Opinion
C083880
01-12-2018
THE PEOPLE, Plaintiff and Respondent, v. PAUL EMANUEL MCBEAN, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 15F03813, 15F03883, 15F06206)
Defendant Paul Emanual McBean entered pleas as part of a global plea agreement in case Nos. 15F03813 (hereafter 3813), 15F03883 (3883), and 15F06206 (6206), in exchange for a stipulated state prison sentence of seven years four months, which the trial court imposed. Defendant only filed a notice of appeal in case No. 3813, but his appellate counsel sought and obtained an order from this court construing the notice of appeal to include case Nos. 3883 and 6206.
Defendant contends the trial court imposed an unauthorized sentence in case No. 6206 by imposing one-third the midterm of three years, or one year doubled, rather than one-third the midterm of two years, or eight months doubled. Although the Attorney General agrees, the contention is not cognizable on appeal because defendant challenges a sentence that was part of the global plea agreement without obtaining a certificate of probable cause. (Pen. Code, § 1237.5.) Moreover, even if the appeal were cognizable, defendant would be estopped from raising the issue. Accordingly, we will dismiss the appeal.
Undesignated statutory references are to the Penal Code. --------
BACKGROUND
The facts underlying the offenses are not relevant to this appeal. In case No. 3813, defendant was charged with possession of hydrocodone pills for sale and possession of methamphetamine for sale. It was further alleged that defendant had two prior strike convictions. In case No. 3883, defendant was charged with felony evading and unlawful possession of ammunition. The two prior strike convictions and an on-bail enhancement were also alleged. In case No. 6206, defendant was charged with bringing drugs into jail, possession of methamphetamine in jail, misdemeanor possession of methamphetamine, and driving without a valid license, a misdemeanor. One prior strike conviction was alleged.
Defendant entered pleas in the three cases and the trial court stated its understanding of the negotiated pleas as follows:
"Case [3813], Count One, violation of Health and Safety Code [section] 11351, he'll be entering a no contest plea to that, low term of two years; that will be doubled because of his strike.
"In Case [3883], he'd be entering a no contest plea to Count One, evading a peace officer while driving in a reckless manner, for midterm; that would be doubled because of the strike, and then it would be one-third, so it would be 16 months on that case.
"On Case [6206], Count One, bringing unauthorized drugs into prison, it would be the midterm of three years; that would be doubled—strike that—midterm three years, one-third of three years, and that would be doubled, for an aggregate of two years, for an aggregate sentence of seven years, four months."
After stating defendant's total custody credits, the trial court queried if its understanding of the negotiated plea was correct. Both the prosecutor and defense counsel answered in the affirmative. The trial court then asked defendant if he understood the offer and if he was prepared to go forward with his pleas. Defendant answered in the affirmative. Defendant confirmed that he wanted to be sentenced immediately after entering his pleas and waived his right to a probation report.
After obtaining a factual basis for the pleas, the trial court advised defendant of his rights and obtained his waiver of the same. In particular, the trial court advised, "The sentence which we're contemplating is seven years, four months state prison. At the time of judgment and sentence you would not be considered for any other sentence. Upon your release from state prison, you'd be placed on supervision for three years and returned to custody for 180 days for any violation of that supervision." The trial court asked defendant if he understood. Defendant responded, "Yes." Defendant had no questions before entering his pleas.
Defendant then entered his pleas and admissions and the trial court accepted the same. Prior to sentencing, defense counsel requested that the trial court strike the nonmandatory fines and fees and impose the statutory minimum on the mandatory fines and fees. The trial court said it was "prepared to do that." The trial court then sentenced defendant in accordance with the stipulated sentence as follows:
"Pursuant to the negotiated plea and the surrounding facts and circumstances of this case, as well as [California Rules of Court, rule 4.412], probation will be denied.
"Case [3813], Count One, violation of Health and Safety Code [section] 11351, possession for sale of controlled substances, the Court selects the low term of two years; that sentence to be enhanced, or doubled, pursuant to the strike allegation, for an aggregate sentence on that count of four years. That will be the principal term.
"Case [3883], Count One, violation of Vehicle Code Section 2800[.2, subdivision] (a), reckless manner—excuse me. Try that again—reckless driving in an attempt to evade law enforcement, the Court will impose the midterm of two years, all but eight months to be stayed, that eight months to be doubled pursuant to the prior strike conviction, for a total of 16 months on that matter. That will be a subordinate term.
"Case [6206], Count One, a violation of Penal Code Section 4573.5, bringing unauthorized drugs into prison, the Court selects the midterm of three years, all but eight months to be stayed—excuse me—three years, all but one year to be stayed, that to be doubled pursuant to the strike allegation, for two years, as a subordinate term, for an aggregate sentence of seven years, four months." The trial court awarded custody credit, imposed only the minimum on the mandatory fines and fees, granted the People's motion to dismiss the remaining counts and allegations, and vacated the trial date.
DISCUSSION
As defendant correctly points out, the midterm for violation of section 4573.5 is two years, not three years. (§ 18, subd. (a).) He contends his sentence is unauthorized because the trial court imposed one-third the midterm of three years, or one year doubled, rather than one-third the midterm of two years, or eight months doubled.
In People v. Scott (1994) 9 Cal.4th 331, the California Supreme Court explained that "a sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (Id. at p. 354.) But a " 'challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself' and thus requires a certificate of probable cause." (People v. Shelton (2006) 37 Cal.4th 759, 766; see People v. Panizzon (1996) 13 Cal.4th 68, 76, 78-79; § 1237.5.) Defendant's claim requires a certificate of probable cause, which he failed to obtain. Thus, his contention challenging a sentence that was part of the plea agreement is not cognizable on appeal, and the appeal must be dismissed.
Even if the issue were cognizable on appeal, defendant would be estopped from raising it. In People v. Hester (2000) 22 Cal.4th 290 (Hester), the defendant entered a plea of no contest to five offenses, including battery on one victim and assault on a second victim, and admitted personal use of a deadly and dangerous weapon, in exchange for an agreed term of four years in state prison. On appeal, the defendant claimed the trial court's failure to stay the term for the assault offense violated section 654. (Hester, supra, at pp. 293-294.) But the court in Hester held, "The 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." (Id. at p. 295, original italics.) Hester explained the rationale for this policy: "[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. [Citations.] While failure to object is not an implicit waiver of section 654 rights, acceptance of the plea bargain here was. '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.' [Citation.] . . . [D]efendants are estopped from complaining of sentences to which they agreed." (Hester, supra, at p. 295.)
Here, defendant's sentence in case No. 6206 was a negotiated component of his global plea agreement in the three cases for an aggregate sentence of seven years four months. Even if the issue were cognizable on appeal, defendant would be estopped from challenging the specified sentence to which he agreed.
Defendant acknowledges Hester but argues its holding is not controlling because his claim "is not a bare attempt to better the bargain on appeal" since on remand, the parties could agree to a lower or higher sentence or one or both parties could withdraw from the plea. But defendant received the benefit of a reduced sentence due to his negotiated plea to dismiss other felony charges and an on-bail enhancement. When asked by the trial court if he understood he would be sentenced to seven years four months, defendant, who was represented by counsel, responded, "Yes." The trial court immediately sentenced defendant to seven years four months. The rationale in Hester applies here, and thus, even if the appeal were properly before us, defendant would be estopped from raising the issue.
DISPOSITION
The appeal is dismissed.
MAURO, J. We concur: BLEASE, Acting P. J. HOCH, J.