Opinion
NOT TO BE PUBLISHED
Super. Ct. No. P03CRF0136.
CANTIL-SAKAUYE, J.
As part of a negotiated plea bargain, defendant entered a plea of no contest to first degree murder (Pen. Code, § 187, subd. (a)) with an agreement that the People would ask for the offense to be reduced to second degree murder, with a 15-years-to-life sentence, if he truthfully cooperated with the prosecution, including testifying at the criminal proceedings involving co-defendants Sean O’Brien and Tyler Dickson. After defendant fulfilled his part of the bargain, the prosecution moved for and the trial court granted a reduction of defendant’s offense to second degree murder. The trial court denied defendant’s subsequent motion for a further reduction of the offense to voluntary manslaughter and rejected defendant’s claim that a 15-years-to-life sentence was cruel and unusual punishment under federal and state constitutional law. The trial court struck the originally alleged murder special circumstances and firearm enhancement. It sentenced defendant to state prison for an indeterminate term of 15 years to life. As relevant to this appeal, it ordered defendant to pay $460 for the cost of the probation report pursuant to section 1203.1b.
Hereafter, undesignated statutory references are to the Penal Code.
Defendant timely appealed, asserting his appeal was based on the sentence or other matters occurring after the plea. Defendant did not seek a certificate of probable cause. On appeal, defendant claims his indeterminate life sentence for second degree murder constitutes cruel and unusual punishment under the circumstances of this case. By supplemental brief, defendant claims the trial court improperly imposed a probation report fee without finding defendant had the ability to pay for it. We conclude defendant is precluded from raising the constitutional challenge to his sentence because he failed to obtain a certificate of probable cause. We shall dismiss that portion of his appeal. As the record shows the trial court did make a finding that defendant was able to pay for the cost of the probation report, we reject defendant’s second contention and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On February 26, 2003, Jesse Pine returned to his house and discovered the dead body of his roommate, Kyle Smelser. It was stipulated Smelser died as a result of a single gun shot wound to the head. Pine’s bedroom door, which he always kept locked, was broken open. Cash and a container of marijuana were missing.
We draw our summary of facts from the testimony presented at the preliminary hearing for O’Brien and Dickson.
Dickson and defendant were interviewed by the police. Both Dickson and defendant told the police they agreed when O’Brien asked them to join him in going to a house “to do a job,” “to get some money[.]” They planned to steal money, marijuana, and dirt bikes. Dickson and defendant drove over to O’Brien’s house where they picked him up. O’Brien brought a shotgun with him. They drove to a store where defendant, because he was the only one over 18 years old, purchased .20-gauge shells for the gun. Defendant handed the ammunition to O’Brien.
When they arrived at Pine/Smelser’s house, O’Brien got out and went in the direction of the front door. He returned a few minutes later, saying something to the effect that no one was home. O’Brien took the shotgun with him and went back to the house. Dickson and defendant followed him and all three entered the house. O’Brien went down the hallway holding the shotgun. Smelser then came out of a bedroom carrying a rifle and saying, “Hey, what are you doing in my house?” Defendant was concerned there was going to be a shooting. He and Dickson ran out of the house together. When they got back to the truck, they heard a single shot, which sounded like a shotgun. O’Brien came out, waved and said, “He’s dead.”
All three young men re-entered the house. Smelser was lying in the hallway, apparently dead. They kicked open Pine’s door and took cash, marijuana and a couple of marijuana pipes. On their way out of the house, Dickson picked up Smelser’s rifle. O’Brien picked up a spent shotgun casing. The three then left the house together. They threw Smelser’s rifle into a pond. O’Brien gave Dickson and defendant each $250 and some marijuana. Defendant kept the marijuana pipes.
Sean O’Brien, Tyler Dickson, and defendant were charged with the murder of Kyle Smelser with the special circumstances of murder in the course of robbery and burglary. (Pen. Code, §§ 187, subd. (a); 190.2, subd. (a)(17).) O’Brien was alleged to have personally and intentionally discharged a firearm causing Smelser’s death. (§ 12022.53, subds. (b),(c), & (d).) As to defendant and Dickson, it was alleged a principal in the murder was armed with a firearm within the meaning of section 12022, subdivision (a)(1).
On the day set for their preliminary hearing, defendant entered a plea of no contest to first degree murder. Defendant did not admit any special circumstance or special allegation. On defendant’s plea form, defendant placed his initials next to a statement that, “I understand that the sentence I will receive is . . .: 25 yrs to Life with possibility of parole. I understand that in exchange [for] my complete and truthful cooperation, including testifying at any and all subsequent criminal proceedings involving co-defendants Sean O’Brien and Tyler Dickson, the People [will] recommend that the court reduce the charge to second degree murder and sentence me accordingly[.] I understand this to mean that if the court finds that I am completely truthful and cooperative [the] court may sentence me to 15 yrs to life for second degree murder.” In another section of the plea form, defendant initialed his understanding that the “sentence range” and “maximum term of imprisonment” for his offense was 25 years to life with the possibility of parole. In the section regarding other promises or representations made to the defendant, defendant stated his understanding that in exchange for his complete and truthful cooperation, the District Attorney and Deputy District Attorney would also provide letters to his parole board recommending he be granted parole as soon as he becomes eligible.
On March 12, 2004, the trial court granted the People’s motion to reduce defendant’s conviction to second degree murder based on defendant’s compliance with his agreement to cooperate fully. Defendant’s judgment and sentencing was continued a number of times to trail the judgment and sentencing of O’Brien and Dickson. Defendant’s sentencing hearing was eventually set in February 2007.
In January 2007, defendant filed a motion seeking modification or reduction of his plea from second degree murder to voluntary manslaughter or, in the alternative, a finding that a sentence of 15 years to life in his case would be cruel and unusual punishment under the federal and state Constitutions. The People opposed defendant’s motion, arguing the court did not have the authority to sentence defendant to anything other than those sentences provided in the negotiated plea bargain and that in any event, a 15-years-to-life indeterminate sentence for second degree murder was not cruel and unusual punishment.
The trial court denied defendant’s motion to reduce the charge and stipulated sentence, expressing first its concern about its authority to deviate from the terms of the plea agreement and then stating, “But even if I didn’t have these concerns, I was the judge that tried this case. I heard the testimony at trial. I am probably as much aware of the facts as anyone that were presented at the time of the trial of this case. [¶] And under the facts that I’m aware of, I just cannot find that the stipulated plea agreement meets the conditions of shocking the conscience or offending fundamental notions of human dignity to warrant cruel and unjust punishment. [¶] I do recognize that Mr. Wellman is the least culpable of all three of the Defendants involved. I do recognize that he has cooperated throughout these proceedings and fulfilled his part of the bargain. But I also recognize that, as [the deputy district attorney] stated, but for Mr. Wellman’s conduct at the time of this incident, we may not be here.” The trial court sentenced defendant consistent with his negotiated plea to prison for an indeterminate term of 15 years to life for second degree murder.
The trial court ordered defendant to pay restitution, various fines, and as relevant here, the cost of his probation report in the amount of $460. With respect to the probation report cost, the trial court stated, “The Court finds that the Defendant is able to pay for the cost of the probation report in the amount of $460, pursuant to 1203.1b of the California Penal Code.”
DISCUSSION
I.
Defendant contends his sentence of 15 years to life is cruel and unusual punishment within the meaning of the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. Defendant claims we can reach this constitutional claim on appeal despite the lack of a certificate of probable cause because his plea agreement left open the possibility of the trial court later reducing the offense and term to be imposed. Specifically, defendant argues his plea was not entered in return for a specified term, but with a maximum term of 25 years to life with a future possibility of a lower term and a motion to reduce by the prosecution. Defendant contends the promise of a motion to reduce the conviction in return for his testimony was a separate deal, not involving the plea itself. We conclude defendant’s constitutional claim cannot be reached on appeal in the absence of a certificate of probable cause and dismiss that portion of his appeal.
“A defendant who has pleaded guilty or nolo contendere to a charge in the superior court, and who seeks to take an appeal from a judgment of conviction entered thereon” must fully comply with section 1237.5 and rule 8.304(b) (formerly rule 30(b) and prior to that, rule 31(d)) of the California Rules of Court, which require that he secure a certificate of probable cause in order to challenge the validity of the plea. (People v. Mendez (1999) 19 Cal.4th 1084, 1088.) In the absence of full compliance and a certificate of probable cause, the reviewing court may not reach the merits of any issue challenging the validity of the plea, but must order dismissal of the appeal. (Id. at p. 1099.) The California Supreme Court has expressly disapproved the practice of applying the rule loosely in order to reach issues that would otherwise be precluded. (Id. at pp. 1098-1099.)
“‘In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, courts must look to the substance of the appeal: “the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.” [Citation.] Hence, the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5. [Citation.]’ [Citation.]” (People v. Buttram (2003) 30 Cal.4th 773, 781-782 (Buttram).)
In People v. Panizzon (1996) 13 Cal.4th 68 (Panizzon) the defendant agreed to a plea bargain that called for him to receive a sentence of life with the possibility of parole, plus 12 years. In return, the prosecution agreed to dismiss several charges. After the defendant was sentenced to the term called for in the plea bargain, he appealed his sentence, contending it violated the federal and state prohibitions against cruel and unusual punishment. He did so without first obtaining a certificate of probable cause. (Id. at p. 74.) The Supreme Court held that “by contesting the constitutionality of the very sentence he negotiated as part of the plea bargain, defendant is, in substance, attacking the validity of the plea.” (Id. at p. 78.) For that reason, the court dismissed the appeal because the defendant lacked a certificate of probable cause. (Id. at pp. 89-90.)
In People v. Young (2000) 77 Cal.App.4th 827 (Young), the defendant was promised a maximum sentence of 25 years to life and the opportunity to ask the trial court to strike one or more of his prior convictions. (Id. at p. 830.) After being sentenced to 25 years to life, the defendant attempted to attack his sentence on appeal, arguing his sentence constituted cruel and unusual punishment. (Id. at pp. 829, 830.) Defendant did not obtain a certificate of probable cause. (Id. at p. 830.) This court dismissed the appeal, explaining that “[b]y arguing that the maximum sentence is unconstitutional, [defendant] is arguing that part of his plea bargain is illegal and is thus attacking the validity of the plea.” (Id. at p. 832.) Defendant’s attack on the authority of the court to impose the maximum sentence was “an effort to unilaterally improve, and thus alter, the terms of that which was agreed and thus should not be permitted without a certificate of probable cause.” (Id. at p. 833.) We held that a “defendant may not challenge the constitutionality of the maximum sentence that was agreed as part of his plea bargain in the absence of a certificate of probable cause.” (Id. at p. 834.)
Defendant, however, claims a different conclusion should be reached here, citing Buttram, supra, 30 Cal.4th 773. In Buttram, the defendant pled guilty to felony drug charges and admitted two prior serious or violent felonies in return for an agreed maximum sentence or “lid.” (Id. at p. 776.) At sentencing, the trial court denied defendant’s request for diversion to a drug treatment program and imposed the negotiated maximum. (Ibid.) Defendant appealed, claiming the trial court abused its sentencing discretion. (Ibid.) The California Supreme Court concluded the appeal was not precluded by defendant’s failure to obtain a certificate of probable cause. It explained: “By agreeing only to a maximum sentence, the parties leave unresolved between themselves the appropriate sentence within the maximum. That issue is left to the normal sentencing discretion of the trial court, to be exercised in a separate proceeding.” (Id. at p. 785.) “[W]hen the claim on appeal is merely that the trial court abused the discretion the parties intended it to exercise, there is, in substance, no attack on a sentence that was ‘part of [the] plea bargain.’ [Citation.] Instead, the appellate challenge is one contemplated, and reserved, by the agreement itself.” (Id. at p. 786.) The Supreme Court held a defendant need not obtain a certificate of probable cause when “[h]e simply seeks to implement the full terms of the bargain by raising appellate challenges to the exercise of individualized sentencing discretion within the agreed maximum that were reserved by the agreement itself.” (Id. at p. 790.)
In People v. Shelton (2006) 37 Cal.4th 759 (Shelton), the California Supreme Court distinguished the situation in Buttram, supra, 30 Cal.4th 773, where the defendant contended the trial court abused its retained sentencing discretion from the situation where a defendant challenges the trial court’s authority to impose a lid sentence. (Shelton, supra, at pp. 769-770.) The Supreme Court held a “challenge to the trial court’s sentencing authority is in substance a challenge to the validity of the negotiated plea. Therefore, defendant’s failure to secure a certificate of probable cause bars consideration of this challenge and requires dismissal of his appeal.” (Id. at p. 771.)
Here, defendant’s argument that the imposition of an indeterminate 15 years to life sentence constitutes cruel and unusual punishment falls squarely within the holdings in Panizzon, Young, and Shelton. By his plea agreement, defendant obtained a maximum sentence of 25 years to life with the possibility of parole. In the absence of such agreement, defendant faced, in the event of conviction, a possible life sentence without the possibility of parole or even a death sentence. The only reduction contemplated by the agreement was to second degree murder if defendant cooperated with the prosecution and testified truthfully in the trial of O’Brien and Dickson. Defendant obtained the benefit of that bargain and was sentenced accordingly. His claim on appeal that such sentence constitutes cruel and unusual punishment challenges the trial court’s “authority” to impose the specified sentence and goes to the validity of his appeal. (Shelton, supra, 37 Cal.4th at p. 771; Panizzon, supra, 13 Cal.4th at p. 78; Young, supra, 77 Cal.App.4th at p. 834.) Since he did not obtain a certificate of probable cause, he may not raise the issue on appeal. We shall dismiss the portion of his appeal asserting such challenge.
II.
Defendant contends the trial court erred in ordering him to pay $460 for the cost of his probation report without making a finding of defendant’s ability to pay. Citing People v. O’Connell (2003) 107 Cal.App.4th 1062, 1067-1068, defendant claims the order requiring payment should be vacated and the matter remanded for a hearing on defendant’s ability to pay or a waiver of that right. According to defendant, the issue is conceded by respondent.
We decline to accept any such concession and reject defendant’s claim. The record on appeal affirmatively reflects recommendations in both the original probation report and the supplemental probation report that the court find defendant is able to pay for the costs of the probation report and the trial court expressly stated in imposing the probation report fee: “The Court finds that the Defendant is able to pay for the cost of the probation report in the amount of $460, pursuant to 1203.1b of the California Penal Code.” (Italics added.) Defendant did not object to the recommendations of the probation report or the trial court’s finding at sentencing.
DISPOSITION
The portion of defendant’s appeal challenging the constitutionality of his sentence is dismissed. The judgment is affirmed.
We concur: SCOTLAND, P.J., RAYE, J.