Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F08290
HULL, J.A complaint charged defendant David Marks with receiving stolen property, vehicle theft (alleging two prior convictions of that offense), and misdemeanor possession of burglary tools. It also alleged a prior conviction for a “serious” felony (Pen. Code, § 667, subds. (b) & (d); undesignated section references will be to this code) and four prior prison terms. At the time for his preliminary hearing, the defendant accepted an offer from the court of a six-year prison term in exchange for his plea of no contest to the felonies and admission of the allegation of a prior conviction for a serious felony. The sentence represented the middle term for the vehicle offense—as enhanced because of his previous convictions for the offense, and as doubled by virtue of the prior felony conviction (§ 667, subd. (e)(1))—with a stay pursuant to section 654 imposed on the sentence for the other felony. The trial court dismissed the misdemeanor and the prior prison-term allegations.
At sentencing, defense counsel made an oral request at the defendant’s insistence for the court to consider striking the admitted finding of a prior serious felony (§ 1385). The court declined to strike it, and imposed the negotiated term.
We note that, at two hearings in camera which investigated defendant’s protests about his attorney, the defendant was adamant in his opinion that his prior serious felony did not qualify him for additional prison time and faulted counsel for failing to address this with the court, despite the explanations from defense counsel and the court that the court would only have accepted his plea if the prison term was no less than six years, and if the defendant admitted the prior conviction because the defendant has “never been off of probation or parole since he was a juvenile.”
The defendant appeals without benefit of a certificate of probable cause.
On appeal, the defendant contends the trial court abused its discretion because its remarks indicate that it did not consider all the factors relevant to the exercise of discretion under section 1385. We shall dismiss the appeal.
We do not need to relate the circumstances underlying the defendant’s conviction, beyond quoting the factual basis that the prosecutor provided for the plea. “On August 23 of the year 2007 in Sacramento County, the defendant was caught on videotape taking a 1991 Toyota Camry... from a parking lot without [the owner]’s consent....”
Neither party acknowledged the significance of a negotiated prison term of six years, or the absence of a certificate of probable cause. For this reason, we solicited supplementary briefing on these points.
Even if defendant’s issue was cognizable on appeal without a certificate of probable cause (People v. Panizzon (1996) 13 Cal.4th 68, 78-79 [challenge to negotiated sentence imposed as part of plea bargain “is properly viewed as a challenge to the validity of the plea itself”]; compare People v. Vera (2004) 122 Cal.App.4th 970, 977; see People v. Buttram (2003) 30 Cal.4th 773, 777, 784-785 [where plea provides for litigation over sentence length, such as striking recidivist allegations, no certificate of probable cause required to raise issue on appeal]), his express agreement to a six-year term without any provision for the court’s exercise of its discretion to strike the recidivist finding would in any event “preclude[] a remand for the purpose of obtaining a lesser term by virtue of the trial court’s striking of the prior offense.” (People v. Cunningham (1996) 49 Cal.App.4th 1044, 1048.)
The People, unsurprisingly, concur in these conclusions in their supplementary brief. The defendant simply adverts to his expressed desire for the striking of the recidivist finding, but does not provide any authority under which this mere yearning for the court to exercise its discretion became part of the terms of the negotiated plea.
Disposition The judgment is affirmed.
We concur: RAYE , Acting P. J. BUTZ , J.