Opinion
C083901
07-16-2018
THE PEOPLE, Plaintiff and Respondent, v. ANGEL JAMES MARSHALL, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CF02293, CM042978, 16CF04444)
Defendant Angel James Marshall appeals a judgment entered by the Butte County Superior Court after revocation of his probation on a matter that was transferred from Amador County and to which he had previously pleaded guilty pursuant to a plea agreement. Defendant argues the trial court violated Penal Code section 654 by imposing punishment on a violation of Vehicle Code section 10851 that arose from the same course of conduct as a burglary (§ 459). The People concur, but argue defendant's failure to obtain a certificate of probable cause prevents his appeal.
Undesignated statutory references are to the Penal Code. --------
We accept the concession that section 654 bars dual imposition of sentences for these convictions (People v. Alford (2010) 180 Cal.App.4th 1463, 1468) and agree with defendant that a certificate of probable cause was not a precondition to this appeal.
I. BACKGROUND
We limit our discussion to the matters relevant on appeal. Defendant was originally charged in Amador County with first-degree burglary with a person present (§ 459), driving or taking a vehicle without consent (Veh. Code, § 10851, subd. (a)), two counts of receiving a stolen motor vehicle (§ 496d, subd. (a)), receiving stolen property (§ 496, subd. (a)), recklessly fleeing a police officer (Veh. Code, § 2800.2), resisting a police officer (§ 148, subd. (a)(1)), possession of methamphetamine (Health & Saf. Code, § 11377), possession of drug paraphernalia (Health & Saf. Code, § 11364.1, subd. (a)), and driving without a license (Veh. Code, § 12500, subd. (a)).
At the plea hearing, the trial court noted its understanding that defendant would be pleading to the burglary and Vehicle Code violations and "[i]n return [he]'d receive five years['] probation, 210 days in jail, restitution to be determined, search terms and drug terms and remaining counts dismissed with a Harvey waiver." After the trial court accepted the parties' representation that special circumstances justified the plea agreement's disposition, defendant pleaded guilty to burglary and driving or taking a vehicle without consent. The factual basis for this plea was that defendant entered the victim's residence while the victim was home, took the victim's truck keys from a bookshelf within the residence, and then drove away in the victim's truck without his permission. The remaining counts were dismissed on the motion of the district attorney with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754. The maximum term defendant faced prior to the plea agreement and the maximum term defendant would be subject to under the plea agreement were not mentioned.
Thereafter, the probation department prepared a report in anticipation of sentencing, which recommended a sentence of six years for the burglary and eight months for the Vehicle Code violation in the "prison sentencing information" section. Nonetheless, the report's "evaluation" did not discuss that sentence; rather, it noted "defendant entered into a stipulated plea agreement he be granted five years['] probation and serve 210 days in jail." The report described defendant as a "marginal candidate," reluctantly endorsing the grant of probation.
The actual plea agreement is not in the record, nor did the Amador County trial court have it at defendant's original sentencing hearing. Nonetheless, the record of the sentencing hearing reflects the agreement was for five years of probation with 210 days in jail, consistent with descriptions from the plea hearing and probation report. The trial court suspended the imposition of sentence, and defendant was placed on probation for 60 months. There was no discussion of the sentence facing defendant if he failed to successfully complete probation.
Thereafter, defendant's case was transferred to Butte County, and his probation on the above-described matter was revoked as a result of his guilty plea to other charges. The Butte County court sentenced defendant on three cases, including the transferred Amador County matter. It designated the above-described burglary conviction as the principle term and imposed the upper term of six years. On the subordinate convictions, the trial court imposed consecutive sentences of one-third the midterm (eight months) for the Vehicle Code section 10851 violation, as well as 24 months for two other offenses. Defendant's total aggregate prison term was eight years eight months.
Defendant timely appealed, but did not seek a certificate of probable cause.
II. DISCUSSION
A sentence that conflicts with section 654 is unauthorized and ordinarily may be challenged on appeal regardless of whether it was preserved in the trial court. (People v. Hester (2000) 22 Cal.4th 290, 295.) However, where the appeal is from a judgment entered after defendant's guilty plea, compliance with section 1237.5 is required if the section 654 challenge impugns the validity of the plea. (People v. Cuevas (2008) 44 Cal.4th 374, 381 (Cuevas).) Under section 1237.5, "[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. (§ 1237.5, subd. (b); [citation].) 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].)" (Cuevas, at p. 379.) Therefore, "the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5. [Citation.]" (People v. Panizzon (1996) 13 Cal.4th 68, 76.)
In People v. Shelton (2006) 37 Cal.4th 759, 763 (Shelton), the Supreme Court recognized that if a plea agreement specifies a sentence lid, "a challenge to the trial court's authority to impose the lid sentence is a challenge to the validity of the plea requiring a certificate of probable cause." It reasoned, "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 discretion in favor of a shorter term." (Ibid., see id. at p. 768.) Thus, "[b]ecause 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 [section] 654 was in substance a challenge to the plea's validity and thus required a certificate of probable cause." (Id. at p. 769.)
In Cuevas, the Supreme Court extended the Shelton rule to a section 654 challenge to a sentence imposed under a plea agreement that did not have a sentence lid, but did have a specified maximum sentence, negotiated by the parties in exchange for dismissal of charges for crimes under which the defendant would have been subject to a significantly longer prison sentence. (Cuevas, supra, 44 Cal.4th at pp. 381-384.) Defendant was not only advised of the maximum sentence potentially applicable under the plea, but also the significantly greater sentence to which he was previously exposed. (Id. at pp. 382-383.) The defendant confirmed on the record he understood his maximum sentence. (Id. at p. 383.) "By negotiating the reduction and dismissal of these charges, defendant necessarily understood and agreed that he faced a significantly reduced sentence . . . . This maximum sentence was 'part and parcel' of the plea bargain the parties negotiated. [Citations.]" (Id. at pp. 383-384.)
In contrast to the defendants in Cuevas and Shelton, who had reached mutual understandings concerning specified potential sentences, which were impugned by the section 654 challenges (Cuevas, supra, 44 Cal.4th at pp. 381-384; Shelton, supra, 37 Cal.4th at pp. 764, 768-769), here, the sole mention of defendant's potential prison sentence appears within the probation report prepared in anticipation of the sentencing hearing in Amador County, after the plea agreement was memorialized. That report does not indicate the potential sentence was part of the plea agreement; it states, "[t]he defendant entered into a stipulated plea agreement he be granted five years['] probation and serve 210 days in jail." The records of the plea and sentencing hearings are devoid of any discussion of defendant's potential prison sentence. Rather, the record shows a plea agreement that only discussed probation, consistent with what defendant actually received at his first sentencing hearing: probation.
The People's argument that a certificate of probable cause was nevertheless required because defendant received dismissal of other charges in exchange for his plea, and the maximum sentence that the court could impose was set by the charges that defendant pleaded guilty to stretches the reasoning of Shelton and Cuevas too far. The People's unexpressed intention to subject defendant to consecutive terms does not amount to a mutual agreement that defendant would actually be subject to such sentencing in contravention of protections afforded by section 654. Nor does section 1203.2, subdivision (c) aid the People, as it does not authorize a trial court to sentence defendant to something more than what is otherwise legally allowed. (§ 1203.2, subd. (c) [recognizing that after revocation and termination of probation, the trial court may "pronounce judgment for any time within the longest period for which the person might have been sentenced"].)
Because we find the plea agreement for probation did not include defendant's acquiescence to a specified potential prison sentence, defendant's section 654 challenge does not in substance challenge the validity of his plea agreement. Under these circumstances, no certificate of probable cause was required.
III. DISPOSITION
The eight-month sentence for the Vehicle Code section 10851 violation shall be stayed pursuant to section 654. We remand with directions that the trial court amend the abstract of judgment and forward the corrected abstract to the Department of Corrections and Rehabilitation.
/S/_________
RENNER, J.
We concur:
/S/_________
BLEASE, Acting P. J.
/S/_________
HULL, J.