Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FNE800033, Joseph R. Brisco, Judge. Dismissed.
Lewis A. Wenzell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Jeffrey J. Koch, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKinster, J.
I
INTRODUCTION
On April 22, 2008, pursuant to a negotiated plea agreement, defendant and appellant Joseph Lee Williams pled guilty to four counts of committing lewd acts with a child under the age of 14 years under Penal Code section 288, subdivision (a). Pursuant to the plea agreement, defendant agreed to a specified prison term of 32 years, subject to a Cruz/Vargas waiver. Pursuant to the Cruz/Vargas waiver, defendant was then released on his own recognizance pending sentencing, with the promise of a reduced prison term of three years if defendant appeared as required on the sentencing date and if defendant committed no new offenses while released pending sentencing.
All statutory references are to the Penal Code unless otherwise specified.
Taken together, People v. Cruz (1988) 44 Cal.3d 1247, and People v. Vargas (1990) 223 Cal.App.3d 1107 permit a disposition where a long sentence is imposed initially, with an agreement to release the defendant pending pronouncement of judgment. And, if the defendant then complies with certain terms (usually, appearance on the scheduled pronouncement of judgment date and not being arrested on any new charges), a lesser sentence will be imposed. (Cruz, at p. 1254, fn. 5; Vargas, at p. 1113.)
On May 13, 2008, defendant appeared for sentencing, as required by his plea agreement. Defendant, however, had committed new criminal offenses while released on his own recognizance, thereby voiding his Cruz/Vargas terms, including the reduced sentence of three years. To avoid being sentenced to the agreed-upon term of 32 years, defendant admitted the violation of his Cruz/Vargas waiver and agreed to a new stipulated sentence of 16 years.
When imposing the renegotiated sentence of 16 years for counts 1 and 2, the trial court “struck” the sentences for counts 3 and 4. Defendant notes that the abstract of judgment states that the sentences for the two counts were stayed under section 654. Defendant therefore claims that the oral pronouncement controls, and the underlying convictions must be withdrawn or vacated with a subsequent dismissal of those two convictions to comport with the court’s “striking” of the sentences. A review of the record, however, shows that the trial court did not strike the underlying convictions, which resulted from defendant’s guilty pleas in this case. The trial court simply sought to state that the prior unstayed and negotiated sentences for counts 3 and 4 were no longer going to be imposed, hence “stricken,” in conformity with the renegotiated sentence of 16 years. Therefore, staying the terms for these counts was appropriate under section 654.
On July 7, 2008, defendant filed a notice of appeal in propria persona seeking to challenge the validity of his plea and requested a certificate of probable cause to permit such a challenge. The trial court denied defendant’s request for a certificate of probable cause.
On July 8, 2008, a second notice of appeal was filed from the sentence or other postplea matters. This notice form was prepared and signed by counsel.
Defendant’s sole contention on appeal is that the court erred in imposing the negotiated 16-year sentence under section 288, subdivision (a). We dismiss defendant’s claim because he failed to obtain a certificate of probable cause from the trial court.
II
STATEMENT OF FACTS
Because defendant pled guilty in this matter, there is no superior court trial testimony as to the underlying facts of this case. Moreover, under the terms of the plea agreement, no probation report was prepared. At the plea entry hearing, defendant stipulated that the information, including the police reports, constituted the factual basis of his pleas.
III
ANALYSIS
Defendant claims that the trial court erred in imposing his sentence of 16 years because he “could not be sentenced to full consecutive terms on the charges” under section 288, subdivision (a). (Boldface omitted.) This claim must be dismissed because defendant failed to obtain a certificate of probable cause.
Section 1237.5 provides: “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.”
Where a guilty plea is made pursuant to a plea bargain, whether a certificate of probable cause is required to challenge the sentence on appeal depends on what the defendant is really challenging. “‘[T]he 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, 782.) It is well settled that “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.) A defendant, therefore, is required to obtain a certificate of probable cause to attack a negotiated sentence on appeal. (Ibid.)
Here, defendant is contesting the legality of the very sentence he negotiated as part of his plea agreement. Thus, he is, in substance, attacking the validity of the plea. Defendant’s failure to obtain a certificate of probable cause is fatal to his appeal.
Nonetheless, defendant argues that he should be able to make his claim on appeal without a certificate of probable cause because the trial court acted in excess of its jurisdiction when it imposed the two consecutive sentences. “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. The rationale behind this policy is 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.]” (People v. Hester (2000) 22 Cal.4th 290, 295.) In this case, defendant does not contend—and there is nothing in the record to indicate—that the trial court lacked fundamental jurisdiction. Therefore, because defendant has pleaded guilty in return for a specified sentence, we will not find error.
Defendant, however, attempts to distinguish this case from Hester, supra, 22 Cal.4th 290, because his trial counsel did not concur in defendant’s self-negotiated sentence. We find defendant’s argument to be without merit. Here, the record shows that defendant was represented during plea negotiations, during preparation of the plea form, and at the plea entry hearing by a deputy public defender. During the plea entry hearing, defense counsel noted that defendant was entering his nolo contendere plea against counsel’s advice and that counsel did not concur with defendant’s admission of the crimes charged. There is nothing in the law that precludes a defendant from entering a guilty plea without the concurrence of counsel. Instead, the law is clear that a defendant may enter into a guilty plea even against the advice of counsel. (See People v. Robles (2007) 147 Cal.App.4th 1286, 1290 [“a defendant, however, retains the personal and fundamental right to decide certain matters, e.g., whether to plead guilty”].) It is the defendant, not counsel, who makes the ultimate determination whether to plead guilty. (Ibid.; In re Horton (1991) 54 Cal.3d 82, 95.)
Defendant further attempts to distinguish this case from Hester, supra, 22 Cal.4th 290, because he did not obtain a better bargain with his plea agreement. Again, we disagree with defendant’s argument. Even in his opening brief, defendant admits that he “did, however, receive some benefit from the plea bargain. At the time of the plea, the deal was [that defendant] would be released from custody on a Cruz/Vargas waiver and four misdemeanor probation cases would ultimately be closed. [Citation.] At the time of accepting the ultimate 16 (rather than authorized 10) year sentence, the bargain was for the charges in the newly acquired case to be dismissed in addition to the closure of the misdemeanor cases.” Hence, by defendant’s own admission, he received the benefit of his bargain, and he should not attempt to get a better bargain on appeal.
Based on the above, defendant’s failure to obtain a certificate of probable cause bars his appeal.
IV
DISPOSITION
The appeal is dismissed.
We concur: Hollenhorst, Acting P.J., King, J.