P. v. Price

Filed 4/27/07 P. v. Price CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Joan Comparet-Cassani, Judge. Dismissed.

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

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.

___________________

INTRODUCTION

Defendant Melvin Deonte Price challenges the constitutionality of his negotiated state prison sentence under Blakely v. Washington (2004) 542 U.S. 296. Inasmuch as defendant failed to secure a certificate of probable cause from the trial court following his conviction by way of a plea of no contest, we dismiss his appeal.

BACKGROUND

Defendant sexually molested and threatened two young girls, ages five and nine. In a first amended information, the People charged defendant with two counts of criminal threats (Pen. Code,  422[1]; counts 1 & 3), four counts of forcible lewd and lascivious acts with the body of a victim under the age of 14 ( 288, subd. (b)(1); counts 2, 4, 6 & 8), one count of forcible oral copulation ( 288a, subd. (c)(2); count 5), and one count of kidnapping for the purpose of molesting a child ( 207, subd. (b); count 7). The People further alleged that during the commission of counts 2, 4, 5 and 6, defendant tied or bound the victim ( 667.61, subd. (e)(6)) and that, as to counts 2, 4, 5, 6 and 8, the defendant has been convicted in the instant case of committing an act specified in subdivision (c) of section 667.61 against more than one victim ( 667.61, subd. (e)(5)). Each sentencing enhancement allegation carried the potential for a life sentence.

The People offered to dismiss the kidnapping count and all sentencing enhancement allegations in exchange for defendants agreement to plead guilty or no contest to all other counts and to receive a sentence of 41 years and 4 months in state prison comprised as follows: the upper term of eight years on count 2, consecutive upper term sentences of eight years on counts 4, 5, 6 and 8, plus one-third of the two-year midterm, or eight months, on counts 1 and 3.

Defendant agreed to the proposed plea agreement, waived his constitutional rights, including his right to a jury trial, and pled no contest to counts 1, 2, 3, 4, 5, 6 and 8. The trial court dismissed count 7 and all sentencing enhancement allegations on the motion of the People. The trial court thereafter imposed the agreed upon state prison sentence of 41 years and 4 months.

Following his conviction, defendant filed a notice of appeal and requested a certificate of probable cause. The trial court denied his request.

DISCUSSION

In reliance on Blakely v. Washington, supra, 542 U.S. 296, defendant contends that his Sixth Amendment right to a jury trial was violated when the trial court imposed an upper term sentence without a jury finding on the existence of aggravating facts and without obtaining a jury waiver. Inasmuch as defendants appeal is not operative, we may not reach the merits of this issue.

A certificate of probable cause is required for all contentions challenging the validity of a guilty or no contest plea by appeal. ( 1237.5; Cal. Rules of Court, rule 8.304(b); People v. Shelton (2006) 37 Cal.4th 759, 766; People v. Panizzon (1996) 13 Cal.4th 68, 76.) A challenge to a negotiated sentence imposed in accordance with a plea agreement appropriately is analyzed as a challenge to the validity of the plea. (Shelton, supra, at p. 766; Panizzon, supra, at pp. 73, 79; People v. Carr (2006) 143 Cal.App.4th 786, 793-794.) As such, a certificate of probable cause is required to render the appeal operative. Inasmuch as defendant failed to secure a certificate of probable cause, his appeal is inoperative and must be dismissed. (People v. Mendez (1999) 19 Cal.4th 1084, 1099; People v. McEwan (2007) 147 Cal.App.4th 173, 175.)

Moreover, even if we were to reach the merits of defendants contention, we would conclude that there is no Blakely issue. The California Supreme Court observed years ago that where a defendant waives a jury trial he is deemed to have consented to a trial of all of the issues in the case before the court sitting without a jury. (People v. Berutko (1969) 71 Cal.2d 84, 94.) It follows logically that a defendant who waives his right to a jury trial as a precursor to a no contest plea and in exchange for a specified upper term sentence, waives his right to a jury trial on all issues, including sentencing issues. Thus, in light of defendants waiver of his right to a jury trial and his agreement to the precise sentence imposed, the constitutionality of defendants upper term sentence (Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856]; Blakely v. Washington, supra, 542 U.S. 296) is not an issue in this case. (See generally People v. Hester (2000) 22 Cal.4th 290, 295 [Where the defendants have pleaded guilty in return for a specified sentence, the 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.].)

The appeal is dismissed.

NOT TO BE PUBLISHED

SPENCER, P. J.

We concur:

MALLANO, J.

ROTHSCHILD, J.

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[1] All further statutory references are to the Penal Code.