Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Super. Ct. No. KA074619, Jack P. Hunt, Judge.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Lawrence M. Daniels, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Defendant Ryan J. Fromuth appeals from a judgment entered after he pled no contest to count 1, possession of marijuana for sale in violation of Health and Safety Code section 11359 and count 2, sale or transportation of marijuana in violation of section 11360, subdivision (a). The appeal is dismissed.
All further statutory references are to the Health and Safety Code unless otherwise indicated.
CONTENTIONS
Defendant contends that: “[his] suspended prison sentence must be reduced to the midterm of three years because of Cunningham-Blakely error, in violation of his rights to a jury trial and due process under the Sixth and Fourteenth Amendments.”
FACTS AND PROCEDURAL HISTORY
On April 4, 2006, defendant arranged to sell marijuana to an undercover police officer. Defendant drove to meet the officer at a designated location and offered to sell marijuana for $170. The officer found three bags of marijuana in defendant’s car and four additional bags of marijuana in his house.
Defendant signed a “felony advisement of rights, waiver, and plea form,” indicating that the maximum term for violating section 11360 was four years and the maximum term for violating section 11359 was three years. He did not indicate on the form that the trial court agreed to sentence him to a state prison term or grant probation. When defendant subsequently withdrew his not guilty plea and entered his plea of no contest, the trial court stated that it was making no representation as to defendant’s sentence, and that the maximum sentence was four years. The prosecutor reiterated that the potential maximum sentence was four years and then explained to defendant that the “agreement is that if you plead no contest . . . you will be ordered to complete a 90-day state prison diagnostic [pursuant to Penal Code section 1203.03]. At the end of that 90 days those officials will send us a report with a recommendation. [The trial court] will then at your sentencing date determine what your sentence will be. He will not be bound by [the recommendation], but he will consider [it].” Defendant said he understood.
On January 22, 2007, at the sentencing hearing, the People characterized defendant’s plea as an “open plea,” and asked for probation plus some incarceration time. The trial court imposed an upper term of four years on the base term, count 2. The trial court suspended execution of the sentence, and placed defendant on probation for three years subject to several enumerated terms and conditions, including a 180-day county jail sentence, to be served at a tree farm. Defendant was also ordered to pay various fines. As to count 1, defendant was sentenced to a suspended sentence of two years in state prison, to run concurrently with the sentence in count 2.
Defendant was ordered to pay a $20 court security fee (Pen. Code, § 1465.8, subd. (a)(1)); a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)); and a $200 probation revocation fine (Pen. Code, § 1202.44), with the latter fine suspended. He was also ordered to pay a $50 drug fee (§ 11372.5) plus various penalty assessments.
On March 23, 2007, defendant filed a notice of appeal. It stated that he was appealing his no contest plea “based on the sentence or other matters occurring after the plea” and he challenged “the validity of the plea.” In connection with his notice of appeal, defendant requested a certificate of probable cause and challenged the no contest plea on the theory that a Penal Code section 1203.03 diagnostic study cannot be within the scope of a plea bargain. The trial court denied his request for a certificate of probable cause.
DISCUSSION
Defendant’s appeal attacks the validity of the plea on the theory that his suspended upper term prison sentence must be reduced to the midterm because of Cunningham-Blakely error. (Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856]; Blakely v. Washington (2004) 542 U.S. 296 (Blakely).) Defendant has abandoned the charge of error in his request for a certificate of probable cause, i.e., that a Penal Code section 1203.03 diagnostic study was not properly included as part of his plea bargain. The People urge that the appeal must be dismissed because defendant did not obtain a certificate of probable cause to challenge the constitutionality of his sentence. We agree with the People that defendant was required to but failed to obtain a certificate of probable cause and the appeal must be dismissed.
Penal Code section 1237.5 provides, in pertinent part, “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, . . . except where both of the following are met: [¶] . . . [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal . . . .”
California Rules of Court, rule 8.304(b)(4) provides that the defendant need not comply with the filing in the superior court of a notice of appeal and the filing of a certificate of probable cause if the notice of appeal states that the appeal is based on the denial of a motion to suppress evidence under Penal Code section 1538.5 or on grounds that arose after entry of the plea and do not affect the plea’s validity.
We must determine whether defendant’s contention regarding the trial court’s imposition of the upper term is a certificate issue that challenges the validity of the plea, for which a certificate of probable cause is required. (In re Chavez (2003) 30 Cal.4th 643, 651.) In determining whether a certificate of probable cause is required, “‘“the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.” [Citation.]’” (People v. Buttram (2003) 30 Cal.4th 773, 781–782.) Thus, challenges to a plea’s validity include claims that a plea was induced by misrepresentations of a fundamental nature; that the plea was entered at a time when the defendant was mentally incompetent; or that warnings regarding the effect of a guilty plea on the right to appeal were inadequate. (Ibid.)
In People v. Shelton (2006) 37 Cal.4th 759 (Shelton), the defendant pled no contest to two counts of stalking in exchange for a prison term lidof three years and eight months. (Shelton, supra, at pp. 763–764.) The plea agreement was based on a mutual understanding, according to principles of contract interpretation, that the court had authority to impose the lid sentence. Thus, the defendant’s contention that the lid sentence violated the multiple punishment prohibition of Penal Code section 654 was in substance a challenge to the plea’s validity and thus required a certificate of probable cause, which the defendant failed to secure. (Shelton, supra, at pp. 769–771.) In People v. Bobbit (2006) 138 Cal.App.4th 445, the court held that the defendant was required to obtain a certificate of probable cause in a plea bargain to raise issues on appeal relating to the trial court’s authority to impose an upper term sentence in light of Blakely, supra, 542 U.S. 296. There, the defendant pled no contest in exchange for dismissal of other charges and enhancements and a sentencing lid of 12 years and eight months. Thus, a certificate of probable cause is necessary where a defendant agreed to a maximum sentence as part of a plea bargain.
Here, defendant challenges the constitutionality of the maximum sentence agreed upon in the plea bargain, which is an attack on the validity of the plea itself. Therefore, because he did not obtain a certificate of probable cause, his appeal must be dismissed.
DISPOSITION
The appeal is dismissed.
We concur:DOI TODD, Acting P. J., CHAVEZ, J.