P. v. Mercado

Filed 6/18/07 P. v. Mercado CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

Wade Olson, Judge. Dismissed.

William Flenniken, Jr., P.C., under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, John R. Gorey and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.

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Jose Mercado pled guilty to one count of possession of a controlled substance in violation of Health and Safety Code section 11377 and two misdemeanor violations and admitted that he had served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). In exchange for his plea, appellant was sentenced to the upper term of three years on the possession conviction, plus two one-year enhancements pursuant to section 667.5. Execution of sentence was suspended and appellant was placed on probation for a period of three years. He was subsequently found to have violated the terms of his probation. The trial court imposed the original sentence.

Appellant appeals from the judgment of conviction, contending that the imposition of the upper term violates his federal constitutional rights as set forth in Cunningham v. California (2007) ___ U.S. ___, and further contending that the trial court erred in failing to award him presentence credit. Appellant did not obtain a certificate of probable cause from the trial court. We dismiss the appeal.

Discussion

1. Upper term

Appellant pled guilty to the charged offenses in exchange for a suspended sentence of five years in prison and a grant of probation. The five year term included the upper term of three years for the Health and Safety section 11377 conviction. Appellant violated his probation and the suspension of sentence was lifted. Appellant now contends that the imposition of the upper term for the felony conviction violates his rights to under the Sixth Amendment as set forth in Cunningham v. California, supra. We do not consider appellant's claim because he failed to obtain a certificate of probable cause from the trial court.

"[N]o appeal may be taken by a defendant from a judgment of conviction upon a plea of guilty or nolo contendere except where a certificate of probable cause is filed unless the appeal deals with search and seizure issues, or is based on grounds 'occurring after the entry of the plea which do not challenge its validity.' [Citation.]" (People v. Young (2000) 77 Cal.App.4th 827, 829.)

It is well settled that "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." (People v. Panizzon (1996) 13 Cal.4th 68, 79.) Thus, a defendant is required to obtain a certificate of probable cause to attack a negotiated sentence on appeal. (Ibid.)

Our colleagues in the Third District Court of Appeal have found that the certificate of probable cause requirement applies to challenges pursuant to Blakely v. Washington (2004) 542 U.S. 296 to an upper term imposed pursuant to a plea bargain. (People v. Bobbit (2006) 138 Cal.App.4th 445, 447-448.) We agree with the reasoning of Bobbitt, and believe that the reasoning applies equally to such challenges under Cunningham.

Appellant contends that it is fundamentally unfair and denies him due process to require a certificate of probable cause because Cunningham was decided after the time for obtaining a certificate of probable cause had expired. Cunningham's predecessor, Blakely v. Washington, supra, was decided in 2004, well before appellant pled guilty in this case in 2006. Appellant could have relied on that case to make his claim.

To the extent that appellant contends that he may challenge this sentence on appeal because it is an unauthorized sentence which the trial court lacked jurisdiction to impose, appellant is mistaken. "Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process." (People v. Hester (2000) 22 Cal.4th 290, 295 original italics.) A true lack of fundamental jurisdiction occurs when the trial court was entirely without power over the subject matter of the parties. (In re Harris (1993) 5 Cal.4th 813, 836.) There is no lack of fundamental jurisdiction here.

Disposition

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

I concur:

TURNER, P. J.

MOSK, J., Concurring

I concur.

There was a negotiated plea for a specified sentence. Defendant specifically waived his right to a jury trial as part of the negotiated plea. Defendant did not seek a certificate of probable cause. For these reasons, I concur in the dismissal.

MOSK, J.

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