P. v. Goodwin

Filed 1/30/07 P. v. Goodwin 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

On July 20, 2005, appellant pleaded guilty as charged in complaint numbers CC582359 and CC584698 in return for a maximum sentence of no greater than 35 years.[1] From these two cases, in total, appellant pleaded guilty to seven counts of first degree robbery (Pen. Code, 211, 212.5, subd. (a)), one count of second degree robbery (Pen. Code, 212.5, subd. (c)), one count of possessing methamphetamine for sale (Health & Saf. Code, 11378), one misdemeanor count of possessing controlled substance paraphernalia (Health & Saf. Code, 11364). Appellant admitted two enhancements for being armed with a firearm (Pen. Code, 12022, subd. (a)(1)) and three enhancements for personally using a knife (Pen. Code, 12022, subd (b)(1)). In addition, appellant admitted having suffered a prior "strike" and a prior serious felony conviction.

On October 18, 2005, the court sentenced appellant to a total term 27 years and four months in state prison. In sentencing appellant, the court imposed the aggravated term of six years for one of the first degree robbery counts, doubled pursuant to Penal Code sections 667, subdivisions (b)-(i) and 1170.12. In addition, the court imposed a consecutive term of one year for the arming enhancement (Pen. Code, 12022, subd. (a)(1)), thus, imposing a total term of 13 years on that count. The court imposed concurrent terms of 13 years for two more of the first degree robbery counts. On the remaining robbery counts, the court imposed a consecutive term of one-third the midterm, doubled as a result of the strike for a total term of two years, eight months; one concurrent aggravated term of six years doubled as a result of the strike; one concurrent aggravated term doubled as a result of the strike plus a one-year arming enhancement; a three-year consecutive term consisting of one-third the midterm doubled and a one-third term for the arming enhancement; and another consecutive term of two years, four months consisting of one-third the mid-term doubled. Finally, on case number CC584698 the court imposed a consecutive five-year term pursuant to Penal Code section 667, subdivision (a). In case number CC582359, the court imposed one-third the midterm doubled as a result of the strike for a term of one year, four months.

Appellant filed late notices of appeal. On May 25, 2006 this court granted appellant relief from default. Subsequently, appellant filed notices of appeal on May 31 and June 7, 2006.

The facts underlying appellant's convictions are not pertinent to this appeal. Appellant's sole issue on appeal relates to the imposition of the upper or aggravated term for some of the robbery counts. Specifically, appellant contends that when the court imposed an aggravated sentence on the basis of facts it found, which went beyond anything he pled to, the court violated his constitutional right to a jury trial as explained in Blakely v. Washington (2004) 542 U.S. 296 (Blakely).

Discussion

In imposing sentence, the court stated that it was imposing the aggravated term on all these charges because of the "particular cruelty and viciousness" of the crimes. The court noted that it had reviewed all the circumstances in aggravation and mitigation and found that the "heightened degree of cruelty and viciousness outweigh[ed] the factors [in] mitigation."

Respondent asserts that when the court sentenced appellant on October 18, 2005, it was about 16 months after the United States Supreme Court decided Blakely. Thus, respondent argues, because appellant concedes that his attorney failed to object to the imposition of the upper term, appellant has forfeited any Blakely claim. Respondent relies on two cases for this proposition, People v. Hill (2005) 131 Cal.App.4th 1089, 1103, (Hill), and People v. Bobbit (2006) 138 Cal.App.4th 445, 448 (Bobbit).

Unlike the defendant in Hill, who waived a Blakely challenge by failing to raise it at his sentencing, which occurred after Blakely but before Black, appellant was sentenced after Black, at which point, a Blakely objection would have been futile under controlling law that the court was compelled to follow. (Hill, supra, 131 Cal.App.4th at p. 1103.)

In Bobbit, the defendant appealed after he was sentenced to the maximum term permitted under his plea agreement. The plea agreement failed to preserve, either at sentencing or for appeal, the issue that the trial court did not have the authority to impose an upper term sentence in the absence of a jury finding of one or more of the aggravating circumstances. The defendant, however, had failed to obtain a certificate of probable cause. The court concluded: "On this record, we conclude as a matter of law that the plea agreement did not preserve, either at sentencing or on appeal, the issue that the court did not have the authority to impose an upper term sentence in the absence of a jury finding of one or more aggravating circumstance(s). [Fn. omitted.] Without a certificate of probable cause, the appeal must be dismissed." (Bobbit, supra, 138 Cal.App.4th at p. 448.)

Penal Code section 1237.5 provides, "No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty . . . , 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."

In People v. Mendez (1999) 19 Cal.4th 1084, 1098, our Supreme Court held that we must follow the mandate of Penal Code section 1237.5. Specifically, the Mendez court held "[Penal Code] section 1237.5 . . . should be applied in a strict manner." The Mendez court condemned relaxed application of Penal Code section 1237.5's requirements despite argument that a defendant denied relief on direct appeal will seek the same relief by petitioning for a writ of habeas corpus. (Id. at p. 1097.)

In People v. Panizzon (1996) 13 Cal.4th 68, 89, footnote 15 (Panizzon ) our Supreme Court condemned the practice of addressing the merits of contentions despite failure to comply with Penal Code section 1237.5, because "the purposes behind section 1237.5 will remain vital only if appellate courts insist on compliance with its procedures." As the Second District Court of Appeal noted in People v. Cole (2001) 88 Cal.App.4th 850, 860, footnote 3, "strict application of section 1237.5 works no undue hardship on defendants with potentially meritorious appeals. The showing required to obtain a certificate is not stringent. Rather, the test applied by the trial court is simply 'whether the appeal is clearly frivolous and vexatious or whether it involves an honest difference of opinion.' "

However, an exception to the certificate requirement exists for challenges to " 'issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.' " (People v. Shelton (2006) 37 Cal.4th 759, 766 (Shelton).) Nevertheless, this exception will only apply if the challenge on appeal is not "in substance a challenge to the validity of the plea." (Panizzon, supra, 13 Cal.4th at p. 76; see, e.g., Shelton, supra, 37 Cal.4th at p. 766 [sentence challenge based on section 654's prohibition against multiple punishment is a challenge that affects the validity of the plea].)

" '[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." (Shelton, supra, 37 Cal.4th at p. 766, quoting Panizzon, supra, 13 Cal.4th at p. 79.) "[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." (Id. at p. 768.)

"[A] provision recognizing the defendant's right to 'argue for a lesser term' is generally understood to mean only that the defendant may urge the trial court to exercise its sentencing discretion in favor of imposing a punishment that is less severe than the maximum punishment authorized by law." (Shelton, supra, 37 Cal.4th at p. 768.) "Of course, a prosecutor and a defendant may enter into a negotiated disposition that expressly recognizes a dispute or uncertainty about the trial court's authority to impose a specified maximum sentence -- because of Penal Code section 654's multiple punishment prohibition or for some other reason -- and preserves the defendant's right to raise that issue at sentencing and on appeal." (Id. at p. 769.) To the extent some ambiguity exists regarding the meaning of the parties' agreement, a court should "begin with the language of the plea agreement concerning sentencing, as the trial court recited it on the record" (id. at p. 767), since "[a] negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles." (Ibid.)

Appellant asserts that the principle set forth in Sheltonhas no applicability to this case because there was no plea agreement. He "pled to 'all of the charges.' The prosecutor 'object[ed] to the court's offer.' "[2] Thus, while the court promised to impose a sentence under 35 years, there was "no 'mutual understanding of the defendant and the prosecutor.' " Accordingly, he asserts Shelton and Bobbit do not apply when there is no plea agreement.

Appellant argues that a "challenge to the sentence under [Penal Code] section 654, which was presented in Shelton, is an argument that the court has no authority to impose the higher sentence. It amounts to a contention the sentence cannot be imposed lawfully. That is a challenge to the plea since the defendant agreed that sentence could be lawfully imposed." On the other hand, appellant contends that an "appellate argument based on Blakely is different. An argument based on [Penal Code] section 654 contends the higher sentence is totally foreclosed. There are no circumstances, under the facts of the case, which would permit it. A Blakely challenge, in contrast, is not a contention the sentence is unlawful under any circumstances. It is not a contention that the court 'lacked authority to impose the specified sentence.' . . . Rather, the argument is that before the court imposes the higher sentence it must comply with constitutional prerequisites. The argument is similar to a contention the court erred in imposing an upper term because it relied on invalid factors. The Supreme Court in Shelton implicitly conceded such an argument can still be raised on appeal after a plea agreement specifying a sentencing lid."

We agree with appellant that his contention is distinguishable from the defendant's contention in Shelton. Nevertheless, we conclude that the analytical framework announced in Shelton requires dismissal of appellant's appeal. First, by urging that the trial court failed to comply with constitutional prerequisites, appellant is necessarily urging that the trial court could not lawfully impose the challenged sentence rather than that it abused its discretion in making one lawful sentence choice instead of another lawful sentence choice. Second, the application of "general contract principles" to appellant's negotiated plea reveals that his plea agreement embodies a mutual understanding that the court could lawfully impose the upper term. (Shelton, supra, 37 Cal.4th at pp. 767-768.) Consequently, because appellant's contention is, in substance, a challenge to his negotiated plea, he requires a certificate of probable cause.

It matters not that appellant's agreement was only with the court, not the prosecutor and the court. In a normal plea agreement, both the prosecutor and the court are the promisors in the agreement. (Shelton, supra, 37 Cal.4th at pp. 767-768.) Here, the prosecutor refused to enter into the plea agreement because she had calculated appellant's maximum exposure to be 39 years. As a result, the agreement was between appellant and the court.

In short, Shelton governs this case, and we must dismiss the appeal because of appellant's failure to obtain a certificate of probable cause.

Disposition

The appeal is dismissed.

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ELIA, J.

WE CONCUR:

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RUSHING, P. J.

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PREMO, J.

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[1] Appellant resolved a number of other cases, none of which involves the issue raised in this appeal.

[2] The prosecutor noted that the court was offering appellant a "35-year top." The prosecutor objected to the court's offer because she calculated appellant's maximum exposure to be 39 years.