Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF160298B. Gary Paden, Judge.
Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine G. Tennant, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J., and Gomes, J.
Appellant, Ubaldo Ibarra, pled guilty to two counts of assault with a deadly weapon (counts 1 & 2/Pen. Code, § 245, subd. (a)(2)). He also admitted an arming enhancement (Pen. Code, § 12022.5, subd. (a)) and a gang enhancement (Pen. Code, § 186.22, subd. (b)(1)(C)) in count 1 and a gang enhancement (Pen. Code, § 186.22, subd. (b)(1)(B)) and a great bodily injury enhancement (Pen. Code, § 12022.7) in count 2. On appeal, Ibarra contends the court committed Cunningham error. We will affirm.
Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856].
FACTS
On February 25, 2006, Christina Torres walked from her house in Visalia to a nearby store with her mother, Joanne Franco, 17-year-old S.V., 15-year-old M.V., 17-year-old B.V., and 15-year-old A.F. As they walked back to Torres’s house, Ibarra and Eduardo Yanez approached the group, challenged them to fight, and began making gang-related comments. Ibarra began fighting with B.V. Meanwhile Yanez got a gun from a pickup, pointed it at the other members of Torres’s group and told them not to “jump in.” After someone from Torres’s group called the police, Franco pulled Ibarra off of B.V. Ibarra got in the driver’s seat of the pickup and began yelling at Yanez to “shoot [them].” Yanez fired a shot in the direction of B.V., another in the direction of A.F., and another in the direction of Franco and Torres. One bullet struck Torres, who was four months pregnant, in the torso dislodging the placenta from her uterus causing the death of her unborn fetus. Ibarra and Yanez were arrested the following day.
On October 11, 2006, Ibarra pled guilty to the two assault counts and admitted the above noted enhancements as part of a negotiated plea which provided that other charges and enhancements would be dismissed, Ibarra would waive his appellate rights, and he faced a lid of 16 years 8 months.
During the change of plea proceedings, the prosecutor explained the terms of the plea bargain as follows:
“Mr. Ibarra would plead to Count 1 to a 245[,subdivision (a)(2)] for a four year aggravated [term] with a 12022.5 [arming enhancement] for the 10 year aggravated [term] and he would plead to the 186.22 [, subdivision (b)(1)(C)] for 10 years and court will stay that punishment. [¶] … [¶]
“Count 1, I apologize [, the name] would be Christina Torres.
“And as to Count 2, he would plead to the 245 [subdivision (a)(2)] naming the other victims for one third the mid [term] which would be one year. The 186.22 [, subdivision (b)(1)(B)] would be one third of the mid [term] will be one year eight months and a 12022.7 GBI [enhancement] which the court would stay. So the total term would be 16 years 8 months ....
“He will waive all his appeal rights.
“We would ask for a [Harvey Waiver. That would basically let the court take everything into consideration and he may have to pay restitution as to all counts however, he would get a 16 year 8 month state prison lid.” (Italics added.)
People v. Harvey (1979) 25 Cal.3d 754.
During further discussion, the court advised Ibarra that the plea bargain would allow him to go “from a possible sentence of 210 years to life to a maximum term of 16 years 8 months.”
After the prosecutor stated he advised defense counsel that he did not think the court would impose a lesser sentence, the court stated,
“And I’m [going to] tell you it’s extremely unlikely that I would give you less time, Mr. Ibarra. Something significant would have to be presented to make me change the indicated sentence of 16 years 8 months...”
On January 19, 2007, the court sentenced Ibarra in conformity with the negotiated plea to an aggregate term of 16 years 8 months as follows: the aggravated term of 4 years on Ibarra’s assault conviction in count 1, an aggravated term of 10 years on his gun use enhancement in that count, a 1-year term on his other assault conviction (one-third the middle term of 3 years), 1 year 8 months for the gang enhancement in that count (one-third the enhancement term of five years), and stayed terms on the remaining enhancements.
On March 7, 2007, the court denied Ibarra’s request for a certificate of probable cause.
DISCUSSION
Introduction
“Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] . . ., held that imposing an upper term pursuant to California’s former determinate sentencing law violated the Sixth Amendment right to a jury trial, unless the sentencing court relied on (1) a fact found by a jury beyond a reasonable doubt, (2) a fact admitted by the defendant, or (3) a prior conviction. [Citation.]” (People v. Guess (Dec. 21, 2007 WL 4462987, fn. omitted.)
Ibarra contends that the court committed Cunningham error because its imposition of the aggravated term on his assault conviction and the gun enhancement attached to that count violated his Sixth and Fourteenth amendment right to a jury trial. Respondent contends this issue is not cognizable on appeal because Ibarra did not obtain a certificate of probable cause and, alternatively, because he waived his right to appeal. We agree with respondent and we will also conclude that Ibarra is not entitled to any relief on appeal because he is bound by the terms of his plea bargain.
Ibarra’s Challenge to his Sentence is not Cognizable Because he Failed to Obtain a Certificate of Probable Cause
“Penal Code section 1237.5 provides that a defendant may not appeal ‘from a judgment of conviction upon a plea of guilty or nolo contendere’ unless the defendant has applied to the trial court for, and the trial court has executed and filed, ‘a certificate of probable cause for such appeal.’ [Citation.] ‘Despite this broad language, we have held that two types of issues may be raised on appeal following a guilty or nolo plea without the need for a certificate: issues relating to the validity of a search and seizure, for which an appeal is provided under [Penal Code] section 1538.5, subdivision (m), and issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.’ [Citation.]
“The statutory requirement and its exceptions are embodied in rule 30(b)(4) of the California Rules of Court, which provides that on appeal in a criminal case from a superior court judgment after a plea of guilty or nolo contendere, a defendant must apply for and obtain a certificate of probable cause as required by Penal Code section 1237.5 unless ‘the notice of appeal states that the appeal is based on: [¶] (A) the denial of a motion to suppress evidence under Penal Code section 1538.5, or [¶] (B) grounds that arose after entry of the plea and do not affect the plea's validity.’” (People v. Shelton (2006) 37 Cal.4th 759, 766.)
In Shelton, the defendant pled to two felony counts pursuant to a negotiated plea that provided for a lid of three years eight months. (People v. Shelton, supra, 37 Cal.4th at pp. 763-764.) On appeal the defendant claimed that imposition of sentence on one count violated Penal Code section 654’s proscription against multiple punishment. (People v. Shelton, supra, 37 Cal.4th at p. 765.) In rejecting this contention, the Supreme Court held,
“[T]he specification of a maximum sentence or lid in a plea agreement normally implies a mutual understanding of the defendant and the prosecutor that the specified maximum term is one that the trial court may lawfully impose and also a mutual understanding that, absent the agreement for the lid, the trial court might lawfully impose an even longer term.
“Viewed in this light, when a plea agreement includes a specified maximum sentence, a provision recognizing the defendant’s right to ‘argue for a lesser term’ is generally understood to mean only that the defendant may urge the trial court to exercise its sentencing discretion in favor of imposing a punishment that is less severe than the maximum punishment authorized by law. In this case, it is reasonable to conclude that both the prosecutor and the trial court believed, when the plea bargain was made and accepted by the court, that defendant understood it in the same manner, as reserving to him a right to argue for a sentence less than the specified maximum of three years and eight months only on the ground that the trial court should impose a lesser sentence in the exercise of its sentencing discretion, and not on the ground that the trial court lacked authority to impose the specified maximum sentence.” (People v. Shelton, supra, 37 Cal.4th at p. 768, italics added.)
In People v. Bobbit (2006) 138 Cal.App.4th 445, the court relied on Shelton in holding that a defendant’s claim of Cunningham error was not cognizable on appeal without a certificate of probable cause. (Id. at pp. 447-448.)
Ibarra contends he was not required to obtain a certificate of probable cause because he is challenging the facts the court used to impose the upper term, not the court’s authority to do so. Ibarra’s contention is not persuasive because it does not address the Supreme Court’s holding in Shelton that a challenge to a lid sentence in a plea bargain is a challenge to the validity of the plea because a plea agreement is based on mutual understanding that the court has the authority to impose the lid sentence. (People v. Shelton, supra, 37 Cal.4th at p. 769.) Since Ibarra implicitly agreed through his plea bargain that the court had the authority to impose the lid sentence, his challenge to the facts underlying the imposition of this sentence amounts to a challenge on the court’s authority to impose the lid sentence. Thus, we conclude that the Ibarra’s Cunningham issue is not cognizable on appeal because he did not obtain a certificate of probable cause.
Ibarra Waived his Right to Challenge his Sentence on Cunningham grounds.
“A majority of jurisdictions which have considered the issue of waiver of appeal rights has held the express waiver of the right to appeal made pursuant to a negotiated plea agreement is not invalid per se and is enforceable provided the waiver is knowing, intelligent and voluntary. Such agreements are not inherently coercive or involuntary nor do they violate due process or public policy.” (People v. Vargas (1993) 13 Cal.App.4th 1653, 1657.)
“In People v. Castrillon (1991) 227 Cal.App.3d 718, 721-722, . . . the court held a defendant could waive his right to appeal the denial of a suppression motion as part of a plea bargain, if the waiver was entered ‘voluntarily, knowingly and intelligently.’ Castrillon contained an express written waiver. [Citation.] In People v. Nguyen (1993) 13 Cal.App.4th 114, 119-120, . . . the court held the scope of a general waiver of the right of appeal must be analyzed in terms of the reasonable expectations of the parties. Although Nguyen suggested trial courts should obtain waivers orally, it concluded a general verification by the trial court that the defendant read and understood a plea form containing a general waiver was sufficient. [Citation.] The court upheld the general waiver. [Citation.]” (People v. Kelly (1994) 22 Cal.App.4th 533, 535-536.)
Here, Ibarra specifically agreed as part of his plea bargain that if the court imposed the maximum term under the plea bargain it could do so by imposing the aggravated term on the assault offense and the aggravated term on the arming enhancement. In view of this we conclude that Ibarra’s waiver clearly encompassed any error occurring in the imposition of the aggravated term on the substantive offense and arming enhancement.
Ibarra contends he could not have waived his right to challenge his sentence on Cunningham grounds because when he entered his plea it was not foreseeable that a defendant would be able to challenge an upper term sentence on these grounds. We disagree because “both the length of the sentence and the right to appeal the sentence are issues that cannot fairly be characterized as falling outside of [Ibarra’s] contemplation and knowledge when the waiver was made[.]” (People v. Panizzon (1996) 13 Cal.4th 68, 86.) Thus we conclude that Ibarra’s challenge to the court’s sentence is not cognizable on appeal for the additional reason that he waived his appellate rights.
Ibarra is Bound by the Terms of his Plea Bargain
“Negotiated plea agreements are “ ‘an accepted and integral part of our criminal justice system.’ [Citations.] Such agreements benefit the system by promoting speed, economy and finality of judgments. [Citation.]” (People v. Panizzon (1996) 13 Cal.4th 68, 79-80.) As a matter of public policy, a negotiated plea must be ‘reasonably related to defendant’s conduct’ and it must ‘not unreasonably result in punishment less than that called for by statutes which govern the conduct in question.’ [Citation.] By the same token, the ‘punishment may not significantly exceed that which the parties agreed upon.’ [Citation.]
“Traditionally, courts have viewed plea agreements ‘using the paradigm of contract law. [Citations.]’ [Citation.] Analogizing to contract law, courts examining plea bargains ‘should look first to the specific language of the agreement to ascertain the expressed intent of the parties. [Citations.] Beyond that, the courts should seek to carry out the parties’ reasonable expectations. [Citations.]’ [Citation.]
“Employing the contract law paradigm, our state’s high court has said: ‘When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement.’ [Citations.]” (People v. Knox (2004) 123 Cal.App.4th 1453, 1458-1459, italics added.)
In accord with the above principles, we conclude Ibarra is bound by the terms of his negotiated plea: if the court imposed the maximum term of 16 years 8 months, it would do so by imposing the aggravated term of four years on his assault conviction in count 1 and the aggravated term of 10 years on the arming enhancement in that count. (See also People v. Vargas, supra, 13 Cal.App.4th at p. 1662, fn.6 [“Defendants who have received the benefits of their bargain should not be allowed to ‘trifle with the courts’ by trying for a better bargain on appeal”].) Accordingly, even if Ibarra’s claim of Cunningham error were properly before us, we would reject it.
DISPOSITION
The judgment is affirmed.