Opinion
NOT TO BE PUBLISHED
Super. Ct. No. NCR68704
DAVIS, Acting P.J.
Pursuant to a plea bargain, defendant Jason Alan Dailey pleaded guilty to two counts of nonforcible lewd behavior with a child (Pen. Code, § 288, subd. (a)) in exchange for the dismissal of eight forcible counts (Pen. Code, § 288, subd. (b)(1)). The trial court noted that the maximum sentence for the offenses to which defendant was pleading guilty was 10 years.
The trial court sentenced defendant to a 10-year term, comprised of: (1) an upper term of eight years on the first count (the trial court finding that defendant had a substantial prior record, was on probation at the time, had violated a position of trust, and that the victim, defendant’s young daughter, was particularly vulnerable); and (2) a consecutive sentence of two years on the second count (the trial court finding it to be a distinct offense, committed at a separate time and place).
Defendant has appealed, contending that these upper and consecutive terms are unconstitutional under the recent United States Supreme Court decision in Cunningham v. California (2007) 549U.S.___ [166 L.Ed.2d 856] (Cunningham). Cunningham concluded that California’s determinate sentencing law (DSL) violates a defendant’s federal constitutional right to a jury trial by assigning to the trial judge, rather than to the jury, the authority to find the facts that render a defendant eligible for an upper term sentence.
We consider defendant’s appeal only with respect to his upper-term challenge. This is because the California Supreme Court recently concluded that neither Cunningham nor its predecessors--Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely)--“apply to the imposition of consecutive terms.” (People v. Black (2007) 41 Cal.4th 799, 806 (Black II).)
Discussion
1. Certificate of Probable Cause
At the outset, we must address the People’s jurisdictional claim that defendant did not obtain a certificate of probable cause for his appeal pursuant to Penal Code section 1237.5, and therefore his appeal must be dismissed. We disagree with this claim.
The People also raise the nonjurisdictional claim that defendant has forfeited his jury trial contention by failing to raise it in the trial court. The People’s claim is mistaken because People v. Black (2005) 35 Cal.4th 1238 (Black I)--which held that California’s DSL did not violate the federal constitutional right to a jury trial--was in effect at the time of defendant’s sentencing, and any such objection would have been futile. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.)
Penal Code section 1237.5 provides that a defendant may not appeal “from a judgment of conviction upon a plea of guilty” unless the trial court has issued “a certificate of probable cause for such appeal.” (Pen. Code, § 1237.5; People v. Shelton (2006) 37 Cal.4th 759, 766 (Shelton).) There are two exceptions when this certificate is not required, one of which is pertinent here: an appeal based on grounds that arose after entry of the plea that do not affect the plea’s validity (e.g., an appeal of a sentence that does not affect the plea’s validity). (Shelton, supra, 37 Cal.4th at p. 766; Cal. Rules of Court, rule 8.304(b)(4).) “‘In determining whether [Penal Code] section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty . . . the critical inquiry is whether [the] challenge . . . is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5.’” (People v. Young (2000) 77 Cal.App.4th 827, 832 (Young), quoting People v. Panizzon (1996) 13 Cal.4th 68, 76, italics added by Panizzon.)
Here, defendant’s plea bargain was simply a “charge bargain”: he pleaded guilty to certain charges in exchange for the dismissal of others. Defendant’s plea bargain did not involve any agreement as to the sentence he would receive or the maximum sentence he could receive (i.e., there was no negotiated sentence “lid”). The trial court simply noted for defendant that the maximum sentence for the charges to which defendant was pleading guilty was 10 years.
Defendant now appeals his sentence, arguing that the upper term portion of it was based on facts not found by a jury and therefore the sentence violates the constitutional jury trial right (and related due process right) as interpreted in Cunningham. This argument is not a challenge to the validity of defendant’s plea because, as we have seen, the sentence to be imposed was not a part of his plea bargain; defendant’s plea was a straight “charge bargain.” As such, a certificate of probable cause is unnecessary.
The dissent claims, pursuant to Shelton, supra, 37 Cal.4th 759, that defendant needs a certificate of probable cause here. We disagree. In Shelton, the defendant argued on appeal that, under Penal Code section 654, the trial court had no legal authority to impose the plea’s maximum sentence under any circumstances; the Shelton court concluded that this argument went to the plea’s validity and therefore required a certificate of probable cause. (Shelton, supra, 37 Cal.4th at pp. 764-766, 768-771.) Here, by contrast, defendant acknowledges that the trial court had the legal authority to impose the maximum 10-year sentence (by using the permissible sentencing factors available to it under Cunningham). Defendant’s argument is that the trial court erred in reaching that 10-year sentence by also relying upon impermissible sentencing factors under Cunningham. Unlike the defendant’s argument in Shelton, then, defendant’s argument here does not undercut the plea bargain. When defendant and the prosecution entered into the plea bargain here, neither party contemplated that the trial court could use impermissible sentencing factors under Cunningham to reach the 10-year sentence.
2. The Merits of the Appeal
Although we have concluded that we can jurisdictionally entertain defendant’s appeal, we reject that appeal on its merits in light of the California Supreme Court’s recent decision in Black II.
The trial court here imposed an upper term on the first count, finding that defendant had a substantial prior record, was on probation at the time, had violated a position of trust, and that the victim, defendant’s daughter, was particularly vulnerable.
As the California Supreme Court ruled in Black II, “imposition of the upper term does not infringe upon [a] defendant’s constitutional right to jury trial [under Apprendi, Blakely and Cunningham] 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.) This is because “[u]nder California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make [a] defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Id. at p. 813.) And it is only when a sentence goes above the “statutory maximum” that the Apprendi-Blakely-Cunningham rule is triggered, requiring a jury to determine sentencing facts; as Cunningham explained, “the Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864], italics added; Apprendi, supra, 530 U.S. at p. 490.)
Here, the record discloses at least one legally sufficient aggravating circumstance that is justified based upon defendant’s record of prior convictions. The trial judge found the aggravating circumstance that defendant had a substantial prior record of criminal conduct (one prior felony conviction and eight prior misdemeanor convictions). (See Cal. Rules of Court, rule 4.421(b)(2) [defining an aggravating circumstance as including the circumstance of numerous prior convictions]; People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [three prior convictions deemed numerous under this rule]; Black II, supra, 41 Cal.4th at p. 818.) “The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction.” (Black II, supra, at p. 818.) Consequently, under Black II, the trial judge’s imposition of the upper term on the first count did not violate defendant’s constitutional right to jury trial under Apprendi-Blakely-Cunningham.
Disposition
The judgment is affirmed.
I concur: MORRISON, J.
HULL, J.
I dissent.
On April 18, 2006, the People filed a criminal complaint against defendant that set forth 10 counts of forcible lewd acts on a child under the age of 14 in violation of Penal Code section 288, subdivision (b)(1). (All unspecified statutory references are to the Penal Code.) If convicted on all counts, defendant faced a maximum sentence of 80 years in state prison. (§ 288, subd. (b)(1).)
On August 29, 2006, defendant and the People reached an agreement for resolution of the charges set forth in the complaint. The People agreed to dismiss eight of the 10 counts alleging forcible lewd acts in violation of section 288, subdivision (b)(1) and, as to the remaining two counts, the People agreed to amend the complaint to charge non-forcible lewd acts in violation of section 288, subdivision (a). In return, defendant agreed to plead guilty to the two amended counts.
During the plea colloquy, after the People dismissed eight counts and amended the remaining two in accordance with the plea agreement, the trial court noted that the maximum sentence for the two counts to which defendant was pleading guilty was 10 years and said to defendant: “Sir, the maximum penalty for this offense includes a potential of the following: Ten years in state prison, two fines totaling $30,000.” The court asked defendant if he understood this and defendant said that he did.
On October 2, 2006, the court imposed the upper term of eight years in state prison on one of the counts to which defendant pleaded guilty and two years (one-third of the middle term of six years) on the second, for a total of 10 years in state prison.
Defendant now appeals citing Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham) and arguing that, by sentencing defendant to the upper term of eight years on count I and to a consecutive term of two years on count II, the court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution.
The People, citing section 1237.5, contend that defendant was required to obtain a certificate of probable cause from the trial court before he could raise this challenge to his sentence on appeal. Since he did not, the People argue, the appeal must be dismissed. I agree.
As the majority points out, section 1237.5 precludes an appeal upon a plea of guilty unless the defendant obtains from the trial court a certificate of probable cause. There are two exceptions to this requirement, one of which is at issue here. That is, no certificate is required when the defendant’s appeal raises issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.” (People v. Pannizon (1996) 13 Cal.4th 68, 74-75.)
We are required to apply strictly the provisions of section 1237.5. (People v. Mendez (1999) 19 Cal.4th 1084, 1098; People v. Pannizon, supra, 13 Cal.4th at p. 89, fn. 15.)
The majority concludes that defendant’s Cunningham challenge to the upper term and to the consecutive sentence are not challenges going to the validity of the plea because defendant entered into a “charge bargain,” that is, “he pleaded guilty to certain charges in exchange for the dismissal of others.” (Maj. opn., ante, at p. 4.) Since the plea agreement did not include an agreement regarding the sentence to be imposed, that is, there was no agreed “lid” to the sentence, the majority concludes defendant’s current challenge to that sentence does not challenge the validity of the negotiated plea. (Maj. opn., ante, at p. 4.) It is here that we disagree.
In People v. Shelton (2006) 37 Cal.4th 759 (Shelton), the defendant entered into a plea agreement that provided that the People would dismiss four of six felony counts charging defendant with various crimes in return for defendant’s plea of no contest to the remaining two counts that alleged a violation of section 646.9 (stalking) and a violation of section 422 (criminal threats). The parties further agreed that defendant would be sentenced to state prison for a term not to exceed three years and eight months. This so-called “lid” on the sentence to which the parties agreed was less than the maximum sentence that could otherwise have been assessed for a violation of the two statutes to which defendant entered his no contest plea. Ultimately, defendant was sentenced to three years and eight months in prison.
On appeal, Shelton argued his prison sentence was unlawful because it violated section 654, the statutory prohibition against double punishment. The Shelton court held that defendant was required to obtain a certificate of probable cause before he could pursue his appeal because the issue he raised ultimately was an attack on the validity of his plea.
As the Shelton court explained: “A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.]” (Shelton, supra, 37 Cal.4th at p. 767.) Applying those principles, the Shelton court further explained “the 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 . . . .” (Id. at p. 768.) And, “[v]iewed in this light, when a plea agreement includes a specified maximum sentence, a provision recognizing the defendant’s right to ‘argue for a lesser term’ is generally understood to mean only that the defendant may urge the trial court to exercise its sentencing discretion in favor of imposing a punishment that is less severe than the maximum punishment authorized by law. In this case, it is reasonable to conclude that both the prosecutor and the trial court believed, when the plea bargain was made and accepted by the court, that defendant understood it in the same manner, as reserving to him a right to argue for a sentence less than the specified maximum of three years and eight months only on the ground that the trial court should impose a lesser sentence in the exercise of its sentencing discretion, and not on the ground that the trial court lacked authority to impose the specified maximum sentence.” (Ibid.)
In my view, the reasoning in Shelton applies equally here.
Although the plea at issue in Shelton called for a sentencing lid less than the maximum sentence for the counts to which the defendant pleaded guilty, the foundation underlying the Shelton holding was the fact that the parties had entered into a plea agreement--a contract--that carried with it certain mutual understandings. One of those understandings was that defendant could, depending on the proper exercise of discretion by the sentencing judge, go to prison for three years and eight months, that is, there was an understanding that the trial court could, in its discretion, lawfully impose that sentence. Absent that, the prosecution would be denied the benefit of its bargain. By later contending the court did not have the lawful authority to impose the maximum sentence that was a part of the plea bargain, the defendant was attempting to negate that part of the agreement and attempting to deny the prosecution a benefit of its bargain, thus breaching the contract. In that manner, he was attacking the validity of his plea. In my view, the fact that the plea agreement in Shelton set forth a sentencing lid was not at the heart of the decision; the fact of a negotiated agreement and the reasonable expectations of the parties arising from that agreement, was.
As set forth above, in this matter, too, there was a negotiated plea agreement between the prosecution and the defendant. The prosecution agreed it would dismiss eight counts of forcible lewd conduct with a child and amend two others to allege only non-forcible lewd acts. The defendant agreed he would plead guilty to the two amended counts and he said, fundamentally, that he understood that under the agreement the court could sentence him to a maximum term of 10 years in state prison.
For the prosecution, the benefit of this bargain, and the prosecution’s reasonable expectation, was that the plea agreement insured a conviction relating to these crimes without the cost and uncertainties of a trial and that the agreement could, depending on the proper exercise of the trial court’s sentencing discretion, result in the defendant’s incarceration for up to 10 years.
For the defendant, the benefit of the bargain, among others, was that he was exposed to only 10 years and not 80 years in state prison. Defendant received the benefit of his bargain. By now arguing that the trial court could not impose a sentence longer than six years in prison on the first count with a concurrent term of two years on the second count without violating the Sixth and Fourteenth Amendments, he now attempts to deprive the People of a critical part of their agreement and deny them the benefit of their bargain. Defendant here is attacking the validity of his plea as surely as did the defendant in Shelton.
It is important to note that by stating he understood that his plea carried a potential of 10 years in state prison, by necessary implication defendant understood that his sentence could include an upper term and a consecutive term on the two counts to which he pleaded guilty. This is so because a violation of section 288, subdivision (a) carries with it a penalty of imprisonment for three, six or eight years. (§ 288, subd. (a).) The only way the court could sentence the defendant to 10 years--which defendant said he understood the court could “potentially” do given his plea agreement with the People--would be to sentence him to the upper term of eight years on one count and add a consecutive term of two years for the second. There was no other way to do it.
It is also important to note that this was not a true “plea to the sheet,” that is, a guilty plea to all of the charges brought by the prosecution in a given criminal action. A “plea to the sheet” in this matter would have seen defendant pleading guilty to all 10 counts of a violation of section 288, subdivision (b)(1) as originally charged in the complaint. He did not do that, but instead negotiated with the People for a more lenient resolution of the charges against him.
The majority opinion does not discuss Shelton in any detail, my colleagues thinking apparently that the holding in Shelton does not apply here because the plea agreement in this case did not include a sentencing lid, other than the maximum sentence that could be imposed for two violations of section 288, subdivision (a). If that is the case, the majority reads Shelton too narrowly.
Finally, if the fact of a sentencing “lid” stated in a number of years was crucial to the holding in Shelton, defendant should be deemed to have negotiated for and received one here, that is, a “lid” stated as the maximum term that could be imposed for twice violating section 288, subdivision (a). That he obtained that “lid” by negotiating the charges as opposed to negotiating for a specific number of years does not take this matter out of the high court’s holding in Shelton for the reasons I have set forth above.
In my view, absent some agreement to the contrary, once a criminal defendant and the People enter into a negotiated agreement for the resolution of criminal charges and the defendant acknowledges that the agreement could result in his imprisonment for a certain number of years, the defendant should be deemed to have agreed that the law does not prevent that sentence if imposed after a proper exercise of discretion by the trial judge.
I would dismiss the appeal for the lack of a certificate of probable cause.