Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Nos. FVI702679, FVI800093 & FVI800697 Gregory S. Tavill, Judge.
William Flenniken, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant and appellant Thomas Lee Fillingame appeals from his guilty pleas in three cases: case No. FVI702679; case No. FVI800093; and case No. FVI800697. Defendant pled guilty and was sentenced in all three cases on the same day. All three guilty pleas were made pursuant to separate written plea agreements, which appear to have been negotiated collectively.
FACTUAL AND PROCEDURAL BACKGROUND
On December 19, 2007, defendant was charged in case No. FVI702679 with second degree commercial burglary (Pen. Code, § 459—counts 1, 5, 9, 13, & 17); grand theft (§ 487, subd. (a)—counts 2, 6, 10, 14, & 18); forgery (§ 475, subd. (a)—counts 3, 7, 11, 15, & 19); and petty theft with priors (§§ 666, 484, subd. (a)—counts 4, 8, 12, 16, & 20). The complaint alleged that these offenses occurred on five different dates in June and August 2007 against three different retail stores. To support the counts alleging petty theft with priors, the complaint alleged six prior convictions incurred between 1993 and 2004. As to all 20 counts, it was alleged that defendant served eight prior prison terms within the meaning of section 667.5, subdivision (b).
All further statutory references are to the Penal Code.
Pursuant to a written plea agreement, defendant pled no contest in case No. FVI702679 on April 16, 2008, to count 1, burglary, and count 3, forgery, and all other counts were dismissed. Defendant also admitted five prior convictions. The court sentenced defendant in accordance with the plea agreement to a total of eight years in state prison to run concurrently with any other time imposed in other cases. To reach the total term, the court sentenced defendant to the aggravated term of three years on count 1, and to a concurrent middle term of two years on count 3. The court then added five consecutive one-year terms for the five prior prison terms within the meaning of section 667.5, subdivision (b).
On January 10, 2008, defendant was charged in case No. FVI800093 with second degree commercial burglary (§ 459—count 1); forgery (§ 475, subd. (a)—count 2); attempted petty theft with priors (§§ 664, 666, 484, subd. (a)—count 3); identity theft (§ 530.5, subd. (a)—count 4); and false personation (§ 529—count 5). According to the complaint, these offenses were committed on September 7, 2007, in a retail store. Six prior convictions between 1993 and 2004 were alleged to support the attempted petty theft with priors offense in count 3. The complaint also alleged defendant served eight prior prison terms within the meaning of section 667.5, subdivision (b).
Pursuant to a written plea agreement, defendant pled no contest in case No. FVI800093 on April 16, 2008, to count 4, identity theft, and count 5, false personation; all other counts were dismissed. All prior conviction allegations were stricken. The court sentenced defendant in accordance with the plea agreement to a total of two years eight months in state prison to be served concurrently with the terms imposed in any other case. To reach the total term, the court imposed the middle term of two years on count 4, identity theft, and one-third the middle term of eight months on count 5, false personation, to be served consecutively to the term imposed on count 4.
On April 3, 2008, defendant was charged in case No. FVI800697 with second degree commercial burglary (§ 459—counts 6, 14, 16, 18, & 20); forgery of checks (§475, subd. (a)—counts 7, 13, 22, 23 & 24); petty theft with priors (§§ 666, 484, subd. (a)—count 8); identity theft (§ 530.5, subd. (a)—counts 9, 15, 17, 19, & 21); and receiving stolen property (mail) by secondhand dealers (§ 496a, subd. (a)—counts 10, 11, & 12). These offenses were allegedly committed on March 4 and 13, 2008, and the complaint named four different victims. Eight prior convictions between 1993 and 2004 were alleged to support the charge of petty theft with priors in count 8. The complaint further alleged defendant served eight prior prison terms within the meaning of section 667.5, subdivision (b).
Defendant also sent a letter to the trial court on or about June 23, 2008, requesting a certificate of probable cause pursuant to section 1237.5, stating he did not understand why the court imposed an aggravated prison term. However, the trial court denied defendant’s request on October 16, 2008, because defendant’s letter was insufficient to comply with section 1237.5, subdivision (a), and rule 8.304(b)(1) of the California Rules of Court.
Defendant is not named in counts 1 through 5.
Pursuant to a written plea agreement, defendant pled no contest in case No FVI800697 on April 16, 2008, to count 8, petty theft with priors, and count 9, identity theft; all other counts were dismissed. Defendant admitted a single prior conviction (FVI00463), but the other prior conviction allegations were dismissed. The court immediately sentenced defendant to a total term of two years eight months in prison, to be served concurrently with the time imposed in any other case. To reach the total term, the court imposed the middle term of two years on count 8, petty theft with priors, and one-third the middle term of eight months on count 9, identity theft, to be served consecutively to the term on count 8.
DISCUSSION
On June 11, 2008, defendant filed a notice of appeal in all three cases. The notice states defendant’s appeal “is based on the sentence or other matters that occurred after the plea.” We appointed counsel to represent defendant on appeal. Appointed counsel on appeal has filed a brief under People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth the facts and procedural history, raising no specific issues, and requesting this court to conduct an independent review of the record. We offered defendant an opportunity to file a personal supplemental brief.
Defendant filed a supplemental brief on March 12, 2009. In his supplemental brief, defendant seeks review of the sentence imposed as a result of his guilty plea in light of our Supreme Court’s recent decision in People v. French (2008) 43 Cal.4th 36 (French). The defendant in French pled guilty pursuant to a plea agreement that provided for the trial court to impose any appropriate sentence not to exceed a stipulated maximum. (Id. at p. 42.) The trial court then exercised its discretion by imposing the maximum sentence allowed under the plea agreement. To reach the maximum sentence, the trial court imposed an aggravated term based on two aggravating factors set forth in a presentence report. (Id. at p. 43.) On appeal, the defendant argued his Sixth Amendment right to a jury trial as recognized in Cunningham v. California (2007) 549 U.S. 270, was violated, because the trial court imposed an aggravated term based on facts that were not admitted or found true by a jury. (French, at pp. 40, 52.) Our Supreme Court agreed there was a constitutional violation under Cunningham. It also concluded the defendant’s plea of no contest was merely an admission to the elements of the charged offense and did not constitute an admission to any aggravating circumstances. (French, at pp. 49-50.) Nor was defense counsel’s stipulation to a factual basis for the plea sufficient to establish the existence of the aggravating factors that the trial court used to impose the upper term. (Id. at p. 51.) A remand for resentencing was necessary because the record did not support the conclusion that the error was harmless beyond a reasonable doubt. (Id. at pp. 53-55.)
The French decision does not apply under the circumstances of the three cases that defendant has appealed. In all three cases, the plea agreement provides for a specific sentence to be imposed. For example, in case No. FVI702679, the plea agreement specifically states that defendant agreed to serve a total of eight years in prison—three years on count 1, plus five one-year terms based on five prior prison terms within the meaning of section 667.5, subdivision (b). The trial court simply followed the plea agreement. Unlike French, the trial court in defendant’s three cases was not required by the plea agreements to exercise any discretion by deciding the appropriate sentence not to exceed a stipulated maximum.
In addition, the record in this case shows defendant pled guilty and was sentenced on April 16, 2008. In response to Cunningham, the California Legislature amended the Determinate Sentencing Law effective March 30, 2007. (Stats. 2007, ch.3; People v. Sandoval (2007) 41 Cal.4th 825, 836 fn. 2 (Sandoval).) As a result, defendant was not sentenced under the sentencing scheme found unconstitutional in Cunningham. His reliance on Cunningham and French is therefore misplaced.
Defendant also contends his sentence is unlawful, because the trial court violated section 1170, subdivision (b), by using the same prior conviction to impose the upper term and to enhance his sentence under section 667.5, subdivision (b). Since the trial court imposed the middle term on the principal offenses in case Nos. FVI800093 and FVI800697, we assume defendant’s argument refers to the three-year “aggravated term” imposed on count 1, second degree commercial burglary, in case No. FVI702679.
Section 1170, subdivision (b), states in pertinent part as follows: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.... [T]he court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.” (Italics added.)
As noted above, defendant pled guilty in exchange for a specified sentence. Under the plea agreement, he stipulated to serve the aggravated three-year prison term on count 1 in case No. FVI702679. Defendant also stipulated to serve five consecutive one-year terms pursuant to section 667.5, subdivision (b), based on five separate prison terms he served for previous felony convictions. Contrary to defendant’s contention, the trial court did not use the fact of these prior convictions or prison terms in order to impose the aggravated sentence on count 1. As part of the plea bargain, a significant number of other charges and special allegations were dismissed in this case and in the two other cases. It is therefore apparent from the record that the three-year aggravated prison term defendant agreed to serve is a stipulated sentence imposed in consideration for the dismissal of other charges.
In addition, a defendant who pleads guilty in exchange for a specific sentence and receives the benefit of the bargain is estopped from later complaining about the sentence he received as a result of the plea agreement. (People v. Hester (2000) 22 Cal.4th 290.) The defendant’s counsel concurred in the plea agreement and made no objection at the time of sentencing. (Id. at p. 293.) On appeal, the defendant claimed the trial court erroneously failed to stay the sentence on the felony assault count under section 654, because the burglary and the assault were committed pursuant to a single intent and objective. (Id. at 294.)
Our Supreme Court in Hester found defendant was estopped from complaining about a sentence to which he agreed. “The rule that defendants may challenge an unauthorized sentence on appeal even if they failed to object below is itself subject to an exception: Where the defendants have pleaded 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 figure, so long as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process. [Citations.] While failure to object is not an implicit waiver of... rights, acceptance of the plea bargain here was.” (People v. Hester, supra, 22 Cal.4th at p. 295.)
Our independent examination of the entire record revealed no other arguable issues exist.
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER, J., RICHLI, J.