P. v. Petkus

Filed 9/18/07 P. v. Petkus 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Butte)

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Defendant, Victor Adam Petkus, appeals his sentence, claiming the court erred when it imposed the upper term on the principal count without submitting the aggravating facts to a jury under Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). Despite defense counsels argument at sentencing that the aggravating factors must be submitted to a jury, we find that under the terms of his written plea agreement, defendant waived his right to raise a Cunningham claim on appeal and even if he had not, his appeal fails pursuant to the recent California Supreme Court decision in People v. Black (2007) 41 Cal.4th 799 (Black II).

Defendant pled no contest to violation of Health and Safety Code section 11358 (cultivating marijuana), and admitted one prior prison term pursuant to Penal Code section 667.5, subdivision (b). In exchange for defendants plea, the prosecutor dismissed a strike and agreed to a maximum sentence of four years in state prison.

The terms of defendants written plea agreement include paragraph Nos. 4 and 29 on the Butte County standardized form PLEA OF GUILTY OR NO CONTEST (FELONY). Paragraph No. 4 states: I STIPULATE THERE IS A FACTUAL BASIS FOR MY PLEA(S) [AND ADMISSION(S)] AND I FURTHER STIPULATE THE COURT MAY TAKE FACTS FROM PROBATION REPORTS, POLICE REPORTS OR OTHER SOURCES AS DEEMED NECESSARY TO ESTABLISH THE FACTUAL BASIS.

Paragraph No. 29 states: (HARVEY WAIVER) I STIPULATE THE SENTENCING JUDGE MAY CONSIDER MY PRIOR CRIMINAL HISTORY AND THE ENTIRE FACTUAL BACKGROUND OF THE CASE, INCLUDING ANY UNFILED, DISMISSED OR STRICKEN CHARGES OR ALLEGATIONS OR CASES WHEN GRANTING PROBATION, ORDERING RESTITUTION OR IMPOSING SENTENCE.

Represented by counsel, defendant initialed these paragraphs indicating he understood them and admitted as much to the trial court during the plea. These stipulations grant the trial court broad authority to consider and review all of the defendants contacts with the criminal justice system in imposing sentence. Read together, we interpret these paragraphs to constitute a waiver of defendants right to raise a Cunningham claim on appeal.

Even assuming defendant had not waived his right to raise a Cunningham claim on appeal, his appeal nevertheless fails on the merits. In Black II, our Supreme Court reaffirmed the right to a jury trial does not apply to recidivist facts, such as prior prison terms and numerous convictions. (Black II, supra, 41 Cal.4th at pp. 816-821.) The Supreme Court also held that as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. (Id. at p. 812, original italics.)

Here, defendant admits that, among other facts, the court relied on defendants prior prison terms, as well as the fact that defendants priors are numerous, in imposing the upper term. The trial court did not err in imposing the upper term based on these recidivist factors, regardless of any additional factfinding in which the court may have engaged.^[1] (See Black II, supra, 41 Cal.4th at p. 812.)

DISPOSITION

The judgment and sentence are affirmed.

CANTIL-SAKAUYE , J.

We concur:

SCOTLAND, P.J.

DAVIS , J.

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^[1]Because we affirm the sentence, we need not address the parties further arguments regarding harmless error and double jeopardy.