P. v. Marble

1
(SEE CONCURRING AND DISSENTING OPINION.)
Filed 11/16/07 P. v. Marble 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
JACQUELINE ANN MARBLE,
Defendant and Appellant.
C051378
(Super. Ct. No. CM019984)
In return for dismissal of additional charges, defendant
Jacqueline Ann Marble pleaded no contest to one count of assault
with a deadly weapon on a person known, or who reasonably should
be known, to be performing duties as a peace officer. (Pen.
Code, § 245, subd. (c).)1 Sentenced to five years in state
prison, she appeals, contending the trial court erred under
Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856]
(Cunningham) in imposing the upper term for the offense based
upon facts not determined by a jury. Defendant was apprised
that the maximum five-year sentence was a possible consequence
1 Undesignated statutory references are to the Penal Code.

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of her plea and we will find her attack on the sentence is an
attack on the plea. Accordingly, we shall dismiss the appeal
for failure to obtain a certificate of probable cause.2
FACTUAL AND PROCEDURAL BACKGROUND
Under a plea bargain defendant pleaded no contest to the
assault charge on December 9, 2003. On her plea bargain form
she initialed, inter alia, that she understood and agreed that:
(1) as a consequence of the plea: “I MAY SERVE THIS MAXIMUM
SENTENCE AS A RESULT OF MY PLEA: [FIVE] YEARS IN STATE PRISON”;
(2) “THE MATTER OF PROBATION AND SENTENCE IS TO BE DETERMINED
SOLELY BY THE SUPERIOR COURT JUDGE”; and (3) “THE SENTENCING
JUDGE MAY CONSIDER MY PRIOR CRIMINAL HISTORY . . . WHEN GRANTING
PROBATION, ORDERING RESTITUTION OR IMPOSING SENTENCE.” During
the plea hearing, she acknowledged understanding “the potential
consequences of [her] plea including the maximum penalty.”
The trial court imposed the upper term for the offense,
five years’ imprisonment, as recommended by the probation
2 Section 1237.5 provides:
“No appeal shall be taken by the defendant from a judgment of
conviction upon a plea of guilty or nolo contendere, or a
revocation of probation following an admission of violation,
except where both of the following are met:
“(a) The defendant has filed with the trial court a written
statement, executed under oath or penalty of perjury showing
reasonable constitutional, jurisdictional, or other grounds
going to the legality of the proceedings.
“(b) The trial court has executed and filed a certificate of
probable cause for such appeal with the clerk of the court.”

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department. The court gave three reasons for that sentencing
choice: (1) defendant’s prior convictions are numerous and of
increasing seriousness, (2) she has served a prior prison term,
and (3) her prior performance on probation was unsatisfactory.
DISCUSSION
Defendant contends that the trial court erred in imposing
the upper term based on aggravating factors on which there was
no jury trial. The Attorney General replies, preliminarily,
that the appeal should be dismissed because defendant failed to
seek and obtain a certificate of probable cause under section
1237.5. The Attorney General argues that the defendant’s
Cunningham claim is a challenge to a negotiated sentence imposed
as a part of the plea bargain and hence a challenge to the plea,
which requires a certificate of probable cause. (See, e.g.,
People v. Shelton (2006) 37 Cal.4th 759 (Shelton); People v.
Bobbit (2006) 138 Cal.App.4th 445, 447-448 (Bobbit); People v.
Young (2000) 77 Cal.App.4th 827, 834.) We agree and shall
dismiss the appeal.
As noted, 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.” Nonetheless,
certain issues may be raised on appeal following a guilty or
nolo contendere plea without the need for a certificate. The
permitted issues include some issues regarding proceedings held

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subsequent to the plea for the purpose of determining the degree
of the crime and the penalty to be imposed. (See, e.g., People
v. Buttram (2003) 30 Cal.4th 773, 780; Cal. Rules of Court, rule
8.304(b)(4)(B) [certificate not required if appeal is based on
“[g]rounds that arose after entry of the plea and do not affect
the plea’s validity”].)
“‘[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. (People v. Panizzon (1996) 13 Cal.4th 68, 79.)”
(Shelton, supra, 37 Cal.4th at p. 766.) The result is the same
for a challenge to the trial court’s authority to impose an
agreed-upon sentence “lid” (a term lower than the maximum
possible under sentencing law for the admitted offenses). When
the lid is imposed as part of a plea bargain, an appellate
attack “is in substance a challenge to the validity of the
negotiated plea” and thus also requires a certificate of
probable cause. (Id. at p. 771.) Shelton’s logic applies where
the attack is based upon a claim of Blakely3 and Cunningham
error. (See Bobbit, supra, 138 Cal.App.4th at pp. 447-448.)
The only difference in this case from Shelton and Bobbit is
that the challenge is to the trial court’s authority to impose
the maximum possible term for the admitted offenses under
3 Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403].

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sentencing law, rather than a lid term. We see no basis for
distinction on this ground.
The core rationale of Shelton is that the plea bargain
contract must give effect to the mutual intention of the
parties, with ambiguity resolved in favor of the sense the
promisee, the prosecutor, would have understood it. (Shelton,
supra, 37 Cal.4th at p. 767.) In this case the agreement’s
terms regarding sentencing were, in essence, that the court
would sentence pursuant to the determinate sentencing law, with
the express understanding the maximum sentence under that law
was the five-year term defendant received.
From a prosecutor’s point of view, such an agreement
necessarily implies an understanding and belief that the stated
maximum sentence under that law is a sentence that the trial
court may lawfully impose. If the prosecutor understood or
believed that the trial court lacked authority to impose that
sentence, the benefit gained by giving up the possibility of a
greater sentence with conviction on the additional dismissed
charges would be illusory. Thus, to challenge the trial court’s
authority to impose the acknowledged maximum sentence, it was
incumbent upon defendant to reserve such a right in the plea
bargain. (See Shelton, supra, 37 Cal.4th at p. 769.) She did
not.
Like the Supreme Court in Shelton, we conclude that
defendant’s challenge to the trial court’s sentencing authority
is in substance a challenge to the validity of the negotiated

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plea. Therefore, defendant’s failure to secure a certificate of
probable cause bars consideration of this challenge and requires
dismissal of her appeal.
DISPOSITION
The appeal is dismissed.
BUTZ , J.
I concur:
CANTIL-SAKAUYE , J.

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I do not agree that the appeal must be dismissed because
defendant did not obtain a certificate of probable cause and,
therefore, is precluded from claiming that imposition of the
upper term violated the Sixth Amendment to the United States
Constitution, as interpreted in Apprendi v. New Jersey (2000)
530 U.S. 466 [147 L.Ed.2d 435] (hereafter Apprendi), Blakely
v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (hereafter
Blakely), and Cunningham v. California (2007) 549 U.S. ___
[166 L.Ed.2d 856] (hereafter Cunningham).
It is true that defendant agreed to a sentencing “lid”
that exposed her to the upper term. However, her claim of
sentencing error is not an attack on the trial court’s legal
authority to impose the upper term; it is simply a challenge to
the court’s exercise of discretion based on factors that were not
found true by a jury beyond a reasonable doubt. In other words,
an Apprendi/Blakely/Cunningham claim of error is not a challenge
to the validity of a plea; thus, a certificate of probable cause
is not needed to raise the claim of error. (People v. Buttram
(2003) 30 Cal.4th 773, 790-791 [“certificate of probable cause
is not required to challenge the exercise of individualized
sentencing discretion within an agreed maximum sentence. Such an
agreement, by its nature, contemplates that the [trial] court will
choose from among a range of permissible sentences within the
maximum, and that abuses of this discretionary sentencing
authority will be reviewable on appeal, as they would otherwise
be”].)

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Nevertheless, defendant is not entitled to relief for the
following reasons.
Apprendi held 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.
(Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) For
this purpose, the statutory maximum is the maximum sentence a court
could impose based solely on facts reflected by a jury’s verdict or
admitted by the defendant; thus, when a 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. 303-305 [159
L.Ed.2d at pp. 413-414].) In Cunningham, supra, 549 U.S. at p. ___
[166 L.Ed.2d. at p. 864], the United States Supreme Court held that
by “assign[ing] to the trial judge, not to the jury, authority to
find the facts that expose a defendant to an elevated ‘upper term’
sentence,” California’s determinate sentencing law “violates a
defendant’s right to trial by jury safeguarded by the Sixth and
Fourteenth Amendments.” (Ibid., overruling People v. Black (2005)
35 Cal.4th 1238 on this point.)
Here, the trial court imposed the upper term based in part
on the facts that defendant had many prior convictions. As noted
above, this is an aggravating circumstance that did not have to be
submitted to the jury. The court also relied in part on the fact
that defendant had served a prior prison term. This also was an
aggravating factor that could be considered by the court even
though it had not been submitted to, and found true by, a jury.

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(People v. Thomas (2001) 91 Cal.App.4th 212, 223; see U.S. v.
Corchado (10th Cir. 2005) 427 F.3d 815, 820 [the rule does not
apply to “‘subsidiary findings’” that are “related to” a prior
conviction, such as the defendant’s status on probation]; see
also People v. Black (2007) 41 Cal.4th 799, 819 (hereafter
Black II).)
Because these two factors made defendant “eligible for the
upper term,” the Sixth Amendment “permit[ted] the trial court
to rely upon any number of aggravating circumstances in exercising
its discretion to select the appropriate term by balancing
aggravating and mitigating circumstances, regardless of whether
the facts underlying those circumstances have been found to be
true by a jury.” (Black II, supra, 41 Cal.4th at p. 813.)
In any event, the trial court’s reliance on a third factor
that did have to be submitted to a jury, but was not, provides
defendant with no basis for relief because it is readily apparent,
beyond a reasonable doubt, that the court would have imposed the
upper term based solely on the fact that defendant had numerous
prior convictions. (See Washington v. Recuenco (2006) 548 U.S. __,
__ [165 L.Ed.2d 466, 474-477]; People v. Sandoval (2007) 41 Cal.4th
825, 838-839.)
Thus, I would affirm the judgment.
SCOTLAND , P.J.

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