Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Imperial County No. JCF16787, Juan Ulloa, Judge.
BENKE, Acting P. J.
Carlos Lopez pleaded no contest under a plea agreement to one count of receiving stolen property (Pen. Code § 496). In exchange for the plea, Lopez received three years of formal probation and dismissal of the remaining charges of burglary (§ 459) and embezzlement (§ 504). According to the plea agreement, Lopez agreed he could be sent to prison for the maximum term of three years if he violated probation. The court suspended sentence and Lopez was placed on probation. Thereafter, Lopez violated probation, and the court sentenced him to state prison for three years.
Statutory references are to the Penal Code.
Lopez filed a notice of appeal but did not obtain a certificate of probable cause. We dismiss the appeal.
BACKGROUND
Lopez broke into a storage container at a construction site and stole tools. Lopez worked for the construction company at the site and was fired the day before. Lopez asked the superintendant of the construction company if he could have his job back if he showed him where the tools were. Lopez admitted he took the tools, and showed the superintendant where he kept them.
While on probation, Lopez failed to report to his probation officer and to provide proof he attended Narcotics Anonymous meetings in violation of his conditions of probation.
DISCUSSION
Lopez contends the imposition of the upper term was in violation of the ex post facto clause and Cunningham v. California (2007) 549 U.S.__ [127 S.Ct. 856] (Cunningham), but concedes his argument was rejected in People v. Sandoval (2007) 41 Cal.4th 825, 853-857 (Sandoval). Lopez contends Sandoval was wrongly decided, but acknowledges we are bound by that decision under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.
The People respond that Lopez was properly sentenced under his plea agreement, and he failed to obtain a certificate of probable cause necessary to challenge the validity of his plea.
Despite Lopez's concession that his claim fails under existing case law, we dismiss the appeal rather than reach the merits.
Section 1237.5 provides that a defendant may not appeal " 'from a judgment of conviction upon a plea of guilty or nolo contendere' " unless the defendant has applied to the trial court for, and the trial court has executed and filed a certificate of probable cause for the appeal. (People v. Shelton (2006) 37 Cal.4th 759, 766; Cal. Rules of Court, rule 8.304(b).) " '[A] challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself' and thus requires a certificate of probable cause. [Citation.]" (People v. Shelton, supra, 37 Cal.4th at p. 766.) Following Shelton, the court in People v. Bobbit (2006) 138 Cal.App.4th 445, 447, concluded a similar claim─that imposition of a maximum term under a plea agreement violated Blakely v. Washington (2004) 542 U.S. 296─was not cognizable without a certificate of probable cause. (Bobbit, at p. 447.)
Here, Lopez specifically agreed "[i]f I violate any term or condition of probation, I can be sent to State Prison for the maximum term," which the plea agreement listed as three years. Lopez also specifically waived his right to a jury trial and his right to appeal. Moreover, Lopez agreed "[t]he sentencing judge may consider any prior criminal history and the entire factual background of the case, including any unfiled, dismissed or stricken charges or allegations or cases when . . . imposing sentence."
Because Lopez agreed a violation of probation would result in a three-year sentence and he received the benefit of the bargain by having other charges dismissed, his contention that the maximum term violates Cunningham is in substance a challenge to the validity of the plea. Such a challenge after a no contest plea requires a certificate of probable cause, and without one, the appeal must be dismissed. (People v. Shelton, supra, 37 Cal.4th at p. 771; People v. Bobbit, supra, 138 Cal.App.4th at pp. 448-449; § 1237.5; Cal. Rules of Court, rule 8.304(b)).
DISPOSITION
The appeal is dismissed.
WE CONCUR: McDONALD, J, McINTYRE, J.