Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 082448
SIMS, J.Defendant Chesty Puller Polanco pled guilty in case No. 082448 to two counts of failure to register as a sex offender after a prior conviction for failure to register as a sex offender (Pen. Code §§ 290.013, subd. (a), 290.018, subd. (b)) and admitted a prior felony conviction for sexual penetration by force or fear (§ 289, subd. (a)), a second prior strike conviction having previously been stricken by the court in response to defendant’s motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. He also admitted that the acts to which he pled guilty constituted a violation of probation in case No. 07-4113. In light of the plea, the People dismissed two misdemeanor cases in the interest of justice.
The amended information alleged two counts of failure to register as a sex offender after a prior conviction for failure to register as a sex offender, both of which were alleged to have occurred “[o]n or about February 12 to April 7, 2008.”
Undesignated references are to the Penal Code.
Before taking defendant’s plea, the court confirmed defendant’s plea was an “open plea to all charges, ” and advised defendant that the maximum possible state prison term under the plea agreement was eight years. Defendant indicated that he understood this possible outcome.
At sentencing, the trial court rejected defendant’s arguments for a lesser sentence, including his claim that the sentence on the second count should be stayed pursuant to section 654. The court sentenced defendant to eight years in state prison, consisting of six years (the upper term, doubled pursuant to the three strikes law), plus 16 months (one-third the middle term, doubled pursuant to the three strikes law), plus eight months (one-third the middle term) for the probation violation.
Defendant filed a timely appeal, but did not obtain a certificate of probable cause.
As his sole contention on appeal, defendant claims the trial court violated section 654 when it failed to stay the sentence on the second count of failure to register as a sex offender. We requested supplemental briefing on whether defendant could raise this contention without having obtained a certificate of probable cause in light of the opinions of our Supreme Court in People v. Cuevas (2008) 44 Cal.4th 374 (Cuevas) and People v. Shelton (2006) 37 Cal.4th 759 (Shelton). We conclude that he may not do so and that, in any event, his claim fails on the merits. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Given defendant’s guilty plea, the facts are drawn from the transcript of the February 19, 2009, preliminary hearing, as agreed by the parties.
On March 27, 2008, Woodland Police Detective Daniel Letamendi received a request to investigate defendant’s section 290 registration status. Letamendi found that defendant last registered on February 11, 2008, and at that time indicated he was changing his address to the Palo Alto Veterans Administration Hospital. Letamendi also found that defendant had been a witness to an incident and had given police an address in Winters.
On April 2, 2008, Letamendi went to a home in Woodland. Defendant answered the door. He told Letamendi he did not live at that address, claiming he stayed there for just one day. When Letamendi asked defendant if he had an address, defendant said he did not and explained that he stayed at a hotel the night prior and at a friend’s house the night prior to that. When asked about the Winters address, defendant said it was his father’s residence and he stayed there only for a short time, having to leave due to his sex offender registrant status. Defendant stated he was not registered at the Winters address, but had “told Kathy Bailey, ” the custodian of records for sex registrants, that he was homeless. Defendant eventually admitted he had not registered because “he was lazy.” He explained that he went to Palo Alto but could not get in and returned immediately to Woodland. Defendant was placed under arrest.
DISCUSSION
“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); see People v. Buttram (2003) 30 Cal.4th 773, 790 [] (Buttram)[].) Exempt from this certificate requirement are postplea claims, including sentencing issues, that do not challenge the validity of the plea. [Citations.] For example, `when the claim on appeal is merely that the trial court abused the discretion the parties intended it to exercise, there is, in substance, no attack on a sentence that was “part of [the] plea bargain.” [Citation.] Instead, the appellate challenge is one contemplated, and reserved, by the agreement itself.’ (Buttram, supra, 30 Cal.4th at p. 786.)” (Cuevas, supra, 44 Cal.4th at p. 379.)
In Shelton, supra, 37 Cal.4th 759, our Supreme Court held that when a plea agreement includes a sentence “lid” (the maximum sentence permitted under the agreement, which is less than the maximum exposure the defendant would otherwise face for the offenses admitted by his plea), “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.” (Id. at p. 763.) An appellate claim that a sentence violated section 654 challenges the validity of the plea, because it asserts that the trial court lacked authority to impose the agreed sentence. (Shelton, supra, 37 Cal.4th 759.) Therefore, a defendant who has not obtained a certificate of probable cause may not raise a claim of section 654 error after receiving a lid sentence imposed under a plea agreement. (Shelton, supra, 37 Cal.4th 759.)
In Cuevas, supra, 44 Cal.4th 374, the high court clarified that Shelton’s holding is not limited to agreed lid sentences; it also applies where the sentence imposed is the maximum possible for the offenses admitted by the defendant’s plea, so long as that is less than his maximum exposure under the original charges. In other words, if the defendant has bargained for and received the benefit of a reduction in the original charges in return for his plea, he may not raise a section 654 claim on appeal without obtaining a certificate of probable cause. (Cuevas, supra, 44 Cal.4th at pp. 376-377.)
Here, defendant entered an open plea without bargaining for any particular benefit. However, at the time of the plea, the trial court informed him that the maximum possible sentence was eight years assuming no decrease by application of section 654. Defendant confirmed that he understood those terms and, in doing so, entered the plea knowing the trial court might impose the maximum sentence and acknowledging the trial court could lawfully do so under the plea agreement.
“[T]he maximum possible sentence defendant faced was `part and parcel of the plea agreement he negotiated with the People.’ [Citation.]” (Cuevas, supra, 44 Cal.4th at p. 381.) “Defendant received what he negotiated and agreed to under the plea agreement, and he must abide by the terms of the agreement. [Citation.] In asserting that section 654 requires the trial court to stay any duplicative counts, defendant is not challenging the court’s exercise of sentencing discretion, but attacking its authority to impose consecutive terms for these counts. This amounts to a challenge to the plea’s validity, requiring a certificate of probable cause, which defendant failed to secure. [Citation.] Therefore, his appeal based on section 654 is barred. [Fn.]” (Cuevas, supra, 44 Cal.4th at p. 384.) Defendant’s failure to obtain a certificate of probable cause requires that his appeal be dismissed. (People v. Earls (1992) 10 Cal.App.4th 184, 193.)
Assuming for the sake of argument that defendant does not need a certificate of probable cause, we would reject defendant’s claim on the merits. Analogizing to People v. Britt (2004) 32 Cal.4th 944, 952, defendant claims he committed two crimes but is only subject to punishment for one because his crimes were part of a continuous course of conduct wherein he violated the same code section twice within a two-month period, but had only one intent: to avoid police surveillance. The People argue that, unlike Britt, where there was a single move that triggered two duties, defendant committed separate acts triggering separate duties. That is, he had a duty to register when he returned from Palo Alto and took up residence at his father’s house. He then had a separate duty to notify law enforcement when he left his father’s home and took up residence somewhere else or became transient, thus making his case more analogous to People v. Meeks (2004) 123 Cal.App.4th 695, 704, where two separate acts were found to be punishable separately. As we shall explain, we agree that defendant committed two separate acts which are subject to separate punishment.
In Britt, supra, 32 Cal.4th 944, the defendant, a section 290 registrant, moved from Sacramento County to El Dorado County but failed to notify either jurisdiction. (Britt, supra, at p. 949.) This state’s highest court found that the defendant’s objective of avoiding police surveillance could be achieved only by both his failure to notify in Sacramento County and his failure to notify in El Dorado County, and thus concluded, “a person subject to section 290’s reporting requirements who changes residence a single time within California without reporting to any law enforcement agency, and who thus violates both subdivisions (a) and (f) of section 290, may be punished for one of those crimes, but not both.” (Britt, supra, at p. 954.)
In Meeks, supra, 123 Cal.App.4th 695, the defendant, Meeks, a section 290 registrant born on December 3, 1951, registered at least nine times between 1982 and December 15, 1997, last listing his address as 2557 Rio Linda Boulevard in Sacramento. Meeks was evicted from the Rio Linda address in 1998, moved to Roosevelt Avenue in Sacramento, then was evicted from the Roosevelt Avenue residence in January 1999 for failure to pay rent. (Meeks, supra, at pp. 700-701.) On April 15, 1999, Meeks was detained by police, whom he told he was living at the Roosevelt Avenue address and admitted he had to register that address pursuant to section 290. (Meeks, supra, at p. 701.) Thereafter, he lived on the street and, in February or March 2000, he moved in with his sister-in-law at a home on Y Street in Sacramento where he lived for several months. (Ibid.) When Meeks was detained by police at the Y Street home on May 4, 2000, he gave that address as his residence. (Ibid.)
A jury convicted Meeks of willfully failing, between January 1 and May 15, 2000, to register within five days after changing his address (§ 290, subd. (a)(1)(A)) and willfully failing, between December 1, 1999, and May 15, 2000, to register within five days of his birthday (§ 290, subd. (a)(1)(D)), and the trial court found he had four prior strike convictions. (Meeks, supra, 123 Cal.App.4th at pp. 699-700.)
On appeal, this court found as follows: “Once a triggering event occurs, the offense of failing to register is continuing in nature. Failure to register within five days of defendant’s birthday occurred after December 8, 1998, and again after December 8, 1999, and every year thereafter. Although the periods for each of these offenses overlap somewhat and the objective of each is the same, it cannot reasonably be argued that defendant can be punished only once for each successive failure to register. Similarly, every time defendant moves, this triggers a new registration requirement, each of which continues indefinitely and overlaps with the one before it. However, each is a separate offense.” (Meeks, supra, 123 Cal.App.4th at p. 705.) Given that the purpose of section 654 is “to insure that a defendant’s punishment will be commensurate with his culpability, ” we concluded that section 654 does not prohibit multiple punishments for a defendant “who repeatedly moves without notifying authorities, or repeatedly allows a birthday to pass without registering.” (Meeks, supra, pp. 705-706.)
Here, defendant repeatedly moved without notifying the authorities. He returned from Palo Alto and moved into his father’s residence for a short time, but notified no one. He then either moved into the home in Woodland where Letamendi found him or was transient, but in either case he did not notify authorities of his whereabouts. Although defendant claims he told the custodian of records for sex registrants that he was homeless, there is no evidence in the record to support that claim. Section 654 does not prohibit multiple punishments under these facts.
DISPOSITION
The appeal is dismissed.
We concur: SCOTLAND, Acting P. J. RAYE, J.
Retired Presiding Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.