Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. CM024601, CM024701, CM025001
RAYE, J.
While investigating a vehicle burglary, officers approached and searched defendant Adam Aron Winders. Officers recovered a shot glass and a baggie, both containing methamphetamine, from defendant’s pocket. In another incident, officers pulled defendant over for driving a car without a rear license plate. A search of the vehicle unearthed a shotgun, ammunition, and a cache of various drugs. In yet a third incident, officers arrested defendant for failure to appear in court and discovered more drugs and drug paraphernalia.
An information charged defendant with possession of methamphetamine for sale stemming from the first incident. (Health & Saf. Code, § 11378.) A second information charged defendant with unlawful taking of an automobile, possession of a firearm by a felon, and various drug offenses. (Veh. Code, § 10851, subd. (a); Pen. Code, § 12021, subd. (a)(1); Health & Saf. Code, § 11350, subd. (a); Bus. & Prof. Code, § 4140.) In a third information, defendant was charged with possession of methamphetamine and failure to appear while on bail. (Health & Saf. Code, § 11377, subd. (a); Pen. Code, § 1320.5.) All three informations alleged defendant had served one prior prison term within the meaning of Penal Code section 667.5, subdivision (b).
Defendant entered no contest pleas to three felony charges, and the trial court dismissed the remaining counts. The court sentenced defendant to four years four months in state prison. Defendant appeals, contending the court’s sentence violates his Sixth Amendment right to a jury trial. The Attorney General urges us to dismiss the appeal, asserting defendant cannot challenge the constitutionality of his sentence without first obtaining a certificate of probable cause. We shall consider the appeal and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
An information charged defendant with possession of methamphetamine for sale in case No. CM024601. (Health & Saf. Code, § 11378.) The information also alleged defendant had served one prior prison term. (Pen. Code, § 667.5, subd. (b).)
The probation report related the following scenario underlying the charge. In winter of 2006 a police officer investigating a report of a suspicious vehicle spied defendant reclining in the passenger seat of a car. Defendant seemed to be hiding something.
The officer detained defendant and recovered a shot glass containing .5 gram of methamphetamine and a baggie containing 12 grams of methamphetamine. Defendant admitted possessing the drug but denied selling it.
An information filed in case No. CM024701 charged defendant with one count of unlawful taking of an automobile without consent of the owner (Veh. Code, § 10851, subd. (a)), possession of Darvocet (Health & Saf. Code, § 11350, subd. (a)), possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)), and possession of a hypodermic needle or syringe (Bus. & Prof. Code, § 4140). The information also alleged defendant had served one prior prison term. (Pen. Code, § 667.5, subd. (b).)
The probation report described the circumstances underlying the information. Officers observed defendant driving a car without a rear license plate or temporary registration sticker. After officers were notified the car had been reported stolen, they detained defendant and his passenger.
A search of the vehicle revealed a loaded 12-gauge shotgun wrapped in a black trench coat in the trunk. Officers also found a case containing a hypodermic syringe, two baggies containing white powder residue, a pill bottle containing nine Darvocet tablets, and credit cards in the name of another person.
A third information, in case No. CM025001, charged defendant with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and failure to appear while on bail (Pen. Code, § 1320.5). The information further alleged defendant had been released from custody on bail at the time of the commission of the offenses. (Pen. Code, § 12022.1.) Finally, the information alleged defendant had served one prior prison term. (Pen. Code, § 667.5, subd. (b).)
The probation report provided the factual background for the information. Defendant failed to appear in court while released on bail. Bench warrants were issued for his arrest. About two weeks later, an officer contacted defendant, who identified himself with an identification card. A records check revealed the outstanding arrest warrants. After the officer took defendant into custody, a search of his person and backpack unearthed a set of scales, hypodermic syringes, a baggie containing methamphetamine, a spoon containing methamphetamine, and pay-owe sheets.
Defendant entered no contest pleas to three felony charges: possession for sale of methamphetamine, possession of a firearm by a felon, and failing to appear while on bail. The court dismissed the remaining counts and charges in all three cases.
The court denied probation and sentenced defendant to four years four months: on count 1 in case No. CM024601, the upper term of three years, which was deemed the principal term; on count 3 in case No. CM024701, one-third the middle term of two years, to be served consecutively pursuant to Penal Code section 1170.1, subdivision (a); and on count 2 in case No. CM025001, one-third the middle term of two years, also to be served consecutively.
Defendant filed a timely notice of appeal but did not request a certificate of probable cause. The People filed a motion to dismiss the appeal, which was denied.
DISCUSSION
I
The People argue defendant’s appeal should be dismissed for failure to obtain a certificate of probable cause. Defendant contends no certificate of probable cause is required when a plea is not given in exchange for either a stipulated term or lid, as in the present case.
Defendant entered a plea of no contest to three counts in exchange for the prosecution’s agreement to dismiss the remaining counts. The court advised defendant that his maximum prison exposure was four years four months based on his pleas in the written change of plea form. The court informed defendant of the consequences of his plea. Defendant acknowledged he had read and understood the consequences of his plea agreement.
When a defendant pleads guilty in exchange for a stipulated sentence, any challenge to that sentence implicates the validity of the plea and requires a certificate of probable cause. (People v. Shelton (2006) 37 Cal.4th 759, 766; People v. Panizzon (1996) 13 Cal.4th 68, 79.) The ultimate issue defendant raises in his appeal is the trial court’s authority to impose an upper term sentence in light of Blakely v. Washington (2004) 524 U.S. 296 [159 L.Ed.2d 403] (Blakely).
We have previously found that when a defendant agrees to a maximum sentence as part of a plea bargain and receives a sentence within that range, the defendant must obtain a certificate of probable cause before he can challenge the constitutionality of that sentence. (People v. Bobbit (2006) 138 Cal.App.4th 445, 447-448 (Bobbit).)
In Bobbit, in exchange for dismissal of other charges and a sentencing lid of 12 years 8 months, the defendant pled no contest to drug charges. After the court sentenced him to the maximum term permitted under the plea agreement, the defendant appealed from his sentence. The defendant failed to obtain a certificate of probable cause. We dismissed the appeal. We noted the court ascertained the defendant understood he could receive the maximum sentence under the agreement. In addition, although Blakely had been decided previously, defense counsel failed to raise the issue during plea negotiations or during sentencing. (Bobbit, supra, 138 Cal.App.4th at p. 448.)
We concluded, as a matter of law, “that the plea agreement did not preserve, either at sentencing or on appeal, the issue that the court did not have the authority to impose an upper term sentence in the absence of a jury finding of one or more aggravating circumstance(s). Without a certificate of probable cause, the appeal must be dismissed.” (Bobbit, supra, 138 Cal.App.4th at p. 448, fn. omitted.)
Defendant relies on People v. Cuevas (2006) 142 Cal.App.4th 1141, which disagreed with Bobbit. However, the Supreme Court granted review in People v. Cuevas on January 3, 2007, S147510.
Whatever the merits of this court’s decision in Bobbit, the facts of the present case are different. The parties in Bobbit did not execute a written plea agreement. The trial court, while explaining the plea agreement to the defendant, declared: “‘Further agreement is that you would be pleading for a top sentence of 12 years, 8 months, that would be a lid.’” (Bobbit, supra, 138 Cal.App.4th at p. 448.) The use of the term “lid” implies that the prosecution agreed to a reduction in the defendant’s maximum sentence exposure. The reduction could have resulted from the exercise of the prosecution’s discretion in charging offenses and also involved the imposition of limitations on the court’s sentencing discretion. Presumably, the prosecution would not have offered a deal that could not have been implemented by the court, and the defendant would not have accepted a deal that exposed him to even greater punishment.
Here, in contrast, the trial court did not undertake to describe an agreement between defendant and the prosecution with respect to the plea. There is no discussion of the plea agreement on the record. The consequences of defendant’s guilty plea were set forth in a written form initialed in appropriate places and signed by defendant. The standard advice on the maximum sentence set forth on the form would have been provided even in the absence of a plea bargain. Only the fact that the plea was taken following the United States Supreme Court’s decision in Blakely, supra, 524 U.S. 296 gives any credence to the argument that the court’s authority to impose the upper term was the subject of a plea bargain and thus a challenge to imposition of the term would constitute a challenge to the validity of the plea. We reject this argument and conclude a certificate of probable cause is unnecessary. Therefore, defendant is entitled to appellate review of his challenge to the sentence.
II
The trial court, in sentencing defendant to the upper term, found that “[a]ggravation outweighs mitigation because of his priors being numerous as a juvenile and adult and his prior performance, which was unsatisfactory. He’s also served a year in the California Rehabilitation Center.”
In a decision based on the Sixth and Fourteenth Amendments to the United States Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490, italics added.) For this purpose, the “statutory maximum” is the maximum sentence the trial court may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. (Blakely, supra, 542 U.S. at p. 303.)
In Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham), the United States Supreme Court held that under Blakely and other decisions, California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments” to the extent the law allows a judge to impose an upper term sentence “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, at p. ___ [166 L.Ed.2d at p. 864], overruling People v. Black (2005) 35 Cal.4th 1238(Black I) on this point, vacated in Black v. California (2007) ___ U.S. ___ [167 L.Ed.2d 36].)
More recently, the California Supreme Court in People v. Black (2007) 41 Cal.4th 799 (Black II) held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.) The “prior conviction” exception “include[s] not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Id. at p. 819.) A finding that a defendant’s prior convictions are numerous or of increasing seriousness is a legally sufficient aggravating circumstance appropriately determined by the sentencing court. (Id. at p. 820.) That factor was used by the trial court here.
Here, the facts relied upon by the trial court did not have to be submitted to a jury. Because these aggravating factors made defendant eligible for the upper term, there was no violation of defendant’s rights under the Sixth and Fourteenth Amendments of the United States Constitution.
DISPOSITION
The judgment is affirmed.
We concur: SIMS, Acting P.J., DAVIS, J.