P. v. Tilley

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Filed 12/17/07 P. v. Tilley CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL WILLIAM TILLEY,
Defendant and Appellant.
C055089
(Super. Ct. No.
06F1483)
After pleading guilty to 19 different sex crimes against
two minor victims pursuant to a plea agreement, defendant
Michael William Tilley was sentenced to an agreed-upon “lid” of
40 years in prison, which included an upper term sentence on one
molestation count as the principal term. On appeal, defendant
contends: (1) the trial court violated his Sixth Amendment
rights in imposing the upper term sentence based on facts not
admitted by him or found true by a jury and (2) the factors the
trial court used to impose the upper term sentence and to run
all of the subordinate terms consecutively were invalid under
California law.

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We conclude that defendant’s appeal must be dismissed
because he failed to obtain a certificate of probable cause.
FACTUAL AND PROCEDURAL BACKGROUND
On January 4, 2007, as part of a plea agreement that called
for the dismissal of three counts and two enhancements,
defendant pled guilty to 19 different sex crimes involving two
different victims (both of whom were minors) and admitted two
enhancements. The agreement called for a 40-year “state prison
lid.” Given the possible prison terms for the crimes defendant
admitted, the 40-year lid could be reached only if defendant
received the upper term of eight years for one of his crimes and
all of the terms for the other crimes were ordered to run
consecutively.
At the time of defendant’s plea, People v. Black (2005) 35
Cal.4th 1238 had not been overruled. In Black, the California
Supreme Court rejected the argument that Blakely v. Washington
(2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) applied to
California’s determinate sentencing law and held “that the
judicial factfinding that occurs when a judge exercises
discretion to impose an upper term sentence . . . under
California law does not implicate a defendant’s Sixth Amendment
right to a jury trial.” (People v. Black, 35 Cal.4th at p.
1244.) On January 22, 2007, however, the United States Supreme
Court decided Cunningham v. California (2007) 549 U.S. ___ [166
L.Ed.2d 856], in which the court rejected Black and held that
California’s determinate sentencing law “violates a defendant’s
right to trial by jury safeguarded by the Sixth and Fourteenth

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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.”
(Id. at p. ___ [166 L.Ed.2d at p. 860].)
Defendant’s sentencing was originally scheduled for
February 9. Two days before the hearing, however, the court
continued the sentencing, in part based on defense counsel’s
request for time to review the Cunningham decision.
At sentencing on February 23, 2007, the prosecutor argued
that defendant had “waiv[ed] . . . any jury trial right on
aggravating factors” by “stipulat[ing] to being sentenced up to
40 years,” which could be reached only by imposing an upper term
on one of the charges. The trial court asked the prosecutor
whether it was “in anyone’s real interest to add two years to
the prison term if it creates the potential that the case would
be sent back by an appellate court for resentencing.” When the
prosecutor insisted on imposition of an upper term, the court
reiterated its “concerns . . . about the Cunningham decision,”
but ultimately agreed with the prosecutor that by waiving his
right to a jury trial in light of a lid that could be reached
only with the imposition of an upper term sentence, defendant
“knowingly waived [his] right to a jury trial on the aggravation
factor that would a achieve a 40-year sentence.” The court
proceeded to find a number of aggravating circumstances and
imposed the upper term on one of the charges, then ordered all
of the other terms to be served consecutively, for an aggregate
term of 40 years.

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Defendant filed a notice of appeal “based on the sentence
or other matters occurring after the plea.” Defendant did not
seek, and did not obtain, a certificate of probable cause.
DISCUSSION
Relying on Cunningham, defendant argues that the trial
court violated his Sixth Amendment right to a jury trial by
imposing the upper term based on findings not made by a jury.1
Consistent with the decision in People v. Bobbit (2006) 138
Cal.App.4th 445 (Bobbit), the People contend this argument
amounts to a challenge to the validity of defendant’s plea and
cannot be considered on appeal without a certificate of probable
cause, which defendant neither requested nor received. We agree
with the People.
Generally, a defendant who has entered a plea of guilty or
no contest must obtain a certificate of probable cause from the
trial court to appeal. (Pen. Code, § 1237.5.) No certificate
is required, however, when the grounds for appeal “arose after
entry of the plea and do not affect the plea’s validity.” (Cal.
Rules of Court, rule 8.304(b)(4)(B).) In determining whether a
certificate is required, “the critical inquiry is whether a
challenge to the sentence is in substance a challenge to the
1 The heading of defendant’s argument suggests that it also
encompasses a challenge to the imposition of consecutive, rather
than concurrent, sentences, but no such argument actually
appears in the text, therefore we limit our discussion to the
upper term issue.

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validity of the plea . . . .” (People v. Panizzon (1996) 13
Cal.4th 68, 76, italics omitted.)
“A negotiated plea agreement is a form of contract, and it
is interpreted according to general contract principles.
[Citations.] ‘The fundamental goal of contractual
interpretation is to give effect to the mutual intention of the
parties. (Civ. Code, § 1636.) If contractual language is clear
and explicit, it governs. (Civ. Code, § 1638.)’” (People v.
Shelton (2006) 37 Cal.4th 759, 767 (Shelton).)
In exchange for his guilty plea, defendant secured
dismissal of three felony counts and two enhancements and a
sentencing lid of 40 years. The sentence imposed conformed to
the agreement.
“‘[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.’” (Bobbit,
supra, 138 Cal.App.4th at p. 447, quoting Shelton, supra, 37
Cal.4th at p. 768.) “Accordingly, 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.” (Shelton, supra, at p. 763.)
Because the plea agreement here was based on a mutual
understanding that, in exchange for dismissal of felony counts
and enhancements, the court could order defendant to serve a 40-

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year term in state prison, defendant’s contention that the
sentence violated Cunningham is in substance a challenge to the
plea’s validity. Such a challenge after a guilty plea requires
a certificate of probable cause. (Shelton, supra, 37 Cal.4th at
p. 763.)
Defendant claims that Bobbit is not on point because, in
that case, the defendant “wanted to appeal ‘from all pre-trial
rulings, all rulings made at the time of defendant’s plea and
the Court’s sentence.’ In the present case, [defendant] is not
doing that. [He] is only appealing the sentence.” This attempt
to distinguish Bobbit misses the mark. Although the notice of
appeal in Bobbit was broad, the issue that we decided was
whether he needed a certificate of probable cause to challenge
the sentence imposed based on Blakely. (Bobbit, supra, 138
Cal.App.4th at p. 447.) That is precisely the issue defendant
attempts to argue here, also without obtaining a certificate of
probable cause.
The proper disposition when a defendant fails to obtain a
certificate of probable cause in a case such as this is
dismissal. (Bobbit, supra, 138 Cal.App.4th at p. 448.)
DISPOSITION
The appeal is dismissed.
NICHOLSON , Acting P.J.
I concur:
HULL , J.

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ROBIE, J.
I respectfully dissent.
Relying on People v. Shelton (2006) 37 Cal.4th 759
(Shelton) and People v. Bobbit (2006) 138 Cal.App.4th 445, the
majority concludes that for defendant to challenge on appeal the
trial court’s imposition of the upper term sentence for child
molestation, he had to obtain a certificate of probable cause.
I disagree. In my view, the majority has misread Shelton, just
as the panel in Bobbit did. Properly understood, Shelton does
not apply to any of the sentencing issues defendant raises here.
Accordingly, I would not dismiss this appeal, but would consider
it on its merits.
Defendant’s first argument on appeal is that the trial
court violated his Sixth Amendment right to a jury trial -- as
recognized in Cunningham v. California (2007) 549 U.S. ___ [166
L.Ed.2d 856] -- by imposing an upper term sentence based on
findings not made by a jury. The People contend this argument
amounts to a challenge to the validity of defendant’s plea and
cannot be considered on appeal without a certificate of probable
cause. As I will explain, the People are mistaken.
“Penal Code section 1237.5 provides that a defendant may
not appeal ‘from a judgment of conviction upon a plea of guilty
or nolo contendere’ unless the defendant has applied to the
trial court for, and the trial court has executed and filed, ‘a
certificate of probable cause for such appeal.’” (Shelton,
supra, 37 Cal.4th at p. 766.) Despite this broad statutory
language, the Supreme Court has recognized two types of issues

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that may be raised on appeal from a guilty or no contest plea
without a certificate of probable cause: “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.)
While the phrasing of the second exception to the
requirement of a certificate of probable cause might suggest
that any sentencing issue can be raised on appeal without a
certificate, that is not the case. Rule 8.304(b)(4)(B) of the
California Rules of Court clarifies that a defendant need not
obtain a certificate of probable cause if the appeal is based on
“[g]rounds that arose after entry of the plea and do not affect
the plea’s validity.” (Italics added.) Thus, to the extent
what appears to be merely a sentencing issue actually amounts to
a challenge to the validity of the plea, that issue cannot be
raised on appeal without a certificate of probable cause.
This principle is exemplified by Shelton, where the Supreme
Court concluded that a challenge to the trial court’s legal
authority to impose a “lid” sentence pursuant to a plea
agreement required a certificate of probable cause. (Shelton,
supra, 37 Cal.4th at p. 763.) In Shelton, the defendant agreed
to “plead no contest to two counts--stalking in violation of a
protective order . . . and making a criminal threat . . .--for
which [the] defendant would be sentenced to a prison term not to
exceed three years and eight months.” (Id. at pp. 763-764.) At

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the time of the plea, the court explained that the defendant
could “‘argue for something less than three years and eight
months,’” but would receive a prison sentence. (Id. at p. 764.)
At the sentencing hearing, “[d]efendant’s attorney argued
that the multiple punishment prohibition of Penal Code section
654 applied to the two counts to which defendant had pleaded no
contest because ‘[t]he threat occurred at the time of the
stalking and is also one of the elements of the stalking.’”
(Shelton, supra, 37 Cal.4th at p. 764.) Notwithstanding this
argument, the trial court imposed the middle term of three years
on the stalking charge and a consecutive eight-month term on the
criminal threat charge. (Id. at pp. 764-765.)
On review, the Supreme Court decided that defendant needed
a certificate of probable cause to “raise on appeal his claim of
trial court sentencing error under Penal Code section 654.”
(Shelton, supra, 37 Cal.4th at pp. 763, 766.) The court
reasoned “that inclusion of a sentence lid implies a mutual
understanding and agreement that the trial court has authority
to impose the specified maximum sentence and preserves only the
defendant’s right to urge that the trial court should or must
exercise its discretion in favor of a shorter term.” (Id. at p.
763.) “Because the plea agreement was based on a mutual
understanding (as determined according to principles of contract
interpretation) that the court had authority to impose the lid
sentence, defendant’s contention that the lid sentence violated
the multiple punishment prohibition of Penal Code section 654
was in substance a challenge to the plea’s validity and thus

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required a certificate of probable cause, which defendant failed
to secure.” (Shelton, at p. 769.)
Three months after Shelton, in People v. Bobbit, supra, 138
Cal.App.4th at page 445, a panel of this court applied the
reasoning in Shelton to a challenge to “the trial court’s
authority to impose an upper term sentence in light of Blakely
v. Washington (2004) 542 U.S. 296, [159 L.Ed.2d 403, 124 S.Ct.
2531]” -- the decision that preceded Cunningham. (Bobbit, at
p. 447.) In Bobbit, the defendant “pled no contest to one count
of sale of cocaine [citation] and one count of offering to sell
cocaine [citation] and admitted that he had suffered a prior
serious felony conviction,” subject to “a sentencing lid of 12
years and eight months.” (Ibid.) The trial court sentenced the
defendant to the lid, apparently by using an upper term
sentence. (Ibid.) On appeal, this court concluded that because
“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),” the appeal had to
be dismissed because the defendant did not obtain a certificate
of probable cause. (Id. at p. 448.)
Relying on Bobbit and Shelton, the People argue here -- and
the majority agrees -- that defendant’s challenge to the
imposition of the upper term sentence is, in substance, a
challenge to “the validity of his negotiated plea [to] a 40-year
state prison lid,” which requires a certificate of probable
cause. I do not agree.

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Shelton rests on the proposition “the 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.” (Shelton, supra, 37 Cal.4th at p. 768.) What
that meant in Shelton was that under the plea agreement the
trial court could lawfully impose an aggregate prison term of
three years eight months. In effect, however, by arguing that
the multiple punishment prohibition of Penal Code section 654
applied to his convictions, the defendant was arguing that the
trial court could not lawfully impose that prison term. This
was so because if Penal Code section 654 applied to the
defendant’s convictions, the trial court would have been
required to stay imposition of the eight-month sentence on the
criminal threats charge. (See People v. Kramer (2002) 29
Cal.4th 720, 722 [“When a defendant is convicted of two or more
offenses for which [Penal Code] section 654 prohibits multiple
punishment, the trial court must impose sentence for one of them
and stay imposition of sentence for the others”].) In effect,
by arguing that Penal Code section 654 applied to his
convictions, the defendant in Shelton was arguing that the
maximum term the trial court could lawfully impose was three
years (the middle term for the stalking charge), rather than the
lid of three years eight months to which he had agreed.1 It was
1 Obviously the trial court would have been barred by the lid
of three years eight months from imposing the upper term of four

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under these specific factual circumstances that the Supreme
Court concluded the defendant’s challenge to his sentence was,
in substance, a challenge to the validity of his plea.
The same conclusion does not necessarily follow in a case
like this, where the defendant seeks to raise a claim of
Blakely/Cunningham error. In a case like this, the defendant’s
argument is that the trial court violated his Sixth Amendment
rights by imposing the upper term sentence based on aggravating
circumstances that did not pertain to any prior convictions and
that were not admitted by him or found by a jury. In substance,
this argument is not an argument that the trial court could not
have lawfully imposed the upper term sentence to reach the lid;
rather, it is an argument that the trial court did not lawfully
impose the upper term sentence to reach the lid because the
court violated Cunningham by relying on its own findings of
aggravating circumstances that were unrelated to prior
convictions.
This is a subtle but critical distinction. As the Supreme
Court explained in Shelton, “a challenge to the trial court’s
authority to impose the lid is a challenge to the validity of
the plea requiring a certificate of probable cause.” (Shelton,
supra, 37 Cal.4th at p. 763.) If the defendant is not
challenging the trial court’s authority to impose the lid but
years on the stalking charge. (See Pen. Code, § 646.9,
subd. (b).) The only way the court could reach the lid of three
years eight months was if the court imposed sentence on both
charges, with the sentences to run consecutively.

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only the particular manner by which the court reached the lid --
e.g., making its own findings of aggravating circumstances
unrelated to prior convictions -- when the lid might have been
reached lawfully another way, then the defendant’s challenge is
not a challenge to the validity of the plea and does not require
a certificate of probable cause.
This distinction is brought into sharper focus by People v.
Buttram, supra, 30 Cal.4th at page 773. In Buttram, the
defendant “pled guilty to felony drug charges, and admitted two
prior serious or violent felonies, in return for an agreed
maximum sentence, or ‘lid.’ The agreement included no waiver of
[the] defendant’s right to appeal sentencing issues. At a
contested sentencing hearing, the trial court denied [the]
defendant’s request for diversion to a drug treatment program,
and it imposed the negotiated maximum. Without a certificate of
probable cause, defendant appealed, urging that the trial court
abused its sentencing discretion. In a published decision, the
Court of Appeal majority dismissed the appeal for lack of a
certificate.” (Id. at p. 776.)
The Supreme Court reversed, explaining that “[b]y agreeing
only to a maximum sentence, the parties leave unresolved between
themselves the appropriate sentence within the maximum. That
issue is left to the normal sentencing discretion of the trial
court, to be exercised in a separate proceeding.” (People v.
Buttram, supra, 30 Cal.4th at p. 785.) “This exercise of
discretion is not made standardless and unreviewable simply
because its exercise is confined to a specified range by the

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terms of a plea bargain that included no express waiver of
appeal. In such a circumstance, when the claim on appeal is
merely that the trial court abused the discretion the parties
intended it to exercise, there is, in substance, no attack on a
sentence that was ‘part of [the] plea bargain.’ [Citation.]
Instead, the appellate challenge is one contemplated, and
reserved, by the agreement itself.” (Id. at pp. 785-786,
italics omitted.)
Essentially, Buttram and Shelton stand for the following
principles: Where the parties agree to a maximum, or lid,
sentence, and the trial court imposes that sentence, any
argument by defendant that the trial court lacked the authority
to impose the lid generally must be considered a challenge to
the validity of the plea, which requires a certificate of
probable cause.2 Thus, if the defendant’s argument relies on a
legal principle -- like Penal Code section 654’s multiple
punishment prohibition (as in Shelton) or the constitutional
2 Of course, the court in Shelton recognized that “a
prosecutor and a defendant may enter into a negotiated
disposition that expressly recognizes a dispute or uncertainty
about the trial court’s authority to impose a specified maximum
sentence . . . and preserves the defendant’s right to raise that
issue at sentencing and on appeal. [Citation.] In that
situation, the plea agreement’s validity and enforceability
would be unaffected by the ultimate resolution of the disputed
issue because each party could be understood to have expressly
or impliedly accepted and assumed the risk that the issue would
be resolved in the opposing party’s favor.” (Shelton, supra, 37
Cal.4th at p. 769.) Thus, an exception to the general rule
applies when the defendant “reserve[s], either expressly or
implicitly, a right to challenge the trial court’s authority to
impose the lid sentence.” (Ibid.)

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prohibitions against cruel and unusual punishment (as in People
v. Young (2000) 77 Cal.App.4th 827) -- that would deprive the
court of authority to impose the lid sentence at all, then the
validity of the plea is at issue and a certificate of probable
cause is required for appellate review. If, on the other hand,
the defendant’s argument relies on some other legal principle
governing his or her sentencing that does not pose an absolute
bar to imposition of the lid sentence, the validity of the plea
is not at issue and no certificate is required.
For example, just as in Buttram the defendant did not need
a certificate of probable cause to argue that the trial court
abused its discretion in denying his request for diversion to a
drug treatment program, in Shelton the defendant would not have
needed a certificate to argue that the trial court abused its
discretion in imposing the middle term of three years
on the stalking charge, rather than the lower, mitigated term.
Likewise, the defendant in Shelton would not have needed a
certificate to argue that the trial court abused its discretion
in imposing a consecutive term on the criminal threat charge,
rather than a concurrent term. Neither of those arguments would
have challenged the trial court’s authority to impose the lid
sentence and therefore they would not have implicated the
validity of the plea.
Here, defendant’s argument that the trial court committed
Blakely/Cunningham error is equivalent to the argument that was
not barred in Buttram and the arguments that would not have been
barred in Shelton. It is true that defendant’s assertion of

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Blakely/Cunningham error here does not claim an abuse of
discretion by the trial court, but that distinction is
immaterial. The critical distinction is not in the standard of
review that applies to the defendant’s argument on appeal, but
rather the nature of the legal principle on which the defendant
relies. As I have explained, if the legal principle the
defendant seeks to invoke is one that would deny the trial court
authority to impose the lid sentence at all, then the defendant
is challenging the validity of the plea; if, on the other hand,
the legal principle the defendant seeks to invoke does not
absolutely bar the trial court from imposing the lid, then the
defendant is not challenging the plea’s validity.
The panel in Bobbit failed to recognize this distinction.
The Bobbit panel concluded that because the claim of
Blakely/Cunningham error was not preserved by the plea
agreement, a certificate of probable cause was needed. (People
v. Bobbit, supra, 138 Cal.App.4th at p. 448.) But under
Shelton, the only type of argument that must be expressly or
implicitly preserved by the plea is an argument that the trial
court lacks the authority to impose the lid sentence at all.
(See Shelton, supra, 37 Cal.4th at p. 769; see ante at p. 8,
fn. 2.) A challenge to the imposition of an upper term sentence
under Blakely and Cunningham does not challenge the trial
court’s authority to impose the lid sentence, even where (as
here) an upper term sentence is necessary to reach the lid.
Rather, a claim of Blakely/Cunningham error simply asserts that
the method the trial court used to reach the lid -- imposing an

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upper term sentence not based on aggravating circumstances found
by a jury or admitted by the defendant but based on the trial
court’s own findings of aggravating circumstances unrelated to
prior convictions -- violated the defendant’s constitutional
rights. This is not a challenge to the validity of the plea.
Where, as here, it was at least conceivable the trial court
could have imposed the upper term sentence by relying on one or
more aggravating circumstances that did not require a jury
finding (i.e., prior convictions or a circumstance admitted by
defendant) or by obtaining a jury finding of one or more
aggravating circumstances, the defendant’s claim of
Blakely/Cunningham error is not a challenge to the trial court’s
authority to impose the lid sentence, but only a challenge to
the manner by which the court reached the lid. Because such a
challenge does not implicate the validity of the plea, no
certificate of probable cause is required.
In addition to his claim of Blakely/Cunningham error,
defendant also argues on appeal that: (1) the aggravating
circumstances on which the trial court relied to impose the
upper term sentence were not valid under California law; and
(2) the criteria on which the trial court relied to impose
consecutive sentences were also invalid. The majority does not
expressly address either of these arguments. It is clear to me,
however, that just like defendant’s claim of Blakely/Cunningham
error, these arguments can be raised on appeal without a
certificate of probable cause. Like defendant’s claim of
Blakely/Cunningham error, these arguments do not challenge the

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trial court’s authority to impose the upper term sentence, or
its authority to impose consecutive sentences. Instead, these
arguments challenge the trial court’s basis for imposing those
sentences. Defendant does not claim the trial court could not
have identified a valid basis for imposing the upper term
sentence and/or imposing consecutive sentences, only that the
trial court did not do so. Because such an argument does not
challenge the trial court’s authority to act, Shelton does not
apply and a certificate of probable cause is not needed for
appellate review.
For the foregoing reasons, I would address defendant’s
appeal on its merits.
ROBIE , J.

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