Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07NF0133 Robert R. Fitzgerald, Judge.
Tony Rackauckas, District Attorney, Daphne Sykes Scott, and Ana Chinowth, Deputy District Attorneys, for Plaintiff and Appellant.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Respondent.
OPINION
IKOLA, J.
Defendant Michael Sean Daugherty pleaded guilty to all four counts alleged against him, including one count of possession of materials with the intent to unlawfully make a destructive device. (Pen. Code, § 12312.) In accordance with defendant’s expectations, the court first imposed a sentence of six years, four months in prison, then suspended execution of the sentence and granted formal probation (including 365 days in county jail). The People appeal the allegedly illegal sentence. We dismiss the appeal because the People are not entitled to appeal the court’s grant of probation. (§ 1238, subd. (d).)
All statutory references are to the Penal Code.
We deny the People’s request for judicial notice to be taken of several unrelated cases pending before this court.
FACTS
A January 6, 2007 incident led to an information accusing defendant of the following: count 1, discharging a firearm with gross negligence (§ 246.3); count 2, possession of materials with intent to unlawfully make a destructive device (§ 12312); count 3, assault with a firearm (§ 245, subd. (a)(2)); and count 4, making a criminal threat (§ 422).
On August 31, 2009, defendant executed and filed a form “Advisement and Waiver of Rights for a Felony Guilty Plea.” Defendant pleaded guilty to all four counts alleged against him and acknowledged the maximum total punishment for his conduct was six years four months in prison. Defendant premised his guilty plea on the understanding the court would “[g]rant me probation under the terms and conditions set forth on [an attached page]. I understand I have the right to reject probation and have the court impose a final sentence. However, I agree to accept probation on the terms and conditions set forth on the attached page.... I further understand that if I am found in violation of any of the terms or conditions of probation, the court may sentence me to state prison on this case for a maximum period of 6 years and 4 months.”
The court accepted the guilty plea on August 31, 2009. The People did not agree to the proposed grant of probation: “The People object to the court offer in this case. The People recommend a disposition of four years, and specifically as to count 2 [section] 12312 that carries a mandatory minimum state prison sentence of two years pursuant to [section] 12311.”
After hearing from counsel, the court stated (on August 31): “The court imposes the following sentence. I select base term on count 2, the aggravated term of four years is imposed. On count 1 one-third the midterm is eight months consecutive and not concurrent. Count 3 is one year consecutive and not concurrent. That is one-third the midterm as to each of the consecutive terms after count 2. Count 4 is midterm one-third thereof eight months. The total term is six years and four months. [¶] The court immediately re-calls that state prison commitment and enters a new and different term. [¶] Mr. Daugherty, if you violate your terms of probation, you will end up coming back to me and I will sentence you to the maximum.” Notwithstanding the court’s comments, the minute order for August 31 indicated sentencing was set for October 26, 2009.
On October 26, 2009, the court held a sentencing hearing. The People again objected: “Pursuant to [section] 12311 Mr. Daugherty is not eligible for probation, and the People’s position is that granting probation is in conflict with the law.” The court then stated: “The disposition was state prison six years and four months, which is the absolute maximum. That sentence is stayed pending three years of formal probation as follows. All the conditions contained on the form, including 365 days in custody, which means if you violate... you will go to prison for the maximum of six years and four months.” The October 26 minute order indicated the court pronounced judgment, sentenced defendant, suspended execution of sentence, and placed defendant on 3 years formal probation (including 365 days in county jail, offset by 153 days of credit). The People filed a notice of appeal on November 3, 2009.
DISCUSSION
Defendant pleaded guilty to violating section 12312, which states: “Every person who possesses any substance, material, or any combination of substances or materials, with the intent to make any destructive device or any explosive without first obtaining a valid permit to make such destructive device or explosive, is guilty of a felony, and is punishable by imprisonment in the state prison for two, three, or four years.” Section 12311, which immediately precedes section 12312 in the Penal Code, states: “No person convicted of a violation of this chapter shall be granted probation, and the execution of the sentence imposed upon such person shall not be suspended by the court.”
It appears the court committed legal error. Trial courts have no discretion to grant probation to a defendant convicted of a violation of section 12312. Defendant does not argue otherwise in his brief.
Instead, defendant claims the People are not entitled to appeal this case at all, but instead were required to file a petition for writ of mandate. “The People have no right of appeal except as provided by statute.” (People v. Douglas (1999) 20 Cal.4th 85, 89 (Douglas).) “Section 1238... governs the People’s appeals from orders or judgments of the superior courts.” (Id. at pp. 89-90.)
Defendant also contends the People’s appeal was untimely, as the notice of appeal was filed on November 3, 2009, more than 60 days after the court purportedly sentenced defendant on August 31, 2009. (See Cal. Rules of Court, rules 8.304(a), 8.308(a).) But even though the court previewed defendant’s sentence at the August 31 hearing after it accepted defendant’s guilty plea, the court clearly set the sentencing hearing for October 26. As reflected in the hearing transcript and minute order of October 26, 2009, the court pronounced judgment and sentenced defendant on October 26, 2009. This appeal is timely.
Section 1238, subdivision (d), provides: “Nothing contained in this section shall be construed to authorize an appeal from an order granting probation. Instead, the people may seek appellate review of any grant of probation, whether or not the court imposes sentence, by means of a petition for writ of mandate or prohibition which is filed within 60 days after probation is granted. The review of any grant of probation shall include review of any order underlying the grant of probation.”
“The patent purpose of [section 1238, subdivision (d)] is to provide a means for review of assertedly illegitimate probation orders while avoiding the unfairness that could result to a defendant who, while the People’s appeal from his or her probation grant is prepared, briefed, heard, and decided, might serve all or a substantial part of the probationary period, only to be resentenced to a full state prison term if the People’s appeal is ultimately successful. The statute limits review to writ petitions because such procedures are assumed to operate more quickly than an appeal. [Citations.] [¶] By its terms, subdivision (d) of section 1238 removes any authorization for People’s appeals ‘from an order granting probation.’ Clearly, then, the People may not explicitly appeal from, and seek reversal of, any such order.” (Douglas, supra, 20 Cal.4th at pp. 92-93, fn. omitted.)
The most factually similar case to the instant case is People v. Bailey (1996) 45 Cal.App.4th 926 (Bailey), which issued from this court. In Bailey, the trial court granted probation to a defendant, even though the defendant’s robbery conviction and firearm enhancement made him statutorily ineligible for probation. (Bailey, supra, 45 Cal.App.4th at pp. 928-929.) The Bailey district attorney appealed, claiming in the notice of appeal that the trial court disregarded the law when it elected: “‘(1) to grant probation in a case where defendant was found guilty of robbery with the use of a gun; and (2) to strike a Penal Code section 12022.5, subdivision (a), sentence enhancement....” (Bailey, supra, 45 Cal.App.4th at p. 929.) But the trial court did not actually strike the enhancement; it simply ordered probation notwithstanding the mandatory statutory prison term. (Id. at pp. 928-929.) The Bailey court dismissed the appeal, holding: “Section 1238, subdivision (d), unambiguously precludes appellate review of an order granting probation and the People’s remedy is to seek review by writ.” (Bailey, at p. 932.) The Bailey court rejected an argument that the sentence could be appealed under section 1238, subdivision (a)(10), as an unlawful sentence, as such interpretation of the statute would “completely vitiate[] subdivision (d).” (Bailey, at p. 931.) The holding in Bailey was subsequently endorsed by our Supreme Court. (Douglas, supra, 20 Cal.4th at p. 95 [discussing and deeming “correct[]” the Bailey holding].)
Here, the notice of appeal states: “The People appeal from: [¶] the trial court’s October 26, 2009, order improperly granting probation and recalling defendant’s state prison sentence.” Notwithstanding the content of the notice of appeal and the aforementioned cases, the People assert they were entitled to appeal under section 1238, subdivision (a)(10), which states in relevant part: “An appeal may be taken by the people from any of the following: [¶]... [¶] (10) The imposition of an unlawful sentence, whether or not the court suspends the execution of the sentence, except that portion of a sentence imposing a prison term which is based upon a court’s choice that a term of imprisonment (A) be the upper, middle, or lower term, unless the term selected is not set forth in an applicable statute, or (B) be consecutive or concurrent to another term of imprisonment, unless an applicable statute requires that the term be consecutive. As used in this paragraph, ‘unlawful sentence’ means the imposition of a sentence not authorized by law or the imposition of a sentence based upon an unlawful order of the court which strikes or otherwise modifies the effect of an enhancement or prior conviction.”
Discarding the framing of the issue in the notice of appeal, the People identified the issue in their briefs as whether the sentence was illegal. The People prayed for relief as follows: “The People therefore respectfully request this court to order the trial court to vacate its judgment and sentence and enter a new judgment in conformity with this opinion.” The People’s reply brief concludes: “Appellant asks this court to reverse the trial court’s decision and remand the case for sentencing in conformity with the express requirements of section 12311.” The People characterize this case as “an appeal from a state prison sentence, execution of which was suspended, which on its face is a violation of the statute.” The People contrast the facts here with a “situation in which the trial court stayed imposition of sentence and placed the defendant on probation.”
Defendant insists this is actually an appeal from the court’s grant of probation, regardless of how it is labeled by the People. (See Douglas, supra, 20 Cal.4th at p. 93 [“if the People seek, in substance, reversal of the probation order, the appeal is barred by subdivision (d) however they may attempt to label the order appealed from”]; People v. Alice (2007) 41 Cal.4th 668, 682-683 (Alice) [same].)
Thus, the key question is whether the People seek, “in substance, the reversal of the probation order.” (Douglas, supra, 20 Cal.4th at p. 93.) While the People’s briefs avoid using the word probation, it is undeniable the relief requested would necessarily result in the reversal of the court’s grant of formal probation to defendant. The People do not actually quarrel with the court’s imposition of a sentence of 6 years 4 months in prison; no unlawful sentence was “imposed.” (See § 1238, subd. (a)(10).) Rather, the People take issue with the court’s stay of execution of sentence and concomitant grant of probation. Tellingly, the People’s briefs do not cite or discuss the applicability of Douglas, Alice, or Bailey. In sum, the plain language of section 1238 precludes an appeal in this case. The People should have petitioned for writ relief under section 1238, subdivision (d), rather than appealing the judgment.
We may not construe the People’s opening brief, filed on January 25, 2010, as a petition for writ of mandate. To do so “would be an idle act since we would have to deny the petition as untimely. The brief was filed [after] the 60-day time limit of section 1238, subdivision (d).” (Bailey, supra, 45 Cal.App.4th at p. 932.)
DISPOSITION
The appeal is dismissed.
WE CONCUR: BEDSWORTH, ACTING P. J., FYBEL, J.