P. v. Amaral
Filed 7/31/07 P. v. Amaral CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE, Plaintiff and Respondent, v. JEFFREY SCOTT AMARAL, Defendant and Appellant. | C052476 (Super. Ct. No. 03F06526) |
Defendant Jeffery Scott Amaral appeals after judgment from the denial of his motion to suppress evidence pursuant to Penal Code section 1538.5. 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. More than 30 days elapsed, and we received no communication from defendant. Thereafter, counsel filed a supplemental brief contending the trial courts imposition of the upper term sentence violated the rule set forth in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham).
We have reviewed the record on appeal. We shall correct an error discovered in our review of the record and address defendants Blakely claim.
BACKGROUND
The charges in the consolidated information arise from two separate incidents. On July 29, 2003, officers initiated a traffic stop of the van defendant was driving. Defendant admitted to officers that his drivers license was suspended. During a search, officers found .26 grams of methamphetamine in defendants pocket. On August 23, 2003, while defendant was released on bail, officers made contact with defendant after seeing him drive a car with an expired registration. Defendant told the officers he did not have a drivers license in his possession. The officers placed defendant in the patrol car and ran a check on his license. The check revealed defendants drivers license was suspended and that he was on informal, searchable probation. The officers requested a tow and asked defendant for permission to search the car. Upon defendants refusal to provide consent to search the car, the officers conducted a pre-tow impound inventory search. There was a black, purse-like bag on the seat which contained methamphetamine, heroin, three syringes containing heroin, an empty syringe, a digital scale, multiple small baggies, and defendants wallet. In the drivers side door, officers found a narcotics pipe with black residue and a cell phone.
Defendant moved to suppress the evidence found in the August 23, 2003, search. He argued the search was improper because: (1) the officer did not know defendant was on searchable probation prior to conducting the search, (2) the inventory search was not conducted following a satisfactory policy and procedure, and (3) the inventory search was undertaken for improper investigatory purposes. The trial court found the officers testimony credible and that she knew of the probation condition before searching the car. The trial court also found that the officers followed routine procedures with respect to conducting the pre-tow inventory search. Accordingly, the trial court denied defendants motion to suppress.
The trial court then summarized its plea bargain offer to defendant as follows:
I have indicated to the defense, Mr. Brody, that his client, if he chooses, the Court would strike a strike and he would have to then plead to the sheet and I would sentence him as recommended by the probation department.
The probation department recommended a total sentence of 12 years eight months in the event a strike were stricken.
After receiving the aforementioned indicated sentence which included the trial courts exercise of its discretion to strike defendants prior conviction under People v. Superior Court (Romero) 13 Cal.4th 497, defendant pled no contest to all counts alleged in the information and was sentenced as follows: the aggravated term of five years for transportation of heroin (count 7 -- Health & Saf. Code, 11352, subd. (a)), a concurrent middle term of three years for transportation of methamphetamine (count 1 -- Health & Saf. Code, 11379, subd. (a)), the midterm of two years, stayed pursuant to Penal Code section 654, for possession of methamphetamine (count 2 -- Health & Saf. Code, 11377, subd. (a)), a concurrent term of six months for driving with a suspended license (count 3 -- Veh. Code, 14601.1, subd. (a)), the midterm of two years, stayed pursuant to Penal Code section 654, for possession of methamphetamine for sale (count 4 -- Health & Saf. Code, 11378), a concurrent midterm of three years for transportation of methamphetamine (count 5 -- Health & Saf. Code, 11379, subd. (a)), the midterm of three years, stayed pursuant to Penal Code section 654, for possession of heroin for sale (count 6 -- Health & Saf. Code, 11351), a concurrent six months in county jail for possession of a hypodermic needle (count 8 -- Bus. & Prof. Code, 4140), and two consecutive one-year sentences for prior prison terms pursuant to Penal Code section 667.5, subdivision (b). The trial court also sentenced defendant on two additional cases, not part of this appeal, for a total aggregate term of 12 years four months in state prison.[1]
Defendant was ordered to pay a $2,400 restitution fine and a parole revocation restitution fine (suspended) in the same amount. (Pen. Code, 1202.4, 1202.45.) The trial court also imposed a $50 laboratory fee (Health & Saf. Code, 11372.5), a $150 drug program fee (Health & Saf. Code, 11372.7), a main jail booking fee of $189.82 and a jail classification fee of $23.82. Defendant was awarded 539 actual days and 268 conduct days for a total of 807 days of custody credit.
DISCUSSION
I
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
We did, however, find one error that requires correction. The trial court imposed the $50 mandatory Health and Safety Code section 11372.5 fee, but failed to impose the penalty assessments of $50 (Pen. Code, 1464) and of $35 (Gov. Code,
76000, subd. (a)). The court also imposed the $150 mandatory Health and Safety Code section 11372.7 fee, but failed to impose the penalty assessments of $150 (Pen. Code, 1464) and of $105 (Gov. Code, 76000, subd. (a)). These penalty assessments must be imposed and set forth in the abstract of judgment. (People v. High (2004) 119 Cal.App.4th 1192, 1200 [[a]ll fines and fees must be set forth in the abstract of judgment].)
II
Defendant contends the trial courts imposition of the upper term sentence violated the rule set forth in Blakely and Cunningham. We reject his contention because the plea agreement expressly provided for the 12-year four-month sentence and defendant failed to obtain a certificate of probable cause.
When a defendant enters a plea of guilty or no contest, he may not challenge the validity of the plea on appeal unless he has sought, and the trial court has issued, a certificate of probable cause showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. (People v. Emery (2006) 140 Cal.App.4th 560, 562; see Pen. Code, 1237.5.)[2] [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 and thus requires a certificate of probable cause. (People v. Shelton (2006) 37 Cal.4th 759, 766, quoting People v. Panizzon (1996) 13 Cal.4th 68, 79 (Panizzon).)
In Panizzon, supra, 13 Cal.4th 68, the defendant agreed to enter a plea of no contest to several felonies and agreed to a sentence of life with the possibility of parole plus 12 years. (Panizzon, supra, at pp. 73-74.) Defendant, without obtaining a certificate of probable cause, filed a notice of appeal arguing his sentence violated the federal and state constitutional prohibitions against cruel and unusual punishment. (Id. at
p. 74.) Our Supreme Court held that defendants appeal of his sentence must be dismissed because, as a challenge to the negotiated sentence imposed as part of the plea agreement, it was a challenge to his plea and was barred by section 1237.5. (Id. at pp. 78, 89.) Such a challenge may not be maintained without obtaining a certificate of probable cause. (Ibid.)
In People v. McNight (1985) 171 Cal.App.3d 620, the defendant pled to various charges in exchange for a stipulated sentence of 21 years and the dismissal of other charges. (McNight, supra, at p. 623.) Without obtaining a certificate of probable cause, the defendant appealed and sought to challenge the sentence, arguing that mitigating factors should have
resulted in a lesser sentence. (Ibid.) Concluding that the defendants challenge went to the heart of his plea agreement, and therefore to the validity of his plea, the court dismissed the appeal for lack of a certificate. (Id. at pp. 623-626.) In People v. Bobbit (2006) 138 Cal.App.4th 445 at pages 447-448, this court concluded that the certificate of probable cause requirement applies equally to Blakely challenges made to the term imposed pursuant to a plea bargain.
In this case, defendants failure to obtain a certificate of probable cause bars consideration of his Blakely claim. (Panizzon, supra, 13 Cal.4th at pp. 74-79.) He entered into a negotiated plea with an indicated sentence of 12 years eight months. The trial court repeatedly confirmed that defendant understood the agreed-upon sentence. Thus, defendants contention that imposition of the negotiated sentence violated Blakely and Cunningham goes to the validity of the plea itself. Since he agreed to the negotiated sentence as part of a plea bargain, he must obtain a certificate of probable cause in order to claim on appeal that the agreed sentence is unlawful. (Panizzon, supra, 13 Cal.4th 68, 74-79.)
DISPOSITION
The judgment is modified to include the penalty assessments described in the opinion under Health and Safety Code section 11372.5, and the penalty assessments described in the opinion under Health and Safety Code section 11372.7. As modified, the judgment is affirmed. The trial court is directed to prepare an
amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
SIMS , Acting P.J.
We concur:
BUTZ , J.
CANTIL-SAKAUYE , J.
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[1]The indicated sentence, to which defendant agreed, was 12 years eight months. We see no basis for defendant to complain that he actually received a sentence of 12 years four months.
[2] Penal Code 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.
