Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 62-061524
ROBIE, J.
Defendant John Sobey went to a Safeway store, filled his shopping cart with groceries valued at over $1,600 and left the store without paying for those groceries. Store security confronted defendant in the parking lot. Defendant responded by pulling up his shirt, revealing a nine-millimeter handgun and saying, “‘Here’s your receipt.’”
Defendant pled guilty to robbery and admitted that he personally possessed a firearm. In exchange for that plea, defendant agreed to a stipulated sentence of five years on the robbery, and three years for the firearm possession, for an aggregate sentence of eight years.
Over the People’s objection, the court released defendant pending sentencing, subject to a Cruz waiver. Because of an apparent miscommunication with defendant’s parole officer, defendant was not released from custody prior to his sentencing date. Probation was denied and defendant was sentenced to an aggregate term of eight years, in accordance with the stipulated disposition.
People v. Cruz (1988) 44 Cal.3d 1247.
Defendant sought a certificate of probable cause, which was denied.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant filed a supplemental brief.
In defendant’s brief, he contends he received ineffective assistance of counsel in that his attorney did not investigate the validity of the allegations against him, which investigation would have demonstrated he stole “at most” $400 worth of groceries, not $1,600. When a defendant pleads guilty or no contest, he is admitting the sufficiency of the evidence for the offense. Issues going to guilt or innocence are removed from consideration upon entry of the plea. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) Defendant’s complaint about counsel’s performance prior to the entry of the plea attacks the validity of the plea. As the trial judge declined to execute and file a certificate of probable cause, this issue is not cognizable on appeal. (Pen. Code, § 1237.5; People v. Stubbs (1998) 61 Cal.App.4th 243, 244-245.)
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant also contends that he was coerced into accepting the plea by being promised he would be released from custody with a Cruz waiver. In a related claim, defendant contends the trial court violated the terms of the plea agreement by not releasing him pursuant to the Cruz waiver and therefore the plea agreement should be nullified. Initially, we note that both of these arguments attack the validity of defendant’s plea and are not cognizable without a certificate of probable cause. Moreover, we note the Cruz waiver was not part of the plea agreement, a fact which defense counsel herself noted. The People expressly objected to defendant’s release pending sentencing. Contrary to defendant’s position that the court and the district attorney had no intention of releasing him, it appears that unbeknownst to anyone, the parole officer had not lifted the parole hold so defendant remained in custody. Furthermore, despite not being released pursuant to the Cruz waiver and discussing the matter with his attorney, defendant expressly decided not to move to withdraw his plea. Where the defendant does not ask to withdraw his plea or in any way otherwise object to his sentence, he forfeits his right to complain. (People v. Walker (1991) 54 Cal.3d 1013, 1026; People v. Murray (1995) 32 Cal.App.4th 1539, 1546.)
Defendant also contends that his upper term sentence on robbery violated Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856]. Because defendant waived his right to a jury trial and agreed to the specific sentence imposed, the constitutionality of his upper term sentence under Cunningham is not an issue in the case. Generally, where a defendant pleads 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 sentence as long as the court did not lack fundamental jurisdiction. (See People v. Hester (2000) 22 Cal.4th 290, 295.) Here, defendant agreed he would be sentenced to a stipulated term of eight years in state prison, including the upper term of five years on the robbery charge. That was the sentence imposed. His plea effectively admitted the existence of facts necessary to impose the upper term on the substantive offense. Defendant forfeited his right to complain about the upper term as potentially invalid under Cunningham because he accepted a negotiated plea for a specified term that allowed him to avoid a potentially harsher sentence. (Hester, at p. 295.)
In addition, “‘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. Therefore, it [is] incumbent upon [such a] defendant to seek and obtain a probable cause certificate in order to attack the sentence on appeal.’ [Citations.]” (In re Chavez (2003) 30 Cal.4th 643, 650-651, fn. 3.) As stated above, defendant did not obtain a certificate of probable cause. Accordingly, the claim is not cognizable on appeal.
Lastly, defendant contends the trial court violated the terms of the plea by imposing restitution fines under sections 1202.4, subdivision (b) and 1465.8, because they were not mentioned as conditions of the plea. Defendant was expressly advised he might be required to pay fines up to $50,000, plus penalty assessments and that he would be subject to a restitution fine of no less than $200 and up to $10,000. Although the court did not expressly delineate under which statutes the various fines and penalties could be imposed, it was not required to do so. Since the fines imposed fell within the range of the advisement given, we find defendant was adequately advised about the potential fines and penalties. (People v. Sorenson (2005) 125 Cal.App.4th 612, 621-622.)
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
We concur: SIMS, Acting P.J., NICHOLSON, J.