P. v. Nychay
Filed 4/25/07 P. v. Nychay 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE PEOPLE, Plaintiff and Respondent, v. PHILLIP NYCHAY, Defendant and Appellant. | D049283 (Super. Ct. No. SCD200316) |
APPEAL from a judgment of the Superior Court of San Diego County, Timothy R. Walsh, Judge. Affirmed.
INTRODUCTION
Phillip Nychay entered guilty pleas to transporting and sale of a controlled substance (Health & Saf. Code, 11379, subd. (a))[1]and possessing a controlled substance for sale ( 11378, subd. (a)). He admitted having suffered three prior convictions for possessing a controlled substance for sale ( 11370.2, subd. (c)) and having served a prior prison term (Pen. Code, 667.5, subd. (b), 668). At the time of the guilty plea, Nychay signed a form that included the following language which the parties characterize as a Blakely waiver: "Except where a prison term has been set by stipulation of the parties, I agree that the sentencing judge may determine the existence or non-existence of any aggravating facts which may be used to increase my sentence on any count or allegation above the middle term, either at the initial sentencing or at any future sentencing in the event my probation is revoked."[2] (See Blakely v. Washington (2004) 542 U.S. 296 (Blakely); Cunningham v. California (2007) 549 U.S. ___, [166 L.Ed.2d 856] (Cunningham).)
The court sentenced Nychay to seven years in prison: the four-year upper term for transporting and sale of a controlled substance, enhanced three years for a prior conviction for possessing a controlled substance for sale. The court imposed a concurrent term on the current conviction for possessing a controlled substance for sale, and struck the two remaining enhancements for prior convictions of possessing a controlled substance for sale and for having served a prior prison term. The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).)
FACTS
There was no preliminary hearing and there is no probation report setting out the circumstances underlying the convictions. Our recitation of the facts is therefore based on the factual basis expressed in court at the time Nychay entered his guilty pleas: Nychay transported a controlled substance that was not for his personal use, and possessed a controlled substance for sale. He had previously suffered three prior convictions for possessing a controlled substance for sale. Because Nychay entered guilty pleas, he may not challenge the facts underlying the convictions. (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 filed a brief setting forth the evidence in the superior court. Counsel presented no argument for reversal but asked 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 referred to as possible, but not arguable, issues: (1) whether the guilty pleas include an adequate factual basis, and (2) whether Nychay was denied the right to allocution to his prejudice.
We granted Nychay permission to file a brief on his own behalf. He has responded. Nychay contends that the trial court denied him his right to a jury trial when it imposed the upper term (see Blakely, supra, 542 U.S. 296and Cunningham, supra, 549 U.S. __ [166 L.Ed.2d 856].)[3] We requested additional briefing on this issue. The parties have responded to our request. The People correctly point out that absent a certificate of probable cause, Nychay may not challenge the constitutionality of his sentence on appeal.
Nychay appeals a judgment following guilty pleas entered after the trial court informed Nychay that pursuant to the guilty pleas, he could be sentenced to a maximum term of 14 years in prison. In People v. Shelton (2006) 37 Cal.4th 759, 763, the California Supreme Court held that when a defendant enters a guilty plea, "inclusion of a sentence 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." (Accord People v. Young (2000) 77 Cal.App.4th 827, 831-833; People v. Bobbitt (2006) 138 Cal.App.4th 445, 447-448.)
Where, as here, the defendant pleads guilty as charged, the sentencing lid is the maximum term expressed during the plea colloquy. Whether there is an agreed lid or the lid is the maximum term under law, when a defendant enters a guilty plea after the court expresses the maximum term it could impose under the guilty plea, the defendant waives or forfeits any claim that the trial court lacked the authority to impose a sentence that is within the maximum term the court expressed.[4] (See People v. Simon (2001)25 Cal.4th 1082, 1087.)
A challenge to a guilty plea under which the court imposed a term that is within the maximum term expressed at the time the defendant entered the guilty plea constitutes a challenge to the validity of the plea, and thus requires a certificate of probable cause. Because a challenge to the authority of the trial court to determine aggravating factors constitutes a challenge to the trial court's authority to impose the maximum sentence permissible under the plea agreement, it is a challenge to the plea agreement, and cannot be reviewed on appeal absent a certificate of probable cause. As mentioned above, the record here does not include a certificate of probable cause.
Nychay also contends that the trial court erred in failing to state adequate reasons for imposing the upper term. However, Nychay did not raise this objection in the trial court. He may not do so for the first time on appeal. (People v. Scott (1994) 9 Cal.4th 331, 351-353.)
Finally, citing a federal rule that does not apply in California state courts, Nychay contends that the trial court erred in failing to inquire before sentencing if there was any matter that would impact the sentencing decision. We have reviewed the transcript of the sentencing hearing and find no error. The sentencing hearing occurred immediately after Nychay entered the guilty pleas and admissions. At the outset, the court asked defense counsel if there was any legal cause why the court should not impose sentence. Counsel replied in the negative. Both the prosecutor and defense counsel then submitted the matter without further argument. After the court imposed sentence, it asked if there was anything further. The prosecutor responded in the negative, and defense counsel did not respond. Given this record, we see no error in the conduct of the sentencing hearing.
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, and the issues raised by Nychay, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Nychay on this appeal.
DISPOSITION
The judgment is affirmed.
AARON, J.
WE CONCUR:
McDONALD, Acting P. J.
IRION, J.
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[1] All statutory references are to the Health and Safety Code unless otherwise specified.
[2] Because we resolve this case based on the lack of a certificate of probable cause, we do not address the validity of the purported "Blakely waiver." We do note that while the language states that the defendant agrees that the sentencing judge may determine the existence of any aggravating facts, it does not indicate or advise the defendant that he may have the right to a jury trial as to the existence of any aggravating facts and that the defendant agrees to give up this right.
[3] In Blakely and Cunningham, the United Supreme Court held that a defendant has a right to a jury trial as to any sentencing factors that may be used to increase his sentence to the upper term.
[4] "[T]he terms 'waiver' and 'forfeiture' have long been used interchangeably. As the United States Supreme Court has explained, however, 'waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.' [Citations.]" (People v. Simon, supra, 25 Cal.4th at p. 1097, fn. 9, quoting United States v. Olano (1993) 507 U.S. 725, 733.)
