Filed 8/11/17 P. v. Lascuna CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

RIZAMAVEL LASCUNA,

Defendant and Appellant.
H043637
(Santa Clara County
Super. Ct. Nos. C1483324, C1511111)

Defendant Rizamavel Lascuna challenges the trial court’s imposition of a sentence of four years and four months after she entered guilty pleas to transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and possession of methamphetamine for sale (§ 11378), and no contest pleas to a second count of possession of methamphetamine for sale and misdemeanor providing a false name to a peace officer (Pen. Code, § 148.9). Defendant also admitted a weight allegation in connection with the second possession count that rendered her probation ineligible. (Pen. Code, § 1203.073, subd. (b)(2).) Although defendant’s plea agreement, which specified the four years and four months sentence, required defendant to admit a weight enhancement (§ 11370.4, subd. (b)) allegation and a prior conviction enhancement (§ 11370.2, subd. (c)) allegation attached to that same possession for sale count, the trial court neglected to obtain an admission to either of these enhancement allegations at the change-of-plea hearing. The sentence imposed by the trial court included a three-year term for the weight enhancement. Defendant contends that we should strike the three-year term for the weight enhancement because she never admitted that allegation. We conclude that she is precluded from obtaining such relief because she did not obtain a certificate of probable cause.

I. Background
In May 2014, defendant was charged by felony complaint with transportation of methamphetamine, possession of methamphetamine for sale, and misdemeanor being under the influence of methamphetamine (§ 11550, subd. (a)). In April 2015, she pleaded guilty to the 2014 transportation and possession counts pursuant to a plea agreement under which she would be sentenced to a year in jail. However, a condition of the plea agreement was that, if she failed to appear for sentencing, her sentence could be anything up to the maximum. Her sentencing was set for May 13, 2015, and she did not appear at the sentencing hearing.
On May 17, 2015, defendant was sitting in a vehicle when she was asked by a police officer for identification. She claimed to have none, and she gave a false name. Defendant then got out of the vehicle and held her arms out in front of her. The police officer asked her what she was doing and whether she had lied about her name, and she said yes. After providing her correct name, she told the officer that she was on probation and had used methamphetamine that day. She was placed under arrest, and the officer searched the vehicle. The officer found a bag near where defendant had been sitting in the passenger seat that contained a large quantity of methamphetamine, a digital scale, $4,800 in cash, two methamphetamine pipes, and mail addressed to the driver of the vehicle. Defendant admitted that the methamphetamine belonged to her, and she appeared to be under the influence of methamphetamine. A pistol was found in a safe in the trunk of the vehicle.
Defendant was charged by felony complaint with transportation of methamphetamine, possession of methamphetamine for sale, misdemeanor possession of controlled substance paraphernalia (§ 11364), and misdemeanor providing a false name to a peace officer for the 2015 offenses. It was further alleged in connection with the possession for sale count that she was personally armed with a firearm (Pen. Code, § 12022, subd. (c)), and possessed more than 57 grams of methamphetamine (Pen. Code, § 1203.073, subd. (b)(2) [probation ineligibility]) and more than one kilogram of methamphetamine (§ 11370.4, subd. (b) [three-year enhancement]). The complaint also alleged in connection with the transportation and possession for sale counts that she had suffered a prior transportation conviction (§ 11370.2, subd. (c) [three-year enhancement for each prior conviction]; Pen. Code, § 1203.07, subd. (a)(11) [probation ineligibility]).
In March 2016, defendant appeared for a change-of-plea hearing for the 2015 charges. The court initially described the plea agreement as promising defendant an agreed term of four years and four months in jail for both cases in exchange for her pleas to the 2015 possession for sale and false name counts and “only the weight enhancements, and any other allegations will be stricken.” The prosecutor interjected that “the People are only striking the 12022(c) [firearm allegation]. She will also be admitting the fact that she has a prior conviction.” This exchange followed: “THE COURT: Okay. [¶] So Miss Lascuna, is that your understanding? [¶] DEFENDANT LASCUNA: (Defendant indicating.) [¶] THE COURT: Is that what you want to do? [¶] DEFENDANT LASCUNA: Yes, Your Honor.” However, when the court took defendant’s pleas and admissions, it did not ask her to admit the prior conviction enhancement allegation or the Health and Safety Code weight enhancement allegation. It took her pleas to the two substantive counts and her admission to the Penal Code probation ineligibility weight allegation, and the prosecutor moved to strike the firearm enhancement allegation. After the court had done so, it asked: “I think that’s all for her then, right?” The prosecutor responded: “Yes, Your Honor.” The court then said: “And any remaining counts or allegations against Miss Lascuna will be submitted for dismissal. That includes everything, including any priors weights, everything.” Neither the prosecutor nor defendant’s trial counsel said anything about defendant’s failure to admit the Health and Safety Code weight enhancement allegation or the prior conviction enhancement allegation.
One version of the clerk’s minutes from the change-of-plea hearing, which is marked “corrected 5-6-16” stated that defendant admitted both weight allegations, and the prior conviction allegation was submitted for dismissal at sentencing. A second version of the clerk’s minutes from that hearing, which is not marked “corrected,” stated that only the Penal Code weight allegation was admitted and the prior conviction allegation and the Health and Safety Code weight allegation were submitted for dismissal at sentencing.
The “WAIVED REFERRAL” probation report stated that both weight allegations had been admitted and that the prior conviction allegation had been submitted for dismissal at sentencing. Under the heading “SUPPLEMENTAL INFORMATION,” the probation report noted: “According to the Court Referral, the allegation pursuant to Section 11370.4(b) [(the weight enhancement allegation)] of the Penal Code [sic] is to be submitted to dismissal. According to Deputy District Attorney Edward Liang, this was submitted in error and in order to reach the Court’s conditional plea of 4 years and 4 months, this allegation is being imposed.” Based on this information from the prosecutor, the probation report recommended that the court impose a 16-month term for the 2015 possession for sale count, a three-year consecutive term for the “HS 1170.4(b) [sic]” enhancement, and a concurrent two-year term for the 2014 transportation count.
At the sentencing hearing, the court imposed a mitigated 16-month term for the 2015 felony and “three years pursuant to 11[3]70.4 [(the weight enhancement)] consecutive to that.” The court imposed a concurrent two-year term for the 2014 felony. This sentence complied with the plea agreement’s promise of a sentence of four years and four months. When the court imposed sentence, defendant’s trial counsel noted: “Also for the record the probation report makes mention of some issue with the weight enhancement. I have in my notes that we admitted the weight enhancement and I believe we checked that. I had at a previous court date and that that had been admitted on the record.” The court stated that “[a]ll remaining counts are ordered dismissed as part of the negotiated plea.” The court imposed the mandatory minimum fines and fees. The clerk’s minutes from the sentencing hearing stated that the prior conviction enhancement allegation and probation ineligibility allegation based on the prior conviction were dismissed. Defendant timely filed a notice of appeal challenging only the sentence. She did not request a certificate of probable cause.

II. Analysis
Defendant’s appointed appellate counsel originally filed a brief raising no issues pursuant to People v. Wende (1979) 25 Cal.3d 436. We requested briefing on the issue of whether the trial court erred in imposing a term for an enhancement that defendant had not admitted and whether any remedy was available to defendant in light of her plea agreement and her lack of a certificate of probable cause.
Defendant admits that the plea agreement required her to admit the weight enhancement allegation. Nevertheless, she argues that sentencing her to a three-year term for the weight enhancement was an “unauthorized sentence” that we must strike and that her lack of a certificate of probable cause does not preclude her from obtaining this remedy. The Attorney General contends that defendant is precluded from raising this issue on appeal in the absence of a certificate of probable cause.
Defendant’s lack of a certificate of probable cause is dispositive. “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere . . . 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 county clerk.” (Pen. Code, § 1237.5, italics & boldface added.) There is but one exception to this rule. “[T]he defendant may take and prosecute an appeal, without a statement of certificate grounds or a certificate of probable cause, if he has based his appeal solely on noncertificate grounds and has filed a notice of appeal so stating within 60 days after rendition of judgment.” (People v. Mendez (1999) 19 Cal.4th 1084, 1096 (Mendez).) This exception is available only if the appeal is based on the denial of a suppression motion or on “[g]rounds that arose after entry of the plea and do not affect the plea’s validity.” (Cal. Rules of Court, rule 8.304(b)(4).) In sum, the only appeals that may validly be taken from a judgment of conviction based on a no contest plea are those that fall within the rule 8.304(b)(4) exception and those that comply with Penal Code section 1237.5’s certificate of probable cause requirement. The California Supreme Court has mandated that these rules “be applied in a strict manner.” (Mendez, at p. 1098.)
Defendant’s appellate contention required a certificate of probable cause because it was an attack on the validity of her plea. A defendant who attacks the sentence to which she agreed in a plea agreement necessarily attacks the validity of the plea. (People v. Panizzon (1996) 13 Cal.4th 68, 78.) Nor does her claim that the sentence was unauthorized create a basis for consideration of her contention. “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.” (People v. Hester (2000) 22 Cal.4th 290, 295.) Defendant did not challenge below the sentence that the court imposed for her 2014 and 2015 offenses. She is estopped from doing so now.

III. Disposition
The judgment is affirmed.







_______________________________
Mihara, J.



WE CONCUR:






_____________________________
Elia, Acting P. J.






_____________________________
Bamattre-Manoukian, J.