Opinion
NOT TO BE PUBLISHED
Super. Ct. No. NCR67946
CANTIL-SAKAUYE, J.
Defendant Tammy Lee Duby struck and killed a 20-month-old child who had wandered into the eastbound lane of Corning Road in Tehama County. Defendant had a blood-alcohol level between .10 and .16 percent at the time of the accident.
The district attorney charged defendant with gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)) [count I]; driving under the influence of alcohol and drugs and causing great bodily injury (Veh. Code, § 23153, subd. (a)) [count II]; driving with a blood-alcohol content of 0.08 percent or higher (Veh. Code, § 23153, subd. (b)) [count III]; and leaving the scene of an accident resulting in death to a person other than herself (Veh. Code, § 20001, subd. (a)) [count IV]. As to count I the information alleged that defendant had suffered two prior convictions for violating Vehicle Code section 23152, subdivision (b), driving with a blood-alcohol level of .08 percent or more within the meaning of Penal Code section 191.5, subdivision (d), and fled the scene of the crime within the meaning of Vehicle Code section 20001, subdivision (c). As to counts II, III and IV, it alleged that defendant inflicted great bodily injury on a child under five years of age within the meaning of Penal Code section 12022.7, subdivision (d).
Defendant pled guilty to gross vehicular manslaughter while intoxicated in count I, and admitted the special allegation that she fled the scene of the crime, in exchange for dismissal of the remaining felony counts and special allegations against her. She acknowledged in the plea form that she faced a maximum sentence of 15 years. Defense counsel and the prosecutor agreed that the court could use the preliminary hearing transcript as the factual basis for defendant’s plea. Imposing the upper term in count I, the trial court sentenced defendant to 15 years in state prison.
On appeal, defendant contends imposition of the upper term violated her Sixth and Fourteenth Amendment rights under Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). She also contends that the court erred in using the dismissed prior convictions to impose the upper term because her plea did not include a Harvey waiver. We shall affirm the judgment.
People v. Harvey (1979) 25 Cal.3d 754.
FACTUAL BACKGROUND
As we explained, the parties agreed that the preliminary hearing transcript provided the factual basis for defendant’s plea. That transcript reveals the several facts which are relevant to the issues in this appeal.
The investigation by California Highway Patrol (CHP) Officer Andrew VanVeen testified that defendant was traveling approximately 55 miles an hour when she struck the toddler then skidded to a stop. One witness near the scene described hearing a loud noise and turned to see two vehicles stopped by the side of the road. She heard the words “God damn it” from a person standing outside the vehicles. Warren Walker, a coworker who was in the second vehicle, told VanVeen that defendant was hysterical and yelled that she needed to get out of there. Walker followed defendant when she left the scene.
Defendant parked her car in the barn when she got home. She told Walker that she had hit “somebody, a person.” Walker told defendant that she needed to go back. Defendant said that she could not go back because she had been drinking.
Later, a couple of hours after the accident, Harvey Humphrey convinced defendant to return to the scene. Defendant told CHP Officer Matthew Szychulda that she believed she had hit a deer and did not think twice about leaving after the collision. Officer VanVeen initially placed defendant under arrest at the scene for felony hit and run. After smelling alcohol on defendant’s breath, VanVeen administered a breath test which showed a blood-alcohol level of 0.10 percent. VanVeen testified that a criminalist estimated that defendant’s blood-alcohol level was between 0.15 and 0.16 at the time of the collision earlier in the evening.
The district attorney’s investigator Walter Rhodes determined that defendant had prior “DUI” convictions in Colusa and Glenn Counties. Defendant had completed an 18-month multiple offender “DUI school” which taught, among other things, that drinking and driving involved the risk of death. The prosecutor argued at the close of the preliminary hearing that defendant was aware of the dangers of driving while under the influence because of the multiple offender program, and that fact, among others, supported the charge of gross vehicular manslaughter.
DISCUSSION
I.
Certificate of Probable Cause
Defendant filed a timely notice of appeal, but did not initially request a certificate of probable cause. Later, while this appeal was pending, defendant requested the document “in an abundance of caution.” The trial court denied the request, stating: “The request does not attack the legality of the plea. It alleges sentencing error.”
Generally, a defendant who has entered a plea of guilty or no contest must obtain a certificate of probable cause from the trial court to appeal. (Pen. Code, § 1237.5.) There is an exception, however, when the grounds for appeal “arose after entry of the plea and do not affect the plea’s validity.” (Cal. Rules of Court, rule 30(b)(4)(B).) “Hence, the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea.” (People v. Panizzon (1996) 13 Cal.4th 68, 76, italics omitted.)
We requested supplemental briefing on the question whether the defendant needed a certificate of probable cause in order to challenge the trial court’s imposition of the upper term sentence.
Defendant contends it was unnecessary. She argues that she did not plead guilty in exchange for a stipulated sentence. Instead, the 15-year maximum term set forth in the written plea agreement was merely a sentencing “lid” which allowed the court to exercise its discretion to impose any sentence within that upper limit. The trial court agreed that defendant’s challenge on appeal involved only sentencing error and denied defendant’s belated request for a certificate of probable cause on that ground. Both defendant and the trial court misread the current state of the law.
“‘[T]he 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 and also a mutual understanding that, absent the agreement for the lid, the trial court might lawfully impose an even longer term.’” (People v. Bobbit (2006) 138 Cal.App.4th 445, 447, quoting People v. Shelton (2006) 37 Cal.4th 759, 768.) “Accordingly, a challenge to the trial court’s authority to impose the lid sentence is a challenge to the validity of the plea requiring a certificate of probable cause.” (Shelton, supra, at p. 763.)
Because defendant attempted to obtain a certificate of probable cause, which the trial court denied in the erroneous belief that the appeal raised only sentencing error, we shall review -- and reject -- defendant’s Cunningham claims on appeal.
II.
There Was No Cunningham Error
Defendant claims the trial court’s imposition of the upper term denied her the constitutional right to have a jury determine factors in aggravation beyond a reasonable doubt. Moreover, she now claims, the court improperly relied on her two prior convictions for violating Vehicle Code section 23152, subdivision (b) in setting the upper term because the allegations of her prior convictions were dismissed without a Harvey waiver. Because at least one of the aggravating factors came within a well-recognized exception to Cunningham, we conclude there was no error.
At sentencing, the court imposed the upper term of 10 years on count I, gross vehicular manslaughter while intoxicated, and an additional five years for the special allegation that defendant fled the scene, reasoning as follows: “The Court finds that the factors in aggravation outweigh those in mitigation. Certainly we have a victim who was particularly vulnerable, given that it was a small child. Furthermore, the Defendant, after she committed the violation and after she left the scene of the accident, attempted to interfere with the justice process by hiding her vehicle and the statements that she made. [¶] But again, most importantly, the Defendant has two prior convictions for driving under the influence of alcohol. She specifically attended a multiple-offender driving-under-the-influence class, actually classes after she was convicted the second time. This Defendant was on notice that driving under the influence was dangerous, that it involved the risk to human life, and nevertheless she continued to do it anyway. That warrants the aggravated term.”
The United States Supreme Court has consistently held that the federal Constitution’s guarantee of a jury trial invalidates any sentencing scheme that allows a judge to impose a sentence greater than 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]; Blakely v. Washington (2004) 542 U.S. 296, 303 [159 L.Ed.2d 403, 413]; and Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 455]; see also People v. Black (2007) 41 Cal.4th 799, 813-814 (Black II).) The Apprendi court derived the prior conviction exception from Almendarez-Torres v. United States (1998) 523 U.S. 224 [140 L.Ed.2d 350] (Almendarez-Torres). (Apprendi, supra, 530 U.S. at pp. 488-490 [147 L.Ed.2d at pp. 453-454].) Although the United States Supreme Court has questioned the holding of Almendarez-Torres (see Apprendi, supra, at p. 489 [147 L.Ed.2d at p. 453]; and Shepard v. United States (2005) 544 U.S. 13, 27 [161 L.Ed.2d 205, 219] (conc. opn. of Thomas, J.)), the court has not elected to overrule the case. (See Rangel-Reyes v. United States (2006) ___ U.S. ___ [165 L.Ed.2d 910] [denying petition for writ of certiorari to reconsider Almendarez-Torres].) Thus, we are bound by the prior conviction exception. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Under California law, a single aggravating circumstance renders a defendant eligible for the upper term. (Black II, supra, 41 Cal.4th at p. 813; People v. Osband (1996) 13 Cal.4th 622, 728, distinguished by People v. Lucero (2000) 23 Cal.4th 692, 714.) Therefore, if one aggravating circumstance has been established in accordance with constitutional requirements, imposition of the upper term does not violate a defendant’s Sixth Amendment right to jury trial. (Black II, supra, at pp. 813, 820.)
In this case, the court relied on facts relating to the crime and facts relating to the defendant -- specifically, her criminal history -- in imposing the upper term. (Cal. Rules of Court, rule 4.421(a) & (b).) As to the criminal history, the court stated, “[m]ost importantly, the Defendant has two prior convictions for driving under the influence of alcohol. She specifically attended a multiple-offender driving-under-the-influence class, actually classes after she was convicted the second time. This Defendant was on notice that driving under the influence was dangerous, that it involved the risk to human life, and nevertheless she continued to do it anyway. That warrants the aggravated term.” The court’s findings are supported by the preliminary hearing transcript, which counsel agreed provided the factual basis for plea. Accordingly, we conclude that the court did not err in relying on defendant’s two prior felony convictions for alcohol-related offenses to impose the upper term.
In reaching this resolution, we reject defendant’s argument that the court impermissibly relied on her prior criminal history because the allegations of her prior convictions were dismissed without a Harvey waiver, were not transactionally related to count I, and the use of dismissed prior convictions to impose an aggravated sentence was error under In re Knight (1982) 130 Cal.App.3d 602. Inasmuch as defendant failed to object and or otherwise raise these arguments at sentencing, they are forfeited on appeal. (People v. Scott (1994) 9 Cal.4th 331,353-354.)
DISPOSITION
The judgment is affirmed.
I concur: HULL, J.
I concur in the result: RAYE, Acting P.J.