Opinion
F077178
11-19-2019
THE PEOPLE, Plaintiff and Respondent, v. MARK EDWARD MESITI, Defendant and Appellant.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 1457251)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Dawna Reeves, Judge. Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Peña, J.
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INTRODUCTION
Appellant Mark Edward Mesiti was charged on August 9, 2013, with murder with special circumstances, and 51 counts of various sexual offenses against three minors, including the murder victim. Penal Code section 667.61, subdivision (e)(4) enhancements also were alleged. In September 2017, the People moved to dismiss three of the sexual offense counts and on October 17, 2017, Mesiti pled guilty to the remaining counts, and admitted the murder with special circumstances and enhancements. In exchange for his plea, it was agreed that Mesiti would be sentenced to a term of life without parole on the murder conviction, and the terms imposed for the other counts would run concurrently.
References to code sections are to the Penal Code.
Mesiti contends the sentence imposed does not conform to the plea agreement and defense counsel rendered ineffective assistance in failing to object. We will direct the abstract of judgment be modified to conform to the plea agreement.
FACTUAL AND PROCEDURAL SUMMARY
A 52-count complaint was filed against Mesiti on August 9, 2013. In counts 1 through 45, A.M. is the victim. Count 1 charged Mesiti with murder with special circumstances; count 2 charged a violation of section 288, subdivision (a), lewd act upon a child under the age of 14 years; counts 3 through 7, 10, 22 through 27, 29, 30, and 36 charged violations of section 289, subdivision (e), sexual penetration when the victim is prevented from resisting by an intoxicant; counts 8, 14, 16 through 20, 34, 38, 41, 43, and 44 charged violations of section 288, subdivision (c)(1), lewd acts upon a child 14 or 15 years of age by a perpetrator more than ten years older than the victim; counts 11, 12, 13, 15, 21, 31, 32, 33, 35, 39, 40, and 42 charged violations of section 288a, subdivision (i), oral copulation when the victim was prevented from resisting by an intoxicant; count 37 charged a violation of section 261, subdivision (a)(3), rape when the victim was prevented from resisting by an intoxicant; counts 9 and 28 charged violations of section 286, subdivision (i), sodomy when the victim was prevented from resisting by an intoxicant; and count 45 charged a violation of section 311.4, subdivision (c), coercing the victim, a minor, to engage in posing and modeling for the purpose of preparing images involving sexual conduct by a minor.
In counts 46 and 47, the victim is Jane Doe 1, eight years old. Count 46 charged a violation of section 311.4, subdivision (c), and count 47 charged a violation of section 288, subdivision (a).
For counts 48 through 52, the victim is Jane Doe 2, 16 or 17 years of age. Count 48 charged a violation of section 288a, subdivision (i); count 49 charged a violation of section 243.4, subdivision (a); count 50 charged a violation of section 261.5, subdivision (c); count 51 charged a violation of section 288a, subdivision (b)(1); and count 52 charged a violation of section 311.4, subdivision (c).
The complaint alleged multiple enhancements, including the section 667.61, subdivision (e)(4) and (e)(7) enhancements.
On September 28, 2017, the People informed the trial court and defense that they would not proceed with prosecution on counts 6, 7, and 50. A jury was impaneled on October 2, 2017.
On October 17, 2017, the parties entered into a plea agreement. Mesiti agreed to plead guilty "to the sheet," except for counts 6, 7, and 50, and admit four special circumstances and the enhancements. He also agreed to make a personal allocution of facts. In exchange for his plea, the People agreed to stipulate to a sentence of life without the possibility of parole on the count 1 murder offense, with the terms for all other counts to run concurrently.
The parties stipulated that the grand jury transcript and exhibits provided a factual basis for the plea. The parties also stipulated that none of the terms for the sexual offense counts were subject to section 654.
The trial court verified that Mesiti understood the "maximum sentence" he was facing "as charged is death." Mesiti affirmatively indicated he understood. The trial court then verified that Mesiti was "agreeing to life without the possibility of parole, plus concurrent time on each of the additional Counts 1 through 51, absent Count 50, Count 6, and Count 7, which were previously dismissed." Mesiti affirmatively stated he understood the terms of the plea. The trial court accepted each of Mesiti's guilty pleas and admissions.
Mesiti moved to withdraw his guilty pleas on November 9, 2017.
The probation report did not contain a specific recommendation on a sentence. The report did list all the offenses to which Mesiti had pled and the sentencing triad for each offense. The report noted that Mesiti had been in possession of approximately 300,000 images and videos containing child pornography. It set forth some of the facts in Mesiti's allocution statement. Victim impact statements and interviews were included.
At a hearing on February 2, 2018, the trial court denied Mesiti's motion to withdraw his plea. The trial court then proceeded with sentencing, imposing a term of life without parole for the murder conviction. However, although the trial court noted the terms of the plea agreement called for concurrent terms on the other offenses, the trial court concluded "mandatory consecutive sentencing is required."
The trial court proceeded to articulate multiple factors in aggravation and no factors in mitigation. The sentence imposed by the trial court was "life without the possibility of parole, plus 30 to life, plus a consecutive 243 years and eight months." The trial court noted that it was choosing to impose a consecutive term "where there is discretion to do so."
Mesiti filed a notice of appeal on March 13, 2018, and requested a certificate of probable cause. The request for a certificate of probable cause was denied.
DISCUSSION
Mesiti challenges the trial court's imposition of consecutive terms as a violation of the plea agreement. He also contends counsel's failure to object constituted ineffective assistance of counsel.
No Ineffective Assistance of Counsel
Mesiti contends defense counsel's failure to object to the sentence at the time of imposition constitutes ineffective assistance of counsel. However, in reviewing the transcript of the sentencing hearing, it is apparent that defense counsel first clarified with the trial court that the agreed upon sentence was life without parole for the murder conviction, and "the other time, that's concurrent." The trial court acknowledged that was the agreement.
When the trial court proceeded to announce its proposed sentence, however, it indicated a different sentence than called for by the plea agreement. When defense counsel interrupted with an objection, the trial court precluded defense counsel from speaking, stating, "I am now issuing my ruling. I'd like you to be quiet. [¶] Thank you, Counsel." Defense counsel persisted at sentencing and stated, "Judge, I thought that was part of the plea bargain. You said you were going to indicate concurrent." The trial court responded again with, "I have asked you not to interrupt."
After the trial court finished articulating the sentence, defense counsel interposed a question regarding the sentence, to which the trial court responded, "I'm not asking you to argue, Counsel. I'm complying with the law." When counsel persisted and asked to make a statement, the trial court responded, "I don't want to hear about—you know what? If you want to make a statement and it has to do with sentencing, I will hear it, but those issues should have been addressed long ago, if there is any."
We decline to find any ineffective assistance of counsel for failing to object to the imposed sentence when defense counsel's attempts to speak were interrupted by the trial court, the trial court repeatedly told defense counsel not to interrupt, and defense counsel did challenge the imposition of a sentence that did not conform to the plea agreement. The trial court, however, did not afford Mesiti's defense counsel a meaningful opportunity to object. (People v. Scott (1994) 9 Cal.4th 331, 356.)
Violation of Plea Bargain
Mesiti challenges the trial court's imposition of consecutive terms as a violation of the plea agreement. He is correct.
"We start with the basic proposition that '[judicial] approval is an essential condition precedent to any plea bargain worked out by the defense and the prosecution.' [Citation.] The parties' negotiated disposition is ineffective unless and until it is approved by the court." (People v. Stringham (1988) 206 Cal.App.3d 184, 194.) The plea agreement was for life without parole on the murder conviction and the remaining terms of imprisonment on the sexual offense convictions were to be served concurrently.
The trial court confirmed with Mesiti that he was "agreeing to life without the possibility of parole, plus concurrent time on each of the additional Counts 1 through 51, absent Count 50, Count 6, and Count 7, which were previously dismissed." Mesiti confirmed that was the agreement to which he was pleading. After confirming the terms of the plea agreement, the trial court proceeded to accept Mesiti's guilty pleas and admissions.
At sentencing, the trial court refused to impose the agreed upon sentence and instead imposed a different sentence of life without parole, with a concurrent term of 30 years to life, plus a consecutive term of 243 years eight months. The trial court then articulated the "reason for the sentencing choices that I'm making in this case."
In People v. Segura (2008) 44 Cal.4th 921 (Segura), the Supreme Court began its analysis by explaining the nature and purpose of plea agreements.
"Plea negotiations and agreements are an accepted and 'integral component of the criminal justice system and essential to the expeditious and fair administration of our courts.' [Citations.] Plea agreements benefit that system by promoting speed, economy, and the finality of judgments. [Citations.] [¶] As we previously have explained, the process of plea negotiation 'contemplates an agreement negotiated by the People and the defendant and approved by the court. [Citations.] Pursuant to this procedure the defendant agrees to plead guilty [or no contest] in order to obtain a reciprocal benefit, generally consisting of a less severe punishment than that which could result if he were convicted of all offenses charged. [Citation.] This more lenient disposition of the charges is secured in part by prosecutorial consent to the imposition of such clement punishment [citation], by the People's acceptance of a plea to a lesser offense than that charged, either in degree [citations] or kind [citation], or by the prosecutor's dismissal of one or more counts of a multi-count indictment or information. Judicial approval is an essential condition precedent to the effectiveness of the "bargain" worked out by the defense and prosecution. [Citations.] But implicit in all of this is a process of "bargaining" between the adverse parties to the case—the People represented by the prosecutor on one side, the defendant represented by his counsel on the other—which bargaining results in an agreement between them.' " (Segura, supra, 44 Cal.4th at pp. 929-930.)
The Supreme Court next observed that the prosecutor is the only party authorized to negotiate on behalf of the state, and the trial court cannot substitute itself in place of the prosecutor. (Segura, supra, 44 Cal.4th at p. 930.) " 'Such judicial activity would contravene express statutory provisions requiring the prosecutor's consent to the proposed disposition, would detract from the judge's ability to remain detached and neutral in evaluating the voluntariness of the plea and the fairness of the bargain to society as well as to the defendant, and would present a substantial danger of unintentional coercion of defendants who may be intimidated by the judge's participation in the matter.' " (Ibid.)
The next topic addressed was the contract aspects of a plea agreement.
"Because a 'negotiated plea agreement is a form of contract,' it is interpreted according to general contract principles. [Citation.] Acceptance of the agreement binds the court and the parties to the agreement. [Citations.] ' "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." ' [Citations.]
"For its part, of course, the trial court may decide not to approve the terms of a plea agreement negotiated by the parties. [Citation.] If the court does not believe the agreed-upon disposition is fair, the court 'need not approve a bargain reached between the prosecution and the defendant, [but] it cannot change that bargain or agreement without the consent of both parties.' [Citations.]
"Although a plea agreement does not divest the court of its inherent sentencing discretion, 'a judge who has accepted a plea bargain is bound to impose a sentence within the limits of that bargain. [Citation.] "A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound." [Citation.] Should the court consider the plea bargain to be unacceptable, its remedy is to reject it, not to violate it, [either] directly or indirectly. [Citation.] Once the court has accepted the terms of the negotiated plea, "[it] lacks jurisdiction to alter the terms of a plea bargain so that it becomes more favorable to a defendant unless, of course, the parties agree." ' " (Segura, supra, 44 Cal.4th at pp. 930-931.)
Here, Mesiti pled guilty in exchange for a specified sentence. Having accepted Mesiti's pleas and admissions pursuant to a plea agreement, the trial court was required to impose a sentence in accordance with the plea agreement. (Segura, supra, 44 Cal.4th at pp. 930-931.)
Mesiti is not seeking a sentence outside the terms of the plea agreement; he is seeking to enforce the plea agreement. The People concede he is entitled to a sentence in accordance with the plea agreement. When a guilty 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.' " (People v. Panizzon (1996) 13 Cal.4th 68, 80.)
Therefore, we will direct the abstract of judgment be modified to reflect the sentence provided for in the plea agreement.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting a term of life without the possibility of parole on count 1, and all other terms imposed are to be modified to reflect they are concurrent with the term imposed on count 1. The amended abstract of judgment shall be disseminated to the appropriate authorities.