P. v. Wellman
As part of a negotiated plea bargain, defendant entered a plea of no contest to first degree murder (Pen. Code, 187, subd. (a))[1]with an agreement that the People would ask for the offense to be reduced to second degree murder, with a 15-years-to-life sentence, if he truthfully cooperated with the prosecution, including testifying at the criminal proceedings involving co-defendants Sean OBrien and Tyler Dickson. After defendant fulfilled his part of the bargain, the prosecution moved for and the trial court granted a reduction of defendants offense to second degree murder. The trial court denied defendants subsequent motion for a further reduction of the offense to voluntary manslaughter and rejected defendants claim that a 15-years-to-life sentence was cruel and unusual punishment under federal and state constitutional law. The trial court struck the originally alleged murder special circumstances and firearm enhancement. It sentenced defendant to state prison for an indeterminate term of 15 years to life. As relevant to this appeal, it ordered defendant to pay $460 for the cost of the probation report pursuant to section 1203.1b.
Defendant timely appealed, asserting his appeal was based on the sentence or other matters occurring after the plea. Defendant did not seek a certificate of probable cause. On appeal, defendant claims his indeterminate life sentence for second degree murder constitutes cruel and unusual punishment under the circumstances of this case. By supplemental brief, defendant claims the trial court improperly imposed a probation report fee without finding defendant had the ability to pay for it. Court conclude defendant is precluded from raising the constitutional challenge to his sentence because he failed to obtain a certificate of probable cause. Court dismiss that portion of his appeal. As the record shows the trial court did make a finding that defendant was able to pay for the cost of the probation report, Court reject defendants second contention and affirm the judgment.
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