Opinion
C086339
09-16-2019
THE PEOPLE, Plaintiff and Respondent, v. HAI KIM NGUYEN, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 98F00492)
Defendant Hai Kim Nguyen pled no contest to one count of assault with a firearm and admitted an allegation of personal use of a firearm. He was sentenced to an aggregate term of five years in state prison. On appeal, he contends: (1) his plea to assault with a semiautomatic firearm was not knowing and voluntary because the trial court misstated the statutory basis for the plea; (2) remand is required to allow the trial court to exercise its discretion whether to strike the firearm enhancement; and (3) the court erred in imposing an unauthorized sentence by not including defendant's presentence custody credits from his original arrest in 1999.
We agree with defendant that the abstract of judgment must be corrected to accurately state the statute of conviction, and we shall remand to allow the court to exercise its discretion whether to strike the firearm enhancement. We otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The parties stipulated that on or about December 2, 1997, in Sacramento County, defendant committed a willful, unlawful assault upon Steve G. with an unknown caliber firearm and personally used the firearm within the meaning of Penal Code section 12022.5, subdivision (a)(1). During the sentencing hearing, defense counsel stated that defendant was "prepared to enter a plea to Count Two for the [section] 245(a)(2) for [the] upper term of four years," that the other counts would be dismissed, and that the sentence would be concurrent to a New Jersey manslaughter sentence defendant was serving. The court then inquired about custody credits, which led to an unreported discussion at the bench. The court announced: "There's been a modification to the disposition. It will be a low term on the [section] 245(a)(2) which is two years. In addition, low term on the [section] 12022.5 which is three. Total aggregate term will be five years. That will run concurrent with the New Jersey case. However, he does not have time credits on this case here because he is serving a sentence and has been on the New Jersey case but he will start getting credits from today."
Further references are to this code.
During the pronouncement of the sentence, the court stated, "Pursuant to the negotiated disposition, it's the judgment and sentence of this Court that for a violation of . . . section 245 (a)(2) defendant is sentenced to the low term of two years." The factual basis provided by the prosecutor described an assault with "a firearm" of an "unknown caliber," not assault with a semiautomatic firearm. It was only when taking defendant's plea that the court referenced the statute in the original charged count and stated, "[I]t's charged in Count Two that on December the 2nd of 1997, here in Sacramento County, you violated Penal Code section 245(b), assault with a firearm on Steve [G.], that is a semiautomatic firearm. To that charge what is your plea?" Defendant pled no contest and admitted the personal use allegation pursuant to section 12022.5, subdivision (a)(1). In exchange, several remaining charges were dismissed.
Defendant requested immediate sentencing and waived referral to the probation department. He was sentenced to state prison for an aggregate term of five years, as follows: "[F]or a violation of . . . section 245 (a)(2) defendant is sentenced to the low term of two years," plus the low term of three consecutive years for the violation of section 12022.5, subdivision (a)(1), to be served concurrently with a New Jersey sentence. The court imposed the low term of two years consistent with the low term under section 245, subdivision (a)(2) as opposed to the low term under section 245, subdivision (b), which is three years. Defendant filed a timely notice of appeal, and the trial court granted his request for a certificate of probable cause.
DISCUSSION
I
Voluntariness Of The Plea
Defendant contends, and the People concede, that defendant did not knowingly and voluntarily plead to assault with a semiautomatic firearm (§ 245, subd. (b)) but instead pled no contest to the lesser offense of assault with a firearm (§ 245, subd. (a)(1)). The People characterize this as a clerical error and ask this court to order the trial court to correct the abstract of judgment and minute order to reflect the correct statute of conviction. In his reply brief, defendant agrees this is an appropriate remedy. We accept the People's concession.
Because we agree with defendant and the People that the clerical error must be corrected, we need not reach defendant's alternative argument that defense counsel was ineffective in failing to object to the misstatement of the plea. --------
"Th[e] rule allowing correction of clerical error, whether made by the clerk, counsel, or the court itself, is to be distinguished from the situation involving judicial error, which can only be corrected by appropriate statutory procedure. [Citations.] The distinction between clerical error and judicial error is that the former is inadvertently made while the latter is made advertently as the result of the exercise of judgment." (People v. Schultz (1965) 238 Cal.App.2d 804, 808.) It is clear from our review of the record, the court's statement of the wrong offense during the plea hearing was not advertent nor the "deliberate result of judicial reasoning and determination." (People v. Anderson (1976) 59 Cal.App.3d 831, 839.) Accordingly, we agree with the People and defendant that this was a clerical error and the abstract of judgment must be corrected to reflect the correct statute of conviction, section 245, subdivision (a)(2). (See People v. Mitchell (2001) 26 Cal.4th 181, 186-188 [appellate courts may order the trial court to correct clerical errors in the abstract of judgment].)
II
Section 12022.5, Subdivision (a) Firearm Enhancement
Defendant contends that his case must be remanded so the trial court can decide whether to strike the firearm enhancement under section 12022.5, subdivision (a)(1) pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.; Stats. 2017, ch. 682, §§ 1-2) (SB 620). We agree.
On October 11, 2017, the Governor signed SB 620, amending former sections 12022.5 and 12022.53, effective January 1, 2018, to permit a trial court to strike a firearm enhancement: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§§ 12022.5, subd. (c), 12022.53, subd. (h).) SB 620 applies retroactively to nonfinal judgments. (See People v. Woods (2018) 19 Cal.App.5th 1080, 1089-1091.)
Here, the trial court imposed a three-year enhancement under section 12022.5, subdivision (a)(1), pursuant to a negotiated disposition. Citing In re Estrada (1965) 63 Cal.2d 740, defendant argues SB 620 applies to him retroactively because his judgment is not yet final. The People argue that because defendant pled to a stipulated sentence and because the plea agreement was approved by the court several months after SB 620 was signed and four days before the bill became effective, remand is not warranted. Alternatively, the People argue that should we conclude remand is warranted in this case, we should direct the trial court to "consider a motion by the People to vacate the plea bargain based on their understanding of the plea bargain, if the People make such a motion."
Our Supreme Court has stated: "[T]he general rule in California is that plea agreements are deemed to incorporate the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy. As an adjunct to that rule, and consistent with established law holding that silence regarding a statutory consequence of a conviction does not generally translate into an implied promise the consequence will not attach, prosecutorial and judicial silence on the possibility the Legislature might amend a statutory consequence of a conviction should not ordinarily be interpreted to be an implied promise that the defendant will not be subject to the amended law." (Doe v. Harris (2013) 57 Cal.4th 64, 71, fn. omitted.) Here, there is no written plea agreement included in the record and the verbal plea agreement announced during the sentencing hearing did not include a term that defendant will not be subject to future changes in the law. Thus, the general rule applies and the plea agreement is deemed to incorporate future changes in the law, such as SB 620. (See People v. Hurlic (2018) 25 Cal.App.5th 50, 57 ["Because defendant's plea agreement does not contain a term incorporating only the law in existence at the time of execution, defendant's plea agreement will be 'deemed to incorporate' the subsequent enactment of [SB] 620 . . . and thus give defendant the benefit of its provisions without calling into question the validity of the plea"].)
We conclude the trial court must be afforded the opportunity to exercise its sentencing discretion. Unlike the court in People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896, here, we cannot say the record shows the sentencing court clearly "indicated that it would not, in any event, have exercised its discretion to lessen the sentence." Nothing in the trial court's imposition of the stipulated sentence demonstrates what the court would do with this newly afforded discretion.
This brings us to the second question, raised by the People: If the trial court does exercise its discretion to strike the firearm enhancement, are the People entitled to withdraw from that plea agreement? Based on our conclusion, the plea agreement was subject to future changes in the law, the subsequent enactment of SB 620 does not invalidate or undo the plea agreement. In Harris v. Superior Court (2016) 1 Cal.5th 984, 991-993, the Supreme Court held the defendant was entitled to have his sentence recalled under Proposition 47 and the People were not entitled to withdraw from the plea agreement. The court's conclusion was supported by the general rule announced in Doe v. Harris, supra, 57 Cal.4th 64 that the Legislature, or the electorate, for the public good and in furtherance of public policy, and subject to the limitations imposed by the federal and state Constitutions, has the authority to modify or invalidate the terms of a plea agreement. (Harris v. Superior Court, at p. 992.) This same reasoning applies to the Legislature's enactment of SB 620. The Supreme Court also distinguished the potential change in the terms of the plea bargain from the change in law in People v. Collins (1978) 21 Cal.3d 208. In Collins, the change in law decriminalized the offense pled to in the plea agreement, which eviscerated the judgment and the underlying plea bargain entirely. (Harris v. Superior Court, at p. 993.) There, the court allowed the People to withdraw from the plea. (Collins, at pp. 215-217.) Such is not the case here. Even if the trial court exercises its discretion to strike the three-year firearm enhancement, defendant is still subject to serve two years under the plea agreement.
In sum, we conclude remand is required to allow the trial court to exercise its discretion whether to strike the firearm enhancement (§ 12022.5, subd. (c)). We also conclude neither party is entitled to withdraw from the plea based on this change in law.
III
Calculation Of Presentence Custody Credits
Defendant contends that this court should direct the superior court to calculate and award him additional prejudgment custody credits for time in custody in Sacramento in 1999, contending the record shows he was in custody from at least April 29, 1999, to May 19, 1999. The People contend that the transcript of the plea shows "the issue of credits was incorporated into the plea bargain" and that the issue is forfeited because defendant failed to object to the court's determination as to custody credits below. We agree.
During the plea and sentencing hearing, there was an unreported discussion at the bench after the court raised the issue of credits. Following the discussion, the court announced a modified disposition which included a stipulated sentence for an aggregate term of five years, reducing the original agreement for eight years. The court also stated: "However, [defendant] does not have time credits on this case here because he is serving a sentence and has been on the New Jersey case but he will start getting credits from today." Defendant said he understood the consequences of his plea and had discussed the case fully with his attorney; he then pled no contest to the agreed-upon offense and enhancement, requested immediate sentencing and waived a probation report, which would have set forth any prejudgment custody to which defendant was entitled (Cal. Rules of Court, rule 4.411.5(a)(11)). Because defendant accepted a plea agreement for a reduced sentence and agreed to receive no presentence custody credits, he has "received the benefit of [his] bargain [and] should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process." (People v. Hester (2000) 22 Cal.4th 290, 295.)
Further, by accepting the award and failing to object at sentencing, defendant has forfeited his right to challenge and raise the question of whether he was entitled to presentence custody credits on appeal. (See People v. Myers (1999) 69 Cal.App.4th 305, 311-312 [defendant who, through counsel, stipulated to the amount of presentence custody credits forfeited any alleged error in calculation].)
DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court for the limited purpose of allowing the trial court to consider whether to exercise its discretion to strike the section 12022.5, subdivision (a) enhancement. The trial court is directed to prepare an amended abstract of judgment reflecting that the correct statute of conviction for count two is section 245, subdivision (a)(2). A certified copy of the amended abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Hoch, J.