P. v. Griffin

Filed 8/29/06 P. v. Griffin CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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On September 8, 2005, defendant Nick Alan Griffen pled no contest to transporting methamphetamine and admitted a prior conviction in exchange for the dismissal of three other counts and a six-year “lid.” Under the plea agreement, if defendant was accepted into the California Rehabilitation Center (CRC), the six-year lid would “stand,” but if he was not accepted into CRC, then he could “ask for something less.”

On October 7, 2005, prior to sentencing, defendant requested probation as an “alternative sentence.” The trial court denied his request and sentenced him to six years in prison, but suspended execution of the prison sentence and committed him to CRC pursuant to the plea agreement.

On appeal, defendant contends he was entitled to probation under Proposition 36 because the methamphetamine was for personal use. We conclude defendant’s appeal is barred by his failure to obtain a certificate of probable cause. Accordingly, we will dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

According to the probation report, on February 28, 2005, Sacramento County sheriff’s deputies saw defendant leave a convenience store and walk toward a truck. Defendant appeared to be under the influence of a stimulant. He got into the passenger side of the truck and it drove away. The deputies conducted a record check and found that the truck was reported stolen.

The deputies stopped the truck and ordered defendant and the driver out of the vehicle. The deputies found a knife on defendant. Upon searching the vehicle, they found several hypodermic syringes and plastic baggies containing methamphetamine inside a soda container that defendant had been holding. It was stipulated at the plea hearing that the baggies contained 3.38 grams of methamphetamine.

Defendant was charged with possession of methamphetamine with the intent to manufacture, transportation of methamphetamine, and unlawful possession of a weapon. Defendant was further charged with possession of a hypodermic needle and syringe and possession of not more than 28.5 grams of marijuana. The district attorney also alleged numerous prior convictions.

As noted, pursuant to a plea agreement, defendant pled no contest to transporting methamphetamine and admitted one prior conviction in exchange for a six-year “lid.” The trial court apprised defendant that the six-year lid would “stand” if he was accepted into CRC. The court then said that if defendant was not accepted into CRC “he could ask for something less,” but could still receive up to six years in state prison. The court instructed defendant that it was “not promising that [he would] be sent to [CRC] instead of prison,” but the court was “going to consider that.” The People agreed to dismiss the other counts pursuant to this “lid” agreement.

At his sentencing hearing, in response to the probation report recommendation, defendant requested probation as an “alternative sentence.” Defense counsel argued that Proposition 36 required “that [defendant] be given probation for the offenses he has admitted to, and as an alternative to the recommendation of the probation report, he requests a county jail commitment of one year.” Counsel argued that the methamphetamine was clearly for personal use since it was in two bags, one for defendant and one for the driver of the vehicle. Counsel went on to assert that “[i]f the Court is not comfortable with [probation],” defendant would “give a Johnson waiver as to some of his time” in order to stay at a drug rehabilitation program in the county jail.

At the sentencing hearing, defense counsel stated that defendant was “willing to accept CRC if the court [denied] his request for probation,” but requested a residential treatment program as an alternative. The court denied defendant’s request, sentencing him to three years for transportation of methamphetamine and a consecutive term of three years for his prior conviction. The court then found that defendant was addicted to methamphetamine and committed him to CRC, suspending execution of the prison sentence.

Defendant filed a timely notice of appeal. The trial court denied his request for a certificate of probable cause. The People filed a motion to dismiss the appeal on that basis, but we denied that motion.

DISCUSSION

Defendant contends the trial court lacked the authority to deny his request for probation. He claims he was entitled to probation under Proposition 36 because the methamphetamine he transported was for personal use, and nothing in the record refutes that fact.

Despite this court’s previous denial of their motion to dismiss the appeal, the People contend we cannot reach the merits of this case because defendant failed to obtain a certificate of probable cause. Upon further consideration, we agree.

Generally, a defendant who has entered a plea of guilty or no contest must obtain a certificate of probable cause from the trial court to appeal. (Pen. Code, § 1237.5.) There is an exception, however, when the grounds for appeal “arose after entry of the plea and do not affect the plea’s validity.” (Cal. Rules of Court, rule 30(b)(4)(B).) “Hence, the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea.” (People v. Panizzon (1996) 13 Cal.4th 68, 76.)

In People v. Shelton (2006) 37 Cal.4th 759, 763, our Supreme Court recently concluded that where a defendant enters into “a negotiated plea agreement that includes a sentence ‘lid’ constraining the maximum sentence that the trial court may impose,” the “inclusion of a sentence lid implies a mutual understanding and agreement that the trial court has authority to impose the specified maximum sentence and preserves only the defendant’s right to urge that the trial court should or must exercise its discretion in favor of a shorter term. Accordingly, a challenge to the trial court’s authority to impose the lid sentence is a challenge to the validity of the plea requiring a certificate of probable cause.”

In Shelton, the defendant agreed to plead no contest to one count of stalking and one count of making a criminal threat, with a sentence lid of three years and eight months and the right to “‘argue for something less.’” (People v. Shelton, supra, 37 Cal.4th at pp. 763-764.) Despite his agreement to this lid, which could be reached only by sentencing him on both charges consecutively, the defendant argued that “the multiple punishment prohibition of Penal Code section 654 applied to the two counts to which [he] had pleaded no contest” and that the eight-month consecutive sentence for the charge of making a criminal threat had to be stayed. (Id. at pp. 764-765.) Our Supreme Court concluded that “[b]ecause the plea agreement was based on a mutual understanding . . . that the court had the authority to impose the lid sentence, [the] defendant’s contention that the lid sentence violated the multiple punishment prohibition of Penal Code section 654 was in substance a challenge to the plea’s validity and thus required a certificate of probable cause.” (Id. at pp. 769.)

Although the facts of this case are different from those in Shelton, the result is the same. Here, defendant agreed to plead no contest to transporting methamphetamine and admit one prior conviction in exchange for a six-year “lid,” although “he could ask for something less.” This agreement, like the one in Shelton, was necessarily based on a mutual understanding that the trial court had the authority to impose the lid sentence. Accordingly, defendant’s contention on appeal that the lid sentence (or any disposition other than probation) was barred by Proposition 36 is in substance a challenge to the plea’s validity, which required a certificate of probable cause.

In opposing the motion to dismiss, defendant attempted to distinguish Shelton by arguing that “a possibility of probation was an element of [his plea] agreement.” That may be true, but the most the agreement contemplated was defendant’s right to ask the trial court to grant him probation in its discretion. Given that defendant agreed the trial court could sentence him to up to six years in prison, there is no way the plea agreement can be reasonably interpreted as allowing defendant to insist on probation as a matter of right, which is what he is trying to do in this appeal.

In short, this case is governed by Shelton, and the appeal must be dismissed because of defendant’s failure to obtain a certificate of probable cause.

DISPOSITION

The appeal is dismissed.

ROBIE , J.

We concur:

DAVIS , Acting P.J.

NICHOLSON , J.

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