Opinion
C081885
09-28-2017
THE PEOPLE, Plaintiff and Respondent, v. STEVEN DANSON DIONNE, JR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CM039957)
In a previous appeal (People v. Dionne (Sept. 29, 2015, C075738 [nonpub. opn.]), we affirmed the conviction of defendant Steven Danson Dionne, Jr., following a plea agreement, but vacated his sentence and remanded the matter for resentencing because the trial court failed to exercise discretion in accordance with the terms of the agreement. Defendant now appeals from the sentence imposed on remand, contending it was unauthorized. We dismiss the appeal for failure to obtain a certificate of probable cause.
FACTUAL AND PROCEDURAL BACKGROUND
A felony complaint filed in December 2013 charged defendant with two counts of second degree robbery and one count of making criminal threats. The complaint alleged as to the robbery counts, defendant personally used a firearm, making the offenses serious and violent felonies. It also alleged as to all counts, that defendant personally used a deadly and dangerous weapon, a handgun, rendering the offenses serious felonies.
Defendant entered into a plea agreement under which he pled no contest to one count of second degree robbery and admitted the allegation that he personally used a deadly and dangerous weapon as to that count, in return for the dismissal of the balance of the charges and a stipulated maximum state prison term of eight years. Since all other counts and enhancements were dismissed, this maximum term could have been calculated by adding the three-year upper term under Pen Code section 12022, subdivision (b)(2) for personal use of a firearm, to the five-year upper term for second degree robbery. (§§ 212.5, 213.)
Further section references are to the Penal Code.
The parties stipulated to the following factual basis for the plea: "On November 16th, 2013 within the City of Oroville and County of Butte, within the jurisdiction of this Court, the defendant did approach victims Anderson and Rogers. Came up behind them, pulled a weapon on them, and demanded their property. And thereafter took personal property from the victims, including money and a cell phone."
As we explained in Dionne, the trial court sentenced defendant to eight years in state prison without recognizing that it had discretion to impose a lower term because the court mistook the parties' stipulation to an eight-year sentencing "lid" for a stipulation to an eight-year sentence. Defendant appealed, seeking resentencing on that basis. The People asserted that the appeal should be dismissed because defendant had not obtained a certificate of probable cause. We rejected this contention, finding that defendant was not attacking the validity of the plea, but rather arguing that his sentence violated the plea's terms, an argument which did not require a certificate of probable cause. We remanded for that purpose.
So far as our prior opinion shows, the parties did not raise the question whether the trial court had imposed a legally erroneous enhancement.
On remand, the trial court recognized the plea included a lid and exercised its discretion by reimposing the five-year upper term on the robbery count, but lowering the sentence on the enhancement to the middle term of two years, for a total sentence of seven years. As before, neither the parties nor the court considered whether section 12022, subdivision (b)(2), applied on these facts.
Defendant filed a timely notice of appeal, but did not specify a sentencing error as grounds for the appeal. Instead of requesting a certificate of probable cause, the only issue defendant raised to challenge the legality of his plea was that the trial court had erroneously denied a disqualification motion.
The trial court denied his application for a certificate of probable cause.
DISCUSSION
On appeal, defendant contends his sentence was unlawful and unauthorized because: (1) section 12022, subdivision (b)(2), is inapplicable to this case; and (2) defendant's two-year term under that provision is one year longer than would be allowed under section 12022, subdivision (b)(1), to which he pled in substance. Citing case law in which appellate courts vacated enhancements erroneously imposed after jury trials and substituted lesser enhancements, or upheld trial court rulings that did so (People v. Majors (1998) 18 Cal.4th 385, 410; People v. Strickland (1974) 11 Cal.3d 946, 959-961; People v. Fialha (2014) 229 Cal.App.4th 1389, 1394-1397; People v. Dixon (2007) 153 Cal.App.4th 985, 1001-1002; People v. Lucas (1997) 55 Cal.App.4th 721, 743; People v. Allen (1985) 165 Cal.App.3d 616, 627), defendant requests that this court vacate the enhancement under section 12022, subdivision (b)(2), replace it with an enhancement under section 12022, subdivision (b)(1), and reduce his sentence under that enhancement to one year.
The People argue again that we should dismiss for lack of a certificate of probable cause. We agree with the People that since the present appeal challenges the validity of the plea (unlike defendant's first appeal), the lack of a certificate of probable cause is fatal. The cases defendant cites to support his proposed resentencing are inapposite because the sentences in those cases did not result from plea agreements.
When a defendant appeals from a sentence imposed pursuant to a plea bargain, he may not attack the validity of the plea without obtaining a certificate of probable cause. However, he may challenge postplea rulings by the trial court or other matters that do not go to the validity of the plea. (§ 1237.5, subd. (b); People v. Panizzon (1996) 13 Cal.4th 68, 76.) The certificate requirements of section 1237.5 should be applied strictly. (People v. Zuniga (2014) 225 Cal.App.4th 1178, 1183, citing People v. Mendez (1999) 19 Cal.4th 1084, 1098.)
" '[T]he critical inquiry is whether a challenge to the sentence [imposed after a guilty or no contest plea] is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5.' " (People v. Corban (2006) 138 Cal.App.4th 1111, 1116, quoting People v. Panizzon, supra, 13 Cal.4th at p. 76.)
"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. (See, e.g., People v. Cuevas (2008) 44 Cal.4th 374, 377 . . . [certificate required for claim that the sentence imposed, which defendant was advised was the maximum possible sentence for the remaining charges after additional charges were dismissed pursuant to a plea agreement, violates the multiple punishment prohibition of § 654]; People v. Shelton (2006) 37 Cal.4th 759, 763 . . . [certificate required for claim that the sentence imposed, whose length equaled the agreed-upon 'lid,' violates the multiple punishment prohibition of § 654]; . . . Panizzon[, supra,] 13 Cal.4th [at p.] 73 . . . [certificate required for claim that imposition of sentence to which defendant agreed pursuant to plea agreement constituted cruel and unusual punishment].)" (People v. Johnson (2009) 47 Cal.4th 668, 678, italics added.)
Defendant claims his sentence was unauthorized because it was partly based on an enhancement (§ 12022, subd. (b)(2)) that could not lawfully be imposed under the circumstances of this case and, which increased his punishment beyond what was allowed under the enhancement that fit the facts (§ 12022, subd. (b)(1)). But the enhancement under section 12022, subdivision (b)(2), was included within defendant's plea agreement, which not only eliminated two of the three counts charged against him but also eliminated the far more serious gun-use enhancement charged under section 12022.53, subdivision (b). Thus, his contention is a challenge that "goes to an aspect of the sentence to which the defendant agreed as an integral part of the plea agreement." (People v. Johnson, supra, 47 Cal.4th at p. 678.) This challenge required a certificate of probable cause and is not cognizable without one. (Id. at pp. 678-679.)
Defendant fails to cite Johnson in either his opening or his reply brief, even though it is an on-point decision from our high court on which the Attorney General relies.
A claim that a sentence imposed pursuant to a plea bargain is unauthorized cannot be used to evade the requirements of section 1237.5 because such a claim attacks the lawfulness of the defendant's conviction, which occurred when he entered the plea. (People v. Zuniga, supra, 225 Cal.App.4th at p. 1186; People v. Jones (1995) 33 Cal.App.4th 1087, 1093-1095.) By doing so, defendant conclusively admitted guilt and acknowledged that the trial court could lawfully impose any sentence within the plea's terms. His original sentence was not within those terms because the court mistook the parties' stipulation to an eight-year sentencing "lid" for a stipulation to an eight-year sentence. But his sentence on remand complied with the plea agreement because the court exercised its discretion as the parties intended and imposed a term within the stipulated "lid," including the enhancement defendant complains about for the first time on his second appeal.
In Cuevas and Shelton, our Supreme Court held that noncompliance with section 1237.5 required the dismissal of appeals alleging that sentences imposed pursuant to pleas were in violation of section 654, which if true would make those sentences unauthorized (People v. Soto (2016) 245 Cal.App.4th 1219, 1235-1236) and would also be likely to increase them significantly. An attack on the trial court's authority to impose a sentence that is within the plea agreement, even if it might violate section 654, amounts in substance to a challenge to the validity of the plea, and therefore cannot be heard without a certificate of probable cause. (People v. Cuevas, supra, 44 Cal.4th at pp. 379-384; People v. Shelton, supra, 37 Cal.4th at pp. 763-771.) Defendant's appeal similarly challenges the trial court's authority to impose a sentence within the terms of his plea agreement.
Defendant attempts to distinguish Shelton and Cuevas by asserting that "the issue here is not whether section 654 should operate to reduce the sentence imposed, but instead what sentence can be lawfully imposed for the arming enhancement in section 12022 ." (Italics added.) The distinction is unpersuasive.
The fact that this case does not involve a section 654 claim is immaterial. Shelton and Cuevas do not hold that a certificate of probable cause is needed only when a defendant challenges the validity of a plea that raises a section 654 issue (or any other specific sentencing problem). They hold that a defendant seeking to challenge the validity of any sentence arrived at by negotiated plea and in keeping with the plea's terms must obtain a certificate of probable cause to do so. (People v. Cuevas, supra, 44 Cal.4th at pp. 379-384; People v. Shelton, supra, 37 Cal.4th at pp. 763-771.)
Furthermore, defendant's generic reference to "the arming enhancement in section 12022" is mistaken. Defendant did not admit a generic "arming enhancement" when he entered his plea, he admitted the enhancement charged under section 12022, subdivision (b)(2). Even if that admission resulted from trial counsels' and the trial court's error, it was an essential part of the sentence defendant bargained for, which gave him the significant benefit of striking not only two of the original three counts but also a much harsher firearm-use enhancement that appeared consistent with the stipulated facts.
Defendant relies on People v. Loera (1984) 159 Cal.App.3d 992, 998, in which the appellate court excused noncompliance with section 1237.5 because it deemed the defendant to be arguing that his sentence was unlawful, and an unlawful sentence is subject to correction whenever it comes to the attention of the trial court or the reviewing court. But Loera was an outlier when decided (compare People v. Breckenridge (1992) 5 Cal.App.4th 1096, 1100; People v. Arwood (1985) 165 Cal.App.3d 167, 171-172), and has been rejected by later appellate courts, with whose reasoning we agree (People v. Zuniga, supra, 225 Cal.App.4th at pp. 1184-1185; People v. Jones, supra, 33 Cal.App.4th at pp. 1092-1094). Moreover, Loera's view is simply incompatible with the holdings of Shelton, Cueva, and Johnson.
The Zuniga court noted that a later decision also cited by defendant (People v. Corban, supra, 138 Cal.App.4th at pp. 1114-1117) had attempted to reconcile Loera and the other relevant decisions by finding that Loera addressed purely legal arguments not dependent on the facts of the case, while the decisions that appeared contrary to Loera had addressed at least partially factual issues. However, the Zuniga court found this distinction unpersuasive because the defendants in all the cited cases were challenging the validity of their pleas, which made a certificate of probable cause mandatory. (People v. Zuniga, supra, 225 Cal.App.4th at pp. 1185-1186.) We agree with Zuniga on this point. --------
Therefore, we dismiss the appeal for noncompliance with section 1237.5.
DISPOSITION
The appeal is dismissed.
/s/_________
Robie, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Renner, J.