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Name: People v. Kendrick
Case #: F044059
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 10/04/2004
Subsequent History: Rev. granted 1/19/05: S129294

A defendant may enter into a plea agreement that permits sentencing under the determinate sentencing law even if the charged offense is subject to the provisions of Proposition 36. The defendant here was charged with possession of cocaine for sale, transportation of cocaine not for personal use, and several enhancements. He entered into a plea agreement in which he pled to simple possession in exchange for a maximum sentence of two years in prison. He also entered a Cruz waiver (People v. Cruz (1988) 44 Cal.3d 1247) allowing a maximum term of three years in prison if he failed to appear for sentencing. After he did fail to appear, the court sentenced him to the upper term. Appellant’s request for certificate of probable cause was denied. On appeal, defendant argued that the court was required to place him on probation under the terms of Penal Code section 1210.1, subdivision (a). The Court of Appeal first held that because of the plea agreement, appellant could not challenge his sentence on appeal without a certificate of probable cause unless the trial court was lacking in fundamental jurisdiction to sentence him according to the plea agreement. Because the court found that the provisions of Penal Code section 1210.1 were voluntary and could be waived by a defendant, the court found that the trial court did not act in excess of its fundamental jurisdiction in imposing sentence under the determinate sentencing law, and that the appeal was thus an attack on the plea proceedings and required a certificate of probable cause. The appeal was accordingly dismissed.