P. v. Zuniga
Filed 9/18/07 P. v. Zuniga 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)
----
THE PEOPLE, Plaintiff and Respondent, v. JOSE ZUNIGA, Defendant and Appellant. | C053911 (Super. Ct. No. CM024584) |
Defendant, Jose Zuniga, appeals his sentence, claiming the court erred when it imposed the upper term on the principle count and on the enhancement without submitting the aggravating facts to a jury under Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). We find that under the terms of his written plea agreement, defendant waived his right to raise a Cunningham claim on appeal, and even if he had not, his appeal fails pursuant to the recent California Supreme Court decision in People v. Black (2007) 41 Cal.4th 799 (Black II).
Defendant pled no contest to assault with a firearm and personal use of a firearm in the commission of a crime. In exchange for his plea, the prosecutor dismissed the special allegation that defendant committed the crime for the benefit of a street gang. The prosecution also agreed to a maximum sentence of 14 years in state prison.
The terms of his written plea agreement include paragraph Nos. 4 and 29 on the Butte County standardized form PLEA OF GUILTY OR NO CONTEST (FELONY). Paragraph No. 4, states: I STIPULATE THERE 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.
Paragraph No. 29 states: (HARVEY WAIVER) I STIPULATE 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. Represented by counsel, defendant initialed these paragraphs and acknowledged in open court that he understood the written plea form.
Read together, these paragraphs constitute a waiver of defendants right to raise a Cunningham claim on appeal. In paragraph No. 4, defendant stipulated not only to the factual basis for the plea, but also further stipulated that the court may take facts from other sources as necessary for the factual basis. Paragraph No. 29 broadly stipulated that the sentencing judge may consider an expansive list of sources when imposing sentence. At the plea and at sentencing, defendants stipulations authorized the court to consider a litany of factors in order to find defendant guilty and to sentence him to the upper term on the charge and the enhancement.[1]
In any event, defendants claim of error fails on the merits. In Black II, our Supreme Court reaffirmed the right to a jury trial does not apply to recidivist facts, such as prior convictions and convictions that are increasing in number and seriousness. (Black II, supra, 41 Cal.4th at p. 818.) The Supreme Court also held that as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. (Black II, supra, at p. 812, original italics.) Furthermore, this court has already determined that a juvenile adjudication is a prior conviction for purposes of sentencing and may be relied on in order to support imposition of the upper term. (People v. Palmer (2006) 142 Cal.App.4th 724, 732-733, quoting People v. Bowden (2002) 102 Cal.App.4th 387, 391-394.)
Here, defendant admits that, among other factors, the trial court relied on defendants juvenile record and the increasing seriousness of his crimes in imposing the upper term. Defendant concedes that this offense does represent increasing seriousness, when viewed with the offenses which [defendant] was charged with committing as a juvenile, . . . . The trial court did not err in imposing the upper term based on these recidivist factors, regardless of any additional factfinding in which the court may have engaged. (See Black II, supra, 41 Cal.4th at p. 812.)
Finally, we note there is a clerical error on the abstract of judgment, which indicates defendant was convicted of Penal Code section 12022.5, subdivision (a)(1). Subdivision (a)(1) of Penal Code section 12022.5 was eliminated from section 12022.5 in 2003, and the section was modified without a change in substance. (Stats. 2003, ch. 468, 21.) The correct reference should be to Penal Code section 12022.5, subdivision (a) which was the operative statute in 2006. We direct the trial court to amend the abstract of judgment to reflect the correct subdivision of section 12022.5 of the Penal Code.
DISPOSITION
The judgment and sentence are affirmed. The trial court is directed to amend the abstract of judgment accordingly and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
CANTIL-SAKAUYE , J.
We concur:
SCOTLAND, P.J.
DAVIS , J.
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[1]Because we affirm the sentence on this ground, we need not address the Peoples further arguments regarding defendants failure to obtain a certificate of probable cause or harmless error.
