P. v. Rance

Filed 11/6/07 P. v. Rance 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

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Defendant Andrew Clive Rance pleaded no contest to possessing methamphetamine and admitted one prior prison term. His plea included a Harvey (People v. Harvey (1979) 25 Cal.3d 754) waiver, permitting the court to consider at sentencing his prior criminal history, and the entire factual background of the case--including any unfiled, dismissed, or stricken charges, allegations, or cases. The court sentenced defendant to prison and imposed the upper term.

On appeal, defendant contends the imposition of the upper term based on facts that were not submitted to a jury violates Sixth and Fourteenth Amendment rights. (Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856](Cunningham). He also contends the court erred in imposing a $150 drug program fee because it found he had no ability to pay discretionary fines and fees or attorneys fees. We will not address the merits of the first issue because defendant has not obtained a certificate of probable cause. (See People v. Mendez (1999) 19 Cal.4th 1084, 1099.) The second contention has no merit. We affirm the judgment.

Facts and Proceedings

According to the probation report, police conducted a parole search of defendant and found a gram of methamphetamine in his pants pocket.

Defendant was charged with methamphetamine possession, and it was alleged he had suffered one prior strike conviction and had served five prior prison terms.

He eventually entered a no contest plea to the possession charge, and admitted one prior prison term. On his change of plea form, defendant made the following stipulations relevant here. First, he stipulated: [T]here is a factual basis for my plea(s) and admission(s) and I further stipulate the court may take facts from probation reports, police reports or other sources as deemed necessary to establish the factual basis. He also agreed that the matter of probation and sentence is to be determined solely by the superior court judge and that the sentencing judge may consider my prior criminal history and the entire factual background of the case, including any unfiled, dismissed or stricken charges or allegations or cases when granting probation, ordering restitution or imposing sentence.

The court imposed the upper term of three years, and found that the circumstances in aggravation outweighed the circumstances in mitigation: Circumstances in aggravation include that the defendants priors are numerous. He has at least 12 other prior felony charges or convictions; that the defendant has served prior prison terms; that the defendant was on parole when the offense occurred; that the defendants prior performance on parole and probation was unsatisfactory with numerous parole violations.

Circumstances in mitigation are that the quantity of the drugs he was in possession of was small and that the defendant has availed himself of treatment and referral programs subsequent to his arrest.

Discussion

I

The Upper Term

Defendant contends the trial court erred when it imposed the upper term, over defense counsels Cunningham objection, without affording him the right to a jury determination, beyond a reasonable doubt, as to whether his past performance on probation and/or parole had been unsatisfactory.

Defendants appeal is not accompanied by a certificate of probable cause addressing his claim of error as to the upper term sentence.

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.) No certificate is required, however, when the grounds for appeal arose after entry of the plea and do not affect the pleas validity. (Cal. Rules of Court, rule 8.304(b)(4)(B).) In determining whether a certificate is required, 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).)

In this matter, defendant was charged with one count of possession of a controlled substance (methamphetamine) in violation of Health and Safety Code section 11377, subdivision (a). The People also alleged that he had served five prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). And finally, the People alleged that defendant had previously been convicted of a serious or violent felony within the meaning of Penal Code Sections 667, subdivision (b) through subdivision (i) and 1170.12, subdivisions (a) through (d). Absent a plea agreement, if he had been convicted on the substantive offense and if the prior prison term allegations and the prior serious and violent felony allegation had been found true, he would have been subject to a maximum prison sentence of 11 years.

However, defendant entered into a plea agreement with the People wherein he would enter a plea of no contest to the substantive count and admit that he had served one prior prison term and the People would dismiss the four remaining prior prison term allegations and the allegation that defendant had earlier been convicted of a serious or violent felony. By entering into this agreement, defendant reduced his exposure to state prison time from 11 to four years.

At the time the court took defendants no contest plea in conformance with the agreement, defendant acknowledged that he had read, understood, and initialed each of the paragraphs of a plea form that he executed earlier that day and that he had had enough time to discuss the form with his attorney. Paragraph 17 of the form reads in pertinent part: I understand that I may serve this maximum sentence as a result of my plea: 4 years in state prison. . . . Defendant made no attempt to preserve for appeal any issue regarding the right to a jury trial on the question of sentence. (See Shelton, supra, 37 Cal.4th at pp. 768-769.)

[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 that in exchange for dismissal of the prior prison term and prior serious or violent felony allegations, the court could order defendant to serve the maximum four-year sentence, defendants contention that the maximum sentence violated Cunningham is in substance a challenge to the pleas validity. For defendant, the benefit of the bargain he struck with the People was a reduction of his prison term exposure by seven years. In return for that, and in order for the People to have the benefit of their bargain, defendant is deemed to have agreed at the time of his plea that there was no legal impediment to a sentence to state prison of four years absent an abuse of the trial courts discretion. In the context of Cunningham, by way of his plea bargain with the People and his subsequent plea, defendant is deemed to have admitted that there were facts that would justify an upper term sentence if the trial judge chose to impose it.

Defendants challenge to his upper term sentence after entering his plea requires a certificate of probable cause. (Shelton, supra, 37 Cal.4th at p. 763.) Not having obtained one, we do not consider the merits of defendants claim of error.

II

The Drug Program Fee

Pursuant to Health and Safety Code section 11372.7, the trial court imposed a $150 drug program fee and its attendant assessments. Defendant contends that the fee was unauthorized because the court did not expressly find defendant had the ability to pay this mandatory fee, although it did expressly find he has no ability to pay discretionary fines and fees or attorneys fees. However, he did not object to the fee in the trial court.

A defendant who has not objected to a fee or fine on the ground that he lacks the ability to pay is precluded from raising the issue for the first time on appeal. (See People v. Crittle (2007) 154 Cal.App.4th 368 [crime prevention fine]; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469 [restitution fine]; see also People v. Valtakis (2003) 105 Cal.App.4th 1066, 1071-1072.)

Disposition

The judgment is affirmed.

HULL , J.

We concur:

NICHOLSON , Acting P.J.

CANTIL-SAKAUYE , J.

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