P. v. Hunnel

Filed 10/16/08 P. v. Hunnel CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Robert E. Law, Judge. (Retired judge of the San Bernardino Super. Ct., assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

Cindi B. Mishkin, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Defendant was sentenced to five years in state prison pursuant to a guilty plea involving a stipulated sentence. He appeals from the sentence.

Background

On October 26, 2007, defendant was charged with the unlawful driving and taking of a pickup (Veh. Code, 10851, subd. (a)), and six prison prior enhancements for prior felony convictions. (Pen. Code, 667.5, subd. (b).)

On November 5, 2007, defendant entered into a plea bargain. Under the terms of the agreement, defendant agreed to plead guilty to the vehicle taking, and to admit two of the prison priors, in return for a stipulated sentence of five years in state prison. The agreement further provided that defendant's sentence would be served concurrently with any parole violation. The court approved the plea bargain, and defendant was sentenced forthwith.^[1] Specifically, the court imposed the upper term of three years for count one, and added one year each for the two prison priors.

Defendant appealed from the sentence only.

Discussion

At his request, this court appointed counsel to represent defendant on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1386, 18 L.Ed.2d 493], setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record.

First, we examined whether the sentence to the upper term for the substantive count violated the provisions of the United States Supreme Court holding in Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856]. We acknowledge that, absent an effective waiver, any factother than the fact of a prior convictionthat increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. (Apprendi v. New Jersey(2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].)

However, any constitutional right can be waived, including the right to a jury trial, so long as the waiver is knowing and intelligent. (Johnson v. Zerbst (1938) 304 U.S. 458, 464-465 [58 S.Ct. 1019, 82 L.Ed.2d 1461].) The defendants guilty plea included a waiver of his jury trial rights, and specifically agreed to the term of imprisonment that was imposed. Pursuant to rule 4.412, California Rules of Court, it is an adequate reason for sentence or other disposition that defendant, personally and by counsel, has expressed agreement that it be opposed and that the prosecuting attorney has not expressed an objection to it. We note that the stipulated sentence was an integral part of the plea bargain, and that defendant did not obtain a certificate of probable cause. Under such circumstances, the argument is not available on appeal. (Pen. Code, 1237.5; People v. Panizzon (1996) 13 Cal.4th 68, 79.)

We have conducted an independent review of the record and find no arguable issues. Defendant was effectively represented by counsel in the trial court as well as on appeal.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

HOLLENHORST

J.

MILLER

J.

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^[1] The reporters transcript of the guilty plea did not include the original pronouncement of judgment, so a settled statement was provided at the request of defendants appellate counsel.