Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06NCR03390
NICHOLSON, J.
Defendant Matias Bravo Nares entered a negotiated and unconditional plea of guilty to felony evading (Veh. Code, § 2800.2, subd. (a)). The prosecutor agreed to recommend “a grant of probation with no state prison at the outset.” The trial court dismissed the remaining counts (resisting and driving without a license, both misdemeanors) and special allegation (prior prison term).
“There are two types of guilty or no contest pleas in California: (1) a conditional plea, where the plea is conditioned upon receipt of a particular disposition; and (2) an unconditional or open plea. [Citation.]” (People v. Holmes (2004) 32 Cal.4th 432, 435.)
Following the recommendation of the probation officer, the trial court denied probation and imposed a state prison sentence of the upper term of three years.
Defendant appeals. He contends that the court’s imposition of the upper term violates Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). Defendant did not obtain a certificate of probable cause (Pen. Code, § 1237.5). Thus, his challenge to the validity of his plea on the basis of Cunningham is barred. Because we find another error in sentencing, we will not dismiss the appeal but will modify the judgment.
FACTS
At the preliminary hearing, Glenn County Deputy Sheriff Darrin Dicharry testified that while on patrol in his marked patrol car on Highway 99 at 1:11 a.m. on January 6, 2006, he observed defendant’s vehicle which had an inoperable headlight. When Deputy Dicharry attempted to pull defendant over for the violation, defendant fled and the officer pursued with his lights and siren activated. During the chase, defendant reached a speed exceeding 90 miles per hour in a 55-mile-per-hour zone, drove on the wrong side of the road and failed to stop at intersections. When defendant turned onto a muddy road, his car got stuck. He then fled on foot.
DISCUSSION
I
In imposing the upper term of three years for felony evading, the court found the factors in aggravation outweighed those in mitigation. The court found that defendant was “incapable, for legal reasons, of complying with probation,” (“[Immigration Customs Enforcement] is going to pick him up, send him back . . .”), cited defendant’s two prior felony convictions [possession of methamphetamine for sale and grand theft auto] and prior prison term, determined that defendant’s current felony conduct was “somewhat egregious,” and concluded that defendant continued to violate “felony laws” despite having been given opportunities. The court also noted that defendant had previously been deported but returned, which was also a violation of the law. The court further stated: “[Defendant’s] first offense in Tehama County that resulted in a state prison sentence was 16 months. The judge in Tehama County said that possession of methamphetamine for sale was a low level offense and therefore he had no prior record, and I’m going to give him the benefit of the doubt and give him the lower term. Subsequent to that he’s in Glenn County on grand theft auto in this court. I presume myself gave [defendant] the 3 year upper term. And again, without having any real independent recollection I view that to be an aggravated term because of his prior felony. He was given the advantage of the lower term, then he reoffends and then he gets the upper term and, now he’s back before us and now you’re trying to urge the Court to go with the lower term or mid term.” The court rejected the prosecutor’s recommendation and defense counsel’s request.
The Attorney General initially asserts that defendant’s failure to obtain a certificate of probable cause requires dismissal of the appeal. Citing People v. Bobbit (2006) 138 Cal.App.4th 445 (Bobbit) and People v. Shelton (2006) 37 Cal.4th 759 (Shelton), the Attorney General claims that defendant “received a sentence within the range he agreed to.” Those cases apply where the parties have agreed to a maximum sentence or sentencing lid. (Shelton, supra, 37 Cal.4th at p. 763; Bobbit, supra, 138 Cal.App.4th at pp. 447-448.)
“‘[A] challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself’ and thus requires a certificate of probable cause. [Citation.]” (Shelton, supra, 37 Cal.4th at p. 766.) “[T]he specification of a maximum sentence or lid in a plea agreement normally implies a mutual understanding of the defendant and the prosecutor that the specified maximum term is one that the trial court may lawfully impose and also a mutual understanding that, absent the agreement for the lid, the trial court might lawfully impose an even longer term.” (Id. at p. 768.) “[A] provision recognizing the defendant’s right to ‘argue for a lesser term’ is generally understood to mean only that the defendant may urge the trial court to exercise its sentencing discretion in favor of imposing a punishment that is less severe than the maximum punishment authorized by law.” (Ibid.)
In Bobbit, this court applied Shelton and concluded that the defendant’s failure to obtain a certificate of probable cause barred his Blakely challenge to his sentence which was determined to be the sentencing lid. (Bobbit, supra, 138 Cal.App.4th at pp. 447-448.)
Here, defendant entered his plea in exchange for the prosecutor’s agreement to make a recommendation of probation or no state prison at the outset. Although the plea was unconditional in that there was no stipulated sentence or sentencing lid, the written plea form reflects that defendant entered his plea knowing that the “maximum term” for felony evading was three years. The terms of the plea bargain reflect that the court had the option of sentencing defendant to state prison for up to the maximum of three years or grant probation.
At the sentencing hearing, both the prosecutor and defense counsel disagreed with the probation officer’s recommendation of the upper term. The prosecutor recommended probation. Defense counsel requested probation or in the alternative a low or midterm sentence. Defense counsel never claimed that the court lacked the authority to impose the upper term nor did he cite Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely). Defendant entered his plea on April 13, 2006, and was sentenced on June 2, 2006.
We conclude that defendant failed to preserve the issue of the court’s authority to impose an upper term sentence based on aggravating factors not found by a jury. Defendant’s failure to obtain a certificate of probable cause bars his challenge to his sentence on the basis of Cunningham.
Even if the issue is cognizable without a certificate of probable cause, the Attorney General claims that defendant forfeited the issue by failing to object. We reject this assertion. Defendant was sentenced on June 2, 2006, after the California Supreme Court concluded in People v. Black (2005) 35 Cal.4th 1238 (Black I) that Blakely was inapplicable to the factfinding requirement for the upper term and prior to Cunningham which reversed the holding in Black I. People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval) held that a defendant who failed to object at sentencing which occurred after Black I and prior to Cunningham did not forfeit a Blakely issue on appeal because it would have been futile to object. (Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.)
In any event, we would conclude on the merits that no violation of Cunningham occurred.
Applying the Sixth Amendment 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] (Apprendi) that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Id. at p. 490.) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jury’s verdict or admitted by the defendant. Thus, when a sentencing court’s authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. at pp. 303-304.) Cunningham recently reaffirmed its holdings in Blakely and Apprendi, rejecting the contrary holding in Black I, supra, 35 Cal.4th 1238. (Cunningham, supra, 549 U.S. at pp. ___, ___ [166 L.Ed.2d at pp. 868, 873, 876].)
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.) In Black II, a jury convicted the defendant of continuous sexual abuse of a child and two counts of lewd and lascivious conduct with a child. In connection with the continuous sexual abuse count, the jury found true two allegations relevant to probation or a suspended sentence, that is, the offense was committed with force, violence, duress, menace and fear of injury and that the defendant had engaged in substantial sexual conduct. (Id. at pp. 806-807.) In imposing the upper term for the continuous abuse offense, the trial court cited the nature, seriousness and circumstances of the offense, noting the use of force on many occasions, victim vulnerability, abuse of a position of trust and the infliction of emotional and physical harm. (Id. at p. 807.) “The trial court stated that it considered not only the circumstances of the crime but also the other aggravating circumstances set out in the district attorney’s sentencing brief” which included the factor that defendant’s prior convictions were numerous and increasingly serious. The probation report set forth defendant’s criminal history. (Id. at p. 818.) Black II concluded that the “defendant’s constitutional right to a jury trial was not violated by the trial court’s imposition of the upper term sentence for his conviction of continuous sexual abuse” because “the ‘statutory maximum’ sentence to which defendant was exposed by the jury’s verdict was the upper term . . . .” (Id. at p. 816.) The trial court’s citation of the nature of the offense, specifically noting the use of force, was supported by the jury’s probation ineligibility finding (force, violence, duress, menace, and fear of injury) and rendered the defendant eligible for the upper term for the continuous sexual abuse offense. (Id. at pp. 816-818.) Black II also concluded that the trial court’s reliance upon the defendant’s criminal history by reference to the prosecutor’s sentencing brief in imposing sentence for the continuous sexual abuse offense was an additional aggravating factor which rendered the defendant eligible for the upper term. (Id. at pp. 818-820.)
Here, although the trial court erred in finding the facts underlying the offense to be “somewhat egregious” (See Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856]), defendant was eligible for the upper term based on the trial court’s finding that defendant had two prior felony convictions [possession of methamphetamine for sale and grand theft auto]. The trial court also cited defendant’s prior prison term and probation violations which qualify as recidivism factors. Black II, supra, 41 Cal.4th at pages 818 to 820 determined that the “fact of a prior conviction” broadly construed encompasses a defendant’s criminal history as reflected in records of the prior convictions. No Cunningham error occurred.
II
We find an error in sentencing. The trial court failed to impose a court security fee of $20 applicable to “every conviction.” (Pen. Code, § 1465.8.) The trial court’s omission constitutes an unauthorized sentence. We will modify the judgment to include the mandatory fee. (See People v. Talibdeen (2002) 27 Cal.4th 1151, 1157; People v. Smith (2001) 24 Cal.4th 849, 852-854.) In the interest of judicial economy, we do so without requesting supplemental briefing. Any party claiming to be aggrieved may petition for rehearing. (Gov. Code, § 68081.)
DISPOSITION
The judgment is modified to include a court security fee of $20 (Pen. Code, § 1465.8). The trial court is directed to prepare an amended abstract of judgment accordingly and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: SIMS, Acting P.J., MORRISON, J.