P.v. MacIntosh

Filed 10/12/07 P.v. MacIntosh CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Jack P. Hunt, Judge. Affirmed.

Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Sonya Won, Deputy Attorneys General, for Plaintiff and Respondent.

______________

Ashley MacIntosh appeals from the judgment entered upon her negotiated plea of no contest to transporting a controlled substance, methamphetamine (Health & Saf. Code,  11379, subd. (a)). She was sentenced to the upper term of four years in prison.

Appellant contends that remand for resentencing is required because the trial court violated her constitutional rights to a jury trial and to a finding of aggravating factors beyond a reasonable doubt when it imposed the upper term, and the imposition of that term was an abuse of discretion.

Respondent contends that this appeal must be dismissed because appellants claim is a challenge to the validity of the plea and she failed to obtain a certificate of probable cause.

We affirm.

FACTS AND PROCEDURAL BACKGROUND

The record discloses that during a vehicle stop on June 10, 2006, appellant, the passenger in the car, consented to a search of her purse by a Claremont police officer. In the purse, the officer found five Ziplock baggies containing a total of .8 grams of a substance containing methamphetamine, as well as a digital scale, 25 empty baggies, and a notebook with several pay owes showing price per weight, money owed and money earned during that month. Appellant and the driver of the vehicle were arrested.[1]

An amended complaint alleged that appellant transported methamphetamine and possessed methamphetamine for sale. She entered into a negotiated plea agreement under which she would plead no contest to the transportation count in return for a three-year grant of formal probation and service of 180 days in custody. She was advised of her rights and of the consequences of the plea, waived her rights and acknowledged the consequences, and entered the no contest plea, and the court accepted the plea.

Immediately thereafter, appellant asked to be released pending the probation and sentencing hearing. The trial court inquired, Does she want [a Penal Code section] 1192.5 waiver with a potential four years if she commits another crime or if she is even arrested? Appellant consulted with counsel and then indicated her agreement. The prosecutor stated, Miss MacIntosh, what is being proposed is that you will be released pending your sentencing date. Do you understand and agree that if you commit any crimes or are arrested for any crimes between now and that date or if you fail to show up on that date you will be sentenced to four years in state prison. Do you understand that and agree to it? Appellant replied, Yes, sir.[2]

Appellant was released on her own recognizance. The probation and sentencing hearing was set for July 5, 2006.

Appellant failed to appear at the sentencing hearing and a bench warrant was issued. It was subsequently learned that appellant had been arrested in August 2006 in Montclair, resulting in a misdemeanor petty theft conviction, and had been arrested in September 2006 in San Bernardino County, resulting in misdemeanor convictions of false impersonation and receiving stolen property.

When the instant matter was called for sentencing in November 2006, defense counsel requested that the trial court impose the middle term. Counsel argued that appellant had failed to appear because she had learned she was pregnant, that she now recognized that failing to appear had been an extremely bad decision on her part, and that if the trial court imposed the upper term, appellants grandparents would end up raising the child for the additional period of incarceration.

In response, the trial court stated, The grandparents raising the child is a plus for the child. Not only did she not come back to the court, she committed two new crimes. Theft-related. And gave false information. Your client has absolutely no equities. And this child and she is [sic] going to be a burden on society. Probably forever. In fact, if I could give her ten years I would. It would be better for the child. She is a real role model. A thief junkie. Just what we need to impress upon a child.

The trial court imposed the upper term of four years in prison, stating that appellant was going to get the benefit of her bargain.[3]

DISCUSSION

I. Certificate of probable cause

Preliminarily, we address respondents contention that appellants failure to obtain a certificate of probable cause requires dismissal of this appeal. This contention lacks merit.

A defendant who seeks to appeal after a plea of guilty or no contest must comply with Penal Code section 1237.5 and California Rules of Court, rule 8.304.[4] Penal Code section 1237.5 states that a defendant appealing following such a plea must obtain a certificate of probable cause from the trial court. Rule 8.304(b)(4) provides that a certificate of probable cause is not required, however, if the notice of appeal states that the appeal is based on: [] . . . [] (B) Grounds that arose after entry of the plea and do not affect the pleas validity.

[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 and thus requires a certificate of probable cause. [Citation.] (People v.Shelton (2006) 37 Cal.4th 759, 766.) A Cruz waiver agreed to by the defendant may be part of the defendants plea bargain, and a challenge to the sentence imposed pursuant to that agreement will require a certificate of probable cause. (See People v.Vargas, supra, 148 Cal.App.4th at p. 652.)

Appellant argues that the four-year sentence was not part of her plea bargain, and thus claims that she is in fact raising grounds that arose after entry of the plea and do not affect the pleas validity. We agree. Appellants acceptance of the possibility of a four-year term in exchange for release on her own recognizance was not part of her plea bargain.

A plea bargain contemplates an agreement negotiated by the People and the defendant and approved by the court. (People v.Orin (1975) 13 Cal.3d 937, 942.) [I]mplicit in all of this is a process of bargaining between the adverse parties to the casethe People represented by the prosecutor on one side, the defendant represented by his counsel on the otherwhich bargaining results in an agreement between them. (Id. at p. 943.) A judge is not to become involved in plea discussions. (See People v.Jensen (1992) 4 Cal.App.4th 978, 984, citing the American Bar Association Standards for Criminal Justice (ABA Standards).) The ABA Standards further explain that the trial court plays an essential role in the plea bargaining process of ensuring that the process is fair and that the plea is voluntary. A courts participation in the bargaining, or maintenance of a fixed policy regarding any aspect of plea agreements, could compromise this essential role. (People v.Jensen, supra, at p. 984.)

Here, the plea bargain was negotiated by appellant and the prosecutor and approved by the trial court. It consisted of appellants plea of no contest to one of two charged counts in return for three years of formal probation and service of 180 days in custody. The Cruz waiver was a separate agreement negotiated between the trial court and appellant. While release pending sentencing with the threat of a four-year prison term for failure to return or commission of a new offense was a provision to which appellant agreed (rather than a court-imposed sanction for nonappearance, as in People v.Morris (1979) 97 Cal.App.3d 358, 363; People v.Barrero (1985) 163 Cal.App.3d 1080, 1084-1085; and People v.Jensen, supra, 4 Cal.App.4th at pp. 981-983), it was not part of the plea bargain.

In People v.Masloski, supra, 25 Cal.4th 1212, the Supreme Court recognized the difference between a sanction for nonappearance unilaterally imposed by the trial court, which will not be upheld, and a plea agreement providing for alternate sentences depending on whether the defendant appears or fails to appear for sentencing, which will be upheld. (Id. at pp. 1217-1223; accord, People v.Casillas (1997) 60 Cal.App.4th 445, 451-452.) Cruz itself, however, stating the underpinnings of what has become known as the Cruz waiver, envisioned the situation in which a defendant may waive his or her rights under Penal Code section 1192.5 such that . . . the trial court may withdraw its approval of the defendants plea and impose a sentence in excess of the bargained-for term. (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5.) This constitutes a recognition that the higher term may not be within the plea bargain.

In the cases upholding Cruz waivers because they were part of the plea agreement rather than unilaterally imposed by the trial court, the agreements were expressly made part of the plea bargains which were entered into prior to entry of the pleas. (See, e.g., People v.Masloski, supra, 25 Cal.4th at pp. 1215, 1222-1223; People v.Vargas, supra, 148 Cal.App.4th at p. 648; People v.Casillas, supra, 60 Cal.App.4th at pp. 447-448; People v.Vargas (1990) 223 Cal.App.3d 1107, 1109-1110 & fn. 1; see also People v.Carr (2006) 143 Cal.App.4th 786, 788, 790, 793-794.) Unlike the situation in these cases, the agreement here was not part of the plea bargain and was not entered into prior to entry of the plea. Rather, it was an additional, post-plea agreement entered into in response to a post-plea request for release pending the sentencing hearing.

Since appellants agreement that she would receive a four-year term if she failed to comply with the trial courts conditions was simply a post-plea arrangement to secure release on her own recognizance pending sentencing, and was not part of the plea bargain, her challenge to the four-year sentence does not implicate the validity of the plea. A certificate of probable cause is not required.

II. Upper term sentence

Appellant contends that remand for resentencing is required because, pursuant to Cunninghamv. California (2007) 549 U.S. ___ [127 S.Ct. 856], the trial court violated her constitutional rights to a jury trial and to a finding of aggravating factors beyond a reasonable doubt when it imposed the upper term. She further asserts that the imposition of that term was an abuse of discretion. We reject this contention because appellant agreed to imposition of the upper term, even though that agreement was not part of the plea bargain for purposes of a certificate of probable cause.[5]

In People v.Hester (2000) 22 Cal.4th 290, the Supreme Court ruled that when a defendant pleads guilty in return for a specified sentence, appellate courts will not find error, even if the trial court acted in excess of jurisdiction. The court explained 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.] (Id. at p. 295.) The rationale behind Hesters holding applies here as well. Appellant asked for release pending sentencing and agreed that, in exchange for that privilege, if she failed to appear or if she committed or was arrested for any crime, she would receive the upper term of four years. As the trial court observed when it ultimately imposed that sentence, appellant received the benefit of her bargain. She will not now be allowed to trifle with the courts by attempting to better this bargain.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_________________, P. J.

BOREN

We concur:

_________________, J.

DOI TODD

_________________, J.

CHAVEZ

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[1] The driver, Kenneth Shepard, also entered a no contest plea to transporting methamphetamine. He is not a party to this appeal.

[2] This arrangement is commonly referred to as a Cruz waiver (see People v.Masloski (2001) 25 Cal.4th 1212, 1222; People v.Vargas (2007) 148 Cal.App.4th 644, 646), based upon footnote 5 in People v.Cruz (1988) 44 Cal.3d 1247, 1254 (Cruz). There the Supreme Court stated that a defendant fully advised of his or her rights under [Penal Code] section 1192.5 may [] expressly waive those rights, such that if the defendant willfully fails to appear for sentencing the trial court may withdraw its approval of the defendants plea and impose a sentence in excess of the bargained-for term.

Penal Code section 1192.5 provides that a defendant shall be advised that the trial courts approval of a plea bargain is not binding, that the court may withdraw its approval, and that, in that case, the defendant shall be permitted to withdraw the plea.

[3] The trial court subsequently denied appellants request to recall her sentence pursuant to Penal Code section 1170, subdivision (d). The request was based on appellants personal circumstances, including her pregnancy, as described in letters submitted by members of her family.

[4] All further references to rules are to the California Rules of Court. Rule 8.304, formerly rule 30, was renumbered without relevant change effective January 1, 2007.

[5] We reject respondents claim that appellant forfeited her Cunningham claim by failing to object. At the time of appellants sentencing, lower courts were bound by the California Supreme Courts decision in People v.Black (2005) 35 Cal.4th 1238, which found the California sentencing scheme constitutional. (People v.Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.) Her claim that the sentence constituted an abuse of discretion, however, is forfeited, because at the time of sentencing she failed to object to the trial courts failure to consider mitigating factors or to otherwise challenge the reasons stated by the trial court. (People v.Scott (1994) 9 Cal.4th 331, 353.)