790, but see People v. Bobbit (2006) 138 Cal.App.4th 445 .)
III. Cunningham Error
We begin our discussion with a brief history of the Cunningham decision and its application in California. In Apprendi v. New Jersey (2000)530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Id. at p. 490.) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jury’s verdict or admitted by the defendant. Thus, when a sentencing court’s authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. 296, 303-304 [159 L.Ed.2d 403, 413-414].)
In Black I, supra, 35 Cal.4th 1238, the California Supreme Court considered the effect of Apprendi and Blakely on California’s determinate sentencing law. The court held that a defendant was not entitled to a jury determination on aggravating factors utilized by the trial court in its discretion to impose the upper term. (Black I, supra, at p. 1244.)The United States Supreme Court disagreed in Cunningham v. California, supra, 549 U.S. __ [166 L.Ed.2d 856]. The court held that by “assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence,” California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Id. at p. ___[166 L.Ed.2d at p. 864].)
In People v. Black (2007) 41 Cal.4th 799 (Black II), the court applied Cunningham. The court 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.)
Defendant contends Cunningham was violated in two ways. First, he contends he was entitled to a jury trial on whether his three prior 1989 convictions could be used as strikes. He frames the issue as whether they arose from a single course of conduct. Second, he contends he was entitled to a jury trial on the aggravating facts used to support the upper term on count three. We find no Cunningham error.
Initially, we observe that Cunningham concerned a determinate sentence under California’s Determinate Sentencing Law (DSL), not a sentence under the Three Strikes law. Here, utilizing the Three Strikes law, the trial court chose the minimum term defendant had to serve of his life sentence prior to being eligible for parole. Nonetheless, DSL and particularly the sentencing factors in section 1170 are incorporated by reference in the Three Strikes law. (People v. Nguyen (1999) 21 Cal.4th 197, 205-206.)
We find the discretionary choice whether to strike one or more prior convictions is not a fact that increases the penalty for a crime beyond the statutory maximum, and thus Apprendi, Blakely and Cunningham do not apply. In deciding whether to strike the strike prior(s), the trial court was required to “consider whether, in light of the nature and circumstances of [defendant’s] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
At sentencing, defendant argued his prior convictions arose from the same course of conduct and were subject to section 654, so at least two should be stricken. The prosecutor disagreed as to the applicability of section 654 and the augmented record shows the prosecutor was correct. Separate sentences were imposed on all three crimes. In any event, the trial court denied the Romero motion because it found defendant was not outside the spirit of the Three Strikes law, noting his extensive criminal record, including parole violations and his reoffending shortly after release. The decision whether to strike a prior conviction is entrusted to the sound discretion of the trial court. (Romero, supra, 13 Cal.4th at pp. 529-530.) While the court must set forth its reasons for dismissing a strike (id. at p. 531), it need not find any particular fact. Moreover, while the exercise of its discretion reduces defendant’s sentence, the failure to exercise discretion has no affect on the statutory maximum sentence. Since there was no factual finding that increased defendant’s sentence beyond the statutory maximum, there was no Cunningham error.
Even if the three prior convictions had been subject to section 654, the trial court retained discretion to use all of them as strikes. (People v. Benson (1998) 18 Cal.4th 24, 36.)
Defendant next argues that his right to a jury trial was denied as to the sentence for count three. For carjacking, the court imposed the upper term of nine years with no express statement of the aggravating factors utilized, then tripled the term for 27 years as the minimum parole eligibility term on his life sentence, citing section 1170.12.
Black II 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, 41 Cal.4th at p. 816.)
Although the court did not expressly state the factor(s) found in aggravation to impose the upper term (then tripling) for carjacking, the court had just reviewed defendant’s criminal history in ruling on his Romero motion. Defendant admitted three strike priors (kidnapping, forcible rape, the assault with a deadly weapon offense) and one prior prison term. Defendant had additional prior felony convictions (vehicle theft, failure to register). Defendant’s prior felony convictions were numerous. Because defendant’s numerous prior felony convictions justified a legally sufficient aggravating factor to support an upper term, no Cunningham error occurred.
Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J., DAVIS, J.