P. v. Woods
Filed 9/18/07 P. v. Woods 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE PEOPLE, Plaintiff and Respondent, v. KENNETH LEVAR WOODS, Defendant and Appellant. | E041804 (Super.Ct.No. FSB52735) OPINION |
APPEAL from the Superior Court of San Bernardino County. Jules E. Fleuret, Judge. Dismissed.
Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, David Delgado-Rucci, Deputy Attorney General, for Plaintiff and Respondent.
Defendant and appellant Kenneth Levar Woods entered into a plea agreement in which he pled guilty to one count of unlawful sexual intercourse with a minor. (Pen. Code, 261.5, subd. (d).)[1] Pursuant to the plea agreement, defendant was sentenced to the upper term of four years, and was released on a Cruz[2]waiver with four years of probation. The trial court later found that defendant violated his probation by committing spousal battery. ( 273.5.) The court revoked defendants probation and imposed the four-year prison term.
Defendants sole contention on appeal is that the court erred in imposing the upper term, pursuant to Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856] (Cunningham). We dismiss defendants claim because he failed to obtain a certificate of probable cause from the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant, who was 25 years old at the time, met a 13-year-old girl on a telephone chat line. They met in person on four occasions and had consensual sexual intercourse. The girl originally told defendant she was 17 years old, but later told him she was 13 years old.
Defendant was charged with one count of committing a lewd act with a child under the age of 14. ( 288, subd. (a), count 1.) A second count was added, charging defendant with unlawful sexual intercourse with a minor. (261.5, subd. (d), count 2.) On November 17, 2005, defendant entered into a plea agreement, in which he agreed to plead guilty to count 2, in exchange for dismissal of count 1, a suspended four-year sentence, and a grant of probation under certain terms.
On July 7, 2006, the prosecution filed a petition to revoke probation, alleging that defendant committed spousal battery ( 273.5), failed to cooperate with his probation officer, and failed to make the payments required under the terms of his probation. The court held a Vickers[3]hearing on the prosecutions petition and found the spousal battery allegation to be true. The court revoked defendants probation and sentenced defendant to the four-year term, as previously agreed upon by defendant.
ANALYSIS
Defendant Failed to Obtain a Certificate of Probable Cause
Defendant claims that the trial court erred in imposing the upper term of four years, in violation of his constitutional right to a jury trial, under Cunningham, supra. This claim must be dismissed because defendant failed to obtain a certificate of probable cause.
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.
Where a guilty plea is made pursuant to a plea bargain, whether a certificate of probable cause is required to challenge the sentence on appeal depends on what the defendant is really challenging. [T]he critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5. [Citation.] [Citation.] (People v. Buttram (2003) 30 Cal.4th 773, 782.) It is well settled that a challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself. (People v. Panizzon (1996) 13 Cal.4th 68, 79.) A defendant, therefore, is required to obtain a certificate of probable cause to attack a negotiated sentence on appeal. (Ibid.)
Here, defendant is contesting the constitutionality of the very sentence he negotiated as part of his plea agreement. Thus, he is, in substance, attacking the validity of the plea. Our colleagues in the Third District Court of Appeal have found that the certificate of probable cause requirement applies to challenges pursuant to Blakely v. Washington (2004) 542 U.S. 296 to an upper term imposed pursuant to a plea bargain. (People v. Bobbit (2006) 138 Cal.App.4th 445, 447-448 (Bobbit). We agree with the reasoning of Bobbit, and believe that the reasoning applies equally to such challenges under Cunningham. (See also People v. Panizzon, supra, 13 Cal.4th at p. 79.)
We further note that defendant has received the benefit of his bargain, and he should not attempt to get a better bargain on appeal. In reciting the terms of the agreement at the change of plea hearing, the court stated that, its been agreed that youre going to be released today on a Cruz waiver and that youll be sentenced to the upper term of four years State Prison with four years of probation. . . . [] Is that your understanding of the plea agreement? Defendant responded, Yes. The rule that defendants may challenge an unauthorized sentence on appeal even if they failed to object below is itself subject to an exception: Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process. [Citations.] (People v. Hester (2000) 22 Cal.4th 290, 295.)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ HOLLENHORST
J.
We concur:
/s/ RAMIREZ
P.J.
/s/ GAUT
J.
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[1] All further statutory references will be to the Penal Code unless otherwise noted.
[2]People v. Cruz (1988) 44 Cal.3d 1247 (Cruz).
