Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 07F03094, 04F03306
ROBIE, J.
Defendant Christopher Boyd Crockett pled guilty to attempted robbery with personal use of a firearm in exchange for a stipulated prison sentence of 13 years and dismissal of another count. Defendant now contends his sentence violates the principles set forth in Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856]. We affirm.
PROCEDURAL BACKGROUND
It is not necessary to recite the facts of defendant’s offense, as they are not pertinent to resolution of the issue on appeal.
At the time of the plea agreement, it was stipulated that defendant would receive the upper term of three years for the attempted robbery and the upper term of 10 years for the firearm enhancement, for a total of 13 years in state prison.
At the sentencing hearing, the prosecutor stated he had been mistaken about the applicable sentence triad for attempted robbery and believed the correct term was two years six months. The trial court accepted the prosecutor’s representation and sentenced defendant to an aggregate term of 12 years 6 months, which included the upper term of 10 years for the firearm enhancement. The court noted that the stipulated resolution did not require a discussion of factors in aggravation, but it nevertheless, stated the factors on the record.
Defendant appealed and the judgment was affirmed by this court in case No. C049893. His petition for review was denied and the remittitur issued on January 9, 2006.
On March 26, 2007, defendant filed a petition for writ of habeas corpus with the trial court seeking relief from the upper term sentences pursuant to Cunningham. The trial court denied the petition but discovered that the two-year six-month sentence for attempted robbery was unauthorized. The trial court vacated the previously imposed unauthorized sentence and imposed the upper term of three years for attempted robbery, for an aggregate term of 13 years in state prison. The court stayed its order for 30 days to provide the parties with an opportunity to request a resentencing hearing.
Defendant moved for a resentencing hearing, which took place on September 12, 2007. At the resentencing hearing, the prosecutor acknowledged his previous error and noted that the plea agreement was for 13 years. Nevertheless, the prosecutor requested the court impose the middle term of two years for the attempted robbery, instead of the previously agreed-upon upper term. Defense counsel stated she had no objection to the proposal. The trial court imposed the middle term of two years for attempted robbery and the upper term of 10 years for the firearm enhancement for an aggregate term of 12 years in state prison.
DISCUSSION
Defendant contends that his upper term sentence on the firearm enhancement violated Cunningham. Because defendant waived his right to a jury trial and agreed to the specific sentence imposed, the constitutionality of his upper term sentence under Cunningham cannot be challenged. Generally, where a defendant pleads 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
Cunningham found unconstitutional California’s former determinate sentence law assigning the trial judge authority to find facts to expose a defendant to the upper term, rather than the then presumptive middle term.
sentence as long as the court did not lack fundamental jurisdiction. (People v. Hester (2000) 22 Cal.4th 290, 295.) Here, defendant agreed he would be sentenced to a stipulated term of 13 years in state prison, including the upper term of 10 years for the firearm enhancement. Initially, that was the sentence imposed, yet at resentencing, the trial court actually imposed only 12 years. His plea effectively admitted the existence of facts necessary to impose the upper term. Defendant forfeited his right to complain about the upper term as potentially invalid under Cunningham because he accepted a negotiated plea for a specified term that allowed him to avoid a potentially harsher sentence. (Hester, at p. 295.)
Additionally, defendant here was resentenced after the Legislature amended Penal Code section 1170 to remove the presumption of a middle term and provide the trial court with broad discretion to impose the lower, middle, or upper term by simply stating its reasons for imposing the selected term on the record. (Stats. 2007, ch. 3.) As a result of the amendment, the upper term, rather than the middle term, is now the statutory maximum that may be imposed without additional fact finding. (People v. Sandoval (2007) 41 Cal.4th 825, 850-851.) Since defendant was resentenced under the amended statute, Cunningham has no application.
Because imposition of the upper term was not unconstitutional, we need not reach defendant’s assertion that his trial counsel rendered ineffective assistance by failing to object to the sentence on this ground.
DISPOSIITON
The judgment is affirmed.
We concur: BLEASE, Acting P. J., RAYE, J.