P. v. Walker

Filed 6/26/07 P. v. Walker CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Timothy R. Walsh, Judge. Affirmed.

Florence A. Walker entered negotiated guilty pleas to two counts of assault with a deadly weapon. (Pen. Code,  245, subd. (a)(1).) She admitted personally using a deadly weapon, (Pen. Code,  1192.7, subd. (c)(23)), a prior strike (Pen. Code,  667 subds. (b)-(i), 1170.12, 668) and a prior serious felony conviction. (Pen. Code,  667,

subd. (a)(1).) Walker initialed a Blakely waiver (Blakely v. Washington (2004) 542 U.S. 296), as part of the plea bargain. The court denied a motion to strike the prior strike (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) and sentenced her to a prison term of 15 years: double the four-year upper term on one count of assault with a deadly weapon with a prior strike, and a consecutive term of two years on the second count (double one third the middle term), enhanced five years for the prior serious felony conviction. At a victim restitution hearing, the court ordered Walker to pay $9,746 victim restitution pursuant to a stipulation. The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).)

FACTS

Viewing the record in the light most favorable to the judgment below (People v. Johnson (1980) 26 Cal.3d 557, 576), the following occurred: On August 11, 2005, Walker grabbed a former co-worker Diana McDaniel while McDaniel exited an elevator at UCSD medical Center. The two began to fight. Walker pulled a hammer from her purse and hit McDaniel in the head with the hammer. Another woman, Ms. Berlinguette, was in the elevator. While she tried to protect an infant, Walker hit her on both arms with the hammer.

Walker has a 1984 conviction of voluntary manslaughter (Pen. Code,  192, subd. (a).)

DISCUSSION

Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende(1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible but not arguable issues: (1) whether Walker's Blakely waiver complies with Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856]; (2) whether the trial court abused its discretion in imposing the upper term; and (3) whether a rational relationship exists between the amount of restitution ordered and the victim's loss.

We granted Walker permission to file a brief on her own behalf. At Walker's request we extended time to file a brief on her own behalf until May 31, 2007, but Walker has not responded. We requested additional briefing from the parties on whether Walker's Blakely waiver was expressed in open court. In their response to our request, the People accurately point out that Walker's Blakely waiver is part of the plea agreement and cannot be challenged on appeal absent a certificate of probable cause. (Pen. Code,  1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1095.)

Relying on People v. Buttram (2003) 30 Cal.4th 773 (Buttram), Walker argues that a certificate of probable cause is not necessary to challenge on appeal imposition of the upper term as a violation of Cunningham v. California, supra, 549 U.S. ___ [127 S.Ct. 856]. In Buttram, the defendant entered a plea bargain which contained a maximum sentence or lid of six years. At the sentencing hearing, the court denied defendant's request for diversion to a drug treatment program and imposed six years in prison. (Id. at p. 776.) Buttram claimed on appeal that the trial court abused its discretion in denying the request. The Supreme Court determined no certificate of probable cause was needed because the substance of the appeal was a challenge to the sentence not a challenge to the guilty plea. (Id. at p. 787.) Here, Walker challenges the Blakely waiver that is part of the plea agreement. This is a challenge to the plea agreement and cannot be pursued without a certificate of probable cause.

In any case, the waiver is valid. A defendant has the right to jury trial on alleged aggravating factors underlying an upper term. (Cunningham v. California, supra, 549 U.S. _____ [127 S.Ct. 856].) Boykin v. Alabama(1968) 395 U.S. 238, 242-243 (Boykin), requires a showing in the record that the defendant has knowingly and voluntarily waived his or her right to a jury trial. The waiver may be accomplished by the use of a form. (In re Ibarra (1983) 34 Cal.3d 277, 285.) The record here includes a form that Walker has signed explicitly allowing the sentencing judge to "determine the existence or

non-existence of any aggravating facts which may be used to increase my sentence . . . above the middle term . . ." The record shows adequate compliance with the Boykin requirements.

A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Walker on this appeal.

DISPOSITION

The judgment is affirmed.

McINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

O'ROURKE, J.

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