Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Michael S. Luros, Judge. Los Angeles County Super. Ct. No. BA291493
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN P. J.
Vester Lee Patterson (appellant) appeals from the judgment entered following his negotiated plea of guilty to receiving stolen property (Pen. Code, § 496), with an admission that he had suffered a prior serious or violent felony (§§ 667, subds. (b)-(i), 1170.12) and that he had served a prior prison term (§ 667.5, subd. (b)). Before the plea, appellant filed a motion to suppress unlawfully seized evidence (§ 1538.5), which the trial court denied. The trial court sentenced appellant pursuant to the plea bargain to a seven-year prison term.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, appellant contends that the trial court improperly refused to hear his renewed section 1538.5 motion in the superior court. He also makes three contentions with respect to the validity of his plea and as to sentencing: (1) the sanction imposed by the trial court at sentencing purportedly based on his Cruz waiver (People v. Cruz (1988) 44 Cal.3d 1247 (Cruz)) was outside the terms of the plea bargain; (2) his federal and state due process rights were violated because the trial court imposed the maximum term without holding an evidentiary hearing or a jury trial on whether he had “committed” a new offense in the interim before sentencing; and (3) the use of upper-term sentencing is unconstitutional pursuant to Cunningham and Blakely. (Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856, 127 S.Ct. 856] (Cunningham); Blakely v. Washington (2004) 542 U.S. 296 (Blakely).)
We find no merit in the contentions and affirm the judgment.
FACTS
The felony complaint and information charged appellant with receiving stolen property and unlawfully possessing base cocaine. Commencing with the preliminary hearing, appellant proceeded in propria persona.
I. THE PRELIMINARY HEARING
The evidence adduced at the preliminary hearing established that Chin Ho owned a 2000 Camry, license plate No. 4JDU944. On October 5, 2005, Ho was at a Jack-in-the-Box restaurant in Pasadena and carelessly left his car key on a table. Someone stole his key and his Camry. The next day, on October 6, 2005, at 8:45 p.m., two Los Angeles police officers found appellant and a woman inside Ho’s Camry, which was parked in an empty parking lot in an industrial area of downtown Los Angeles.
Appellant made a section 995 motion, and accordingly, the preliminary hearing transcript is part of our record.
The officer described the parking lot as a “business area.” He indicated that the parking lot was “closed off” and next to several commercial businesses, which are closed at 8:45 p.m. The parking lot was fenced, but its gate was open. The officers had been told at roll call that the parking lot was frequently used as a location for dumping stolen vehicles. The officer characterized the parking lot as a “no trespass area” at that hour. The officer did not recall whether there were any “no trespass” signs posted, but he believed that the parking lot was an area “that nobody should have been in.”
The officers had appellant and his passenger step out of the Camry in order to conduct a trespass investigation. Almost immediately, by radio, the officers discovered that the Camry was stolen. The officers arrested appellant. Appellant exclaimed, “Man, officers. It’s just a G-ride.” At booking, one officer found a 2.47-gram rock of base cocaine on appellant’s person.
The arrest report attached to one of appellant’s motions discloses that the officers observed a car key in the Camry’s ignition and Ho’s wallet was sitting on the Camry’s floorboard. The probation report indicates that $300 was stolen from Ho’s wallet and that Ho’s toolbox was missing from the Camry.
At the preliminary hearing, appellant made a motion to suppress evidence, claiming an unreasonable investigatory stop, no probable cause for arrest, and that he was not booked for possessing base cocaine. The magistrate denied the section 1538.5 motion and held appellant to answer.
In denying the section 1538.5 motion, the magistrate said the following: “Considering the hour, the fact that the area was designated a public parking lot that had been closed as a result of the businesses being closed and the other circumstances that there were no other vehicles present at the location and the information received regarding stolen vehicles being dumped in the area, the officers’ actions and conduct in this matter were not unreasonable, and there was sufficient probable cause for the officers to conduct the investigation, and the investigation was not unduly prolonged. They immediately radio called regarding the car as a result of the location and found it to be stolen.”
II. THE PROCEEDINGS IN THE SUPERIOR COURT
On January 27, 2006, the information was filed.
On April 3 and April 10, 2006, appellant, the prosecutor, and the trial court engaged in plea discussions. Appellant asked the trial court for an own recognizance release (O.R.). The trial court told him that it would release him O.R. pending sentencing, but only on the condition that he enter a plea. Appellant discussed the matter with the trial court and the prosecutor, and on April 10, 2006, he agreed to the plea bargain that he, the prosecutor, and the trial court had hammered out over two days.
On April 10, 2006, appellant waived the requisite constitutional rights and entered a negotiated plea of guilty to receiving stolen property and admitted the prior conviction allegations. He was promised a term of three years eight month terms as part of the negotiated plea. The trial court and prosecutor also wanted a “Cruz waiver.” So the bargain also provided that if appellant failed to appear without justification at sentencing or “committed” a new offense, the trial court could impose a maximum seven-year term. Appellant explicitly agreed to the terms of the Cruz waiver. Additional terms of the plea were that the trial court would sign a certificate of probable cause and that appellant would not be waiving his right to an appeal.
Nothing was said on the record about the trial court’s authority to ultimately reject the bargain at the sentencing hearing or about appellant’s right to withdraw his plea if the trial court rejected the plea bargain.
As promised, the trial court put the matter over three months for sentencing, to July 10, 2006, and released appellant O.R.
Well before the date scheduled for sentencing, on May 30, 2006, appellant appeared before the trial court in custody and told the trial court that he was ready for sentencing. The trial court ascertained from appellant that since his plea, appellant had been rearrested for a new, unrelated charge of possessing a controlled substance. (Health & Saf. Code, § 11350.) The trial court asked appellant whether he had entered a plea in the unrelated case, and appellant replied that he was not convicted. Appellant explained that he and his trial counsel had reached an agreement with the prosecutor in that case. It was agreed that if he appeared in the present case and was sentenced prior to July 10, 2006, the prosecutor would dismiss the new, unrelated charge of possession.
In response to the trial court’s inquiries, appellant repeated that he had been arrested for the unrelated charge, but he was not convicted. He said: “I have an addiction problem, Your Honor, and it hasn’t been addressed, and that’s the reason why that I was arrested [sic] due to my addiction, Your Honor.” (Italics added.)
Without further comment, the trial court imposed the maximum seven-year term, consisting of a doubled upper term of three years, or six years, enhanced by one year for the service of the prior prison term.
Appellant objected. The trial court said: “Well, sir, you can object, but that was your Cruz waiver. You picked up a new offense. That’s a violation of your Cruz waiver.” The trial court also said, “I kept my part of the bargain. You didn’t keep your part of the bargain.”
Appellant objected that the specifics of the bargain failed to clarify that a mere arrest on a new charge, without a finding of guilt, would result in the imposition of the upper term sentence. Appellant argued that he had not “commit[ted] a new offense” as there was as yet no finding of guilt in the unrelated case, and there was a difference between having “committed” a new offense and having merely been charged.
Also, appellant pointed out that during his plea, he was not advised of his rights pursuant to section 1192.5.
The trial court completed sentencing appellant to the maximum prison term. It then directed appellant to file his notice of appeal and told him that, as agreed, it would sign a certificate of probable cause.
DISCUSSION
I. THE SEARCH AND SEIZURE MOTION
Appellant contends that the trial court improperly refused to hear his renewed section 1538.5 motion and that he is entitled to a remand to the superior court for a new hearing and a new ruling on his motion.
We disagree.
A. The Background
The information was filed on January 27, 2006.
On February 24, 2006, appellant filed a section 995 motion on several grounds. One of the grounds for the section 995 motion was the magistrate’s failure to grant his motion to suppress illegally seized evidence. He also filed a motion to suppress a statement on Miranda grounds. (Miranda v. Arizona (1966) 384 U.S. 436.) On that date, the trial court set a March 24, 2006, hearing date for the section 995 and statement-suppression motions.
When appellant appeared on March 24, 2006, appellant filed a number of new motions, including several supplementary motions to his section 995 motion, as well as a motion to suppress evidence pursuant to section 1538.5, subdivision (i). His newly filed section 1538.5, subdivision (i), motion was in writing, with an attached memorandum of points and authorities. However, there was no proof of service.
At the end of the March 24, 2006, hearing, appellant asked that the record reflect that he was then delivering to the prosecutor a copy of the numerous new motions he had filed that day.
At the commencement of the March 24, 2006, hearing, the trial court gave appellant the opportunity to argue his section 995 motion.
Appellant argued briefly until it became apparent to the trial court that appellant planned to go on for some time and that the argument was largely irrelevant. The trial court changed the subject. Then, without permitting appellant to finish his argument, the trial court said that it had read the preliminary hearing transcript, it cited a case containing the appropriate standard for a section 995 review, and it denied appellant’s section 995 motion.
Appellant protested the ruling. He said that he had had a “1538.5” during the preliminary hearing and that he had been “illegally arrested on illegally obtained evidence.” The trial court acknowledged that the preliminary hearing transcript showed that appellant had made a section 1538.5 motion at the preliminary hearing and the magistrate had denied that motion. Appellant argued that the magistrate had not denied his motion on the merits and that he had a right to a ruling on the merits. He argued that his “1538.5” dealt with “the search and seizure” and that the magistrate had not ruled “on the search [--] period.”
The trial court read the magistrate’s ruling into the record and told appellant, “Your motion under 1538.5 was made and denied and cannot be renewed here.” Appellant repeated that “[t]here was no ruling on the search [--] period.” The trial court said: “Your motion under 1538.5 is denied. It’s not properly before this court.” Appellant again asserted that he was entitled to a complete ruling on the suppression motion and because he had not obtained such a ruling, the trial court should order a remand for the magistrate to rule on his motion.
The trial court said, “Denied.”
Appellant then spoke to the trial court about an unrelated point with respect to the section 995 motion and commented that he had filed a number of new motions that day.
Appellant’s and the trial court’s colloquy was then, as follows.
“THE COURT: You filed a motion to suppress
“[APPELLANT:] Today I filed motions.
“THE COURT: -- evidence pursuant to 1538.5. That’s denied.
“[APPELLANT:] 1538.5, I have a right to a special hearing under 1538.5(i).
“THE COURT: Denied.
“[APPELLANT:] All right.
“THE COURT: Because it was raised and denied in the -- at the time of the preliminary hearing in the lower courts.
“[APPELLANT:] I have a right to have it reviewed in this court, also.
“THE COURT: Denied.”
B. The Analysis
Appellant argues that the trial court precluded him from renewing his section 1538.5 motion in the superior court.
The People concede the error, but claim that it is harmless.
We decline the concession and find no error. “[A] trial court is presumed to have been aware of and followed the applicable law.” (People v. Mosely (1997) 53 Cal.App.4th 489, 496; see also, People v. Stowell (2003) 31 Cal.4th 1107, 1114-1115.) We conclude that the trial court was presumably aware of the appropriate law on the point, and its comments indicate that appellant obtained the section 1538.5 review he requested.
Section 1538.5 permits a defendant to have one full evidentiary hearing, either at the preliminary hearing or at a special, pretrial hearing in the superior court. When a motion to suppress is brought at the preliminary hearing and is renewed in the superior court, unless agreed to by the parties, section 1538.5, subdivision (i), limits the evidence to the preliminary hearing transcript and to evidence that ‘“could not reasonably have been presented at the preliminary hearing.’” (People v. Ramsey (1988) 203 Cal.App.3d 671, 679, fn. 2; accord, People v. Bennett (1998) 68 Cal.App.4th 396, 404-405; People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223-1224; Anderson v. Superior Court (1988) 206 Cal.App.3d 533, 544.) Where additional evidence is properly presented, the findings of the magistrate, to the extent they are affected by the additional evidence, are not binding on the superior court. This allows the superior court to exercise its independent judgment on the issues on which additional evidence is introduced.
In pertinent part, section 1538.5 provides as follows: “(a)(1) A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds: [¶] (A) The search or seizure without a warrant was unreasonable. [¶] . . . [¶] (2) A motion pursuant to paragraph (1) shall be made in writing and accompanied by a memorandum of points and authorities and proof of service. The memorandum shall list the specific items of property or evidence sought to be returned or suppressed and shall set forth the factual basis and the legal authorities that demonstrate why the motion should be granted. [¶] . . . [¶] (i) If the property or evidence obtained relates to a felony offense initiated by complaint and the defendant was held to answer at the preliminary hearing, . . . the defendant shall have the right to renew or make the motion at a special hearing relating to the validity of the search or seizure which shall be heard prior to trial and at least 10 court days after notice to the people, unless the people are willing to waive a portion of this time. . . . If the offense was . . . initiated by complaint and no motion was made at the preliminary hearing, the defendant shall have the right to fully litigate the validity of a search or seizure on the basis of the evidence presented at a special hearing. If the motion was made at the preliminary hearing, unless otherwise agreed to by all parties, evidence presented at the special hearing shall be limited to the transcript of the preliminary hearing and to evidence that could not reasonably have been presented at the preliminary hearing, except that the people may recall witnesses who testified at the preliminary hearing. If the people object to the presentation of evidence at the special hearing on the grounds that the evidence could reasonably have been presented at the preliminary hearing, the defendant shall be entitled to an in camera hearing to determine that issue. The court shall base its ruling on all evidence presented at the special hearing and on the transcript of the preliminary hearing, and the findings of the magistrate shall be binding on the court as to evidence or property not affected by evidence presented at the special hearing. After the special hearing is held, any review thereafter desired by the defendant prior to trial shall be by means of an extraordinary writ of mandate or prohibition filed within 30 days after the denial of his or her motion at the special hearing.” (Italics added.)
However, where the superior court reviews the magistrate’s ruling only on the reporter’s transcript of the preliminary hearing, it performs the function of a reviewing court, rather than a fact-finding court. (People v. Ramsey, supra, 203 Cal.App.3d at pp. 678-679 & fn. 2) As with the review of a section 995 motion, the appellate court disregards the findings of the trial court and reviews the determination of the magistrate who ruled on the motion to suppress. (Ibid.) To determine the validity of the search, the superior court uses the same standard of review an appellate court would use to review the magistrate’s or superior court’s rulings in a section 995 or 1538.5 motion. (People v. Ramsey, supra, 203 Cal.App.3d at pp. 678-679; see also, People v. Pereira (2007) 150 Cal.App.4th 1106, 1111; People v. Superior Court (Cooper) (2003) 114 Cal.App.4th 713, 717.)
People v. Carter (2005) 36 Cal.4th 1114, 1140, sets out the appellate standard of review: “‘“An appellate court’s review of a trial court’s ruling on a motion to suppress is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] ‘The [trial] court’s resolution of each of these inquiries is, of course, subject to appellate review.’ [Citations.] [¶] The court’s resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, . . . is also subject to independent review.” [Citation.]’ [Citations.]” (See also, People v. McDonald (2006) 137 Cal.App.4th 521, 529.)
Also, during a renewed motion in the superior court, a defendant is limited to the theories he raised for suppression at the preliminary hearing; in the superior court, he cannot raise any new theory. (People v. Bennett, supra, 68 Cal.App.4th at pp. 404-407.)
Applying the relevant legal principles to the facts in this case, we conclude that the trial court’s comments indicate the trial court ruled on appellant’s section 1538.5 motion. The trial court had just conducted its review of the preliminary hearing transcript and the magistrate’s ruling pursuant to section 995. It concluded that the magistrate’s findings with respect to suppression were supported by substantial evidence and that the magistrate had properly applied the law to the facts. Appellant said nothing about having a de novo hearing or calling additional witnesses. Nothing in the record suggests that appellant was prepared to present new evidence, let alone show that such evidence “could not reasonably have been presented at the preliminary hearing.” (§ 1538.5, subd. (i).) The record fails to demonstrate that witnesses were subpoenaed or had voluntary appeared for a scheduled suppression hearing. (See People v. Gonzales (1991) 233 Cal.App.3d 1428, 1434.) The general facts underlying the motion suggest there was nothing more in the way of evidence for appellant to present. (See People v. Thompson (1990) 221 Cal.App.3d 923, 932.) If appellant had counsel, before we concluded that appellant wanted an evidentiary hearing, we would have expected his counsel to have specifically requested such a hearing. (See Faretta v. California (1975) 422 U.S. 806, 834 [pro se defendant cannot raise his own ineffectiveness as counsel on appeal]; People v. Lopez (1977) 71 Cal.App.3d 568, 574 [same].) We will apply the same standard to this defendant, who was proceeding in propria persona.
The record shows that the trial court responded to appellant’s complaint that the magistrate’s ruling did not encompass all the grounds that he had raised at the preliminary hearing. The trial court read the magistrate’s ruling into the record in response, thereby indicating that the magistrate’s ruling did in fact encompass the issue of an unlawful arrest. The trial court’s direction that the motion was not properly before it indicated only that appellant was not entitled to a de novo evidentiary hearing; it was not directed to refusing a review of the magistrate’s ruling authorized by section 1538.5, subdivision (i). We presume that the trial court’s subsequent rulings on appellant’s motion (“denied”) meant that the trial court had once again considered the evidence adduced at the preliminary hearing and found that the magistrate’s factual findings were supported by the evidence and by the law.
Moreover, even if we accepted the People’s concession of error on this issue, any error is harmless. There is no indication that appellant intended to present further evidence on his search and seizure motion. The trial court had just performed a section 995 review that was the functional equivalent of the ruling required by section 1538.5, subdivision (i). During that review, the trial court found the search and seizure motion lacked merit. We decline to exalt form over substance by finding that appellant did not receive all the review pursuant to section 1538.5 to which he was entitled.
Also, assuming that appellant wants a review of the magistrate’s ruling on appeal, something he has not asked for, we will conduct that review. We have read and considered the preliminary hearing transcript of the motion. We conclude that substantial evidence supports the magistrate’s ruling. Further, based upon the totality of the circumstances, the officers had reasonable cause to detain appellant to investigate what he was doing parked in that isolated and deserted industrial area after dark and well after the businesses in the area had closed. (United States v. Arvizu (2002) 534 U.S. 266, 273-276 [reviewing courts must look at the totality of the circumstances of reasonable suspicion to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing]; People v. Souza (1994) 9 Cal.4th 224, 240-241.) The officers also had probable cause to arrest appellant for car theft after they received the radio call indicating that the Camry had been stolen. (See People v. Thompson (2006) 38 Cal.4th 811, 818 [stating the standard for probable cause].) It was irrelevant for Fourth Amendment purposes that appellant was not formally arrested both for the car theft and for possessing base cocaine.
II. THE VALIDITY OF THE PLEA AND THE SENTENCING ISSUES
Appellant raises three contentions with respect to the validity of his plea and sentencing. He contends that: (1) the commission-of-a-new-offense provision in the Cruz waiver was belatedly engrafted onto the plea bargain by the trial court, and therefore was not enforceable in the absence of appellant’s being given an opportunity to withdraw his plea, (2) that assuming the commission-of-a-new-offense provision was part of the plea bargain, he nevertheless was entitled to a jury trial or evidentiary hearing on whether he “committed” a new offense before the trial court imposed the maximum term, and (3) there is Blakely and Cunningham error.
We decline the People’s concession and find no error.
We also note that appellant was not entitled to have the trial court hear and determine his section 1538.5 motion that day as pursuant to statute, appellant had not properly served the motion on the People. (E.g., People v. Smithey (1999) 20 Cal.4th 936, 972 [a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason; if right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion].)
A. The Cruz Waiver Contentions
In Cruz, supra, 44 Cal.3d at page 1249, the California Supreme Court held that a defendant who fails to appear for sentencing does not lose the protection of section 1192.5. In that case, the defendant pled guilty pursuant to a plea agreement that gave him the option of a sentence of up to one year in the county jail with a maximum of five years’ probation or 16 months in prison without probation. The defendant failed to appear for sentencing. When he was apprehended more than six months later, the superior court refused to abide by the plea agreement. It denied the defendant’s motion to withdraw his plea, and it sentenced the defendant to a term of two years in state prison. The Court of Appeal affirmed the resulting judgment, concluding that by failing to appear for sentencing, the defendant had “‘breached the bargain . . . [and was] not entitled to either specific enforcement of that bargain or withdrawal of his guilty plea.’” (Cruz, supra, 44 Cal.3d at p. 1250, fn. omitted.) The Supreme Court granted review and reversed the judgment of the Court of Appeal. (Accord, People v. Masloski (2001) 25 Cal.4th 1212, 1217 [setting out the pertinent authorities that flesh out the rule in Cruz].)
In pertinent part, section 1192.5 provides, as follows: “Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea. [¶] If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so.”
In People v. Casillas (1997) 60 Cal.App.4th 445, 451-452, the Court of Appeal distilled the following principles from the decision in Cruz: “First, when a defendant fails to appear at sentencing after entering a bargained plea with no discussion about a specific sanction for nonappearance, he or she is entitled to withdraw the plea if the court refuses to honor the plea bargain. Second, the same rule applies when, during the plea proceedings but after the parties have negotiated the basic plea bargain, the court imposes an additional condition providing a sanction for nonappearance. Third, when the parties themselves agree as part of the plea bargain to a specific sanction for nonappearance, the court need not permit the defendant to withdraw his or her plea but may invoke the bargained-for sanction.” (See also People v. Vargas (1990) 223 Cal.App.3d 1107, 1111-1112.)
The ultimate question is not whether the bargain occurred in a hermetically sealed environment from which the judge was excluded, but whether the return provision resulted from the give and take of plea bargaining or was a judicially imposed afterthought. (People v. Casillas, supra, 60 Cal.App.4th at p. 452.)
In this case, we are not addressing the failure-to-timely-appear-for-sentencing provision of a Cruz waiver, which was the issue in Cruz and Casillas. Here, the parties and the trial court negotiated a Cruz waiver with a no-return provision that specifically provided that appellant would appear timely for sentencing. The waiver also contained a provision that he also would commit no new offense in the interim before sentencing, subject to a sanction, a maximum term, if he did not adhere to terms of the waiver. (See People v. Carr (2006) 143 Cal.App.4th 786, 790 [the defendant agreed not to ‘“violate any law”’ between the date of the plea and the date of sentencing].) Upon appellant’s return to court on May 30, 2006, the trial court determined that appellant had violated the commit-no-new-offense provision of the Cruz waiver and imposed the increased punishment contemplated by the waiver--the maximum term.
There is no merit in appellant’s contentions.
In this case, the same rules that apply to the Cruz no-return provision also apply to a Cruz waiver concerning no new violation of law. The plain language of the plea bargain conditioned the increased punishment upon appellant’s having “committed” a new offense, not upon his having suffered a mere arrest and new charge. (People v. Shelton (2006) 37 Cal.4th 759, 767 [the terms of a plea bargain are interpreted inter alia, by the plain meaning of their provisions]; see Stuart v. Superior Court (1979) 94 Cal.App.3d 182, 186 [the court failed to mention at the time of plea that it would revoke a bargained-for stay of execution pending appeal were he to commit a further offense before the appeal was resolved].) We interpret the term “committed” to constitute an implied condition that if appellant was rearrested in the interim before sentencing, then the trial court would afford him an informal evidentiary hearing at which time it would consider some reliable proof to show that he had actually committed a new offense.
The plea negotiations were engaged in here by three parties: appellant, the trial court, and the prosecutor. On April 10, 2006, during the plea, the trial court set out the terms of the plea explicitly before appellant pled guilty. Appellant waived a jury trial for all purposes along with the other requisite constitutional rights and agreed to a specific prison term. That is, he agreed to the imposition of a two-tiered prison term, dependent upon his performance of the conditions of the Cruz waiver, and the plea bargain involved an “agreed-to” sentence.
We have no difficulty with the prosecutor’s advisement to appellant that “the judge could impose the maximum time if he didn’t come back,” implying that the trial court would exercise discretion in selecting increased punishment in the event the Cruz conditions were violated. The record shows that throughout the proceedings, appellant was bargaining with both the prosecutor and the trial court at the same time. The trial court never deviated in its insistence that a violation of the Cruz waiver would result in the maximum term. Also, the trial court immediately corrected this portion of the prosecutor’s advisement, so appellant would have understood that the two-tiered sentencing proposal required only the imposition of a maximum sentence of seven years.
We also hold that while the plea bargain contained the implied condition that the trial court would have reliable proof of the commission of a new offense before the imposition of the maximum term, here, the imposition of the maximum term rested on such proof. Appellant’s said during sentencing that “I have an addiction problem, Your Honor, and it hasn’t been addressed, and that’s the reason why that I [sic] was arrested, due to my addiction, Your Honor.” This acknowledgement by appellant of his commission of the offense was a sufficiently reliable indicator of the commission of a new offense to permit the trial court to proceed by imposing the maximum term.
There is no Cruz-related error.
B. The Claim of Cunningham-Blakely Error
Appellant also contends that there was Cunningham-Blakely error because the trial court used factors not found true by a jury beyond a reasonable doubt as the basis for imposing an increased term of punishment.
We conclude that appellant’s agreement to a particular term of punishment is sufficient to defeat the contention of Cunningham-Blakely error.
In People v. Berutko (1969) 71 Cal.2d 84, 94-95 (Berutko), the defendant contended that he had not specifically waived his right to a jury trial on a prior conviction during his negotiated plea and admission. The California Supreme Court rejected the contention because it found that by his general waiver of a jury trial during his plea, the defendant was “‘deemed to have consented to a trial of all of the issues in the case before the court sitting without a jury.’ [Citation.]” (Berutko, supra, at p. 94; see also People v. Jarmon (1992) 2 Cal.App.4th 1345, 1354; People v. Johnson (1988) 199 Cal.App.3d 868, 872.)
From the above proposition, we conclude that here, as well, when appellant waived his right to a jury trial in contemplation of the bargained-for plea, he waived his right to a jury trial on all issues, including the sentencing issue he raises now as to the conditions of his Cruz waiver. His waiver of the right to a jury trial and an agreement to the agreed-to sentence supports the trial court’s imposition of the upper term sentence.
The Supreme Court’s decision in People v. Hester (2000) 22 Cal.4th 290, 295 (Hester), also supports our conclusion. In Hester, in exchange for an agreed term of four years, the defendant pled guilty to five substantive counts, assaults on two victims, and admitted the use of the knife. On appeal, the defendant claimed that the failure to stay the term imposed on the second victim pursuant to section 654 produced an unauthorized term. The Supreme Court found that the defendant could not raise such error on appeal. It explained as follows: “The rule that defendants may challenge an unauthorized sentence on appeal even if they failed to object below is itself subject to an exception: Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction.” (Hester, supra, at p. 295.)
The court in Hester, supra, 22 Cal.4th at page 295, explained the rationale behind the rule: “[D]efendants 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. [Citations.] While failure to object is not an implicit waiver of section 654 rights, acceptance of the plea bargain here was. ‘When a defendant maintains that the trial court’s sentence violates rules which would have required the imposition of a more lenient sentence, yet the defendant avoided a potentially harsher sentence by entering into the plea bargain, it may be implied that the defendant waived any rights under such rules by choosing to accept the plea bargain.’ [Citation.] . . . [D]efendants are estopped from complaining of sentences to which they agree.”
We conclude that the decisions in Berutko and Hester also apply in the context of this Cunningham and Blakely contention. Appellant is estopped by his agreement to the two-tiered sentence during his Cruz waiver from complaining on appeal about the constitutionality of his sentence.
Also, in Blakely, supra, 542 U.S. 296, the court said the following about defendants who enter guilty pleas: “When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding. See Apprendi [v. New Jersey (2000) 530 U.S. [466,] 488, 120 S.Ct. 2348; Duncan v. Louisiana, 391 U.S. 145, 158, 88 S.Ct. 1444 (1968). If appropriate waivers are procured, States may continue to offer judicial factfinding as a matter of course to all defendants who plead guilty.” (Blakely, supra, at p. 310.)
We conclude that by the Cruz waiver, appellant gave his consent to judicial factfinding. (Blakely, supra, 542 U.S. at p. 310; see People v. Carr, supra, 143 Cal.App.4th at p. 793 [specific provision in the written plea form that defendant agreed that the trial court, not a jury, would decide the issue of whether he had violated any laws prior to sentencing constituted an effective waiver of a jury trial].)
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD J., ASHMANN-GERST J.