Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 62070827
ROBIE, J.
Defendant Michael Lee McNelly pled no contest to kidnapping with intent to commit robbery and assault with intent to commit rape. In exchange for his plea, the People agreed to dismiss additional charges, as well as an allegation that defendant had a prior strike conviction within the meaning of California’s three strikes law. A further component of the plea agreement was that, while defendant could be sentenced to a maximum term of life imprisonment with the possibility of parole, the court could also consider imposing a lesser sentence; if life imprisonment turned out to be the only option available to the court at sentencing, defendant would be allowed to withdraw his plea. At the sentencing hearing, on the People’s motion and without objection by defendant, the trial court dismissed the strike allegation based on insufficient evidence, and after considering the prospect of a lesser sentence, sentenced defendant to a term of life in prison with the possibility of parole on the kidnapping, plus a consecutive term of four years on the assault.
The record does not disclose these to be the terms of the plea agreement. However, defendant and the People are in agreement that these terms were material components of the deal.
On appeal, without a certificate of probable cause, defendant contends that the trial court’s dismissal of the strike allegation was ineffective, and resulted in an unauthorized sentence because the court did not state its reasons for the dismissal on the record. Because “the striking of the ‘strike’ was a material component of the plea bargain,” defendant requests that we remand the case to allow the trial court to either state sufficient reasons for striking the strike or allow him to withdraw his plea. As will be explained more fully below, defendant’s appellate challenge is, in substance, an attack on the validity of his plea. Accordingly, his appeal must be dismissed for lack of a certificate of probable cause.
FACTUAL AND PROCEDURAL BACKGROUND
The victim in this case, a 22-year-old woman with limited English-speaking ability, to be referred to as G. V. throughout this opinion, took a bus to the mall area in Roseville in order to go grocery shopping. The return bus trip found her in the company of defendant. The two struck up a conversation. When the time came for G. V. to get off the bus, defendant followed and offered to help carry her grocery bags. Defendant also explained that he knew a shortcut to her residence. G. V. reluctantly accepted defendant’s assistance.
When defendant guided her behind some local businesses and set down the grocery bags, G. V. became nervous. His explanation that he simply needed a break did not put her at ease. As G. V. attempted to leave, defendant blocked her escape and pulled her into some bushes. She began to scream, but defendant covered her mouth with his hand and told her to take off her pants. G. V. complied with defendant’s demand. Defendant then pulled down his pants and exposed his penis. Witnesses in a nearby parking lot heard G. V.’s screams and came to her assistance. Defendant pulled up his pants and ran. Fortunately, G. V. escaped the ordeal with only minor scrapes on her face and neck.
Defendant was arrested and subsequently charged with kidnapping with intent to commit rape, kidnapping, assault with intent to commit rape, and false imprisonment. The information also alleged that defendant had a prior strike conviction within the meaning of the three strikes law. After an initial plea of not guilty, defendant entered a plea of no contest to kidnapping with intent to commit robbery and assault with intent to commit rape.
At the hearing during which defendant’s plea of no contest was entered, the People moved, without objection by defendant, to amend the charge of kidnapping with intent to commit rape to kidnapping with intent to commit robbery.
In exchange for his plea, the People agreed to dismiss the remaining charges as well as the prior strike allegation. The plea agreement also provided that, while defendant could be sentenced to a term of life imprisonment with the possibility of parole, the court could also consider imposing a lesser sentence; if life imprisonment turned out to be the only option available to the court at sentencing, defendant would be allowed to withdraw his plea. As the court explained to defendant on the record prior to accepting the plea: “Now the penalties for the 209(b)(1) [kidnapping with intent to commit robbery] is probation to life. It’s an oddly-worded punishment. But the pleas being entered with the understanding at the time of sentencing, the court would have the legal ability to consider something else other than life in prison. If it turns out that based on what we have done that is the only option I have, then the defendant will be permitted to withdraw his plea. [¶] . . . [¶] By saying that, if I am legally permitted to consider a sentence other than life, I am still not eliminating that as a possibility. . . . [¶] . . . [¶] Just because I can legally consider it, it doesn’t mean I am going to impose something else. The sentence could be life in prison. Do you understand that, sir?” Defendant responded: “Yes.”
At the sentencing hearing, the court indicated that it intended to follow the recommendation of the probation department and impose a life sentence. The People reminded the court that, pursuant to the plea agreement, it had the ability to impose a lesser sentence. The court agreed, paraphrasing the plea agreement as follows: “[I]f as a result of this plea it was impossible for me to do anything but sentence the Defendant to life in prison, he could withdraw his plea.” The court went on to explain: “If I chose to, based on the circumstances, I could grant probation in this case, so I feel that . . . we have abided by the terms of the change of plea agreement.”
The People then moved, without objection by defendant, to dismiss the strike allegation based on insufficient evidence, and urged the court to impose a term of life imprisonment. Defendant moved to withdraw his plea based on his purported understanding that he would not receive a life sentence. The court denied defendant’s motion stating: “I explicitly said on the record it is more than likely going to be a life sentence and the only way the plea could be withdrawn was if it was impossible for me to do anything else.” Defendant’s counsel then acknowledged that “it is not impossible” for the court to impose a lesser sentence and asked the court to instead sentence defendant to the upper term on the assault charge.
Unpersuaded, the court sentenced defendant to a term of life imprisonment with the possibility of parole on the kidnapping, plus a consecutive term of four years on the assault. The court then denied defendant’s request for a certificate of probable cause stating: “It was quite clear at the change of plea that this was very likely to be what was going to happen. And the only way that he could withdraw his plea was if it was impossible for me to do anything other than life in prison. And it turns out it is possible, just based on the circumstances of this case, the fact that the Defendant is now abducting people in broad daylight, it does not seem to be appropriate to do anything but life in prison.”
Defendant filed a timely notice of appeal, purportedly on postplea sentencing grounds.
DISCUSSION
Dismissal Of The Strike
Defendant contends that the trial court’s dismissal of the strike allegation was ineffective, and resulted in an unauthorized sentence because the court did not state its reasons for the dismissal on the record. Because “the striking of the ‘strike’ was a material component of the plea bargain,” defendant requests that we remand the case to allow the trial court to either state sufficient reasons for striking the strike or allow him to withdraw his plea.
“Penal Code section 1237.5 provides that a defendant may not appeal ‘from a judgment of conviction upon a plea of guilty or nolo contendere’ unless the defendant has applied to the trial court for, and the trial court has executed and filed, ‘a certificate of probable cause for such appeal.’ [Citation.]” (People v. Shelton (2006) 37 Cal.4th 759, 766; § 1237.5, subd. (b); see also People v. Buttram (2003) 30 Cal.4th 773, 790 [the purpose of section 1237.5 is “to weed out frivolous and vexatious appeals from pleas of guilty or no contest, before clerical and judicial resources are wasted”].) However, “[e]xempt from this certificate requirement are postplea claims, including sentencing issues, that do not challenge the validity of the plea.” (People v. Cuevas (2008) 44 Cal.4th 374, 379; see also Cal. Rules of Court, rule 8.304(b)(4)(B).)
All further statutory references are to the Penal Code unless otherwise indicated.
For purposes of the certificate of probable cause requirement, the critical question is whether defendant’s challenge to the method by which the trial court dismissed his strike allegation “is in substance a challenge to the validity of his plea.” (People v. Cuevas, supra, 44 Cal.4th at p. 381.) We conclude that defendant’s appellate attack does challenge the validity of his plea because the dismissal of the strike allegation was “part and parcel of the plea agreement he negotiated with the People.” (People v. Panizzon (1996) 13 Cal.4th 68, 78.)
In Cuevas, our Supreme Court held that a certificate of probable cause is required in order to challenge the sentence imposed where defendant, pursuant to a plea agreement, agrees to a potential maximum sentence on charges to which he pleads in exchange for dismissal of additional charges. (People v. Cuevas, supra, 44 Cal.App.4th at pp. 376-377.) There, pursuant to a negotiated plea agreement, Cuevas pled no contest to 27 counts of second degree robbery (as well as other crimes), the prosecution reduced or dismissed additional charges, and Cuevas agreed that the maximum possible sentence for the charges to which he pled would be 37 years 8 months. (Id. at pp. 376-378.) Cuevas was sentenced to 35 years 8 months in state prison. (Id. at p. 378.) Without a certificate of probable cause, Cuevas appealed, challenging the sentence as improper multiple punishment under section 654. (Cuevas, at pp. 378-379.)
Holding Cuevas’s appeal to be barred for lack of a certificate of probable cause, the court explained that Cuevas “is challenging the very sentence he negotiated as part of the plea bargain, and, in substance, is attacking the validity of his plea.” (People v. Cuevas, supra, 44 Cal.App.4th at pp. 382, 384.) As the court explained: “‘“When a guilty [or nolo contendere] plea is entered in exchange for specific 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.”’ [Citations.]” (Id. at p. 383; see People v. Panizzon, supra, 13 Cal.4th at p. 80.) Because the “maximum sentence was ‘part and parcel’ of the plea bargain the parties negotiated,” the court concluded that Cuevas’s sentencing challenge was a challenge to “the validity of his plea itself.” (Cuevas, at p. 384.)
In this case, defendant entered a plea of no contest in exchange for certain benefits, i.e., dismissal of additional charges, dismissal of a strike conviction allegation, and an agreed maximum punishment of life imprisonment with the possibility of a lesser sentence. However, without a certificate of probable cause, and acknowledging that “the striking of the ‘strike’ was a material component of the plea bargain,” defendant challenges the method by which the trial court dismissed the strike allegation. As was the case in Cuevas, defendant’s sentencing challenge involves a matter that “was ‘part and parcel’ of the plea bargain the parties negotiated.” (People v. Cuevas, supra, 44 Cal.4th at p. 384.) Accordingly, his purported sentencing challenge is, in substance, a challenge to “the validity of his plea itself.” (Ibid.) As defendant lacks the requisite certificate of probable cause to bring such a challenge, his appeal must be dismissed.
Defendant attempts to circumvent the certificate of probable cause requirement by arguing that his challenge does not involve the validity of the plea itself, but rather the improper procedure by which it was effectuated. According to defendant, the “fortuity” that the trial court did not state any reasons on the record for dismissing the strike allegation permits us to remand the case to allow the trial court to either state sufficient reasons for striking the strike or allow him to withdraw his plea. However, it is difficult to fathom how a claim that a “fortuity” renders a portion of the plea invalid is any less a challenge to the validity of the plea.
Additionally, we would be remiss not to point out that section 1170.12, subdivision (e), provides: “Prior felony convictions shall not be used in plea bargaining, as defined in subdivision (b) of Section 1192.7. The prosecution shall plead and prove all known prior felony convictions and shall not enter into any agreement to strike or seek the dismissal of any prior felony conviction allegation except as provided in paragraph (2) of subdivision (d).” Paragraph (2) of subdivision (d) provides: “The prosecuting attorney may move to dismiss or strike a prior felony conviction allegation in the furtherance of justice pursuant to Section 1385, or if there is insufficient evidence to prove the prior conviction. If upon the satisfaction of the court that there is insufficient evidence to prove the prior felony conviction, the court may dismiss or strike the allegation.” (§ 1170.12, subd. (d)(2).)
Section 1192.7, subdivision (b), defines “plea bargaining” as “any bargaining, negotiation, or discussion between a criminal defendant, or his or her counsel, and a prosecuting attorney or judge, whereby the defendant agrees to plead guilty or nolo contendere, in exchange for any promises, commitments, concessions, assurances, or consideration by the prosecuting attorney or judge relating to any charge against the defendant or to the sentencing of the defendant.”
Here, the record does indicate that the People possessed sufficient evidence to go forward on the strike allegation. Both defendant and the People admit that the striking of the strike allegation was a part of the bargain entered into between the parties. Accordingly, this portion of the plea agreement would appear to violate section 1170.12, subdivision (e). However, as defendant received the benefit of this arguably improper bargain, he cannot be heard to complain about it. (People v. Hester (2000) 22 Cal.4th 290, 295 [“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. Jordan (2006) 141 Cal.App.4th 309, 322 [where a plea bargain includes specific terms that defendant later challenges on appeal as unauthorized, defendant is estopped to complain “‘so long as the trial court did not lack fundamental jurisdiction’”]; People v. Young (2000) 77 Cal.App.4th 827, 833 [“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”].)
In sum, defendant received the benefit of the bargain struck between himself and the People. His challenge to the validity of the method by which the trial court dismissed his strike allegation is a thinly veiled challenge to the validity of the plea itself. Because defendant lacks the requisite certificate of probable cause to bring such a challenge, his appeal must be dismissed.
DISPOSITION
Defendant’s appeal is dismissed.
We concur: NICHOLSON, Acting P. J., MORRISON, J.