Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. TA086806, Jerry E. Johnson, Judge.
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, Senior Assistant Attorney General, Michael R. Johnsen and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
KRIEGLER, J.
Defendant Henry Frizzell Merriweather was charged with (1) possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) (based on three prior convictions), (2) possession of an assault weapon (§ 12280, subd. (b)), and (3) transporting a controlled substance (Health & Saf., § 11352, subd. (a)), along with the special allegations of having suffered a single prior serious or violent conviction within the meaning of the three strikes law (§§ 667, subds. (b)-(i) and 1170.12, subds. (a)-(d)) and two prior prison terms within the meaning of section 667.5, subdivision (b). After waiving his constitutional trial rights, including the right to a jury trial, defendant withdrew his not guilty pleas and entered a no contest plea to the possession of a firearm by a felon. Under the terms of his plea agreement, the trial court imposed the upper term of three years in state prison.
All further statutory references are to the Penal Code, unless otherwise noted.
On appeal, defendant contends his guilty plea was invalid and his sentence must be vacated because he was not afforded the opportunity to waive a jury trial on sentencing factors pursuant to Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), which was decided 12 days after he entered his plea. We dismiss the appeal because defendant negotiated a plea for the upper term, waived his right to a jury trial as part of that agreement, and failed to seek and obtain a certificate of probable cause.
PROCEDURAL HISTORY
On December 28, 2006, the trial court heard defendant’s suppression motion pursuant to section 1538.5. Finding the police officer’s testimony credible and the search of defendant’s vehicle lawful, the court denied the motion. On January 10, 2007, defendant withdrew his not guilty pleas and entered a plea agreement whereby he would plead no contest/guilty to count one, the felon in possession of a firearm count, and receive the three-year upper term sentence in exchange for the dismissal of the remaining counts and special allegations. The trial court explained that defendant’s maximum exposure on count one was eight years and ensured that defendant understood the terms of his agreement and was informed of his constitutional trial rights, including his right to a jury trial. The court found that in entering his plea, defendant knowingly and voluntarily waived his constitutional rights. Accordingly, defendant was sentenced to the upper term of three years for the section 12021, subdivision (a) conviction. The abstract of judgment was filed on January 16, 2007.
Defendant filed his notice of appeal on January 10, 2007. The notice stated that defendant’s appeal followed his no contest plea and purported to appeal solely from the denial of the December 28, 2006 suppression motion. Defendant did not seek a certificate of probable cause to raise the Cunningham issue, which is the sole claim raised on 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.) It is well established that under section 1237.5 only “‘“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.” (People v. Buttram (2003) 30 Cal.4th 773, 780.)’ (People v. Shelton (2006) 37 Cal.4th 759, 766.)” (People v. McEwan, supra, 147 Cal.App.4th at p. 177.) Because challenging a negotiated sentence imposed as part of a plea bargain is recognized as a challenge to the plea’s validity, it requires a certificate of probable cause to be pursued on appeal. (People v. Bobbit (2006) 138 Cal.App.4th 445, 447 (Bobbit), citing People v. Shelton, supra, Cal.4th at p. 766; People v. Panizzon (1996) 13 Cal.4th 68, 79.)
The fact that defendant filed a timely appeal on a noncertificate ground is of no moment. “[T]he Court of Appeal may proceed to the merits of the appeal if the defendant has based his appeal solely on noncertificate grounds and has filed a notice of appeal so stating within 60 days after rendition of judgment. It may accordingly address noncertificate issues. [Citation.] But it must decline to address certificate issues. [Citations.] For the presence of a notice of appeal stating noncertificate grounds does not supply the absence of a statement of certificate grounds and a certificate of probable cause.” (People v. Mendez (1999) 19 Cal.4th 1084, 1096.)
In Bobbit, our colleagues in the Third District found the certificate of probable cause requirement applied to Sixth Amendment challenges under Blakely v. Washington (2004) 542 U.S. 296, 301 (Blakely) to the imposition of an upper term under a plea bargain. (Bobbit, supra, 138 Cal.App.4th at pp. 447-448.) The Bobbit rationale, of course, applies equally to Sixth Amendment challenges under Cunningham since they both apply the same constitutional doctrine to the imposition of upper term sentences under this state’s determinate sentencing law (DSL).
Defendant nevertheless contends that Bobbit is distinguishable because it was issued before Cunningham. Requiring a certificate of probable cause in his circumstances, defendant argues, would be fundamentally unfair and deny him due process because Cunningham was decided after the time for obtaining a certificate of probable cause had expired. That is, defendant asserts that prior to the issuance of the Cunningham decision on January 22, 2007, he had “no opportunity” to comply with section 1237.5’s certificate requirements. We disagree.
Regardless of whether Blakely gave defendant sufficient notice of the constitutional basis for mounting a Sixth Amendment challenge to upper term sentences under the DSL, defendant is mistaken in asserting that Cunningham was issued after expiration of the time for filing a notice of appeal, along with the requisite statement requesting a certificate of probable cause under section 1237.5. Defendant had 60 days after rendition of judgment to do so. (Cal. Rules of Court, rules 8.104(a), 8.304; People v. Mendez, supra, 19 Cal.4th at p. 1096.) The record shows that the Cunningham decision was issued 12 days after defendant’s sentencing hearing and 6 days after the abstract of judgment was filed, well within the 60 day period.
As our Supreme Court instructs, we “generally may not proceed to the merits of the appeal, but must order dismissal thereof, unless the defendant has filed a statement of certificate grounds as an intended notice of appeal, and has obtained a certificate of probable cause, in full compliance therewith.” (People v. Mendez, supra, 19 Cal.4th at p. 1099.)
DISPOSITION
The appeal is dismissed.
We concur: TURNER, P. J., MOSK, J.