Filed 5/30/14 P. v. Robinson CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE

THE PEOPLE,
         Plaintiff and Respondent,                                   A139116

v.                                                                   (Alameda County
VIRGIL EARL ROBINSON,                                                Super. Ct. Nos. 46758, 427614,
                                                                     446399, 453236)
         Defendant and Appellant.
                                                                     ORDER MODIFYING OPINION
                                                                     AND DENYING REHEARING
                                                                     [NO CHANGE IN JUDGMENT]

THE COURT:
         It is ordered that the unpublished opinion filed herein on April 30, 2014, be
modified as follows:
          On page 8, in the second sentence of the first paragraph, the citation to People v.
Clytus (2012) 209 Cal.App.4th 1001 is deleted. (See People v. Scott, 2014 Cal. Lexis
3600, *20.) The sentence now reads: “Moreover, as we see it, his implied argument the
trial court lacked the authority to impose a state prison sentence after passage of the
Realignment Act is the functional equivalent of Shelton’s argument that his sentence,
which violated section 654’s ban against multiple punishments, was unauthorized.”
         This modification does not change the judgment.
         The petition for rehearing is denied.


Dated: _______________                                   ____________________________ Acting P.J.
Filed 4/30/14 P. v. Robinson CA1/1 (unmodified version)
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A139116
v.
VIRGIL EARL ROBINSON,                                                (Alameda County
                                                                     Super. Ct. Nos. 46758, 427614,
         Defendant and Appellant.                                    446399, 453236)



                                                  INTRODUCTION
         Defendant Virgil E. Robinson appeals from a four-year state prison sentence
imposed as part of a negotiated disposition that included his guilty plea to a violation of
Health and Safety Code section 11351.5, the dismissal of numerous other charges and
cases against him, dismissal of the case against his codefendant, and an appeal waiver.
His sole contention on appeal is that a state prison sentence for possession of crack
cocaine for sale is either unauthorized or a clerical error, and he must instead be
sentenced to county jail pursuant to the Criminal Justice Realignment Act of 2011
(hereafter Realignment Act, or Act) (Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, § 1;
codified at Pen. Code, § 1170, subd. (h)).1 Defendant’s claim is barred by his failure to
obtain a certificate of probable cause, as well as by his appeal waiver. We therefore
dismiss the appeal.

1
     Unless otherwise indicated, statutory references are to the Penal Code.
             FACTUAL BACKGROUND AND PROCEDURAL HISTORY2
        On December 18, 2012, San Leandro police officers stopped a car driven by
defendant for a traffic violation. Codefendant Moniqua Smiley was a passenger. The
officers smelled the odor of marijuana emanating from the car, discovered defendant was
on probation, and conducted a search of defendant, codefendant, and the car. The
officers found controlled substances in their possession.
        The arrests resulted in the filing of a complaint charging defendant and Ms.
Smiley with possession for sale of cocaine base; transportation of cocaine base;
possession for sale of powder cocaine; and possession for sale of heroin. (Health & Saf.
Code, §§ 11351.5 (count 1), 11352, subd. (a) (count 2), 11351 (counts 3 & 4).) As to
defendant, the complaint also alleged five prior convictions, including one for violation
of Health and Safety Code section 11351.5, one for violation of Health and Safety Code
section 11351, and two prior prison terms. (§ 667.5, subd. (b).) Defendant’s total
incarceration exposure was approximately 16 years.
        On January 8, 2013, defendant entered into a negotiated disposition. In exchange
for his plea of no contest to count one, possession of cocaine base for sale, defendant
agreed to a sentence of “four years in state prison.” The remaining three counts of the
complaint were dismissed and the five prior convictions and allegations were stricken.
The four-year sentence would be eligible for half-time credits, which would run from
December 18, 2012. After being released from prison, defendant would be on parole for
up to three years. In addition, sentencing was to be continued for four months to May 2,
2013, defendant’s phone was to be returned to Ms. Smiley, defendant’s existing felony
probation was to be revoked and restored following his admission of a probation
violation, two existing misdemeanor probation matters would be terminated, and a
pending misdemeanor matter would be either not charged or dismissed. In response to


2
    The facts are drawn from the probation report.


                                             2
defendant’s statement that he did not want to be on probation and parole, the court
explained that defendant’s 2009 felony probation would expire before defendant finished
his prison sentence. Finally, the charges against Ms. Smiley were dismissed.
       Defendant was informed of, and waived, his constitutional rights and his right to
appeal. Specifically, defendant was informed: “You also would normally, if the case did
proceed further, you’d have a right to appeal. If you thought something occurred that
was erroneous, if the case went to trial, you could appeal. But by entering this plea,
you’re waiving that right. Do you understand that?” Defendant replied, “Yeah.”
Defendant also waived his right to a contested probation violation hearing.
       That same day, defendant also initialed and signed a “Felony Advisement of
Rights, Waiver and Plea Form” indicating the court would impose a “total State Prison
term of 4 years and 0 months,” and that defendant “hereby waive[s] and give[s] up my
right to appeal.” (Bold in original.)
       Defendant was sentenced as promised on May 2, 2013. He admitted a violation of
his felony probation, and that probation was revoked and restored on the same terms and
conditions, with the understanding that it would run its course and terminate probably
sometime in September 2013 while he was in prison. The two misdemeanor probation
dockets and the pending misdemeanor matter were dismissed. The court signed an order
allowing the police to release defendant’s phone to Ms. Smiley.
       On June 3, 2013, defendant filed a notice of appeal from a contested violation of
probation “requesting probation credits from felony probation NO. H467588 from June
[1,] 2009 until Dec[ember] 18, 2012.” It was accompanied by a request for certificate of
probable cause complaining, among other things, his sentence fell under the Criminal
Justice Realignment Act.
       On June 24, 2013, defendant filed a second notice of appeal challenging the
validity of the plea or admission and asking for recall of the commitment. In the
accompanying request for certificate of probable cause, defendant requested his sentence

                                             3
be recalled because he had under two years remaining on it and California prisons and
jails were looking for ways to reduce overcrowding by G.P.S. monitoring, rehabilitation
programs, and early release.
       By statement of decision dated June 26, 2013, the trial court denied the requests
for certificate of probable cause, concluding that “defendant expressly waived his right to
appeal, and even if he had not waived his rights, the record is devoid of any non-frivolous
and meritorious grounds for appeal.”
                                       DISCUSSION
       Defendant argues he should have been sentenced to county jail pursuant to the
Realignment Act (§ 1170, subd. (h)) because Health and Safety Code section 11351.5
specifies imprisonment in the county jail3 and the record does not demonstrate defendant
suffered any felony conviction or other disabling condition which would disqualify him

3
  Health and Safety Code section 11351.5 provides:
“Except as otherwise provided in this division, every person who possesses for sale or
purchases for purposes of sale cocaine base which is specified in paragraph (1) of
subdivision (f) of Section 11054, shall be punished by imprisonment pursuant to
subdivision (h) of Section 1170 of the Penal Code for a period of three, four, or five
years.”
   Penal Code section 1170, subdivision (h) provides, as relevant here:
“(2) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision
shall be punishable by imprisonment in a county jail for the term described in the
underlying offense. [¶] (3) Notwithstanding paragraphs (1) and (2), where the defendant
(A) has a prior or current felony conviction for a serious felony described in subdivision
(c) of Section 1192.7 or a prior or current conviction for a violent felony described in
subdivision (c) of Section 667.5, (B) has a prior felony conviction in another jurisdiction
for an offense that has all the elements of a serious felony described in subdivision (c) of
Section 1192.7 or a violent felony described in subdivision (c) of Section 667.5, (C) is
required to register as a sex offender pursuant to Chapter 5.5 (commencing with Section
290) of Title 9 of Part 1, or (D) is convicted of a crime and as part of the sentence an
enhancement pursuant to Section 186.11 is imposed, an executed sentence for a felony
punishable pursuant to this subdivision shall be served in state prison. [¶] (4) Nothing in
this subdivision shall be construed to prevent other dispositions authorized by law,
including pretrial diversion, deferred entry of judgment, or an order granting probation
pursuant to Section 1203.1. [¶] (5) The court, when imposing a sentence pursuant to
paragraph (1) or (2) of this subdivision, may commit the defendant to county jail as
follows: [¶] (A) For a full term in custody as determined in accordance with the
applicable sentencing law. [¶] (B) [¶] . . . [¶] (6) The sentencing changes made by the act
that added this subdivision shall be applied prospectively to any person sentenced on or
after October 1, 2011.”


                                             4
from a county jail sentence under the statute. He argues the state prison sentence is not a
material term of the plea bargain but instead must be either an unauthorized sentence or a
clerical error based on an outdated pre-printed court form that did not include a space for
post-Realignment sentencing, correctable on this appeal. The Attorney General asserts
that defendant’s appeal is inoperable because he did not obtain a certificate of probable
cause from the trial court after pleading guilty, and because he waived his right to appeal.
Defendant responds “[he] does not believe that the provisions of section 1170(h) can be
bargained away by the parties or deviated from by the trial court. Even if they could be
. . . the record does not bear out that the prosecution bargained for such a deviation.”
Defendant reasons: since the state prison sentence was not a material part of the plea
bargain, he was not required to obtain a certificate of probable cause in order to appeal;
since the error occurred at sentencing, the appeal waiver did not apply to bar this appeal.
We disagree.
       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.”
       California Rules of Court, rule 8.304 implements section 1237.5 and further
provides in relevant part: “(1) To appeal from a judgment or an appealable order of the
superior court in a felony case--other than a judgment imposing a sentence of death--the
defendant or the People must file a notice of appeal in that superior court. To appeal after
a plea of guilty or nolo contendere or after an admission of probation violation, the
defendant must also comply with (b). [¶] . . . [¶] (b) . . . [T]o appeal from a superior court
judgment after a plea of guilty or nolo contendere or after an admission of probation

                                              5
violation, the defendant must file in that superior court--with the notice of appeal required
by (a)--the statement required by Penal Code section 1237.5 for issuance of a certificate
of probable cause. [¶] (2) Within 20 days after the defendant files a statement under (1),
the superior court must sign and file either a certificate of probable cause or an order
denying the certificate. [¶] (3) If the defendant does not file the statement required by (1)
or if the superior court denies a certificate of probable cause, the superior court clerk
must mark the notice of appeal “Inoperative,” notify the defendant, and send a copy of
the marked notice of appeal to the district appellate project. [¶] (4) The defendant need
not comply with (1) if the notice of appeal states that the appeal is based on: [¶] (A) The
denial of a motion to suppress evidence under Penal Code section 1538.5; or [¶] (B)
Grounds that arose after entry of the plea and do not affect the plea's validity. [¶] (5) If
the defendant's notice of appeal contains a statement under (4), the reviewing court will
not consider any issue affecting the validity of the plea unless the defendant also
complies with (1).” (See also, People v. Lloyd (1998) 17 Cal.4th 658, 663-664; People v.
Panizzon (1996) 13 Cal.4th 68, 75; People v. Jones (1995) 10 Cal.4th 1102, 1106-1107,
disapproved on another point in In re Chavez (2003) 30 Cal.4th 643, 656.)
       The critical issue in determining whether a certificate of probable cause is required
to perfect a guilty plea appeal is whether the defendant’s appeal challenges the validity of
the plea itself. The California Supreme Court has considered in several cases whether a
defendant's appellate contentions essentially challenged the validity of the guilty plea. In
People v. Panizzon, supra, 13 Cal.4th 68, the defendant entered a plea to several offenses
with a sentence of life plus 12 years with the possibility of parole. (Id. at p. 73.) On
appeal, the defendant argued “his sentence was disproportionate to the sentences imposed
upon his codefendants and thereby [was] violative of the federal and state constitutional
prohibitions against cruel and unusual punishment.” (Id. at p. 74, fn. omitted.) The court
concluded that a certificate was required, because “a challenge to a negotiated sentence



                                               6
imposed as part of a plea bargain is properly viewed as a challenge to the validity of the
plea itself.” (Id. at p. 79.)
        In People v. Shelton (2006) 37 Cal.4th 759 (Shelton), the defendant entered a plea
to two charges under an agreement that his sentence would not exceed a certain
maximum, or “lid.” (Id. at p. 764.) The maximum sentence was achieved by imposing
consecutive sentences. At sentencing, the defendant argued the court was without
authority to impose the agreed-upon maximum because it violated section 654. (Id. at p.
765.) The California Supreme Court concluded that, while the defendant's plea agreement
had reserved the right to argue for a sentence below the lid, he had not reserved the right
to challenge the lid sentence itself under section 654. Accordingly, the defendant needed
a certificate to renew his section 654 argument on appeal. (Id. at pp. 768-769.) Similarly,
in People v. Young (2000) 77 Cal.App.4th 827, “the defendant pled no contest to all
charges and admitted ‘strike’ allegations in return for a sentence lid of 25 years to life and
reservation of the right to ask the trial court to dismiss one or more of the ‘strikes.’ When
the trial court declined to dismiss any of the ‘strikes’ and imposed the lid sentence, the
defendant argued on appeal that the sentence violated constitutional prohibitions against
cruel and unusual punishment. The Court of Appeal dismissed the appeal because
defendant had not secured a certificate of probable cause. The court explained: ‘By
arguing that the maximum sentence is unconstitutional, [the defendant] is arguing that
part of his plea bargain is illegal and is thus attacking the validity of the plea.’ ” (Shelton,
supra, 37 Cal.4th at p. 770, quoting from People v. Young, supra, 77 Cal.App.4th at p.
832.) Both courts dismissed the defendants’ appeals. (Shelton, at p. 771; Young, at p.
834.)
        On the other hand, no certificate is required when a defendant has reserved his
right to argue that a lower term was more reasonable, despite agreeing that a higher
maximum term could be imposed. (People v. Buttram (2003) 30 Cal.4th 773, 787.)



                                               7
       In our view, the case before us is governed by the analysis in Shelton. Although
defendant characterizes his contention as sentencing error, it is in fact an attack on the
validity of the plea bargain itself, which called for a state prison sentence,
notwithstanding section 1170, subdivision (h). Moreover, as we see it, his implied
argument the trial court lacked the authority to impose a state prison sentence after
passage of the Realignment Act (People v. Clytus (2012) 209 Cal.App.4th 1001) is the
functional equivalent of Shelton’s argument that his sentence, which violated section
654’s ban against multiple punishments, was unauthorized. Defendant cites no case for
the proposition that the parties to a plea agreement cannot bargain for an unauthorized
sentence. Indeed, case law generally bars such appellate challenges. “Where the
defendants have pleaded guilty in return for a specified sentence, appellate courts will not
find error even though the trial court acted in excess of jurisdiction in reaching that
figure, so long as the trial court did not lack fundamental jurisdiction.” (People v. Hester
(2000) 22 Cal.4th 290, 295.) “The rationale behind this policy is that defendants who
have received the benefit of their bargain should not be allowed to trifle with the courts
by attempting to better the bargain through the appellate process.” (Ibid.) Defendant does
not allege the court lacked fundamental jurisdiction. In our view, these principles should
apply to the provisions of section 1170, subdivision (h), just as they do to the provisions
of section 654.
       Furthermore, here, as in Shelton, defendant could have bargained to reserve the
argument that he should be sentenced to county jail under the Realignment Act (see
Shelton, supra, 37 Cal.4th at p. 769), but nothing in the record suggests such an express
or implied reservation. On the other hand, the record does reflect the parties and the court
were aware of the Realignment Act, but a county jail sentence was off the table.4 It also
shows a state prison sentence was the single most important feature of the bargain from

4
 During the change of plea hearing, defense counsel suggested that defendant’s case
might be a “county prison” case, but the court said it was not.


                                              8
the prosecution’s point of view, even more important than the length of the sentence, of
which defendant would serve no more than half. Under these circumstances, we
conclude defendant's challenge to the trial court's sentencing authority constitutes a
challenge to the validity of the negotiated plea agreement. Since defendant failed to
secure a certificate of probable cause, his appeal is not operative and must be dismissed.
       In addition, defendant’s appeal is barred for the independent reason that he
executed a valid appeal waiver as part of his negotiated disposition. In People v.
Panizzon, supra, 13 Cal.4th 68, as in this case, the defendant not only failed to obtain a
certificate of probable cause to challenge the negotiated sentence, he also waived his right
to appeal in his plea agreement. The Supreme Court held the defendant’s challenge to the
negotiated sentence was “not reviewable on appeal because the terms of the plea bargain
[i.e., the waiver] preclude any appeal of the negotiated sentence.” (Id. at p. 89, italics
added.) Thus, the waiver and the absence of a certificate of probable cause each
independently barred the appeal. The same is true here.




                                              9
                                     DISPOSITION
      The appeal is dismissed.



                                               _________________________
                                               Dondero, Acting P.J.


We concur:


_________________________
Banke, J.


_________________________
Becton, J.*




*
 Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.



                                          10
