Opinion
G037491
5-18-2007
THE PEOPLE, Plaintiff and Respondent, v. JUAN MANUEL GONZALEZ, Defendant and Appellant.
Carmela F. Simoncini, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Introduction
Defendant Juan Manuel Gonzalez filed a notice of appeal from a judgment of conviction entered after he pleaded guilty to kidnapping, robbery, carjacking, and assault with a deadly weapon. Defendant was sentenced to 11 years eight months in state prison. Because a certificate of probable cause was not obtained, defendants appeal is limited to issues arising after entry of the plea and that do not challenge its validity. (See Pen. Code, § 1237.5; Cal. Rules of Court, rule 8.304(b).) (All further statutory references are to the Penal Code unless otherwise specified.)
We appointed counsel to represent defendant on appeal. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts of the case and requesting that we review the entire record. Pursuant to Anders v. California (1967) 386 U.S. 738, appointed counsel suggested we consider the issue whether the imposition of an upper term sentence violated defendants constitutional right to a jury trial in light of Cunningham v. California (2007) 549 U.S. __ (Cunningham).
Defendant was given 30 days to file written argument on his own behalf. That period of time has passed, and we have received no communication from defendant.
We have examined the entire record and counsels Wende brief, and find no arguable issue. (Wende, supra, 25 Cal.3d 436.) We therefore affirm.
Facts and Proceedings in the Trial Court
Defendant and codefendant Daniel Caceres were charged in an information alleging they committed the following offenses: (1) kidnap to commit robbery in violation of section 209, subdivision (b) (count 1); (2) kidnapping in violation of section 207, subdivision (a) (count 2); (3) second degree robbery in violation of sections 211 and 212.5, subdivision (c) (count 3); (4) kidnapping during the commission of a carjacking in violation of section 209.5, subdivision (a) (count 4); (5) carjacking in violation of section 215, subdivision (a) (count 5); and (6) aggravated assault in violation of section 245, subdivision (a)(1) (count 6). Defendant and Caceres were both 17 years old at the time of the charged offenses; they were tried as adults pursuant to Welfare and Institutions Code section 707. Defendant initially pleaded not guilty to all counts.
Caceres was also charged with one count of resisting and obstructing an officer in violation of section 148, subdivision (a)(1) (count 7).
Following the first day of the jury trial, defendant pleaded guilty to counts 2, 3, 5, and 6 with the understanding that (1) he would be sentenced to a total prison term of 11 years eight months; (2) he would agree to waive accrued conduct credits; and (3) the prosecution would move to dismiss counts 1 and 4, each of which carries a potential life term in state prison. Defendant offered the following facts as the basis for his guilty plea: "I willfully, knowingly, unlawfully and by means of force and fear, h[e]ld and detain[ed] Bryma Su[a]ray and t[ook] him to another part of Orange County. I also by means of force and fear took property from the immediate presence of Bryma Su[a]ray and did take his car from his immediate presence while he was the driver of the car with the intent to permanently and temporarily deprive him of possession of the car after I assaulted him with a knife. I did all of this with Daniel Caceres." The trial court accepted the plea, finding it was knowing, voluntary, and intelligent, and finding it had a factual basis as to counts 2, 3, 5 and 6.
The record shows Caceres also entered into a plea agreement and received the same sentence as defendant. The record does not show whether Caceres appealed from his judgment of conviction.
The trial court sentenced defendant to 11 years eight months in state prison, by imposing (as specified in the plea agreement): (1) the upper term of nine years for count 5; (2) one-third the middle term (one year eight months) for count 2 to run consecutively; and (3) one-third the middle term (one year) for count 3 to also run consecutively. The court stayed sentence on count 6 pursuant to section 654. Defendant waived accrued conduct credits, but received credit for 444 days of actual time served. The trial court granted the prosecutions motion to dismiss counts 1 and 4.
Analysis of Potential Issue
Appointed counsel suggested we consider the following possible issue: "Did the imposition of the upper term sentence violate appellants Sixth Amendment right to a jury trial within the rule of Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 846; 2007 U.S. LEXIS 1324]?"
In Cunningham, supra, 549 U.S. __ , the United States Supreme Court held Californias determinate sentencing law violates a defendants rights under the Sixth and Fourteenth Amendments to the United States Constitution to a jury trial to the extent it permits a trial court to impose an upper term sentence based on facts found by the court instead of by a jury beyond a reasonable doubt.
Cunningham is inapplicable. Defendant was not sentenced to an upper term based on aggravating factors found true by a trial court and not by a jury. By accepting the bargained-for sentence, which included the upper term on count 5, in exchange for the dismissal of counts 1 and 4, each of which carries a potential life sentence in prison, defendant waived any claim that the imposition of the upper term was improper. (See generally People v. Buttram (2003) 30 Cal.4th 773, 783.)
We have examined the record and found no other issues. (See Wende, supra, 25 Cal.3d 436.)
Disposition
The judgment is affirmed.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
IKOLA, J.