P. v. Hunyh
On March 13, 2006, defendant Danh Huynh entered a negotiated guilty plea to one count of assault by means likely to cause great bodily injury (Pen. Code,[1] 245, subd. (a)(1)), one count of animal cruelty ( 597, subd. (a)) and one count of dissuading a witness by force or fear ( 136.1, subd. (c)(1)). Defendant was advised that the maximum possible sentence was five years eight months in state prison. As part of his plea bargain, defendant waived his right to a jury trial on aggravating sentencing factors under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Apprendi v. New Jersey(2000) 530 U.S. 466 (Apprendi). Subsequently, after argument regarding sentencing factors in aggravation and mitigation, the trial court sentenced defendant to the upper term on the animal cruelty count, and consecutive terms of one-third the midterm on the other two counts, resulting in the maximum possible sentence of five years eight months in prison. The court explained that the upper term was selected based on the level of violence that [was] demonstrated, the great bodily harm [inflicted and] the threat of great bodily harm. Defendant filed a timely notice of appeal. The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).)
Defendant contends that the judgment must be reversed because the trial court imposed the upper term based on facts neither admitted nor found by a jury, in violation of the Sixth Amendment. He also argues that his Blakely/Apprendi waiver was not a constitutionally valid or enforceable waiver of sentencing rights under Blakely or Apprendi, or, under the decision filed subsequent to imposition of sentence in the present case, in Cunningham v. California [(2007) 549 U.S. [127 S.Ct. 856] (Cunningham)]. The Attorney General argues that defendants claim is not cognizable on appeal absent a certificate of probable cause and that his Blakely/Apprendi waiver was valid in any event. Court agree and dismiss defendants appeal.
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