Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC146214A
Pollak, J.
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, § 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).)
All statutory references are to the Penal Code unless otherwise indicated.
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 defendant’s claim is not cognizable on appeal absent a certificate of probable cause and that his Blakely/Apprendi waiver was valid in any event. We agree and shall dismiss defendant’s appeal.
Discussion
“An appeal following a guilty or no contest plea which challenges the validity of the plea is not operative unless the defendant obtains a certificate of probable cause pursuant to Penal Code section 1237.5.” (People v. McEwan (2007) 147 Cal.App.4th 173, 175.) In general, “a challenge to the trial court’s authority to impose the lid sentence is a challenge to the validity of the plea requiring a certificate of probable cause.” (People v. Shelton (2006) 37 Cal.4th 759, 763; People v. Young (2000) 77 Cal.App.4th 827, 832 [“By arguing that the maximum sentence is unconstitutional, [the defendant] is arguing that part of his plea bargain is illegal and is thus attacking the validity of the plea”].) In People v. Bobbit (2006) 138 Cal.App.4th 445, 447-448 the court held that the requirement of obtaining a certificate of probable cause applies to claims made under Blakely, supra, 542 U.S. 296, that an upper term sentence was imposed in violation of the Sixth Amendment.
Here, defendant agreed to a maximum sentence that was calculated based on imposition of the upper term. Moreover, defendant signed a Blakely/Apprendi waiver as part of the plea agreement, expressly waiving his right to a jury trial on any factor used to sentence him to an aggravated term. Defendant’s attack on the court’s authority to impose the upper term sentence and the enforceability of the waiver is a challenge to the validity of the plea that cannot be pursued without a certificate of probable cause.
The waiver signed by defendant in this case provides in relevant part: “I understand that I may have the right to have any factor that can be used at sentencing [¶] . . . to sentence me to an aggravated term [¶] . . .[¶] proved to be true beyond a reasonable doubt at a jury trial or court trial. . . . [¶] I give up my right to have those factors proven true beyond a reasonable doubt at a jury trial and at a court trial, and I agree to allow the [c]ourt to make the sentencing determination in this case, pursuant to those provisions of the California Penal Code and the California Rules of Court governing the imposition of sentence in criminal cases.”
People v. Jordan (2006) 141 Cal.App.4th 309, relied on by defendant, is distinguishable. Jordan did not involve a plea bargain, so that there was no consideration of the certificate of probable cause requirement. More importantly, to the extent that the court in Jordan concluded that the defendant’s challenge to his sentence was cognizable on appeal, it relied heavily on People v. Buttram (2003) 30 Cal.4th 773, 785-786. In that case the Supreme Court differentiated between challenges to a court’s authority to impose the maximum agreed sentence, for which a certificate of probable cause is required, and challenges to a court’s exercise of discretion to select a sentence within the authorized range, for which no certificate of probable cause is required. (See also People v. Shelton, supra, 37 Cal.4th at p. 770 [“In Buttram, we expressly distinguished the situation, present here, in which a defendant on appeal challenges the trial court’s authority to impose the lid sentence . . . . Our carefully circumscribed holding was that ‘absent contrary provisions in the plea agreement itself, a certificate of probable cause is not required to challenge the exercise of individualized sentencing discretion within an agreed maximum sentence.’ ”].) Because defendant is challenging the court’s authority to impose the upper term sentence, his appeal must be dismissed for failure to obtain a certificate of probable cause.
In any case, defendant’s Blakely/Apprendi waiver undoubtedly is valid. Under the Sixth Amendment, a defendant has the right to jury trial on certain factors that may be used to impose an aggravated sentence. (Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856].) The record establishes that defendant knowingly and voluntarily waived this right. (Boykin v. Alabama (1968) 395 U.S. 238, 242-243.) Defendant argues that his waiver was invalid because “a criminal defendant cannot have forfeited or waived a legal argument that was not recognized at the time of his trial” and that at the time of his plea, the California Supreme Court had decided in People v. Black (2005) 35 Cal.4th 1238 that Blakely and Apprendi did not apply to the California’s determinative sentencing law. By failing to object, “[a] criminal defendant cannot be deemed to have waived or forfeited a legal argument which was not recognized at the time of his trial.” (People v. Cardenas (2007) 155 Cal.App.4th 1468, 1479.) However, a defendant can affirmatively waive a known and recognized argument even if the validity of the argument is unresolved at the time of the waiver. (People v. Collins (2001) 26 Cal.4th 297, 305 [waiver of Sixth Amendment right to jury trial must be “knowing and intelligent, that is, ‘ “ ‘made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it’ ” ’ ”].) By March 2006, when defendant signed the waiver, the United States Supreme Court had granted certiorari in Cunningham v. California (2006) 546 U.S 1169 and a petition for certiorari was pending in People v. Black. As part of the plea agreement, defendant clearly intended to waive any argument under the Sixth Amendment irrespective of the outcome of those then-pending cases.
Disposition
The appeal is dismissed.
We concur: McGuiness, P. J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.