Opinion
C054833
4-15-2008
THE PEOPLE, Plaintiff and Respondent, v. CHRISTINA LAURA TESKA, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant Christina Teska appeals from the sentence imposed following her plea of guilty to second degree burglary. (Pen. Code, § 459.) She contends the court violated Cunningham v. California (2007) 549 U.S.___ (Cunningham) by imposing the upper term sentence of three years and that the court violated section 654 by punishing her twice for her failure to appear at sentencing. We affirm.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
On August 16, 2006, defendant took a $22 shirt off the rack at Macys, removed the tags, cut a hole in it and tried to return it with a receipt she obtained from "Bet." Because the merchandise did not match the receipt, she was only allowed to exchange the item for another shirt, rather than receiving a refund. Defendants behavior in the store was witnessed by one of the store security guards.
Defendant was charged with second degree commercial burglary. On November 1, 2006, defendant pled guilty to burglary in exchange for probation and 180 days in county jail. In her plea form, defendant acknowledged the maximum possible imprisonment was three years in state prison. Defendant also acknowledged if she failed to appear for sentencing, her plea would remain but the judge would not be bound by any agreements and could sentence her to the maximum sentence allowed by law. She did not, however, waive her right to have a jury determine whether she could be sentenced to the aggravated term.
Sentencing was set for December 13, 2006. Defendant appeared for sentencing, but requested the matter be put over until the afternoon so she could deal with a personal matter. The court agreed to "put sentencing off until 1:30 with the understanding if youre not here when I see you youll go to prison for three years. Understood?" Defendant agreed. Defendant did not appear that afternoon for sentencing and a bench warrant was issued.
On December 15, 2006, defendant was in custody and charged with felony failure to appear. In exchange for the felony failure to appear charge being dismissed, defendant agreed to "remain with the plea that was previously entered and take the three-year state prison term with execution suspended and CRC [California Rehabilitation Center] commitment." In accordance with the agreement, defendant was sentenced to the aggravated term of three years, execution suspended and she was committed to CRC. The failure to appear charge was dismissed.
DISCUSSION
Imposition of the Upper Term, Pursuant to a Plea
Agreement did not Violate Cunningham
Defendant contends the court violated the U.S. Supreme Courts ruling in Cunningham, supra, 549 U.S. ____ by sentencing her to the aggravated term. We disagree and find defendants agreement to a particular term of punishment defeats her claim of error.
In Cunningham, supra, 549 U.S. ____ , the United States Supreme Court reaffirmed Apprendi v. New Jersey (2000) 530 U.S. 466 and Blakely v. Washington (2004) 542 U.S. 296 (Blakely), overruled the California Supreme Courts decision in People v. Black (2005) 35 Cal.4th 1238, and held Californias determinate sentencing law violates a defendants federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution to the extent it authorizes the trial judge to find facts (other than a prior conviction) by a preponderance of the evidence that subject a defendant to the possibility of an upper term sentence. "This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence." (Cunningham, supra, 549 U.S. at p. ____ .)
We do not believe Blakely and Cunningham apply in this case. Defendants sentence was based on a plea bargain that included an express waiver of her right to a trial by jury and her express agreement that if she failed to appear at sentencing she would be sentenced to the upper term. (See Blakely, supra, 542 U.S. at p. 310 ["[i]f appropriate waivers are procured, States may continue to offer judicial factfinding as a matter of course to all defendants who plead guilty"].)
In People v. Hester (2000) 22 Cal.4th 290, in exchange for an agreed term of four years, the defendant pled no contest to five substantive counts, including battery on one victim and assault on a second victim, and admitted the use of a knife. On appeal, the defendant claimed that the failure to stay the term imposed on the assault victim pursuant to section 654 produced an unauthorized term. The Supreme Court ruled that when a defendant pleads guilty in return for a specified sentence, appellate courts will not find error, even if the trial court acted in excess of jurisdiction. The court explained that "defendants 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 courts 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 agreed." (People v. Hester, supra, 22 Cal.4th at p. 295.)
Defendants sentence here was a negotiated component of her plea agreement. "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." (People v. Hester, supra, 22 Cal.4th at p. 295, italics in original.)
The rationale behind Hesters holding applies here as well. In exchange for the privilege of release pending her sentence, defendant expressly agreed that if she failed to appear she would receive the upper term sentence of three years. By choosing to maintain her original agreement of being sentenced to the upper term on the burglary charge, defendant avoided a potentially harsher sentence. When defendant eventually appeared for sentencing, she not only faced the burglary charge, but also a felony failure to appear charge. That charge carries with it a sentence of one year, in addition to the punishment which could have been imposed on the burglary charge. Instead, in exchange for her plea, the felony failure to appear was dismissed, and she received a three-year suspended sentence with commitment to the CRC. Defendant received the benefit of her bargain. She will not now be allowed to trifle with the courts by attempting to better this bargain.
DISPOSITION
The judgment is affirmed.
We Concur:
SCOTLAND, P.J.
DAVIS, J. --------------- Notes: Unless otherwise indicated, further statutory references are to the Penal Code.