P. v. Gurnsey

Filed 7/17/07 P. v. Gurnsey 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Butte)

----

Defendant Joseph Lee Gurnsey entered a negotiated plea of no contest to driving under the influence causing injury, a felony, and admitted a prior strike in exchange for dismissal of one remaining count and three additional prior strike allegations against him. Imposing the upper term, the trial court sentenced defendant to six years in state prison.

On appeal, defendant contends imposition of the upper term violated his Sixth and Fourteenth Amendment rights under Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). As defendant failed to obtain a certificate of probable cause we shall dismiss the appeal; in any event, defendants claim on appeal lacks merit.

FACTUAL AND PROCEDURAL BACKGROUND^[1]

While driving with a blood-alcohol content of .24 percent, defendant crossed into oncoming traffic and struck another vehicle head-on causing serious injuries to its passenger.

Defendant was charged with driving under the influence causing injury (Veh. Code,  23153, subd. (a) - count 1), and driving with a .08 percent blood-alcohol content causing injury (Veh. Code, 23153, subd. (b) - count 2), both felonies. As to both counts, it was also alleged that defendant suffered four prior strike convictions within the meaning of Penal Code sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i).

Defendant entered a negotiated plea of no contest to count 1 and admitted one of the four prior strikes in exchange for dismissal of count 2 and the remaining three strike priors with a Harvey^[2] waiver. The plea form executed by the defendant reflects, among other things, his understanding that he could be ordered to serve the maximum prison sentence under the plea of six years.

At sentencing, the court imposed the upper term of six years, reasoning as follows: The Court finds that to be the appropriate term, because the circumstances in aggravation outweigh those in mitigation, as indicated by the following circumstances, which the Court finds to have been proven by a preponderance of the evidence: defendants priors are numerous, he has served two prior prison terms, he was on parole at the time of the crime, and his prior performance on probation and parole was unsatisfactory. [] In mitigation, I will find that he acknowledged guilt early on and that he is suffering from a condition that does not amount to a defense, but on balance, I found that the factors in aggravation outweigh those in mitigation. Therefore, the appropriate term is the upper term, which is six years.

Defendant filed a timely notice of appeal. He did not obtain a certificate of probable cause. (Pen. Code,  1237.5.)

DISCUSSION

As his sole contention on appeal, defendant claims the trial courts imposition of the upper term denied him his constitutional right to have a jury determine factors in aggravation, other than prior convictions, beyond a reasonable doubt.

The People argue (1) defendants failure to obtain a certificate of probable cause requires dismissal of his appeal, (2) defendants failure to object at trial forfeits the claim on appeal, (3) the recidivism exception to Cunningham applies, and (4) if there was any Cunningham error, it was harmless. We agree that his appeal, which incidentally fails on the merits, must be dismissed for failure to obtain a certificate of probable cause.

I. Failure to Obtain A Certificate of Probable Cause

Defendant did not obtain a certificate of probable cause, but contends one was not necessary because the trial court could not lawfully impose the maximum term and the sentence was therefore unconstitutional. As we read it, defendants argument is premised on the assertion that the maximum sentence, which was merely noted in the record as a maximum possible sentence (and one that, if legal, was the maximum possible that could have been imposed in any case), was not part of the plea bargain. We disagree.

Generally, a defendant who has entered a plea of guilty or no contest must obtain a certificate of probable cause from the trial court to appeal. (Pen. Code,  1237.5.) There is an exception, however, when the grounds for appeal arose after entry of the plea and do not affect the pleas validity. (Cal. Rules of Court, rule 30(b)(4)(B).) Hence, the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea. (People v. Panizzon (1996) 13 Cal.4th 68, 76, italics omitted.)

A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.] The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. (Civ. Code,  1636.) If contractual language is clear and explicit, it governs. (Civ. Code,  1638.) (People v. Shelton (2006) 37 Cal.4th 759, 767 (Shelton).)

Here, defendants plea agreement, as evidenced by the plea form he reviewed with the assistance of counsel and signed, is unambiguous as to the benefit defendant received from his plea agreement or negotiated disposition and to the sentence defendant acknowledged he may be ordered to serve. In exchange for dismissal with a Harvey waiver of counts 2 and 3 of his four prior strikes, defendant pled no contest to count 1 and admitted the remaining strike. In doing so, he also agreed as follows: I understand that I may serve this maximum sentence as a result of my plea: 6 years in state prison . . . . That maximum, consisting of the upper term of three years doubled for the prior strike, was part of the bargain struck by the defendant who, in the absence of such an accord, faced as much as 25 years to life given his additional strikes. While the six-year prison term was not labeled a lid, it was the maximum the defendant could face under the charges contained in the plea agreement and was thus a negotiated maximum sentence. Defendant entered the plea agreement with the understanding that he could be sentenced to prison for six years.

[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. (People v. Bobbit (2006) 138 Cal.App.4th 445, 447, quoting Shelton, supra, 37 Cal.4th at p. 768.) Accordingly, a challenge to the trial courts authority to impose the lid sentence is a challenge to the validity of the plea requiring a certificate of probable cause. (Shelton, supra, at p. 763.)

Because the plea agreement here was based on a mutual understanding (as determined according to principles of contract interpretation) that in exchange for dismissal of count 2 and the three prior strikes, the court could order defendant to serve the maximum six-year term, as recognized by defendant on his written plea form, defendants contention that the maximum sentence violated Blakely and Cunningham is in substance a challenge to the pleas validity. As such, a certificate of probable cause, which defendant failed to secure, is required. (Shelton, supra, 37 Cal.4th at p. 763.) And like the defendant in Shelton, this defendant did not reserve, either expressly or impliedly, a right to challenge the trial courts authority to impose the lid sentence. (Shelton, supra, at pp. 768-769.) Without such a reservation of right, and absent a certificate of probable cause, we cannot entertain his sentence challenge, the sole issue raised on appeal, and must therefore dismiss the appeal. (Ibid.) Even if we were to address defendants claim on appeal, it would fail.

II. Forfeiture of Claim on Appeal

Preliminarily, the People assert that defendant forfeited his claim because he did not raise it in the trial court. We disagree. Defendant was sentenced on July 5, 2006. Before that, on June 20, 2005, our Supreme Court had decided Black, supra, 35 Cal.4th 1238, which held that a defendant does not have a right to have a jury determine aggravating factors used to impose the upper term. (Id. at p. 1244.) Because Black was controlling law at the time of defendants sentencing, he was not required to make a futile objection at that time. It is pointless to require a defendant to ask a trial court to overrule a decision of the California Supreme Court. (Moradi-Shalal v. Firemans Fund Ins. Companies (1988) 46 Cal.3d 287, 292, fn. 1.)

III. Recidivism Exception to Sixth Amendment Right to Jury Trial

As to defendants claim on appeal, he could not prevail. Applying the Sixth Amendment to the federal Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Id. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jurys verdict or admitted by the defendant; thus, when a sentencing courts authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. at pp. 302-304 [159 L.Ed.2d at pp. 413-414].)

Accordingly, in Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d at p. 864], the United States Supreme Court held that by assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence, Californias determinate sentencing law violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (Ibid., overruling on this point People v. Black (2005) 35 Cal.4th 1238 (Black), vacated in Black v. California (Feb. 20, 2007) ___ U.S. ___ [127 S.Ct. 1210; 167 L.Ed.2d 36; 2007 U.S. LEXIS 1856].) Thus, except for a prior conviction, any fact that increases the penalty for a crime beyond the middle term must be tried to the jury and proved beyond a reasonable doubt.

As pointed out in Apprendi, Blakely, and Cunningham, the Sixth Amendment jury-trial guarantee does not apply to prior convictions that are used to impose greater punishment. (See, e.g., Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864].)

The reasons underlying the exemption of prior convictions are as follows: (1) the fact of a prior conviction does not relate to the commission of the offense for which the defendant is being sentenced (Apprendi, supra, 530 U.S. at p. 496 [147 L.Ed.2d at p. 458]), and (2) the certainty that procedural safeguards attached to any fact of prior conviction . . . mitigate[s] the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a fact increasing punishment beyond the maximum of the statutory range. (Id. at p. 488 [147 L.Ed.2d at p. 454, fn. omitted.) It follows that the exception applies not only to the fact of a prior conviction, but also to an issue of recidivism which enhances a sentence and is unrelated to an element of a crime. (People v. Thomas (2001) 91 Cal.App.4th 212, 223.) Therefore, the fact of a prior conviction, and related facts . . . may be judicially found at sentencing. (United States v. Cordero (5th Cir. 2006) 465 F.3d 626, 632-633, fns. omitted.) For instance, the trial court may determine and rely on the defendants probation or parole status to impose the upper term. (Cf. United States v. Fagans (2d Cir. 2005) 406 F.3d 138, 141-142; United States v. Corchado (10th Cir. 2005) 427 F.3d 815, 820 [the prior conviction exception extends to subsidiary findings such as whether a defendant was under court supervision when he or she committed a subsequent crime].)

Here, it was proper for the trial court to impose the upper term based on defendants prior convictions, as well as the fact that he was on parole at the time of the crime (United States v. Corchado, supra, 427 F.3d at p. 820) and the fact that he served two prior prison terms (People v. Thomas (2001) 91 Cal.App.4th 212, 223), all of which are aggravating factors that did not have to be submitted to a jury. Moreover, in light of defendants Harvey waiver wherein he stipulated that the sentencing judge may consider my prior criminal history and the entire factual background of the case, we find no error. Although the fact of defendants unsatisfactory prior performance on probation may require a factual finding by a jury beyond a reasonable doubt, the courts consideration of that factor was harmless in light of the other factors considered because one valid aggravating factor is sufficient to expose defendant to the upper term. (People v. Cruz (1995) 38 Cal.App.4th 427, 433.)

We conclude there was no sentencing error.

DISPOSITION

The appeal is dismissed.

CANTIL-SAKAUYE , J.

I concur:

BLEASE , Acting P.J.

I concur in the result:

RAYE , J.

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^[1] The facts of the underlying offense are not at issue in this appeal and, given defendants plea and stipulation to a factual basis, they are briefly summarized from the probation report.

^[2]People v. Harvey (1979) 25 Cal.3d 754 (Harvey).