Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06CR10076
SIMS, J.Defendant James Decker, an inmate of Mule Creek State Prison, was charged with conspiracy to transport methamphetamine to a noncontiguous county for sale (count I; Pen. Code, § 182, subd. (a)(1)/Health & Saf. Code, § 11379, subd. (b); undesignated section references are to the Penal Code); conspiracy to bring and send controlled substances into a state prison (count II; § 182, subd. (a)(1)/Health & Saf. Code, § 4573); conspiracy to possess controlled substances in a state prison (count III; § 182, subd. (a)(1)/Health & Saf. Code, § 4573.6); conspiracy to sell, furnish, and transport marijuana (count IV; § 182, subd. (a)(1)/Health & Saf. Code, § 11360, subd. (a)); transporting methamphetamine to a noncontiguous county for sale (count V; Health & Saf. Code, § 11379, subd. (b)); bringing methamphetamine into a state prison (count VI; § 4573); and possession of methamphetamine in a prison facility (count VII; § 4573.6). As to counts I and V, it was alleged that defendant had one prior conviction for violating Health and Safety Code section 11351 and three prior convictions for violating Health and Safety Code sections 11378, 11379, and 11379, subdivision (a). As to all counts other than count IV, it was alleged that defendant had sustained ten prior convictions and served three prison terms.
Sherry Gosnell was also charged on all counts. Fellow inmate James Gosnell and Kathleen Decker were charged on all but count IV.
Pursuant to a plea bargain, defendant pled guilty to count I, with all other charges dismissed, in return for a prison sentence of nine years (the upper term) consecutive to his current term. The trial court imposed this sentence.
Defendant contends: (1) The court failed to recognize its discretion to sentence concurrently rather than consecutively. (2) The upper term violated Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). We shall affirm.
FACTS
According to the probation report, defendant and his co-defendants (fellow inmate Gosnell, Gosnell’s wife, and defendant’s sister) conspired to smuggle narcotics into Mule Creek State Prison. Their overt acts in furtherance of the conspiracy included telephone conversations, mailing drugs from one defendant to another, and finally an attempt by Sherry Gosnell to bring methamphetamine into the prison on her person during a visit to her husband.
DISCUSSION
I
Defendant contends that the trial court failed to grasp that it retained discretion, despite the plea bargain, to run his sentence concurrent rather than consecutive to the term he was already serving. Defendant is wrong. The court knew that it had such discretion, but chose instead to enforce the plea bargain.
Defendant asserts in his opening brief that the plea bargain did not include consecutive sentencing. On the contrary, the plea agreement form states the following proposed disposition: “CT 1182(a)(1) conspire to transport narcotic to non-contiguous county for sale, plea of guilty, agg [sic] term of 9 years SP [sic], consec [sic]. All other counts [and] allegations dismissed.” (Italics added.) Defendant not only initialed the form on every line calling for initials, but added his initials directly below “consec”. As we explain further, both counsel were well aware of this term of the bargain.
Defendant’s counsel orally requested concurrent sentencing. He acknowledged: “We did address that as part of the plea negotiation[,]” but insisted that “[t]he Court still does retain discretion on that area [sic].”
The court replied: “Well, my only concern on this is that in the plea agreement, which was . . . proposed disposition[,] [i]t says consecutive.” Counsel agreed, but argued nevertheless that the plea agreement controlled only the length of the term on count I. The court then said: “[T]he minute that the Court says I don’t intend to follow this plea negotiation, they have the right to withdraw it, so that’s the problem here. I don’t believe that in a negotiated arrangement like this, I can just disregard this and come up with my own proposal here, and the district attorney has no recourse.”
The prosecutor asserted wrongly that section 1170.1, subdivision (c), required consecutive sentencing. She added, however: “[B]ased on the plea agreement . . ., we would ask that it . . . be consecutive as previously agreed upon.”
The prosecutor apparently misread the statute’s opening clause: “In the case of any person convicted of one or more felonies committed while the person is confined in a state prison . . . and the law either requires the terms to be served consecutively or the court imposes consecutive terms . . . .” (§ 1170.1, subd. (c).) (Italics added.) This is not a mandate for consecutive sentencing. It simply introduces the statute’s directive that if the court chooses to sentence consecutively, any such term “shall commence from the time the person would otherwise have been released from prison.” (See People v. Arant (1988) 199 Cal.App.3d 294, 296-298.)
The court ruled: “The Court has read and considered the presentence report and recommendation . . . . It will note that this was a negotiated plea between Mr. Decker and the People. The Court is not inclined to disregard that plea arrangement[.] [A]ccordingly[,] [t]he Court’s going to deny probation and pursuant to the plea agreement order him committed to the Department of Corrections for the aggravated term of nine years consecutive to his current commitment.” (Italics added.)
If the record shows that the trial court understood its discretion in sentencing, the court is presumed to have acted to achieve legitimate sentencing objectives and its decision will not be set aside on review unless irrational or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 (Alvarez).) Here, the trial court’s initial remarks might suggest that the court thought the plea bargain had tied its hands. But the court’s final statement showed that it understood it could “disregard” the plea bargain, but was “not inclined to” do so. In other words, the court chose to exercise its discretion by enforcing the plea bargain. To sentence according to the parties’ agreement is not arbitrary or irrational.
Defendant asserts that it is reasonably probable the court would have imposed concurrent sentences if it had properly understood its discretion, because he is a drug addict and played a “relatively limited” role in the conspiracy compared to the other defendants. We need not consider this point. Since the court’s sentencing choice was a rational exercise of discretion, it does not matter whether the court might reasonably have made some other choice. (Alvarez, supra, 14 Cal.4th at pp. 977-978.)
II
Defendant contends that the trial court imposed the upper term based on factors which were not submitted to a jury and found true beyond a reasonable doubt, in violation of Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856]. He argues that, although he waived a jury as to issues of guilt, his jury waiver did not extend to sentencing factors. This argument is not cognizable because defendant did not obtain a certificate of probable cause. (§ 1237.5; People v. Panizzon (1995) 13 Cal.4th 68, 79 (Panizzon).)
In their original briefs, the parties did not address the question whether defendant’s failure to obtain a certificate of probable cause forfeited his challenge to the upper term sentence. We requested and obtained supplemental briefing on the issue.
Defendant concedes that a certificate of probable cause is needed to challenge the validity of a guilty plea. He claims, however, that he is not attacking his guilty plea but only his sentence. Defendant is wrong.
“‘[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), quoting Panizzon, supra, 13 Cal.4th at p. 79.) Defendant’s plea agreement stipulated to a sentence of nine years, the upper term on count I. (See fn. 2, ante.) This stipulation was as much a part of the plea as his admission of guilt. Because defendant is attacking his plea agreement, and because he lacks a certificate of probable cause to do so, his challenge to his sentence is therefore forfeited. (Panizzon, supra, 13 Cal.4th at p. 79.)
DISPOSITION
The judgment is affirmed.
We concur: BLEASE , Acting P.J., HULL , J.