Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA067469, Arthur Jean, Jr., Judge. Affirmed.
William Flenniken, Jr., 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, Lance E. Winters and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RUBIN, ACTING P. J.
David Jackson appeals from the judgment entered after his no contest plea to burglary, petty theft with a prior, and multiple counts of forgery. Jackson claims the sentence, which he agreed to as part of a negotiated plea, was improper on several grounds. We affirm because the trial court denied Jackson’s request for a certificate of probable cause and because he is estopped to challenge his sentence because he agreed to the prison term that the court imposed.
FACTS AND PROCEDURAL HISTORY
On September 24, 2005, David Jackson and Jowana Edwards were arrested after they were caught shoplifting and trying to cash a forged check with a phony identification card at a Ralph’s supermarket in Long Beach. A search of Jackson and his car turned up various phony identification cards, along with checks on different accounts made out to different people. Jackson was charged with one count of second degree commercial burglary (Pen. Code, § 459), one count of petty theft with prior petty theft convictions (Pen. Code, § 666), three counts of forging an official seal (Pen. Code, § 472), and five counts of forgery (Pen. Code, § 476). The information alleged that as to each count Jackson had served a prior prison term for purposes of the one-year sentence enhancement authorized by Penal Code section 667.5, subdivision (d).
On April 24, 2006, Jackson, who was representing himself, pleaded no contest to all the counts in exchange for a specified sentence: the upper term sentence of three years on the burglary count, and concurrent high term sentences of three years on the remaining counts. On June 21, 2006, Jackson filed a notice of appeal, along with a request for a certificate of probable cause. In relevant part, the certificate of probable cause claimed that the high term sentences were unwarranted because no aggravating circumstances existed that would justify such sentences. The trial court denied the certificate that same day. Jackson contends: (1) he was entitled to a jury determination of whether aggravating factors existed in order to justify a high term sentence; (2) the concurrent sentences must be stayed under Penal Code section 654; and (3) the court erred by imposing sentences on counts 12 and 13, which applied to only co-defendant Edwards.
DISCUSSION
1. Right to Jury Trial on Aggravating Factors for High Term Sentence
In Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856, the United States Supreme Court reversed our high court’s decision in People v. Black (2005) 35 Cal.4th 1238, and held that California’s determinate sentencing law violated the Sixth Amendment right to trial by jury because courts and not juries were charged with determining the existence of certain aggravating factors in order to impose a maximum term sentence. In anticipation of that decision, and in order to preserve his rights to assert the issue, Jackson contends that the high term sentence imposed by the trial court in his case was unlawful.
Cunningham had not been decided as of the time the parties filed their briefs.
A. Failure to Obtain a Certificate of Probable Cause
A defendant may appeal from a judgment based upon a plea of guilty or no contest only if the trial court issues a certificate of probable cause, unless the appeal is based on search and seizure issues or grounds occurring after entry of the plea that do not challenge its validity. (Pen. Code, § 1237.5; People v. Young (2000) 77 Cal.App.4th 827, 829.) The probable cause certificate requirement is intended to weed out frivolous or vexatious appeals following pleas of guilty or no contest. (People v. McEwan (2007) 147 Cal.App.4th 173, 179.) In People v. Bobbit (2006) 138 Cal.App.4th 445, 447-448 (Bobbit), the court held that this rule applied to appeals raising the jury trial issue decided in Cunningham. Bobbit was decided six months before Jackson’s opening brief on appeal was filed, and even though his brief acknowledged that his request for a certificate had been denied, he did not address the issue. Respondent did raise the issue, but Jackson did not file a reply brief. Accordingly, we affirm on this issue under Bobbit because no certificate of probable cause was issued and because Jackson has waived the issue on appeal. (People v. Beltran (2000) 82 Cal.App.4th 693, 697, fn. 5.)
B. Estoppel by Plea Bargain
Alternatively, we hold that Jackson waived his right to complain about the Cunningham issue because he accepted a negotiated plea bargain for a specified term that allowed him to avoid a potentially harsher sentence. (People v. Hester (2000) 22 Cal.4th 290, 295; see People v. Buttram (2003) 30 Cal.4th 773, 785-787.)
2. Stay of Concurrent Sentences
Relying on Penal Code section 654, Jackson contends that some of his forgery and forgery of an official seal sentences should have been stayed instead of being imposed as concurrent sentences. We affirm because: (1) a certificate of probable cause was required (Pen. Code, § 1237.5; People v. Shelton (2006) 37 Cal.4th 759, 766-769); and (2) because his agreement to the specified sentence the court imposed is deemed a waiver of the issue. (Cal. Rules of Court, rule 4.412(b); People v. Hester, supra, 22 Cal.4th at p. 295.)
3. Sentences on Counts 12 and 13
Jackson’s co-defendant, Edwards, was charged along with Jackson in count 1 for commercial burglary. She was separately charged with forgery in counts 12 and 13. At the same hearing where Jackson entered his no contest plea, Edwards pleaded no contest to count 1 and counts 12 and 13 against her were dismissed. When the court announced Jackson’s sentence, it mistakenly said concurrent sentences were to be imposed on counts 12 and 13 as well. Jackson contends this error must be corrected. However, as respondent points out, neither the minute order from the hearing nor the abstract of judgment includes a sentence on counts 12 and 13. Instead, they reflect the correct sentence as agreed to by Jackson. Accordingly, although we agree that appellant could not have been sentenced on counts 12 and 13, there is nothing to correct and we take no action.
DISPOSITION
For the reasons set forth above, the judgment is affirmed.
WE CONCUR: BOLAND, J., FLIER, J.