Opinion
E051780
10-04-2011
THE PEOPLE, Plaintiff and Respondent, v. SHAUNTA ASUNE RANKIN, Defendant and Appellant.
Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Kevin Vienna, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF016690)
OPINION
APPEAL from the Superior Court of Riverside County. F. Paul Dickerson, III, Judge. Reversed.
Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Kevin Vienna, Deputy Attorney General, for Plaintiff and Respondent.
Defendant, Shaunta Rankin, pled guilty to conspiracy to commit first degree murder (Pen. Code, §§ 182, subd. (a)(1) & 187, subd. (a)) and conspiracy to commit assault with a firearm (§§ 182, subd. (a)(1) & 245, subd. (b)) and admitted that he committed both offenses in association with a criminal street gang. He was sentenced to prison for 12 years. Thereafter, during an ex parte hearing, the trial court vacated defendant's entry of guilty pleas and admissions, entered new pleas and admissions and sentenced defendant to a 12-year term. Defendant's request for a certificate of probable cause was denied by the trial court. Defendant appeals, claiming the judgment must be reversed because the trial court's vacation of his pleas and admissions and entry of new pleas and admissions and its subsequent imposition of sentence was done in his absence. Defendant also asserts that his precustody credits were erroneously calculated. The People counter that defendant's failure to obtain a certificate of probable cause bars his appeal, although they suggest that we remand the matter to allow defendant to enter pleas according to the terms of his plea bargain and that we correct the credit calculation, which they acknowledge is in error. We determine that defendant's failure to obtain a certificate of probable cause is not fatal to his appeal. We vacate the orders that were made in his absence and remand the matter to have him either withdraw his pleas and admissions or enter pleas and admissions according to the terms of his bargain and be sentenced in compliance with them, and to have a correct calculation of his presentence custody credits made.
All further statutory references are to the Penal Code unless otherwise indicated.
The facts surrounding defendant's crimes are irrelevant to this appeal.
For the curious, the facts are stated in People v. Jacques, E047717.
PROCEEDINGS BELOW
Defendant was charged with conspiracy to commit first degree murder (count one) and conspiracy to intimidate a witness (count two), both of which were alleged to have been committed to benefit a criminal street gang. Count three of the Information did not involve defendant.
In his change of plea form, executed on August 19, 2008, defendant agreed to plead guilty to conspiracy to commit assault with a firearm, for which he would receive the midterm of six years, and conspiracy to intimidate a witness, for which he would receive one-third the midterm, or one year. In addition, defendant was to admit the gang allegation attached to the conspiracy to commit aggravated assault, and a term of five years was to be added to his sentence for that, creating a total sentence of 12 years.
At the taking of the plea, the same day the change of plea form was executed, the trial court permitted the People to amend the Information to allege a count four, which was conspiracy to commit assault with a firearm, along with a gang enhancement attached to it. However, the trial court then solicited defendant's guilty plea to count one, which was conspiracy to commit first degree murder, although the factual basis provided by the defendant's statement supported only conspiracy to commit assault with a firearm. The trial court accepted this as a factual basis for defendant's guilty plea to conspiracy to commit first degree murder. Defendant then pled guilty to count four, conspiracy to commit assault with a firearm, and he provided an appropriate factual basis for this plea, which the trial court accepted. He further admitted that both crimes had been committed in association with a criminal street gang. The trial court did not take a plea from defendant as to the charged conspiracy to intimidate a witness. The trial court then sentenced defendant to the midterm of six years on count one (conspiracy to commit first degree murder), imposed a five-year enhancement for the gang allegation attached to it, and one-third the midterm, or one year, for count four (conspiracy to commit assault with a firearm). The trial court struck the gang allegation attached to count four. The trial court solicited from the prosecutor, but did not rule on, a motion to dismiss all remaining counts, although the minutes of the hearing show that count two was dismissed in the interest of justice. The abstract of judgment and minutes of the hearing accurately reflected this sentence.
On February 16, 2010, the Department of Corrections and Rehabilitation notified the trial court by letter that an error appeared in the Abstract of Judgment and minutes of the plea taking/sentencing hearing in that the term for conspiracy to commit first degree murder was 25 years to life, not six years, as those documents stated, and the Department invited the court to make appropriate changes to both documents. In an ex parte hearing, at which neither party appeared, the trial court initially refused to act, however, the court apparently changed its mind in June 2010, and conducted another ex parte hearing, again without either party in attendance.
At this hearing, the trial court vacated the sentence imposed on count one, withdrew defendant's previous guilty plea to count one (conspiracy to commit first degree murder), entered a plea of not guilty and dismissed it in furtherance of justice. The court set aside its purported previous dismissal of count two (conspiracy to commit witness intimidation) and entered a plea of guilty to it, along with an admission of the gang allegation connected to it. It withdrew defendant's guilty plea to count four (conspiracy to commit assault with a firearm), then entered a guilty plea to that count. The court imposed the midterm of six years on count four, designating it as the principal term. The court imposed one-third of the midterm, or one year, on count two and ran it consecutive to the term imposed on count four. Finally, the court imposed a five-year enhancement for the gang allegation as to count two, for a total sentence of 12 years. The new abstract of judgment accurately reflects this.
As stated before, the trial court solicited from the prosecutor a motion to dismiss this count, but did not rule on it, although the minutes indicate that it did, dismissing count two.
ISSUES AND DISCUSSION
Defendant contends that the trial court proceedings in which the court attempted to correct the errors committed during the taking of the plea and the sentencing are void as they were conducted in his absence. Of course, a defendant has a right to be present at the pronouncement of judgment and to be represented by counsel there. (In re Cortez (1971) 6 Cal.3d 78, 88.) Defendant was present at the pronouncement of judgment on August 19, 2008, but not in June 2010, when the court attempted to correct the errors that had been made during the August 2008 plea taking and sentencing. We note that the People do not assert that what the trial court did in June 2010 was merely a ministerial act, which did not require the presence of defendant and his counsel. Rather, they assert that defendant's failure to obtain a certificate of probable cause bars his appeal. However, they acknowledge that only appeals which, in essence, attack the validity of the plea, require a certificate of probable cause. (People v. Buttram (2003) 30 Cal.4th 773, 781, 782.) We do not agree with the People's characterization of defendant's request that we reverse the rulings made in June 2010 as an "indirect . . . challeng[e to] the validity of his guilty pleas, his admission of the gang enhancement or the 12-year stipulated sentence and obtaining vitiation of the pleas, admission and sentence." Unless we misunderstand defendant, he appears to be seeking precisely one of the options we intend to give him—a vacation of whatever occurred in June 2010 and a return of the status quo as it existed the day his pleas and admissions were accepted and he was sentenced. This is not a challenge to the validity of the plea bargain nor an effort to avoid it.
Contrary to defendant's assertion, People v. Letteer (2002) 103 Cal.App.4th 1308 (disapproved on other grounds in Peracchi v. Superior Court (People) (2003) 30 Cal.4th 1245, 1258, fn. 6) does not hold that he should have the opportunity to present evidence on what sentence should be imposed under these circumstances. In Letteer, as the appellate court pointed out, there were discretionary matters left for the sentencing court to adjudicate. (Id. at pp. 1321-1322.) Here, there were not, as the plea bargain called for agreed-to terms for each offense and admission defendant made. There was no discretion to be exercised by the sentencing court, other than to refuse to accept the bargain and return the parties to their prebargain positions.
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However, the People add to their argument that defendant's failure to obtain a certificate of probable cause forfeits his appeal, "the matter should be remanded to conform [defendant's] guilty pleas to the terms of the bargain. To this end, the matter should be remanded for the limited purpose of permitting the vacation of [defendant's] guilty plea to Count 1 ([conspiracy to commit first degree murder]) and [his] entry of a guilty plea to Count 2 ([conspiracy to commit witness intimidation]) as contemplated by the plea agreement. Such remand will further permit correction of the erroneously imposed enhancement component of the agreed-to 12-year sentence . . . [¶] . . . [¶] [which was the] imposit[ion of] a full five-year gang enhancement term on the consecutive subordinate term in Count 2 . . . ." We will accept the People's invitation. We will reverse the rulings of June 2010, restoring defendant to the position he occupied on August 19, 2008, and institute the corrections the People recommend. We will, therefore, remand the matter to allow defendant to withdraw his plea to count one and his admission to the gang enhancement attached to it and to have the court dismiss this count and the allegation in furtherance of justice. Upon remand, defendant will enter a plea of guilty to count two, as provided in his change of plea form. Defendant's August 19, 2008 guilty plea to count four (conspiracy to commit assault with a firearm) and his admission that he committed this offense in association with a criminal street gang will stand, and the court will impose a midterm of six years for it and a one-year (one-third the mid)term for count two (conspiracy to intimidate a witness). The trial court will sentence defendant to the agreed-to five-year term on the gang enhancement attached to count four, for a total sentence of 12 years.
The parties also agree that the court below erred both in August 2008 and in June 2010 by limiting his award of presentence custody credits pursuant to section 2933.1, subdivision (c). Upon remand, therefore, the court will be directed to award defendant an additional 280 days of credit.
In the alternative, defendant may withdraw his plea and the parties start over from square one.
DISPOSITION
The orders and judgment entered June 22, 2010 are reversed. The matter is remanded to the trial court to either allow defendant to withdraw his pleas and admissions or for the trial court to hold a hearing in the presence of defendant and counsel for both parties during which defendant is to enter a plea of guilty to count two, conspiracy to intimidate a witness, as provided for in his plea bargain. Defendant is to withdraw his plea of guilty to count one, conspiracy to commit first degree murder, and his admission to the gang allegation connected to this count. Defendant's guilty plea to count four, conspiracy to commit assault with a firearm, and his admission that he committed this offense in association with a criminal street gang, both entered on August 19, 2008, will remain in effect. The trial court will sentence defendant to the midterm of six years for count four, one-third the midterm, or one year, for count two, to run consecutive to the term for count four, and a five-year term for the gang allegation connected to count four, also to run consecutively, for a total term of 12 years. The trial court will further give defendant an additional 280 days of presentence credits.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
HOLLENHORST
J.
McKINSTER
J.