P. v. Burcea

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Filed 2/29/08 P. v. Burcea 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
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THE PEOPLE,
Plaintiff and Respondent,
v.
LUCIAN DRAGOS BURCEA,
Defendant and Appellant.
C051333
(Super. Ct. No.
04F11030, 03F10812)
In return for dismissal of additional charges, defendant
Lucian Dragos Burcea pled no contest in case No. 03F10812 to
spousal battery (Pen. Code, § 273.5, subd. (c)) and received
five years’ formal probation. In case No. 04F11030, he pled no
contest to possessing methamphetamine (Health & Saf. Code,
§ 11377, subd. (a)), and received a drug treatment referral.
A year later, the court found defendant had violated his
probation in both cases. It sentenced him to the upper term of
four years for spousal battery, and sentenced him to a
consecutive eight months in prison (one-third the midterm) for
possessing a controlled substance. Defendant did not seek, nor

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was he granted, a certificate of probable cause. (Pen. Code,
§ 1237.5.)1
On appeal, we rejected defendant’s claim that the trial
court improperly imposed the upper term and full consecutive
sentences by relying on facts not submitted to the jury and
proved beyond a reasonable doubt, in violation of the principles
enunciated in Blakely v. Washington (2004) 542 U.S. 296 [159
L.Ed.2d 403] (Blakely). We thereafter granted his request for
rehearing in light of the Supreme Court’s opinion in Cunningham
v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856]
(Cunningham).
We now conclude that, because defendant was apprised that
the maximum four-year sentence was a possible consequence of his
plea to spousal battery, his attack on the upper term sentence
constitutes an attack on the plea. Accordingly, we shall
dismiss his challenge to the imposition of the upper term
sentence in case No. 03F10812 for failure to obtain a
certificate of probable cause.
1 Penal Code 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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As to his challenge to the imposition of a consecutive
sentence in case No. 04F11030, we find his contention to have no
merit and we shall affirm the judgment.
BACKGROUND
Case No. 03F10812
According to the probation reports, in October 2003,
defendant met his ex-wife at a gas station, forced her into her
car, and kept her there until the following day, as he forced
her to take money from an ATM, hit her in the head with his fist
and a metal box, and threatened to kill her. He was charged
(among other things) with spousal abuse, robbery, and
kidnapping.
In exchange for dismissal of the other charges, defendant
pled no contest to spousal battery on June 9, 2004. In open
court, the court informed defendant that, on his spousal battery
conviction, “[t]he potential prison sentence is two, three or
four years. [¶] The understanding is you’re not going to go to
prison. You’ll be placed on probation with certain conditions.
If you later violate probation, you could then go to prison for
up to four years. Following any prison sentence you would be on
parole supervision for up to five years. Do you understand?”
Defendant responded “Yes.”
Case No. 04F11030
In December 2004, officers responding to a report by
defendant’s ex-wife that he was confronting her with a knife
determined defendant to be under the influence of
methamphetamine; following his arrest, they found a baggie of

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methamphetamine in his wallet and he was charged with one count
of possessing the drug.
On December 22, 2004, he entered a plea of no contest to
the possession charge, “with a promise of [the] low term [of] 16
months state prison stayed and a Prop[osition] 36 referral[,]”
together with a reinstatement of his probation in case
No. 03F10812. Defendant responded, “I understand” after the
court explained that the potential consequences of his no
contest plea included a potential state prison sentence of 16
months, two years, or three years. Defendant also responded “I
understand” when the court explained that “if you violate the
terms and conditions of your probation, you may then be
sentenced to state prison for a stipulated prison term of 16
months.”
Probation Revocation and Sentencing
Following revocation of defendant’s probation in both
cases, the trial court imposed the upper term for the spousal
battery offense in case No. 03F10812 -- four years’ imprisonment
-- after finding eight factors in aggravation, including that
“defendant’s criminal conduct is of increasing seriousness” and
“defendant was on two grants of probation at the time the crimes
underlying these violations of probation were committed.”2 (Cal.
2 The probation report reveals that defendant was convicted in
1996 of petty theft; in 1998 of misdemeanor theft; in 2001 of
driving under the influence of alcohol or drugs and possessing
controlled substance paraphernalia; in 2002, of misdemeanor
assault with a deadly weapon, and felony unauthorized taking of
a vehicle; in 2003 of misdemeanor spousal battery; in 2004 of

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Rules of Court, rule 4.421(b)(2) & (b)(4).) It also sentenced
him to eight months (one-third the midterm) on the
methamphetamine possession conviction in case No. 04F11030 and
ordered consecutive sentencing because the crimes in the two
cases were committed at different times or separate places and
their objectives were predominantly independent of one another.
DISCUSSION
I.
Defendant contends that the trial court erred in imposing
the upper term based on aggravating factors on which there was
no jury trial, and erred in imposing consecutive sentences in
the two cases which are the subject of this appeal. The
Attorney General replies (among other things) 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 defendant’s Cunningham claim
constitutes a challenge to a negotiated sentence imposed as a
part of the plea bargain and hence represents 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.)
As to defendant’s appeal in case No. 03F10812 only, we
agree and shall dismiss the appeal.
intentionally violating a protective order, and spousal abuse;
and in 2005 of possessing a controlled substance.

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As noted, 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.”
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 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

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the attack is based upon a claim of Blakely 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 spousal battery offense under
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 agreements’
terms regarding sentencing were, in essence, that (1) in
exchange for the dismissal of other charges, defendant would
receive a grant of probation on the spousal abuse charge, and
(2) if defendant’s probation for spousal battery were revoked,
the court would sentence pursuant to the determinate sentencing
law, with the express understanding the maximum sentence under
that law was the four-year term defendant received. Sentencing
on the spousal battery charge comes within Shelton’s reasoning.
From a prosecutor’s point of view, such an agreement as the
parties entered into for defendant’s plea of no contest on the
spousal battery charge 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

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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.) He did not.
Like the Supreme Court in Shelton, we conclude that
defendant’s challenge to the trial court’s authority to impose
the upper term on his spousal battery conviction is in substance
a challenge to the validity of the negotiated plea. Therefore,
defendant’s failure to secure a certificate of probable cause
bars consideration of this challenge and requires dismissal of
his appeal in case No. 03F10812.
II.
Defendant contends that the reasoning of Apprendi and its
progeny as applied to California’s upper term determinate
sentencing is equally applicable to California’s consecutive
determinate sentencing. He argues that imposing a consecutive
sentence under Penal Code section 669, based on facts not
determined by the jury, violates the same constitutional norms
as gave rise to Blakely and Cunningham.
While this petition for rehearing was pending, the
California Supreme held in People v. Black (2007) 41 Cal.4th 799
at pages 821 through 823 (Black II), that the constitutional
right to jury trial is not implicated by the trial court’s
imposition of consecutive sentences. We are bound by this

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holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455.)
DISPOSITION
The appeal in case No. 03F10812 is dismissed. In all other
respects, the judgment is affirmed.
CANTIL-SAKAUYE , J.
We concur:
BLEASE , Acting P.J.
BUTZ , J.

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