Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF06-123
NICHOLSON, Acting P.J.
Defendant Ronald Lee Dymon appeals after entering a no contest plea. He asserts the trial court violated his right to jury trial by sentencing him to the upper term for failure to register as a sex offender. We conclude the appeal must be dismissed because he did not obtain a certificate of probable cause.
BACKGROUND
Defendant violated Penal Code section 290, subdivision (g)(2) when he failed to register as a sex offender. The district attorney charged him with failure to register as a sex offender and also alleged that defendant had a 1991 conviction for violating Penal Code section 288, subdivision (a), a strike.
Defendant entered into a plea agreement by which he would plead no contest to failing to register as a sex offender and admit the prior strike. In exchange, the district attorney would move to dismiss another pending child molestation case. When the agreement was presented to the trial court, the court queried defendant: “[S]o you and I are on the same page, you’re going to be pleading in this case, admitting having failed to register, a felony, admitting a strike prior, making the range of sentences in that case two, four or six years because of the strike.” Defendant responded: “Yes, Your Honor. I understand that.” Later, in the same colloquy, the trial court corrected itself and stated: “The range -- because of the strike, everything has been doubled, so it’s 32 months, four or six years.” Defendant stated that he understood. The court then took defendant’s no contest plea.
At sentencing, the trial court imposed the upper term of three years for violation of Penal Code section 290, subdivision (g)(2) and doubled the term to six years because of the prior strike. As aggravating factors supporting the upper term, the court stated: “[H]is prior convictions as an adult and sustained petitions in delinquency are numerous. He has served a prior prison term. He was on probation when this offense was committed for the exact same offense. His prior performance on both parole and probation has been unsatisfactory.”
Although we conclude the appeal must be dismissed because defendant did not obtain a certificate of probable cause, we note that his argument that the trial court violated his jury trial rights under Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856] is without merit because the trial court relied on factors concerning defendant’s recidivism when it imposed the upper term. (People v. Velasquez (2007) 152 Cal.App.4th 1503, 1514.)
Defendant filed a notice of appeal but did not obtain a certificate of probable cause from the trial court.
DISCUSSION
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.) No certificate is required, 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 8.304(b)(4)(B).) In determining whether a certificate is required, “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.)
“A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.] ‘The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. (Civ. Code, § 1636.) If contractual language is clear and explicit, it governs. (Civ. Code, § 1638.)’” (People v. Shelton (2006) 37 Cal.4th 759, 767 (Shelton).)
In exchange for his no contest plea and admission of the strike, defendant secured dismissal of a child molestation case. When the agreement was presented to the trial court, the court advised defendant that the plea agreement would expose him to up to six years in prison. Defendant stated that he understood and wished to proceed. Although there is no written plea agreement in the record, the district attorney noted, in the statement of plea negotiations, that the agreement was entered into, in part, because of the possibility the trial court would choose the upper term and impose a six-year sentence. Defendant neither disagreed with nor objected to that statement. In a statement in mitigation, defense counsel argued that a six-year sentence would be unjust, but he did not claim it was unauthorized under the plea agreement.
“‘[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 (Bobbit), quoting Shelton, supra, 37 Cal.4th at p. 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 the plea agreement here was based on a mutual understanding that in exchange for dismissal of the child molestation case, the court could order defendant to serve the maximum six-year sentence, defendant’s contention that the maximum sentence violated Cunningham is in substance a challenge to the plea’s validity. Such a challenge after a no contest plea requires a certificate of probable cause. (Shelton, supra, 37 Cal.4th at p. 763.)
We also observe that defendant made no attempt to preserve the jury trial right issue for appeal when he entered into the plea agreement and subsequently pled no contest.
The proper disposition when a defendant fails to obtain a certificate of probable cause in a case such as this is dismissal. (Bobbit, supra, 138 Cal.App.4th at p. 448.)
As defendant notes, a similar issue is currently under review by the California Supreme Court in People v. Cuevas (review granted Jan. 3, 2007, S147510). In that case, the issue is whether a defendant is “required to obtain a certificate of probable cause in order to claim on appeal that the sentence imposed violated Penal Code section 654, when he entered his no contest plea with an understanding of the maximum sentence he faced although the plea agreement did not specify a maximum sentence[.]” (Supreme Ct. Summary of Cases Accepted for the Week of Jan. 1, 2007.)
Defendant asserts that a recent decision from another district calls into question the decision of this court in Bobbit, supra, 138 Cal.App.4th 445. We disagree.
The case cited by defendant is People v. Miller (2006) 145 Cal.App.4th 206 (Miller), in which the Sixth District held that it was unnecessary to obtain a certificate of probable cause to appeal from a no contest plea when the issue on appeal was whether the trial court had discretion, under the facts of that case, to sentence defendant to the maximum term. Miller neither cited nor disagreed with Bobbit. Our decision in Bobbit is on point with the current case with respect to the issue defendant seeks to raise on appeal, which is whether the imposition of the upper term violated defendant’s jury trial rights, not whether there was an abuse of discretion in imposing the upper term, the issue in Miller. (Bobbit, supra, 138 Cal.App.4th 445 [defendant sought to raise jury trial right issue on appeal].) Accordingly, we adhere to this district’s decision.
DISPOSITION
The judgment is affirmed.
We concur: HULL, J., CANTIL-SAKAUYE, J.