P. v. Craft

Filed 4/25/07 P. v. Craft 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Yuba)

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In exchange for a max[imum] exposure [of] 9 years and a promise by the People to dismiss the other charges and not allege[] a prison prior, defendant Richard Douglas Craft pled no contest to possessing ephedrine or pseudoephedrine for the purpose of manufacturing methamphetamine and admitted a prior felony conviction enhancement for manufacturing methamphetamine. The court sentenced him to the upper term of six years for the current drug conviction and a consecutive three years for the enhancement. The court also ordered him to pay a $175 laboratory analysis fine [p]ursuant to Health and Safety Code [section] 11372.5. Defendant did not seek, nor was he granted, a certificate of probable cause.

On appeal, defendant contends the court: (1) erred in imposing the upper term sentence in light of Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856]; and (2) erred in failing to set forth all the fines and fees in the abstract of judgment and in calculating and recording the penalty assessments and surcharges associated with the criminal laboratory analysis fee.

We disagree with his first contention but agree with his second.

DISCUSSION

I

Defendant Cannot Challenge The Trial Courts Authority

To Impose The Upper Term Sentence

Defendant contends the trial courts imposition of the upper term sentence violated the rule set forth in Blakely and Cunningham. We reject his contention because the plea agreement did not preserve for sentencing and appeal the Blakely/Cunningham issue, and defendant failed to obtain a certificate of probable cause.

When a defendant enters a plea of guilty or no contest, he may not challenge the validity of the plea on appeal unless he has sought, and the trial court has issued, a certificate of probable cause showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. (People v. Emery (2006) 140 Cal.App.4th 560, 562; see Pen. Code, 1237.5.)

Defendants contention that imposition of the upper term sentence violated Blakely and Cunningham goes to the validity of the plea itself. As our Supreme Court has explained, [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 and thus requires a certificate of probable cause. (People v. Shelton (2006) 37 Cal.4th 759, 766.) [T]he specification of a maximum sentence or lid in a plea agreement normally implies a mutual understanding of the defendant and the prosecutor that the specified maximum term is one that the trial court may lawfully impose and also a mutual understanding that, absent the agreement for the lid, the trial court might lawfully impose an even longer term. (Id. at p. 768.) Of course, a prosecutor and a defendant may enter into a negotiated disposition that expressly recognizes a dispute or uncertainty about the trial courts authority to impose a specified maximum sentence . . . and preserves the defendants right to raise that issue at sentencing and on appeal. [Citation.] In that situation, the plea agreements validity and enforceability would be unaffected by the ultimate resolution of the disputed issue because each party could be understood to have expressly or impliedly accepted and assumed the risk that the issue would be resolved in the opposing partys favor. (Id. at p. 769.)

This court applied the foregoing reasoning in Shelton to dismiss a defendants appeal where he raised sentencing error under Blakely without preserving the issue and obtaining a certificate of probable cause. (People v. Bobbit (2006) 138 Cal.App.4th 445, 447-448.) There, we examined the language of the plea agreement and found it did not preserve, either at sentencing or on appeal, the issue that the court did not have the authority to impose an upper term sentence in the absence of a jury finding of one or more aggravating circumstance(s). (Id. at p. 448.) Without a certificate of probable cause, the appeal [had to be] dismissed. (Ibid.)

Here, neither the written plea agreement nor the discussion at the entry-of-plea hearing preserved the issue of the courts authority to impose the upper term sentence without a jury finding of aggravating circumstance(s). As the trial court explained to defendant at the entry-of-plea hearing, you could be sentenced to state prison for either two, four or six years and a three-year consecutive term because of the prior meth lab conviction which makes your maximum exposure nine years. Defendant stated he understood. On this record, then, defendant cannot raise alleged error pursuant to Blakely or Cunningham without a certificate of probable cause.

II

The Fines And Fees Must Be Corrected

In The Abstract Of Judgment

Defendant contends the trial court failed to properly break out the statutory fees from the statutory penalty assessments in the abstract of judgment, and requests that we order the abstract corrected. We do so.

All fines and fees must be set forth in the abstract of judgment. (People v. High (2004) 119 Cal.App.4th 1192, 1200.) If the abstract does not specify the amount of each fine, the Department of Corrections [and Rehabilitation] cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency. [Citation.] At a minimum, the inclusion of all fines and fees in the abstract may assist state and local agencies in their collection efforts. (Ibid.)

Here, the abstract of judgment does not reflect the separate penalty assessments and surcharges associated with the criminal laboratory analysis fee. Moreover, the $175 aggregate amount imposed exceeds the statutory maximum by $5. The criminal laboratory analysis fee consists of a $50 base fee (Health & Saf. Code, 11372.5, subd. (a)); a $50 state penalty assessment (Pen. Code, 1464, subd. (a)); a $35 county penalty assessment (Gov. Code, 76000, subd. (a)); a $10 state surcharge (Pen. Code, 1465.7, subd. (a)); and a $25 state court construction penalty (Gov. Code, 70372, subd. (a)). When totaled, this amounts to $170, not $175.^[1]

We will modify the judgment accordingly and direct the trial court to amend the abstract of judgment to show the separate fee, penalty assessments, and surcharges.

DISPOSITION

The judgment is modified to impose an aggregate criminal laboratory analysis fee of $170 under Health and Safety Code section 11372.5, subdivision (a). As modified, the judgment is affirmed.

The trial court is directed to amend the abstract of judgment to separately state the fee, penalty assessments, and surcharges included in that aggregate amount, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

ROBIE , J.

We concur:

RAYE , Acting P.J.

HULL, J.

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^[1] The People note they have obtained a memo issued by the Yuba County Superior Court indicating that some of the penalty assessments in that county are based on other statutes. We disregard the Peoples comment, as it is based on matters outside the record.