P. v. Floyd

Filed 5/31/07 P. v. Floyd 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Glenn)

----

Defendant Nancy Louise Floyd entered a negotiated plea to possession of methamphetamine (Health & Saf. Code,  11377, subd. (a)) and driving when her driving privilege was suspended or revoked. (Veh. Code,  14601.2, subd. (a).) She admitted a prior 2003 conviction of Vehicle Code section 14601. Her plea was in exchange for the dismissal of a charge of transportation of methamphetamine (Health & Saf. Code,  11379, subd. (a)), a charge of flight from a peace officer (Veh. Code,  2800.1, subd. (a)), and two enhancement allegations of a prior prison term attached to the methamphetamine charges. (Pen. Code,  667.5, subd. (b).) The trial court sentenced defendant to the upper term of three years in state prison for her possession of methamphetamine conviction and imposed a 30-day concurrent sentence for her driving on a suspended license conviction. Defendant did not seek, nor was she granted, a certificate of probable cause.

Defendants sole contention on appeal is that the trial court erred in imposing the upper term sentence in light of Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely). Defendant did not file any supplemental brief in response to our order allowing such briefing regarding Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856] (Cunningham).

We reject defendants contention of Blakely/Cunningham error because her plea agreement did not preserve for sentencing and appeal the Blakely/Cunningham issue and defendant failed to obtain a certificate of probable cause. Even if we were able to reach the issue, we would conclude defendants claim is meritless. We shall dismiss the appeal.

STATEMENT OF FACTS

As defendant entered a guilty plea to the charges, we briefly summarize the underlying facts from defendants probation report.

On October 7, 2005, Glenn County Sheriffs Sergeant Todd James was assisting another deputy in the investigation of a residential burglary in a rural part of the county. During the investigation, James noticed a suspicious vehicle. When he attempted to make a vehicle stop, the vehicle accelerated to approximately 60 miles per hour and would not stop. James activated his spotlight, pointing it toward the drivers side mirror. As the vehicle slowed down, James observed the driver, later identified as defendant, throw something out the window. Following the stop, the vehicle was searched and a container with two plastic baggies inside was located. Both baggies were determined to contain methamphetamine.

DISCUSSION

Defendant contends the trial courts imposition of the upper term sentence violated the rule set forth in Blakely, supra, 542 U.S. 296 [159 L.Ed.2d 403].

In Blakely, the United States Supreme Court reiterated its holding in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 455] (Apprendi) that, [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Blakely, supra, 542 U.S. at p. 301 [159 L.Ed.2d at p. 412].) The statutory maximum is the greatest sentence the court can impose based on facts reflected in the jurys verdict or admitted by the defendant. (Id. at p. 303 [159 L.Ed.2d at p. 413].)

The contention that the procedure for determining upper term sentences violates the rule of Apprendi and Blakely was rejected by the California Supreme Court in People v. Black (2005) 35 Cal.4th 1238, 1244. Black was controlling at the time of defendants plea, sentencing, and appellate briefing. However, Blacksholding that the judicial factfinding necessary to impose an upper term does not violate Blakely was recently overruled by the United States Supreme Court. (Cunningham, supra, 549 U.S. ___, ___ [166 L.Ed.2d 856, 864].)

Nevertheless, we do not reach defendants claim of Blakely/Cunningham error because defendants plea agreement did not preserve the issue for sentencing and appeal, and defendant failed to obtain a certificate of probable cause.

When a defendant enters a plea of guilty or no contest, she may not challenge the validity of the plea on appeal unless she 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. 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, fn. omitted.) Without a certificate of probable cause, the appeal [had to be] dismissed. (Ibid.)

Here, defendants written plea agreement recognized the possession of methamphetamine violation carried a possible maximum sentence of three years. Although the possible three year upper term was not discussed at the entry-of-plea hearing and the record does not describe it as a sentence lid, defendant signed the written plea agreement, which stated she wished to plead guilty to the charges and admit the prior convictions, special allegations and enhancements listed below, which carry the maximum penalties set out below. The charge of possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a), was listed below this statement, along with the statutory range of 16 months, two years or three years as the possible prison sentence. It is clear from this record defendant agreed to the range of possible sentences, including the upper three year term, when she entered the negotiated agreement to plead guilty to the two specified counts in exchange for dismissal of the other counts and the enhancement allegations. In effect, it was a negotiated maximum sentence by virtue of the negotiated plea bargain.

At the sentencing hearing, defense counsel argued for a grant of probation, but did not argue the court did not have the authority to impose the upper term, which the probation department had recommended for her methamphetamine conviction, absent jury findings that one or more aggravating factors existed. At the time of defendants plea and sentencing both Blakely and Black had been decided. The United States Supreme Court had also already granted certiorari in Cunningham. (People v. Cunningham (Apr. 18, 2005, A103501) [nonpub. opn.], cert. granted sub nom. Cunningham v. California, Feb. 21, 2006, No. 05-6551, 546 U.S. 1169 [164 L.Ed.2d 47].) The issue was clearly pending and highly debated. Nevertheless there was no mention of the issue before the trial court. There is simply nothing in the record suggesting the parties preserved, 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). (People v. Bobbit, supra, 138 Cal.App.4th at p. 448, fn. omitted.) Defendant did not obtain a certificate of probable cause. Therefore, her appeal must be dismissed.^[1]

DISPOSITION

The appeal is dismissed.

CANTIL-SAKAUYE , J.

We concur:

DAVIS, Acting P.J.

HULL, J.

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^[1]We note that even if we reached defendants claim, we would reject it as meritless. The sole reason the trial court gave for imposing the upper term was defendants prior prison term. (Cal. Rules of Court, rule 4.421(b)(3).) The rule of Apprendi, Blakely, and Cunningham does not apply to a prior conviction used to increase the penalty for a crime. The finding that defendant served a prior prison term is analogous to the fact of a prior conviction. As with a prior conviction, any Sixth Amendment concerns are mitigated by the procedural safeguards attached to such a finding, which can be established by a review of court records. Imposition of the upper term did not violate the rule of Apprendi and Blakely.