P. v. Butler

Filed 6/20/07 P. v. Butler 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, David M. Szumowski, Judge. Affirmed.

On August 4, 2000, Stephon Butler entered a negotiated guilty plea to possessing a controlled substance (Health & Saf. Code,  11350, subd. (a)) and admitted serving two prior prison terms. (Pen. Code,  667.5, subd. (b), 668). The court sentenced him to five years in prison: the three-year upper term for possessing a controlled substance enhanced by two one-year terms for the prior prison terms. It suspended execution of sentence pursuant to Welfare & Institutions Code section 3051 and committed him to the California Rehabilitation Center (CRC). On July 6, 2006, CRC returned Butler to the court, finding him unfit for further CRC treatment. The court lifted suspension of the sentence imposed in 2000. It granted him 1,361 days' credit for time served: 1,207 actual days and 154 days conduct credit. (Pen. Code,  2933.1.) The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 30(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 June 14, 2000, Butler threw .19 grams of cocaine base out the window of a car that had been stopped by police. The cocaine base hit an officer. Butler had served a prison term commencing in 1992 for selling a controlled substance, a prison term commencing in 1996 for possessing a controlled substance, and a prison term commencing in 1998 for transporting a controlled substance. Because Butler entered guilty pleas, he cannot challenge the facts underlying the conviction. (Pen. Code,  1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.) We need not recite the facts in greater detail.

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 a possible but not arguable issue whether the trial court erred in denying conduct credit for the period of time he was committed to CRC.

We granted Butler permission to file a brief on his own behalf. He has not responded. We requested additional briefing on the issue of whether the trial court erred in imposing a sentence that included the upper term. (See Cunningham v. California (Jan. 22, 2007) ___ U.S. ___; 127 S.Ct. 856.) In Cunningham, the United States Supreme Court held that a defendant has a right to a jury as to any sentencing factors that may be used to increase his sentence to the upper term. The parties have responded to our request and the People correctly pointed out that absent a certificate of probable cause Butler cannot challenge the constitutionality of the sentence on appeal.^[1]

Absent a certificate of probable cause, a defendant can challenge the validity of a guilty plea on appeal only on the ground that the trial court erred in denying a motion to suppress evidence or that raises "issues regarding proceedings held subsequent to the plea for the purpose of deeming the degree of the crime and the penalty to be imposed." (People v. Buttram (2003) 30 Cal.4th 773, 780; Pen. Code,  1237.5.) In People v. Shelton (2006) 37 Cal.4th 759, 763-764, when the defendant entered negotiated guilty pleas, the parties agreed to a three-year eight-month lid on the sentence. The court sentenced Shelton to three years eight months. (Id. at pp. 764-765.) When Shelton challenged the sentence on appeal on the ground that the sentence violated Penal Code section 664, the California Supreme Court said, "[I]nclusion of a sentencing lid implies a mutual understanding and agreement that the trial court has authority to impose the specified maximum sentence and preserves only the defendant's right to urge that the trial court should or must exercise its discretion in favor of a shorter term. Accordingly, a challenge to the trial court's authority to impose a sentence within the lid is a challenge to the validity of the plea requiring a certificate of probable cause." (Id. at p. 763.)

Here, unlike in Shelton, the plea agreement does not include an agreed lid on the sentence. Discussing the effect of a lid on the sentence, the Supreme Court in People v. Shelton said:

"Thus, the 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." (People v. Shelton, supra, 37 Cal.4th at p. 768.)

In People v. Young (2000) 77 Cal.App.4th 827, 832, the reviewing court dismissed an appeal that challenged the sentence imposed as cruel and unusual after the defendant entered a negotiated guilty plea and had not obtained a certificate of probable cause. In doing so, the reviewing court said:

"[T]he defendant in this case is attacking the validity of his plea. The prosecution agreed to a maximum sentence of 25 years to life in return for defendant's plea. Yet, defendant now attacks that maximum sentence on the ground that it is cruel and unusual punishment. By arguing that the maximum sentence is unconstitutional, he is arguing that part of his plea bargain is illegal and is thus attacking the validity of the plea. Having failed to obtain a certificate of probable cause, defendant cannot appeal. (See also, People v. Sabados (1984) 160 Cal.App.3d 691, 695-696 . . . [where defendant pleaded guilty to first degree murder with the knowledge that his sentence would be 25 years to life, his claim that the sentence was disproportionate could not be considered on appeal absent a certificate of probable cause because 'his challenge is to the validity of his plea to first degree murder'].)"

Although the plea agreement here did not include a lid, a challenge to the constitutionality of the court's determination regarding aggravating factors is a challenge to the trial court's authority to impose the maximum sentence permissible under the plea agreement. Like in People v. Young, supra, 77 Cal.App.4th 827, the maximum sentence for the crimes admitted was part of the plea agreement and Butler challenges the constitutional validity of the sentence the parties agreed to in the plea agreement. This is a challenge to the validity of the plea agreement and cannot be pursued absent a certificate of probable cause.

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 Butler on this appeal.

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

NARES, J.

AARON, J.

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^[1] The People also point out that Butler's appeal is untimely because he was sentenced in September 2000, that he is estopped from challenging a plea agreement he entered, and that Cunninghamv. California is not retroactive. We need not consider these issues because, absent a certificate of probable cause, we dismiss the claim that the sentence violates Cunningham v. California.