Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F03670
HULL, J.Defendant Jimmy Ray Guyton entered a negotiated plea of no contest to one count of voluntary manslaughter (Pen. Code, § 192, subd. (a)) with an enhancement for personal use of a firearm (Id., § 12022.5, subd. (a)) in exchange for dismissal of more serious charges and a stipulated upper-term sentence of 21 years. He appeals contending the upper term sentence violated his Sixth Amendment rights as recognized in Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). We conclude defendant forfeited this claim by failing to raise it with the trial court and, in any event, there was no Cunningham violation, because the sentence imposed was a term of defendant’s plea agreement.
Facts and Proceedings
In the early evening of April 26, 2005, Kevin Moore was walking toward his residence at the Parkview Apartments on Munson Way in Sacramento when defendant ran up behind him and said “Don’t move nigga. Don’t move, nigga.” As Moore began to turn around, defendant shot him in the buttocks with a 9 millimeter handgun. The shot “obliterated” the victim’s femoral artery, causing him to bleed to death.
Shortly thereafter, defendant was arrested and admitted shooting the victim. He told police, “I had to do it man, I had to protect my family” and “something had to be done, I’m just tired of these Crips harassing my kids.”
Defendant’s wife told police she had received a call from her sons’ high school the day before and was told there had been a fight between her sons and students allegedly associated with the 29th Street Crips. She said there were rumors of payback and she called defendant to pick the boys up from school.
On the day of the shooting, the victim had been seen walking around the apartment complex wearing a long leather coat and the police had been called because of concerns that he might be armed. Officers were dispatched to the scene, detained and searched the victim, but found no weapons.
Defendant shot the victim shortly thereafter. He later told police he thought the victim was in the apartment complex to retaliate against his sons.
Defendant was charged with murder (Pen. Code, § 187, subd. (a)) and possession of a firearm by a felon (id., § 12021, subd. (a)(1)). On September 8, 2006, he entered a negotiated plea as previously described, including a stipulated sentence. On November 3, 2006, defendant filed a motion to withdraw his plea, alleging ineffective assistance of counsel at the time of the plea. However, he later abandoned the motion and was sentenced to the stipulated sentence.
Defendant filed a notice of appeal and obtained a certificate of probable cause.
Discussion
Defendant contends the trial court failed to make findings necessary to support imposition of the upper term on either the substantive offense or the enhancement. Defendant further contends the trial court could not have made such findings in any event without violating his constitutional rights. We disagree on both points.
The trial court stated reasons for imposing the upper terms. At sentencing, the court indicated it was imposing the upper term of 11 years on the manslaughter charge, based on “the nature, seriousness and circumstances of this crime.” The court stated imposition of the upper term of 10 years on the weapon enhancement was based on the fact defendant “engaged in the conduct that indicates that [he is] a danger to society.”
Defendant does not challenge the foregoing as inadequate reasons. Rather, he contends the trial court was precluded from making factual findings to support imposition of the upper term. He relies on Cunningham, in which the United States Supreme Court held that California’s determinate sentencing law violates a defendant’s Sixth Amendment right to trial by jury by permitting the trial court to make factual findings to support imposition of an upper term sentence. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864].)
The People contend defendant has forfeited this argument by failing to raise a Cunningham challenge at the time of sentencing. We agree. At the time of sentencing on May 4, 2007, Cunningham had been decided, yet defendant failed to object to his upper term sentence on this basis.
However, to forestall a claim of ineffective assistance of counsel, we shall consider defendant’s Cunningham argument. Under Cunningham, the question is whether, at the time of sentencing and before the trial court makes any additional findings, the defendant was properly subject to an upper term sentence. If so, the trial court may consider any relevant factor in deciding whether to impose the sentence. As explained by the California Supreme Court in People v. Black (2007) 41 Cal.4th 799: “[S]o long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Id. at p. 813.)
In this case, the parties entered into a plea agreement with a stipulated upper term sentence. Defendant acknowledged as much at sentencing, when he said to the court: “Sir, I understand that I have a stipulated deal that I’ve taken 21 years, no matter what I say . . . .” Therefore, at the time of sentencing, defendant was subject to an upper term sentence. In fact, having accepted a plea agreement between defendant and the prosecution, the trial court was bound to sentence in compliance with that agreement. (People v. Cunningham (1996) 49 Cal.App.4th 1044, 1047.)
“A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles.” (People v. Shelton (2006) 37 Cal.4th 759, 767.) In Shelton, the California Supreme Court explained: “[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 . . . .” (Id. at p. 768.) Likewise, a plea agreement containing a stipulated sentence implies an understanding that the trial court has authority to impose that sentence. “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.” (People v. Hester (2000) 22 Cal.4th 290, 295.)
When defendant agreed to a plea deal providing for a sentence of 21 years, he effectively admitted the existence of facts necessary to impose the upper term on the substantive offense and enhancement. Having done so, he may not claim a violation of Cunningham when the trial court imposes the sentence to which he agreed.
Disposition
The judgment is affirmed.
We concur: SCOTLAND, P.J., BUTZ, J.