P. v. Videgain
Filed 6/25/07 P. v. Videgain CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. GREGG THEODORE VIDEGAIN, Defendant and Appellant. | F047240 (Super. Ct. No. MCR14821) OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Madera County. John W. DeGroot, Judge.
Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
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The trial court found Gregg Theodore Videgain (Appellant) violated the terms of his probation and sentenced him to five years in state prison for transporting methamphetamine with a prior prison term enhancement. After the United States Supreme Court vacated this courts original March 7, 2006, opinion following its decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), Appellant reasserts his earlier contention that the trial court unconstitutionally imposed an upper term prison sentence without submitting the aggravating factors to a jury. We will again affirm the disposition.
BACKGROUND
On July 8, 2003, Appellant pled no contest to transporting methamphetamine and admitted a prior prison term enhancement. (Health & Saf. Code, 11379, subd. (a); Pen. Code, 667.5, subd. (b).) Before entering his plea, Appellant acknowledged his understanding he could be sentenced up to five years in state prison and that he was eligible for felony probation with outpatient drug treatment under Proposition 36. The trial court dismissed two additional counts of illegal possession of methamphetamine and marijuana. (Health & Saf. Code, 11377, subd. (a), 11357, subd. (b).)
On September 16, 2003, the trial court suspended imposition of sentence and placed Appellant on drug treatment probation for three years. Appellant understood that if he violated the terms of his probation, he could be subjecting [him]self to the balance of 5 years in State Prison[.]
The next month, the Madera County Probation Department petitioned the trial court alleging Appellant was away from his residence for more than 24 hours without prior notice, failed to report in with his probation officer, and did not begin his scheduled drug treatment program. According to the petition, Appellant never lived at the address he provided authorities.
Over a year later, on November 3, 2004, Appellant appeared before the trial court on a bench warrant and the court appointed the public defender to represent him. On December 16, 2004, Appellant expressed his dissatisfaction with his defense counsel. The trial court conducted a hearing into defense counsels representation and denied Appellants claim. The trial court found Appellant violated probation by being away from his residence for more than 24 hours without notifying the probation department, failed to report monthly, and never started his drug treatment program. On January 14, 2005, the trial court sentenced Appellant to the upper term of four years for transporting methamphetamine plus an additional year for the prior prison term enhancement.
Appellant appealed to this court, contending the trial court (1) failed to make a sufficient inquiry into the adequacy of his defense counsel, (2) erred in imposing the upper term for transporting methamphetamine, and (3) incorrectly imposed two restitution fines and a laboratory analysis fee twice. In an opinion filed March 7, 2006, we concluded the trial court conducted an adequate hearing into his defense counsels representation pursuant to People v. Marsden (1970) 2 Cal.3d 118 and that there was no sentencing error under the California Supreme Courts decision in People v. Black (2005) 35 Cal.4th 1238. We also instructed the trial court to amend the abstract of judgment to clarify that the trial court imposed the fines and fee only once.
Appellant petitioned our Supreme Court for review. On May 10, 2006, the Supreme Court denied the petition without prejudice to any relief to which defendant might be entitled after the United States Supreme Court addresses the issue of Californias sentencing laws. On February 20, 2007, after concluding the application of Californias sentencing scheme was unconstitutional in Cunningham v. California, supra, 549 U.S. __ [127 S.Ct. 856], the United State Supreme Court granted Appellants writ of certiorari, vacated our March 7, 2006, opinion, and remanded the matter to this court.[1]
DISCUSSION
The United States Supreme Court recently held in Cunningham that Californias procedures for selecting an upper term prison sentence violate a defendants Sixth and Fourteenth Amendment right to a jury trial by assign[ing] to the trial judge, not the jury, authority to find the facts that expose a defendant to an elevated upper term sentence. (Cunningham, supra, 127 S.Ct. at p. 860.) The Supreme Court explained, the Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. (Ibid., citing United States v. Booker (2005) 543 U.S. 220; Blakely v. Washington (2004) 542 U.S. 296; Ring v. Arizona (2002) 536 U.S. 584; Apprendi v. New Jersey(2000) 530 U.S. 466.)
At Appellants sentencing hearing, the trial court and counsel discussed the plea agreement and recalled Appellant agreed to a five year exposure to state prison. The trial court then indicated it read and considered Appellants probation report, which listed 16 prior convictions and 5 violations of probation. The court proceeded in ordering Appellant to serve a four-year upper prison term for transporting methamphetamine plus an additional year for his admitted prior prison term. The court explained:
The Courts reasons for selecting the aggravated term are that the defendants prior convictions are numerous. He has served prior prison terms. His prior performance on probation and parole has been unsatisfactory as evidenced by receiving new law violations while serving on probation and parole and violations of probation and parole. Really nothing by way of mitigation.
In raising his constitutional challenge to the imposed sentence, Appellant overlooks the fact that he entered into a negotiated plea in exchange for receiving Proposition 36 probation and the dismissal of two additional counts of illegal possession of methamphetamine and marijuana. The agreement expressly provided that if Appellants probation was revoked for any reason, the sentences for the admitted offense and prior prison term enhancement would be between four and five years.
A defendant may appeal from a judgment based upon a plea of guilty or no contest only if the trial court issues a certificate of probable cause, unless the appeal is based on search and seizure issues or grounds occurring after entry of the plea that do not challenge its validity. (Pen. Code, 1237.5;[2]Cal. Rules of Court, rule 8.304(b); People v. Young (2000) 77 Cal.App.4th 827, 829.) The probable cause certificate requirement is intended to weed out frivolous or vexatious appeals following pleas of guilty or no contest. (People v. McEwan (2007) 147 Cal.App.4th 173, 179.)
People v. Bobbit (2006) 138 Cal.App.4th 445, 447-448, held a certificate of probable cause is required before an appellate court may address the jury trial issue under Cunningham. Appellant has not obtained a certificate of probable cause or offered any explanation why it should not be required here, even after the issue was raised by the Attorney General. Appellant therefore is precluded from challenging the sentence on appeal.
Even if Appellants challenge is properly before this court, Cunningham does not prohibit Appellants upper term sentence for transporting methamphetamine. By entering into the plea agreement, Appellant effectively stipulated to a factual basis for imposing the maximum prison term that could be imposed under the plea agreement and that imposition of the agreed upon upper limit was lawful. (People v. Shelton(2006) 37 Cal.4th 759, 768.) The statutory maximum includes the maximum sentence a judge may impose based on facts admitted by the defendant. (Blakely, supra, 542 U.S. at p. 303.) Moreover, the trial court acted within the constitutional limits set forth in Cunningham by relying exclusively on three recidivist factors in imposing the upper term for transporting methamphetamine: Appellants numerous prior convictions, his prior prison terms, and his new violations while on probation and parole. Even if, as Appellant contends, the trial court was not permitted to consider his poor performance on parole and probation, only a single aggravating factor is required to impose the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728). Regardless, it is clear from the trial courts comments that it selected the upper term because of Appellants numerous criminal convictions.
In conclusion, Appellant is precluded from challenging his sentence on appeal because he failed to obtain a certificate of probable cause. Alternatively, the sentence imposed is within the maximum specified under the plea arrangement and was agreed to by Appellant. Further, the sentence does not violate Cunningham because the trial court permissibly relied on recidivist factors in imposing the upper term. Appellant fails to demonstrate his upper term sentence is unconstitutional.
DISPOSITION
The judgment is affirmed.
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*Before Vartabedian, Acting P.J., Wiseman, J., and Cornell, J.
[1] Although not reasserted by Appellant in the current proceedings, we again concluded the trial court conducted an adequate hearing into his defense counsels representation for the reasons stated in our vacated March 7, 2006 opinion. Appellants remaining additional issue raised in his original appeal regarding the listing of the fines and fee in the abstract of judgment was corrected by the trial court on March 9, 2006.
[2] Penal Code section 1237.5 provides: No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.