Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County, Nos. TA076626, TA080213 David Sotelo, Judge.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Appellant Susie Lorie Gonyea appeals from the judgment entered following her negotiated plea of no contest to stalking (Pen. Code, § 646.9, subd. (a); count 1, case No. TA076626) and from the judgment entered following her negotiated plea of no contest to stalking with a prior stalking conviction (Pen. Code, § 646.9, subd. (c)(2); count 3, case No. TA080213). The court sentenced appellant to a total prison term of four years, consisting of three years in case No. TA080213, with a consecutive upper term of one year in case No. TA076626. We modify the judgment in case No. TA076626 and, as modified, affirm it with directions. We affirm the judgment in case No. TA080213.
FACTUAL SUMMARY
The record reflects that on October 5, 2004, and June 17, 2005, appellant committed the above offenses in case Nos. TA076626 and TA080213, respectively.
CONTENTIONS
Appellant claims (1) the sentence in case No. TA076626 must be reduced to eight months, and (2) minute orders and the abstract of judgment in case No. TA076626, must be amended to reflect that, in the present case, she pled no contest to a violation of Penal Code section 646.9, subdivision (a).
DISCUSSION
1. Appellant’s Prison Sentence in Case No. TA076626 Must Be Reduced to Eight Months.
a. Pertinent Facts.
A felony complaint filed on October 7, 2004, in case No. TA076626 (hereafter, the probation case) alleged as count 1 that on or about October 5, 2004, appellant committed stalking in violation of Penal Code section “646.9(b).” The complaint also alleged other counts. On October 22, 2004, the parties indicated there would be a disposition in the probation case, pursuant to which, inter alia, appellant would be placed on formal probation for five years. The court granted the People’s motion to amend count 1 to allege, according to the reporter’s transcript, a violation of Penal Code section “646.9 A.” There is no dispute this was a reference to Penal Code section 646.9, subdivision (a).
The complaint alleged as count 2 that, on or about October 5, 2004, appellant committed disobeying a court order (Pen. Code, § 166, subd. (a)(4)). The complaint alleged as counts 3 and 4, that, on and between May 1, 2004, and August 30, 2004, appellant committed stalking (Pen. Code, § 646.9, subd. (b)) and disobeying a court order (Pen. Code, § 166, subd. (a)(4)), respectively.
During the taking of the plea as to count 1 in the probation case, the prosecutor advised appellant that stalking was “punishable by up to three years in the state prison.” He also advised, and appellant understood, that if appellant was convicted of another crime in the future, the probation case could be used to increase punishment in the future case, and that if she violated any probation condition, the court could send her to prison “for up to three years.” Appellant indicated she was pleading no contest to count 1 freely and voluntarily after discussing the case with her attorney and because appellant believed it was in her best interest. Appellant subsequently pled no contest in the probation case as previously indicated. The matter, including disposition of the remaining counts, was continued to December 23, 2004.
On December 23, 2004, in the probation case, the court, pursuant to the negotiated plea, suspended imposition of sentence, placed appellant on formal probation for five years, ordered her to serve time in local custody, and dismissed the remaining counts.
An amended information filed on January 24, 2007, in case No TA080213 (hereafter, the new case) alleged as count 3, that on or about June 17, 2005, appellant committed stalking in violation of Penal Code section 646.9, subdivision (b). The amended information also contained an allegation that appellant had suffered a prior stalking conviction. The amended information alleged other counts.
On February 21, 2007, in the new case, appellant, pursuant to a negotiated disposition, pled no contest to count 3, and admitted the prior stalking conviction with the understanding the court would sentence her to prison for four years, purportedly consisting of the two-year lower term for stalking (Pen. Code, § 646.9, subd. (b); count 3), plus a two-year lower term pursuant to Penal Code section 646.9, subdivision (c)(2), for the prior stalking conviction. Later, in the probation case, appellant admitted that she had violated probation. After the admission, the court indicated it intended to impose a concurrent lower term in the probation case.
Judge David Sotelo presided over proceedings on and after February 21, 2007. A different judge took appellant’s October 22, 2004 no contest plea in the probation case.
On March 21, 2007, in the new case, the court sentenced appellant to prison for four years as indicated above and dismissed the remaining counts. In the probation case, the court sentenced appellant to a two-year lower term, to be served concurrently with the term in the new case.
On April 11, 2008, appellant filed in superior court, in the probation case and the new case, a petition for a writ of habeas corpus. On April 21, 2008, the trial court granted the petition in order to correct sentencing error in the calculation of the prison term in the new case. The court indicated its March 21, 2007 imposition, in the new case, of a two-year lower term for stalking (Pen. Code, § 646.9, subd. (b)), plus a two-year lower term pursuant to Penal Code section 646.9, subdivision (c)(2), was erroneous because appellant should not have been sentenced under both subdivisions. Appellant indicated the court could resentence her with the result that her total prison sentence for the probation case and new case would be less than or equal to four years, which was the original total prison term.
The court asserted that on March 21, 2007, counsel for the parties “entered a plea agreement for four years’ state prison between both cases for total of four years.”
The court later commented “this was [an] agreed to disposition between the parties, so I’m not inclined to make any modification to the agreed to sentence of four years.” The court resentenced appellant to prison to the three-year middle term in the new case, and resentenced her in the probation case to one year in prison (as one-third of the three-year upper term), the latter term to be served consecutively to the term in the new case.
On June 10, 2008, appellant signed a request for a certificate of probable cause in the probation case and new case. On June 26, 2008, the trial court denied the request, and appellant filed a notice of appeal in the probation case and new case, appealing from the March 21, 2007 and April 21, 2008 judgments in both cases.
b. Analysis.
(1) The Eight-Month Sentence Was Unauthorized.
Appellant claims her April 21, 2008 sentence in the probation case (case No. TA076626) must be reduced to eight months. We agree. Appellant argues that under Penal Code section 1170.1, subdivision (a), the consecutive term for the violation of Penal Code section 646.9, subdivision (a) in the probation case should have been eight months (as one-third of the two-year middle term), and not one year (as one-third of the three-year upper term). As appellant concedes, she is arguing the trial court on April 21, 2008 imposed an unauthorized one-year sentence in the probation case. Respondent does not dispute that that sentence was unauthorized. An unauthorized sentence may be corrected at any time. (Cf. People v. Huff (1990) 223 Cal.App.3d 1100, 1106.)
Penal Code section 1170.1, subdivision (a) states, in relevant part, “... when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, [and] the subordinate term, ... The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, ... The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, ...” (Italics added.)
A violation of Penal Code section 646.9, subdivision (a), is, under Penal Code section 18, punishable by imprisonment in the state prison for 16 months, two years, or three years.
Appellant argues the remedy is to simply reduce her sentence in the probation case to eight months. This would avoid the unauthorized sentence at issue here. It would also, however, result in a total prison term in the probation case and new case of less than the four years which the court sought to achieve. If we remanded the matter and the court did not wish appellant to serve a total prison term of less than four years, the court arguably could impose a harsher sentence by, inter alia, selecting a five-year upper term pursuant to Penal Code section 646.9, subdivision (c)(2) in the new case. However, neither party requests that this case be remanded; therefore, we will simply reduce appellant’s sentence in the probation case to eight months.
An unauthorized sentence is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement. (People v. Hanson (2000) 23 Cal.4th 355, 360, fn. 3; People v. Serrato (1973) 9 Cal.3d 753, 763-764.)
(2) None of Respondent’s Arguments Compel A Contrary Conclusion.
(a) Appellant’s Claim is Cognizable in This Appeal.
(i) Applicable Law.
Respondent, citing, inter alia, People v. Cuevas (2008) 44 Cal.4th 374 (Cuevas), and People v. Shelton (2006) 37 Cal.4th 759 (Shelton), argues the instant appeal must be dismissed because appellant failed to obtain a certificate of probable cause. We disagree.
“A defendant may not appeal ‘from a judgment of conviction upon a plea of guilty or nolo contendere, ’ unless he has obtained a certificate of probable cause. [Citations.] Exempt from this certificate requirement are postplea claims, including sentencing issues, that do not challenge the validity of the plea. (Cal. Rules of Court, rule 8.304(b)(4)(B); [citations].) For example, ‘when the claim on appeal is merely that the trial court abused the discretion the parties intended it to exercise, there is, in substance, no attack on a sentence that was “part of [the] plea bargain.” [Citation.] Instead, the appellate challenge is one contemplated, and reserved, by the agreement itself.’ [Citation.]” (Cuevas, supra, 44 Cal.4th at p. 379.)
In Shelton, the defendant entered into a negotiated plea agreement pursuant to which he would plead no contest to two charges, others would be dismissed, and he would have a sentence lid of three years eight months in prison, which was less than the maximum possible sentence he could have received, absent a lid, based on the charges to which he would plead no contest. After the pleas, the court sentenced the defendant to prison for three years eight months, he claimed on appeal that the sentence violated Penal Code section 654, and the issue was whether the claim was barred by his failure to obtain a certificate of probable cause. (Cuevas, supra, 44 Cal.4th at pp. 379-380.)
“ ‘It is well settled... that the court acts “in excess of its jurisdiction” and imposes an “unauthorized” sentence when it erroneously stays or fails to stay execution of a sentence under section 654.’ (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17....)” (Cuevas, supra, 44 Cal.4th at p. 380, fn. 3.) An unauthorized sentence is a sentence which could “not lawfully be imposed under any circumstance in the particular case.” (People v. Scott, supra, 9 Cal.4th at p. 354.)
Shelton held that “the ‘inclusion of a sentence lid implies a mutual understanding and agreement that the trial court has authority to impose the specified maximum sentence and preserves only the defendant’s right to urge that the trial court should or must exercise its discretion in favor of a shorter term.’ [Citations.] In Shelton’s case, ‘Because the plea agreement was based on a mutual understanding (as determined according to principles of contract interpretation) that the court had authority to impose the lid sentence, defendant’s contention that the lid sentence violated the multiple punishment prohibition of Penal Code section 654 was in substance a challenge to the plea’s validity and thus required a certificate of probable cause, which defendant failed to secure.’ [Citation.]” (Cuevas, supra, 44 Cal.4th at p. 380.)
In Cuevas, the defendant entered into a negotiated plea agreement pursuant to which he would plead no contest to certain counts, others would be reduced or dismissed, and he would have a maximum possible sentence of 37 years 8 months, which was the maximum possible sentence he could have received based on the charges to which he would plead no contest. After the pleas, the court sentenced the defendant to prison for 35 years 8 months, and a second appeal presented the issue of whether the defendant’s failure to obtain a certificate of probable cause barred a claim that his sentence on certain counts violated Penal Code section 654. (Cuevas, supra, 44 Cal.4th at pp. 376-380, fn. 3.)
Cuevas did not involve a sentence lid, i.e., a sentence maximum or cap which is less than the maximum possible sentence the court lawfully could impose for the offense(s) to which a defendant pled guilty or no contest. Instead, in Cuevas, the defendant agreed the court could sentence him to any term less than or equal to the agreed-upon maximum possible sentence for the offenses to which he pled no contest.
Cuevas stated, “[c]ontrary to defendant’s contention, the presence or absence of a sentence lid does not dictate the result here. For purposes of the certificate of probable cause requirement, the critical question is whether defendant’s section 654 challenge to his sentence is in substance a challenge to the validity of his plea. (Shelton, supra, 37 Cal.4th at pp. 766–767; [citations].) In other words, the question is whether defendant ‘seeks only to raise [an] issue[] reserved by the plea agreement, and as to which he did not expressly waive the right to appeal.’ [Citations.] We conclude that defendant’s plea agreement did not reserve such a postplea challenge because the maximum possible sentence defendant faced was ‘part and parcel of the plea agreement he negotiated with the People.’ [Citation.]” (Cuevas, supra, 44 Cal.4th at p. 381.)
Cuevas observed, “ ‘ “When a guilty [or nolo contendere] plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement.” ’ (Citation; see People v. Hester (2000) 22 Cal.4th 290, 295 [(Hester)] [‘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’].) ‘Defendant’s attack on the legality of his maximum sentence is an effort to unilaterally improve, and thus alter, the terms of that which was agreed and thus should not be permitted without a certificate of probable cause.’ [Citation.]” (Cuevas, supra, 44 Cal.4th at p. 383.)
(ii) Application of the Law to This Case.
On October 22, 2004, at the time of appellant’s negotiated no contest plea in the probation case, the parties did not agree as part of the bargain that the trial court could or would impose a consecutive sentence of eight months in the probation case. Indeed, at the time of the no contest plea, the parties did not agree on a sentence. The parties agreed appellant would be placed on formal probation for five years. Probation is not a sentence. A court granting probation suspends the imposition or execution of sentence, and issues a conditional release as an act of clemency. (People v. Daniels (2003) 106 Cal.App.4th 736, 742.)
The prosecutor did advise appellant, during the taking of the no contest plea, that stalking was “punishable by up to three years in the state prison, ” that if she violated any probation condition, the court could send her to prison “for up to three years, ” and that if she was convicted of another crime in the future, the probation case could be used to increase punishment in the future case. However, none of these advisements expressly addressed the issue of consecutive sentencing, much less the issue of a consecutive eight-month term.
The third advisement did not expressly address the issue of consecutive sentencing because the probation case could have been used to increase punishment in a future case without involving consecutive sentencing. For example, the probation case, as a prior conviction, could serve as an aggravating factor in the future case, or as a prior stalking conviction to trigger application of Penal Code section 646.9, subdivision (c)(2) in the event the future crime was stalking.
In sum, the issue of consecutive sentencing, including the issue of whether consecutive sentencing was authorized, was not part of appellant’s October 22, 2004 plea bargain in the probation case, much less the issue of whether a consecutive eight-month term was authorized in that case. Nothing during the taking of the plea indicates appellant was thinking about consecutive sentencing or a consecutive eight-month term, that the plea agreement was based on a “ ‘mutual understanding’ ” (Cuevas, supra, 44 Cal.4th at p. 380) that such sentencing could occur, or that such sentencing was “ ‘part and parcel’ ” (id. at p. 381) of the agreement appellant negotiated with the People.
Cuevas and Shelton, cited by respondent, do not help. In each of those cases, unlike the present case, multiple convictions and consecutive sentences, including the consecutive sentences ultimately imposed, were contemplated as part of a plea bargain, and the parties agreed as part of that bargain that the consecutive sentences ultimately imposed were authorized.
(b) Appellant’s Claim is Not Barred by Estoppel or Waiver Principles.
Respondent, citing Hester and People v. Couch (1996) 48 Cal.App.4th 1053, effectively argues appellant is precluded by principles of estoppel and waiver from arguing the consecutive eight-month term was unauthorized. Respondent’s reliance upon these cases is misplaced. These cases apply when a specified sentence is part of a negotiated plea. For reasons previously discussed, a sentence was not a part of appellant’s negotiated plea in the probation case, much less a consecutive sentence or a consecutive eight-month sentence.
Hester states, “[t]he rule that defendants may challenge an unauthorized sentence on appeal even if they failed to object below is itself subject to an exception: 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. 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. (People v. Couch (1996) 48 Cal.App.4th 1053, 1056-1057; [citations].)... ‘When a defendant maintains that the trial court’s sentence violates rules which would have required the imposition of a more lenient sentence, yet the defendant avoided a potentially harsher sentence by entering into the plea bargain, it may be implied that the defendant waived any rights under such rules by choosing to accept the plea bargain.’ (People v. Couch, supra, 48 Cal.App.4th at p. 1057.)” (Hester, supra, 22 Cal.4th at p. 295.) People v. Couch, supra, also stated, “ ‘[w]here a court is merely acting in excess of its jurisdiction, the defendant who agrees to such actions may be estopped later from challenging the court’s actions on jurisdictional grounds.’ [Citation.]” (People v. Couch, at p. 1057.) Although respondent asserts these cases compel rejection of appellant’s claim on its merits, application of these cases would merely bar appellant’s claim, leaving it undecided.
The trial court on April 21, 2008, stated “this was [an] agreed to disposition between the parties, so I’m not inclined to make any modification to the agreed to sentence of four years.” However, although the no contest pleas in the probation case and new case were each negotiated (on October 22, 2004, and February 21, 2007, respectively), they clearly were not negotiated together, much less with the understanding that a total prison term in both cases would be four years. A prison disposition was not part of the October 22, 2004 negotiated plea in the probation case. On February 21, 2007, appellant pled no contest in the new case and admitted a probation violation in the probation case, but this was not done with the understanding that the total prison term in both cases would be four years. Only after appellant admitted the probation violation did the court indicate its intent to impose a concurrent term in the probation case.
2. The Abstract of Judgment and Minute Orders Must Be Corrected.
As mentioned, on October 22, 2004, the complaint in the probation case (case No. TA076626) was amended to allege as count 1 a violation of Penal Code section 646.9, subdivision (a), instead of subdivision (b), and, as to count 1, appellant pled no contest to a violation of Penal Code section 646.9, subdivision (a). However, as appellant observes, various records in the probation case erroneously reflect that appellant pled no contest to a violation of Penal Code section 646.9, subdivision (b) in that case. Respondent concedes they need to be corrected. (Cf. People v. Humiston (1993) 20 Cal.App.4th 460, 466, fn. 3; People v. Solorzano (1978) 84 Cal.App.3d 413, 415, 417.)
In particular, appellant complains about the following records in the probation case: (1) the minute order printed October 28, 2004, for October 22, 2004 proceedings, (2) the December 23, 2004 minute order, (3) the March 23, 2007 abstract of judgment, (4) the April 23, 2008 amended abstract of judgment (in the probation case and the new case), and (5) the July 23, 2008 second amended abstract of judgment (in the probation case and the new case). However, since an amended abstract of judgment presumably supersedes previous abstracts, we will order the trial court to amend the abstract of judgment to correctly reflect that, in the probation case, appellant was convicted on count 1 of a violation of Penal Code section 646.9, subdivision (a), but we see no need to order correction of the abstracts for March 23, 2007, April 23, 2008, or July 23, 2008.
DISPOSITION
The judgment in case No. TA080213 is affirmed. The judgment in case No. TA076626, is modified by reducing appellant’s sentence in that case to eight months (said sentence to be served consecutively to appellant’s three-year prison sentence in case No. TA080213) and, as so modified, the judgment in case No. TA076626 is affirmed. The trial court is directed to forward to the Department of Corrections an amended abstract of judgment in case No. TA076626, reflecting the above modification and that, as to count 1 in that case, appellant pled no contest to a violation of Penal Code section 646.9, subdivision (a). The trial court is also directed to correct the two previously discussed minute orders in case No. TA076626, to reflect that, as to count 1 in that case, appellant pled no contest to a violation of Penal Code section 646.9, subdivision (a).
We concur: KLEIN, P. J., CROSKEY, J.