Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County. Ct. No. VCF189007, Kathryn T. Montejano, Judge.
Larry L. Dixon, 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, Lloyd G. Carter and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Hill, J., and Kane, J.
OPINION
INTRODUCTION
Appellant, David Raymond Sanchez, was charged in an information with felony evasion of a peace officer (Veh. Code, § 2800.2, subd. (a), count one) and two counts of felony false imprisonment by violence (Pen. Code, § 236 counts two & three). The information alleged appellant had a prior strike conviction within the meaning of the three strikes law (§§ 667, subds. (b)-(i) & 1170.12, subd. (a)) and a prior prison term enhancement.
Unless otherwise indicated, all statutory references are to the Penal Code.
On October 26, 2007, appellant entered into a plea agreement whereby he would admit count one, receive a stipulated sentence of six years, consisting of the upper term of three years doubled pursuant to the three strikes law, and the remaining allegations would be reduced to misdemeanors. On February 28, 2008, the trial court sentenced appellant to state prison on count one for six years. Appellant contends the trial court violated his rights under California v. Cunningham (2007) 549 U.S. 270 (Cunningham) in sentencing him to an upper term. We disagree and will affirm.
FACTS AND PROCEEDINGS
Appellant’s preliminary hearing was held on August 31, 2007. On August 15, 2007, Troy Barker, a police officer from Tulare, observed appellant driving at 70 miles per hour down a city street. Appellant’s car went into a skid and came to rest on the shoulder of the street. Barker pulled in behind appellant with his overhead lights activated to conduct a traffic stop. Appellant started the car and accelerated back onto the street. Barker pursued appellant with his lights and siren on.
Appellant tried to evade the officer reaching speeds of 70 miles per hour and then driving through a residential neighborhood at speeds up to 50 to 60 miles per hour. Appellant ran through stop signs. Appellant entered onto a freeway reaching speeds of 90 miles per hour. Appellant exited the highway, ran a red light at speeds of 70 and 90 miles per hour before accelerating to about 100 miles per hour.
Appellant put the car in a skid and tried to evade other police officers until he reached a dead end. Appellant continued to accelerate to high speeds and to run stop signs and stop lights. Appellant ran through barricades at 70 miles per hour entering a part of the roadway torn up by construction equipment. The pursuit finally ended after a tire on appellant’s car exploded and the car just quit.
At the change of plea hearing, the prosecutor stated that appellant would receive “a stipulated sentence” on count one consisting of the aggravated term of three years, which would be doubled pursuant to the three strikes law to six years. Counts two and three would be reduced to misdemeanors. The court established that appellant had sufficient time to discuss his case with counsel and the court advised appellant of the consequences of his plea. The court advised appellant of, and appellant waived his rights, pursuant to Boykin/Tahl. The parties stipulated that there was a factual basis for the plea. Appellant pled no contest to count one and admitted a prior serious felony conviction. Appellant admitted counts two and three as misdemeanors.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
DISCUSSION
Appellant contends the trial violated his right to a jury trial under Cunningham because it sentenced him to the upper term. Appellant argues that his sentence must be reduced to the midterm. We disagree.
We note that although appellant did not waive his right to a jury trial on this issue and did not admit any aggravating factor used by the trial court, appellant was sentenced under the amended version of the Determinate Sentencing Law (DSL), section 1170, passed by the Legislature as urgency legislation on March 30, 2007. (Amended by Stats. 2007, ch. 3 (S.B. 40).)
Appellant committed his offenses on August 15, 2007, after the effective date of the amended DSL.
As noted by the California Supreme Court, a defendant’s criminal history can be used by a court in sentencing a defendant without violating the defendant’s right to a jury trial. (People v. Black (2007) 41 Cal.4th 799, 818-820 (Black); People v. Sandoval (2007) 41 Cal.4th 825, 845-857 (Sandoval).) Here, the trial court could impose an upper term sentence pursuant to the amendment simply based on appellant’s prior, lengthy criminal conduct. We find no error in the trial court’s imposition of an upper term sentence. In his reply brief, appellant challenges the reasoning of Black and Sandoval. Appellant acknowledges, however, that we are bound by the holding in Sandoval. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Appellant admitted a prior serious felony conviction pursuant to the three strikes law for vehicular manslaughter in 1994. Appellant had two juvenile adjudications for receiving stolen property and malicious mischief. Appellant had additional convictions for misdemeanor receiving stolen property and misdemeanor drunk driving in 1992, felony second degree burglary in 1993, felony failure to stop at the scene of an accident in 1994, several misdemeanor convictions between 1999 and 2004, and felony spousal abuse in 2004.
Respondent raises an additional basis for rejecting appellant’s claim. Appellant entered into a plea agreement for a stipulated sentence. When a defendant enters into a guilty plea for a specified sentence, appellate courts will not find error even if the trial court acted in excess of jurisdiction in reaching that sentence as long as the court did not lack fundamental jurisdiction. Defendants who have received the benefit of their bargain should not be permitted to trifle with the courts by attempting to improve the bargain through the appellate process. (People v. Hester (2000) 22 Cal.4th 290, 295.)
In People v. French (2008) 43 Cal.4th 36, 49 (French), the California Supreme Court distinguished the facts of Hester, that involved a stipulated sentence, from its own facts which involved a sentence with a specified maximum. The French court reasoned that a defendant who only agrees to a maximum sentence “reasonably expects to have the opportunity to litigate any matters related to the trial court’s choice of sentence -- including the existence of aggravating and mitigating circumstances -- at the sentencing hearing.” (French, supra, 43 Cal.4th at p. 49.) The French court noted that in that case the defendant did not agree to a specified sentence and contemplated the court would have discretion to impose any appropriate sentence up to the maximum term. (Ibid.) The distinction French draws between a stipulated sentence and a sentence wherein the appellant can argue for a lesser term is instructive. The French case did not expressly or impliedly overrule Hester. (See also People v. Cuevas (2008) 44 Cal.4th 374, 383-384.)
Appellant did not agree to a maximum sentence in which he could argue to the court that he was entitled to a lesser term. Appellant agreed to a stipulated sentence of six years and received that sentence. Appellant could have reasonably contemplated the possibility of arguing for a lesser term. The French case, therefore, is inapposite to the instant action. Here, appellant is trifling with the courts to better his plea bargain on appeal. He is, therefore, estopped from challenging his sentence on appeal even though he obtained a certificate of probable cause.
DISPOSITION
The judgment is affirmed.