P. .v Berry

Filed 8/7/07 P. .v Berry CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Lee P. Felice, Judge.

William Davies, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

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Appellant Kenneth E. Berry (Berry) contends the trial court unconstitutionally imposed the upper term after he pled guilty to grand theft (Pen. Code, 487, subd. (a)), and unlawful possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)), and admitted two prior strike convictions. Allegations that Berry operated a motor vehicle without adequate illumination of the rear license plate (Veh. Code, 24601) and without two mirrors (Veh. Code, 26709, subd. (a)) were dismissed, and the court granted the prosecutions motion to strike three prior prison term allegations. Before entering his plea, Berry acknowledged his understanding he could be sentenced to up to 25 years to life on each count, to be served consecutively, but pursuant to the plea agreement, the court would entertain a motion to strike the priors.

Berry filed a motion requesting the court exercise its discretion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and Penal Code section 1385, subdivision (a), to strike one of the strike priors. At the August 1, 2006, sentencing hearing, the court granted the motion and struck one of the strike priors. The court imposed an aggregate sentence of seven years, four months, comprised of the six year upper term for grand theft and a consecutive 16 months, or one-third the mid-term, for possession of methamphetamine. In imposing the upper term, the court found there were no mitigating factors, but found the following aggravating factors: (1) Berry had been convicted of other crimes for which consecutive sentences would have been imposed; (2) Berry had engaged in violent conduct; (3) Berrys prior convictions as an adult were numerous; (4) Berry served two prior prison terms; (5) Berrys performance on misdemeanor probation, felony probation, and parole had been unsatisfactory in that he violated the terms and committed new law violations; and (6) the way the crime was carried out indicated some degree of sophistication. The court concluded the aggravating circumstances warranted the upper term of six years.

A timely notice of appeal was filed on September 18, 2006. A request for a certificate of probable cause on the stated ground that Berry was claiming bad guidance from my paid attorney was granted on September 20, 2006.

Berry initially filed an appellate brief pursuant to People v. Wende (1979) 25 Cal.3d 436, but subsequently effectively withdrew that brief by filing a brief challenging his upper term sentence in light of Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). We will affirm.

FACTS

On March 22, 2006, a gas station manager in California City found that 333 gallons of diesel fuel had been taken from the pumps during non-business hours. A surveillance tape showed a vehicle at the diesel pumps during the early morning hours. Four days later, a vehicle matching the vehicle on the videotape was pulled over. Berry was the driver and a keypad was on the dashboard. Berry admitted to officers that he might have pumped fuel at the gas station the week before and forgot to pay for it. When officers asked Berry what the keypad was used for, Berry stated it was used to turn on machinery and could be used to turn on fuel pumps. Berry admitted using the keypad to obtain the fuel. Berry was arrested and a bag of methamphetamine weighing .8 grams was found in his shirt pocket.

DISCUSSION

In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), a five-justice majority of the United States Supreme Court held, Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Id. at p. 490.) Blakely held that the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations.] (Blakely, supra, 542 U.S. at p. 303, italics omitted.) In Cunningham, the court held that, under Californias determinate sentencing scheme, the upper term can be imposed only if the factors relied upon comport with the requirements of Apprendi and Blakely. (Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856].)

Blakely describes three types of facts a trial judge can properly use to impose an aggravated sentence: (1) the fact of a prior conviction (Blakely, supra, 542 U.S. at p. 301); (b) facts reflected in the jury verdict: (id. at p. 303, italics omitted); and (c) facts admitted by the defendant (ibid., italics omitted). The fact of prior convictions clearly comes under the prior-conviction exception to Blakely.

Berry contends the imposition of the upper term on his grand theft conviction violated his right to a jury trial. As a threshold matter, we address the Peoples contention that Berry forfeited his right to appellate review when he failed to object to the imposition of the upper term. The California Supreme Court has held that, at least with respect to sentencing proceedings that preceded the Blakely decision, a claim of sentencing error premised on Blakely and Cunningham is not forfeited on appeal by counsels failure to object at trial. (People v. Black (July 19, 2007, S126182) ___ Cal.4th ___ [2007 WL 2050875, *6] (Black II).) Here, Berrys sentencing came after the California Supreme Court concluded in People v. Black (2005) 35 Cal.4th 1238 (Black I) that under California law, a defendant does not have a right to a jury trial to determine the validity of sentencing factors that justify the imposition of an upper term sentence, but before the United States Supreme Court overruled Black I and held that Blakely applies to the imposition of upper terms under California law. (Cunningham, supra, 549 U.S. ___ [127 S.Ct. at pp. 860, 871].) We cannot expect prescience of counsel (see People v. Turner (1990) 50 Cal.3d 668, 703), so we reject the Peoples forfeiture argument (cf. People v. Scott (1994) 9 Cal.4th 331, 357-358, limited on another ground by People v. Stowell (2003) 31 Cal.4th 1107, 1112, 1113.)

The People also contend Berry is precluded from raising this claim because he failed to obtain a certificate of probable cause challenging the constitutionality of his sentence. Penal Code section 1237.5 provides that a defendant may not appeal from a judgment of conviction following a guilty or no contest plea unless (1) he has filed a written statement in the trial court showing reasonable constitutional, jurisdictional or other grounds going to the legality of the proceedings (id., subd. (a)), and (2) the trial court has executed and filed a certificate of probable cause of such appeal with the clerk of the court (id., subd. (b)). A certificate is unnecessary when the issue raised on appeal is one that arose after entry of the plea and does not affect the validity of the plea. (Cal. Rules of Court, rule 8.304(b)(4).)

It is well established that when a defendant pleads guilty in exchange for a stipulated sentence, any challenge to that sentence implicates the validity of the plea and requires a certificate of probable cause. (People v. Panizzon (1996) 13 Cal.4th 68, 79.) A certificate of probable cause is not required, however, to challenge the trial courts discretionary sentencing choices when the plea agreement calls for a sentencing lid but contemplates that the court will exercise its customary sentencing discretion to impose a sentence up to that lid. (People v. Buttram (2003) 30 Cal.4th 773, 790-791.)

In People v. Shelton (2006) 37 Cal.4th 759 (Shelton), our Supreme Court concluded that a challenge to the legality of the sentence under Penal Code section 654 or some other provision, unlike a challenge to the courts discretionary sentencing choices, was a challenge to the validity of the plea when the plea agreement called for a sentencing lid and the sentence imposed was within that lid. Applying contract principles, the court reasoned: [T]he specification of a maximum sentence or lid in a plea agreement normally implies a mutual understanding of the defendant and the prosecutor that the specified maximum term is one that the trial court may lawfully impose and also a mutual understanding that, absent the agreement for the lid, the trial court might lawfully impose an even longer term. (Shelton, supra, 37 Cal.4th at p. 768.)

It is questionable whether Shelton applies in this case because the parties did not agree upon a sentencing lid of something less than that which the court otherwise could have imposed. Rather, Berry was advised of the maximum sentence that could be imposed based on the charges to which he pled. A defendant who merely acknowledges the theoretical maximum sentence based on an open plea stands in different shoes than a defendant who has entered an agreement that calls for a lid on the sentence. As recognized in Shelton, From a defendants point of view, the purpose of a sentence lid is to protect the defendant from a greater sentence. Thus, a sentence lid provision in a plea necessarily implies the defendants understanding and belief that in its absence the trial court might lawfully have imposed a greater sentence. If the maximum sentence authorized by law were at or below the specified sentence lid, the lid provision would be superfluous and of no benefit to the defendant. (Shelton, supra, 37 Cal.4th at p. 768.) A defendant who enters an open plea and is advised of his maximum exposure has received no promise with respect to his sentence he simply is being provided with the information necessary to enter a voluntary and intelligent plea. (See People v. Lytle (1992) 10 Cal.App.4th 1, 4.)^[1]

In People v. Bobbit (2006) 138 Cal.App.4th 445, 447-448, the court concluded that a certificate of probable cause was required to challenge the legality of a sentence on Blakely grounds when the court sentenced the defendant to a 12-year lid, even though the lid appears to be the statutory maximum sentence for the crimes and enhancements to which the defendant pled. Advising the defendant of a statutory maximum, however, is not necessarily the equivalent of an agreed-upon lid on the sentence.

We need not decide whether a certificate of probable cause was required here because even if Berrys challenge properly is before this court, Cunningham does not prohibit Berrys upper term sentence for grand theft. As this court recently held in People v. Shadden (2007) 150 Cal.App.4th 137 (Shadden), the imposition of an upper term in a three strikes case does not run afoul of the Supreme Courts precedents. We explained that [t]he heart of the analysis of a sentence under Blakely is the determination of the maximum sentence. [which] is the greatest sentence the judge can impose based on the facts reflected in the jury verdict or admitted by the defendant, plus the fact of the defendants prior convictions, if any. (Shadden, supra, 150 Cal.App.4th at p. 146.) We reasoned since the defendant in that case had waived the right to a jury trial on the prior convictions alleged, which the court found true, no further findings were necessary before a three-strikes sentence of 25 years to life could be imposed, and the courts decision on the defendants Romero request, which the court granted, was discretionary and could have been denied without any findings of fact. Accordingly, the maximum sentence available within the discretion of the sentencing court without any further factual findings, based on prior convictions to which defendant had waived a statutory right to a jury trial, was 25 years to life. The lesser sentence the court imposed [which included double the upper term for grossly negligent discharge of a firearm] was, therefore, permissible under Blakely and Cunningham. (Shadden, supra, 150 Cal.App.4th at p. 146.) Similarly here, Berry admitted the facts of his prior conviction allegations, and no further factual findings were required for the court to impose a three-strikes sentence of 25 years to life. The lesser sentence the court imposed was therefore permissible under Blakely and Cunningham.

Even if this had not been a three-strikes case, imposition of the upper term did not violate Berrys Sixth Amendment right to a jury trial under Cunningham. In making its findings in aggravation, the trial court applied four of the five offender-related aggravating factors set forth in California Rules of Court, rule 4.421: [t]he defendant has engaged in violent conduct that indicates a serious danger to society (rule 4.421(b)(1)); [t]he defendants prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness (rule 4.421(b)(2)); [t]he defendant has served a prior prison term (rule 4.421(b)(3)); and [t]he defendants prior performance on probation or parole was unsatisfactory (rule 4.421(b)(5)).

Several of the courts findings presupposed prior convictions: his prior convictions were numerous; his performance on probation and parole was unsatisfactory; he was a danger to society because of his prior convictions of violent crimes; and he served a prior prison term. At least one of these the defendants prior convictions as an adult ... are numerous cannot meaningfully be distinguished from Blakelys formulation, approving the use of the fact of a prior conviction (Blakely, supra, 542 U.S. at p. 301) to increase a sentence. It would not make sense to say that the trial court is entitled to rely on one prior conviction but not on several.

The California Supreme Court has concluded that imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (Black II, supra, ___ Cal.4th at p. ___ [2007 WL 2050875 at *9].) The court further held in Black II that a finding that the defendants prior convictions are numerous or of increasing seriousness (Cal. Rules of Court, rule 4.421(b)(2)) is a legally sufficient aggravating circumstance. (Black II, supra, 2007 WL 2050875 at *11-12.) Here, since one of the aggravating circumstances the court found was that Berrys prior convictions as an adult were numerous, which according to Black II is a legally sufficient aggravating circumstance that satisfies Sixth Amendment requirements and renders him eligible for the upper term, Berry was not legally entitled to the middle term and his Sixth Amendment right to jury trial was not violated by imposition of the upper term.

DISPOSITION

The judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Gomes, J. and Hill, J.

^[1]The issue of whether a defendant is required to obtain a certificate of probable cause in order to claim on appeal that the sentence imposed violated Penal Code section 654, when he entered his no contest plea with an understanding of a maximum sentence he faced although the plea agreement did not specify a maximum sentence, is currently before the California Supreme Court in People v. Cuevas, review granted January 3, 2007, S147510.