P. v. Graham

Filed 10/2/07 P. v. Graham 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Shasta)

----

Pursuant to a plea bargain, defendant Victor Leonard Graham pleaded no contest to a count of grand theft in exchange for the dismissal of a count of robbery. (Pen. Code, 487, subd. (c), 211.)^[1] This plea bargain did not contain any promises as to sentencing; defendant was simply informed that he could receive either probation or a prison term of 16 months, two years or three years (the sentencing triad for grand theft).

The trial judge sentenced defendant to the upper term of three years, based upon defendants (1) ongoing criminal history, (2) numerous prior convictions, and (3) acts of violence and increasing seriousness over the years.

On appeal, defendant contends the trial court violated his constitutional rights to jury trial and due process--as interpreted by Apprendi v. New Jersey(2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), 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)--by imposing the upper term based on facts not found by a jury. The People claim (1) defendants appeal must be dismissed because he did not obtain a certificate of probable cause ( 1237.5); (2) defendant forfeited his contention by failing to object in the trial court; and (3) in any event, the recidivism exception applies to defendants challenge on its merits. We agree with the Peoples third point, and affirm the judgment. We will discuss the Peoples three points in turn.

Discussion

1. Certificate of Probable Cause

Section 1237.5 provides that a defendant may not appeal from a judgment of conviction upon a plea of guilty or nolo contendere [no contest] unless the trial court has issued a certificate of probable cause for such appeal. ( 1237.5; People v. Shelton(2006) 37 Cal.4th 759, 766.) There are two exceptions when this certificate is not required, one of which is pertinent here: an appeal based on grounds that arose after entry of the plea that do not affect the pleas validity (e.g., an appeal of a sentence that does not affect the pleas validity). (Shelton, supra, 37 Cal.4th at p. 766; Cal. Rules of Court, rule 8.304(b)(4)(B).) This exception applies here.

Defendants plea bargain encompassed only his pleading no contest to a grand theft charge in exchange for the dismissal of a robbery charge; the sentence to be imposed was not part of the bargain. On appeal, defendant claims the trial court erred under Apprendi-Blakely-Cunningham in imposing the upper term based on facts not found by a jury. Defendants appeal, then, is based on grounds that arose after entry of the plea that do not affect the pleas validity (i.e., an appeal of a sentence that does not affect the pleas validity). Consequently, defendants appeal is not an attack on the validity of the plea and does not require a certificate of probable cause. (See People v. Young (2000) 77 Cal.App.4th 827, 832.)

2. Forfeiture

The People also claim that defendant has forfeited his Apprendi-basedjury trial contention by failing to raise it in the trial court. The Peoples claim does not wash because People v. Black (2005) 35 Cal.4th 1238 (Black I)--which had held that Californias determinate sentencing law did not violate the federal constitutional right to a jury trial (and which was overruled by Cunningham)--was in effect at the time of defendants sentencing, and any such objection would have been futile. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.)

3. Prior Conviction Facts as Basis for Upper Term

That brings us to the merits of defendants appeal. Defendant contends the trial judge violated his jury trial and related due process rights under Apprendi-Blakely-Cunningham by imposing the upper term based on facts not found by a jury. As the California Supreme Court recently ruled in People v.Black (2007) 41 Cal.4th 799 (Black II), imposition of [an] upper term does not infringe upon [a] defendants constitutional right to jury trial [under Apprendi-Blakely-Cunningham] 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, 41 Cal.4th at p. 816.) This is because [u]nder Californias determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make [a] defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum. (Id. at p. 813.) And it is only when a sentence goes beyond the statutory maximum that the Apprendi-Blakely-Cunningham rule is triggered, requiring a jury to determine sentencing facts; as Apprendi stated, [o]ther 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. (Apprendi, supra, 530 U.S. at p. 490.)

Here, the record discloses at least one legally sufficient aggravating circumstance that is justified based upon defendants record of prior convictions. The trial judge found the aggravating circumstance that defendant had numerous prior convictions (at least 10 prior convictions). (See People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [three prior convictions deemed numerous]; see also Black II, supra, 41 Cal.4th at p. 818 [citing with approval this conclusion of Searle]; Cal. Rules of Court, rule 4.421(b)(2) [defining an aggravating circumstance as including the circumstance of numerous prior convictions].) Consequently, under Black II, the trial judges imposition of the upper term did not violate defendants constitutional right to jury trial (and related due process rights) under Apprendi-Blakely-Cunningham.

Disposition

The judgment is affirmed.

DAVIS, Acting P.J.

We concur:

RAYE , J.

ROBIE , J.

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^[1] Hereafter, undesignated section references are to the Penal Code.