Opinion
G057630
02-05-2020
THE PEOPLE, Plaintiff and Respondent, v. LINO GONZALEZ Defendant and Appellant.
Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12CF2110) OPINION Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed. Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
We appointed counsel to represent Lino Gonzalez on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his client but advised the court he found no issues to argue on Gonzalez's behalf.
Counsel filed a brief following the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende). The court in Wende explained a Wende brief is one that sets forth a summary of proceedings and facts but raises no specific issues. Under these circumstances, the court must conduct an independent review of the entire record. When the appellant himself raises specific issues in a Wende proceeding, we must expressly address them in our opinion and explain why they fail. (People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124 (Kelly).)
Counsel did not provide the court with any information as to issues that might arguably support an appeal pursuant to Anders v. California (1967) 386 U.S. 738. Gonzalez was given 30 days to file written argument on his own behalf, which he did. Gonzalez alleges his sentence must be recalled because it was unauthorized and upon recall the case must be referred to the juvenile court because he was only 15 years of age at the time of the offense.
We have reviewed the record in accordance with our obligations under Wende. We found no arguable issues on appeal. We affirm the judgment.
FACTS
In 2012, Gonzalez, who was 15 years old, was directly charged by a felony complaint in criminal court. He entered into a plea agreement and pleaded guilty to three counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2), all further statutory references are to the Penal Code). Gonzalez admitted he committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and as to one count he admitted inflicting great bodily injury (§ 12022.7).
Prior to sentencing and pursuant to the plea agreement, the trial court dismissed three counts of attempted murder (§§ 664, subd. (a), 187, subd. (a)). The court also dismissed the criminal street gang (§ 186.22, subd. (b)(1)), and firearm enhancements (§§ 12022.53, subds. (c) & (d)).
In September 2018, the Secretary of the Department of Corrections and Rehabilitation (DCR) sent a letter authorizing Gonzalez to be resentenced pursuant to section 1170, subdivision (d). The DCR's letter requested the court consider People v. Gonzalez (2009) 178 Cal.App.4th 1325 (Gonzalez). Gonzalez moved to recall his sentence and transfer jurisdiction of the case back to the juvenile court.
In April 2019, the trial court declined to recall the sentence because it was convinced the plea was "an agreed-upon disposition between the parties." The court noted it was primarily relying on People v. Hester (2000) 22 Cal.4th 290 (Hester), People v. Flood (2003) 108 Cal.App.4th 504 (Flood), and People v. Couch (1996) 48 Cal.App.4th 1053 (Couch). The court opined it was convinced, based on case law, that when there is a negotiated disposition the court can "take another look" at the sentence, or "do nothing" and allow the plea to stand. The court decided it would allow the previous sentence to remain. It explained that in its experience the majority of negotiated pleas began with the attorneys determining a number of years in prison that reflected an appropriate degree of punishment, and then the attorneys simply picked an assortment of charges, enhancements, and special allegations that would result in the number of years agreed upon. Based on this understanding as to how negotiated sentences were calculated, the court indicated it was loath to disturb negotiated plea agreements. The court denied Gonzalez's motion to recall the sentence. Gonzalez filed a timely notice of appeal.
DISCUSSION
Gonzalez identifies for our consideration the possibility his sentence was unauthorized and must be recalled and therefore we must refer the matter to the juvenile court because he was only 15 years of age at the time of the offense. Because we disagree with the first claim, we need not address the second contention.
In Gonzalez, the court, relying on People v. Rodriguez (2009) 47 Cal.4th 501, held imposition of both the three-year great bodily injury enhancement (§ 12022.7, subd. (a)), and the 10-year gang enhancement (§ 186.22, subd. (b)(1)(C)), violated section 1170.1, subdivision (g). (Gonzalez, supra, 178 Cal.App.4th at pp. 1331-1332.) Section 1170.1, subdivision (g), provides, in relevant part, "[w]hen two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense."
Here, there is no dispute Gonzalez was sentenced to dual enhancements in violation of Gonzalez, supra, 178 Cal.App.4th 1325. The question is whether after agreeing to a specified prison term in a plea agreement, Gonzalez can now seek relief under Gonzalez. We conclude he cannot.
In Couch, the court held that "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." (Couch, supra, 48 Cal.App.4th at p. 1057.)
In Hester, defendant entered no contest pleas to felony assault (§ 245, subd. (a)(1)), felony burglary (§§ 459, 460, subd. (a)), and other offenses, and admitted allegations in exchange for an agreed upon term of four years in prison. As relevant here, the trial court sentenced defendant to a four-year prison term for the burglary count and a concurrent three-year term for the felony assault counts. (Hester, supra, 22 Cal.4th at p. 293.) On appeal, defendant claimed the court's failure to stay the three-year term imposed for the assault count violated section 654 because the burglary and the assault were committed pursuant to a single intent and objective. Our Supreme Court held California Rules of Court, rule 412(b), which provides, "By agreeing to a specified prison term personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates [Penal Code] section 654's prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record" was not invalid because it did not conflict with section 654. (Id. at pp. 295-296.)
In Flood, supra, 108 Cal.App.4th at pages 505-506, defendant pleaded no contest to assault with a deadly weapon by means likely to produce great bodily injury. He admitted allegations he personally used a knife (§ 12022, subd. (b)(1)), personally inflicted great bodily injury (§ 12022.7), and he suffered a 2000 strike conviction (§ 667, subds. (b)-(i)). The court sentenced defendant to a stipulated prison term of 12 years. Defendant appealed alleging he was entitled to resentencing because the 2000 conviction was not a strike. (Flood, supra, 108 Cal.App.4th at p. 506.) The Flood court explained that "[i]n exchange for the plea and admissions, defendant avoided a possible punishment for attempted premeditated murder of life imprisonment with the possibility of parole. [Citation.]" (Id. at p. 508.) The court reasoned that after having gained the benefit of his plea bargain, defendant could not now prevail on his contention the Three Strikes law did not apply. (Ibid.) The Flood court held "defendant [was] not entitled to a reduction of his stipulated prison sentence." (Ibid.)
Section 1170, subdivision (d)(1), provides, in pertinent part, a court may at any time "upon the recommendation of the secretary or the Board of Parole Hearings" recall a sentence and commitment previously ordered and resentence the defendant. The language is permissive and simply provides the court with the authority to recall a sentence. The statute confers broad discretion on the trial court in considering relevant factors and determining whether to recall the sentence. The section basically creates a limited exception to the common law rule that a trial court loses jurisdiction to resentence once the defendant commences his or her sentence. (People v. Karaman (1992) 4 Cal.4th 335, 351-352.)
Here, the trial court had the authority, but was not required to, recall Gonzalez's sentence. The court stated its reasons on the record. It essentially explained "a deal is a deal." We see no error in the court so concluding. Plea agreements are considered a type of contract, and their terms, like the terms of any contract, are to be enforced. (People v. Shelton (2006) 37 Cal.4th 759, 767 (Shelton) [court must enforce terms of plea and may not modify them just because one party unilaterally requests].)
The dismissal of three counts of attempted murder and the accompanying enhancement allegations was a great benefit to Gonzalez and an integral part of the negotiated plea. A specified sentence in a plea agreement "normally implies a mutual understanding of the defendant and the prosecutor that the specified [sentence] is one that the trial court may lawfully impose." (Shelton, supra, 37 Cal.4th at p. 768.) "[D]efendants 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. [citation.]" (Hester, supra, 22 Cal.4th at p. 295.)
Because we find no error in the court's decision not to recall Gonzalez's sentence, we need not address his contention that upon recall the case must be referred to the juvenile court.
DISPOSITION
The judgment is affirmed.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. ARONSON, J.