People v. Lynch CA3 ( 2024 )

Filed 1/9/24 P. v. Lynch 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C097434
Plaintiff and Respondent, (Super. Ct. Nos. 19CF01700,
20CF03151 )
v.
PERRY MICHAEL LYNCH,
Defendant and Appellant.
In 2022, defendant Perry Michael Lynch pleaded no contest to selling or
transporting a controlled substance in exchange for a stipulated upper-term sentence of
five years. The trial court sentenced defendant in conformance with the agreement and
added consecutive sentences for other convictions in a separate case. On appeal,
defendant argues this case must be remanded for resentencing because the trial court
imposed the upper-term sentence without making the factual findings of aggravating
factors required by Penal Code1 section 1170, subdivision (b), as amended by Senate Bill
No. 567 (2021-2022 Reg. Sess.). (Stats. 2021, ch. 731, § 1.3.) The People respond
defendant’s case must be dismissed because he did not obtain a certificate of probable
cause before appealing. We agree with the People and will dismiss the case accordingly.
1 Undesignated statutory references are to the Penal Code.
1
BACKGROUND
In case No. 19CF01700, the prosecution charged defendant with three counts of
robbery (§ 211) and alleged a deadly weapon was used (§ 12022, subd. (b)(1)) as to each
count. Defendant pleaded guilty to two of the counts in exchange for the dismissal of the
balance of the charges. The court suspended imposition of sentence and placed defendant
on a three-year probation term.
In case No. 20CF03151, the prosecution charged defendant with transportation of
a controlled substance (Health & Saf. Code, § 11352, subd. (a)), possession of a
controlled substance for sale (id., § 11351), misdemeanor possession of a controlled
substance (id., § 11377, subd. (a)), and misdemeanor possession of drug paraphernalia
(id., § 11364, subd. (a)). The prosecution also alleged defendant had a prior strike felony.
(§§ 667, subd. (d), 1170.12, subd. (b).) On July 8, 2022, defendant pleaded no contest to
the transportation of a controlled substance count for a stipulated upper-term sentence of
five years and dismissal of the remaining charges. The parties agreed they would be
permitted to argue sentencing in case No. 19CF01700.
At the October 27, 2022, sentencing hearing, the trial court confirmed with
defense counsel that the agreed-upon term for case No. 20CF03151 was the “5-year
upper-term sentence.” The court asked defense counsel, “And do you stipulate to me
imposing that sentence in that case?” Defense counsel responded, “Yes.”
The parties then argued sentencing in case No. 19CF01700. The trial court
terminated probation. The court then imposed the upper term, five-year sentence in case
No. 20CF03151 and added two consecutive one-year terms (one-third the midterm
sentence) for the convictions in case No. 19CF01700.
Defendant filed a notice of appeal without a certificate of probable cause.
DISCUSSION
Defendant argues the trial court could not impose the upper-term sentence because
section 1170, subdivision (b), as amended by Senate Bill No. 567, forbade it from
2
imposing the upper term unless defendant stipulated to aggravating factors or the court
found those factors true beyond a reasonable doubt. The People assert defendant’s claim
attacks the validity of the plea, and therefore the appeal must be dismissed because
defendant did not obtain a certificate of probable cause. We agree with the People.
“Generally speaking, under section 1237.5, a defendant may not bring an appeal
from a judgment of conviction entered after a . . . no contest plea . . . unless he or she has
first obtained from the superior court a certificate of probable cause.” (People v. Zuniga
(2014) 225 Cal.App.4th 1178, 1182, fn. omitted; see § 1237.5; see also Cal. Rules of
Court,2 rule 8.304(b).) Section 1237.5 and rule 8.304(b) “should be applied in a strict
manner.” (People v. Mendez (1999) 19 Cal.4th 1084, 1098 [discussing § 1237.5 and the
predecessor to rule 8.304(b)].)
However, “issues regarding proceedings held subsequent to the plea for the
purpose of determining the degree of the crime and the penalty to be imposed” may be
raised on appeal without a certificate of probable cause. (People v. Panizzon (1996)
13 Cal.4th 68, 74 (Panizzon); accord, People v. Stamps (2020) 9 Cal.5th 685, 694.) “In
determining whether section 1237.5 applies to a challenge of a sentence imposed after a
plea of guilty or no contest, courts must look to the substance of the appeal: ‘the crucial
issue is what the defendant is challenging, not the time or manner in which the challenge
is made.’ [Citation.] Hence, the critical inquiry is whether a challenge to the sentence is
in substance a challenge to the validity of the plea, thus rendering the appeal subject to
the requirements of section 1237.5.” (Panizzon, at p. 76; accord, Stamps, at p. 694.)
“Even when a defendant purports to challenge only the sentence imposed, a
certificate of probable cause is required if the challenge goes to an aspect of the sentence
to which the defendant agreed as an integral part of a plea agreement.” (People v.
Johnson (2009) 47 Cal.4th 668, 678; accord, People v. Stamps, supra, 9 Cal.5th at
2 Undesignated rule references are to the California Rules of Court.
3
p. 694.) “ ‘When a guilty [or nolo contendere] plea is entered in exchange for specified
benefits such as the dismissal of other counts or an agreed maximum punishment, both
parties, including the state, must abide by the terms of the agreement.’ ” (Panizzon,
supra, 13 Cal.4th at p. 80.) “ ‘[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. Shelton (2006) 37 Cal.4th 759, 766,
quoting Panizzon, at p. 79; see People v. Buttram (2003) 30 Cal.4th 773, 789 [“when the
parties agree to a specified sentence, any challenge to that sentence attacks a term, and
thus the validity, of the plea itself”].)
Defendant entered into a plea agreement in which he stipulated to a five-year,
upper term sentence in case No. 20CF03151 in exchange for the dismissal of several
other charges and a prior strike allegation. At the sentencing hearing, the trial court
confirmed that sentence and the parties agreed it should be imposed. The parties entered
into the plea agreement in July 2022 and the court imposed the sentence in October 2022,
well after Senate Bill No. 567 took effect on January 1, 2022. (Stats. 2021, ch. 731,
§ 1.3, eff. Jan. 1, 2022.) At no time did defendant object to the term of his imprisonment,
nor did counsel object that the imposition of the sentence ran afoul of Senate Bill
No. 567’s requirements.3 The trial court simply sentenced defendant “in accordance with
the previously entered plea.” (Panizzon, supra, 13 Cal.4th at p. 78.) Accordingly, by
challenging “the very sentence he negotiated as part of the plea bargain, defendant is, in
substance, attacking the validity of the plea.” (Ibid.) We conclude defendant was
required to obtain a certificate of probable cause before proceeding with his appeal.
3 Although not argued by the People, we note defendant’s failure to raise the issue in the
trial court likely forfeited the issue on appeal. (People v. Flowers (2022) 81 Cal.App.5th
680, 683-684, review granted Oct. 12, 2022, S276237; People v. Scott (1994) 9 Cal.4th
331, 351.)
4
Defendant argues no certificate of probable cause is required because he is
challenging only the “sentence or matters occurring after the plea was entered,”
consistent with rule 8.304(b)(2)(B). However, rule 8.304(b)(2)(B) states that no
certificate of probable cause is required for an appeal based on “[t]he sentence or other
matters occurring after the plea or admission that do not affect the validity of the plea or
admission.” (Italics added.) As explained above, defendant’s appeal of his sentence
challenges an integral part of the plea agreement, which was formed with full knowledge
of Senate Bill No. 567’s changes. Thus, defendant’s challenge “ ‘is properly viewed as a
challenge to the validity of the plea itself’ and thus requires a certificate of probable
cause.” (People v. Shelton, supra, 37 Cal.4th at p. 766.) We reject defendant’s
argument.
Because the lack of a certificate of probable cause is fatal to the appeal, we need
not reach the merits of defendant’s claims.
DISPOSITION
The appeal is dismissed.
/s/
Wiseman, J.*
We concur:
/s/
Robie, Acting P. J.
/s/
Krause, J.
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
5