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People v. Moreno

California Court of Appeals, Third District, San Joaquin
Jul 22, 2008
No. C056959 (Cal. Ct. App. Jul. 22, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JOSEPH SIMON MORENO, Defendant and Appellant. C056959 California Court of Appeal, Third District, San Joaquin July 22, 2008

NOT TO BE PUBLISHED

Super. Ct. No. SF103575A

BUTZ, J.

Defendant Joseph Simon Moreno entered a negotiated plea of guilty to first degree burglary (Pen. Code, § 459) and admitted two strike priors (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) in exchange for dismissal of the remaining counts (seven counts of first degree burglary) and allegations (six prior prison terms) and a stipulated state prison term of 25 years to life. Defendant waived referral to probation and was immediately sentenced in accordance with the plea agreement.

Defendant appeals, contending only that the 25-year-to-life sentence constitutes cruel and unusual punishment. Defendant’s request for a certificate of probable cause (Pen. Code, § 1237.5) was denied. We shall dismiss the appeal.

DISCUSSION

Despite defendant’s claim that his challenge to his sentence on appeal does not affect the plea’s validity and is thus authorized, case law says otherwise. “[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.” (People v. Panizzon (1996) 13 Cal.4th 68, 79.) “[O]ne who agreed to a specific sentence in return for his plea must obtain a certificate of probable cause in order to claim on appeal that the agreed sentence constitutes cruel and unusual punishment. . . . [W]hile such an appeal may appear to involve a sentencing issue arising after the plea, in substance it challenges the very bargain on which the plea was rendered, and thus the validity of the plea itself.” (People v. Buttram (2003) 30 Cal.4th 773, 776; People v. Young (2000) 77 Cal.App.4th 827, 832-834.) The trial court’s denial of defendant’s request for a certificate of probable cause is treated the same as if defendant did not file a statement required for issuance of a certificate. (Cal. Rules of Court, rule 8.304(b)(3); People v. Holland (1978) 23 Cal.3d 77, 84, disapproved on a different ground in People v. Mendez (1999) 19 Cal.4th 1084, 1098 & fn. 9.) Defendant’s challenge to his sentence on the grounds of cruel and unusual punishment is barred by his failure to obtain a certificate of probable cause.

DISPOSITION

The appeal is dismissed.

We concur: BLEASE, Acting P.J. HULL, J.


Summaries of

People v. Moreno

California Court of Appeals, Third District, San Joaquin
Jul 22, 2008
No. C056959 (Cal. Ct. App. Jul. 22, 2008)
Case details for

People v. Moreno

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOSEPH SIMON MORENO, Defendant…

Court:California Court of Appeals, Third District, San Joaquin

Date published: Jul 22, 2008

Citations

No. C056959 (Cal. Ct. App. Jul. 22, 2008)