Filed 2/11/14 P. v. Farias CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. ALBERTO GUADALUPE FARIAS, Defendant and Appellant. F066216 (Super. Ct. No. VCF251965A)

O P I N I O N

THE COURT  APPEAL from a judgment of the Superi or Court of Tulare County. Joseph A. Kalashian, Judge. Solomon Wollack, under appointment by th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Brian G. Smiley and Kenneth N. Sokoler, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

 Before Levy, Acting P.J., Cornell, J., and Hoff, J.† † Judge of the Fresno Superior Court a ssigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.2 Appellant, Alberto Guadalupe Farias, pled no contest to attempted murder (Pen. Code, §§ 664/187, subd. (a)) 1 and admitted a personal use of a firearm enhancement (§ 12022.53, subd. (b)) and a gang enha ncement (§ 186.22, subd. (b)(1)(C)). On October 12, 2012, the court denied Farias’s motion to withdraw plea and sentenced him to an indeterminate term of 25 years to life. On appeal, Farias contends his se ntence was unauthorized. We affirm. FACTS On April 29, 2011, as E. V. drove with his brother, N.V., to an acquaintance’s house in Woodville, a Trailblaze r, driven by Clint Gilbert with Farias as a passenger, approached them from behind and pulled alongsid e them. Farias then fired several shots at the brothers, causing E.V. to lose control of his car and crash. After the shooting, Farias told Gilbert that the victims were “out siders.” Farias was a Northern gang member and Gilbert was a Northern gang associate. E.V. sustained a gunshot wound to his back, one to his left calf, and a broken leg. N.V. suffered a gunshot wound to his neck, one to his right thigh, a large laceration to his left knee, fractures to each of his legs, and an injury to his ulnar nerve. On August 25, 2011, the district attorney filed an information charging Farias and Gilbert with two counts of attempted murder (counts 1 & 2/§§ 664 & 187, subd. (a)) and one count of shooting at an occupied motor ve hicle (count 3/§ 246). Counts 1 and 2 also alleged that the underlying attempted murd ers were committed “willfully, deliberately and with premeditation” within the meaning of section 664, su bdivision (a). Each count also charged Farias and Gilbert with vari ous gun enhancements and a gang enhancement (§ 186.22, subd . (b)(1)(c)).

1 All further statutory references are to the Penal Code unless otherwise indicated.3 On May 31, 2012, the district attorney amended count 1 to name both victims. Appellant then pled no contest to co unt 1 and admitted an arming enhancement (§ 12022.53, subd. (b)) and a gang enhancement in exchan ge for the dismissal of the remaining counts and allegations and a stipulated term of 25 y ears to life. Farias however did not admit the allegation that he co mmitted the attempte d murder willfully, deliberately, and with premeditation. On October 2, 2012, Farias file d a motion to withdraw plea. On October 12, 2012, the court denied Farias’s motion and sentenced him to the stipulated term of 25 years to life, 15 ye ars to life on Farias’s attempted murder conviction, a 10-year arming enhancement, a nd a stayed 10-year gang enhancement. DISCUSSION Section 664, subdivision (a) provides, in pertinent part, that “if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole. If the crim e attempted is any ot her one in which the maximum sentence is life imprisonment or deat h, the person guilty of the attempt shall be punished by imprisonment in the state prison for five, seven, or nine years.” (Italics added.)
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 ( Apprendi ), the United States Supreme Court held that except for a prior co nviction, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be subm itted to a jury, and proved beyond a reasonable doubt.” In Blakely v. Washington (2004) 542 U.S. 296, 303, the court held that the term “statutory maximum” refers to “the maximum sentence a judge may impose solely on the basis of the facts reflect ed in the jury verdict or admitted by the defendant .”4 Farias contends because he never admitte d the special allegation that his attempted murder offense was willful, deliberate and pr emeditated, the court erred when it imposed an indeterminate sentence of 25 years to life because it vi olated the principles of Apprendi . We conclude that Farias is estopped from challenging his sentence on appeal. “Where the defendant[ ] ha[s] 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 reachin g that figure, so long as the trial court did not lack fundamental jurisdiction. The rationale behind this polic y 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 appe llate process. [Citations.]” ( People v. Hester (2000) 22 Cal.4th 290, 295 ( Hester ).) Farias faced a sentence in excess of 85 ye ars to life if convicted of all charges and all allegations were found true. By accepti ng the plea bargain, however, he received a substantial benefit because it provided for a s tipulated sentence of on ly 25 years to life. Since Farias received the benefit of his bargai n, he is estopped from asserting error with respect to his indeterminate sentence. Farias relies on People v. French (2008) 43 Cal.4th 36 ( French ) to argue that estoppel does not apply to plea bargain dispositions like his that run afoul of Apprendi

. He is wrong.
In French , the defendant entered a plea agr eement specifying that he would receive an aggregate sentence of not more than 18 years in prison for multiple offenses. ( French , supra , 43 Cal.4th at p. 42.) The trial court sentenced the defendant to the maximum of 18 years. The sentence included an upper te rm sentence on one count, based on the trial court’s finding of an aggr avating factor that the defendant had taken advantage of a position of trust and confidence. ( Id . at p. 43.)5 The Supreme Court reversed, holding in ter alia that, by entering into a plea agreement with a specified maximum term , the defendant “ did not implicitly admit that his conduct could support that [maximum] term .” ( French , supra , 43 Cal.4th at p. 48, italics added.) In so holding, the court expressly distinguished Hester , supra , 22 Cal.4th 290 on the ground that the plea agreement in Hester contained a specified sentence. A plea agreement that includes a specified sent ence “constitutes an implicit waiver of [the defendant’s] right to contend that th e sentence imposed” is unlawful. ( French , supra , 43 Cal.4th at p. 49.) In contrast, “[a] senten cing agreement pursuant to which the defendant pleads guilty or no contest with the understanding that he or she will receive a sentence within an agreed-upo n maximum term ... ‘contemplates that the court will choose from among a range of permissible sentences w ithin the maximum .... ’ [Citation.]” ( Ibid .) Because the trial court retains discretion to impose any appropr iate sentence up to the specified maximum, the plea agreement cannot be deemed an implicit admission to any aggravating circumstance. ( Ibid .) Like the defendant in Hester , Farias agreed to a specifie d sentence that, in Farias’s case, consisted of an indetermin ate term of 25 years to life. French is therefore inapposite. His sentence did not violate Apprendi principles because, unlike the defendant in French , by agreeing to a specific senten ce, i.e., 25 years to life, Farias implicitly admitted his conduct could support the indeterminate sentence. Farias is estopped from challenging any portion of his sentence including the indeterminate component. DISPOSITION The judgment is affirmed.