Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR189255
Haerle, J.
I. INTRODUCTION
Appellant Jahkeem Stokes-Gulley pled no contest to four counts arising out of his armed robbery of a clothing store in Vallejo. The trial court sentenced appellant to a total prison term of 15 years for robbery and the gun enhancement, and imposed concurrent sentences for conspiracy, attempted false imprisonment, and possession of a short-barreled shotgun. Appellant contends the concurrent sentences violate the Penal Code section 654 prohibition against multiple punishment. We will affirm.
All further unspecified statutory references are to the Penal Code.
II. FACTUAL AND PROCEDURAL BACKGROUND
On August 15, 2007, the Solano County District Attorney filed an information charging appellant with conspiracy to commit robbery and false imprisonment (§§ 182, subd. (a)(1), 211, 236; count 1); robbery (§ 211; count 2); attempted false imprisonment by violence (§§ 236, 664; count 3); and possession of a short-barreled shotgun (§ 12020, subd. (a); count 4). The information alleged firearm enhancements for counts 1, 2, and 3 (§§ 12022.5, subd. (a), 12022.53, subd. (b)).
At the preliminary hearing on August 10, 2007, the following evidence was presented.
On the afternoon of April 16, 2007, appellant and three other men, including co-defendant Rodriguez, entered a clothing store, Fashions 4 All, located in the Plaza Shopping Center in Vallejo. The men spent between 5 and 15 minutes in the store, looking at merchandise before departing without purchasing anything. They appeared to be casing the store.
About an hour later, appellant and three other men, not including Rodriguez, returned to the store. All wore hooded sweatshirts. Appellant approached the store owner, Ghulam Ahmadi, who was standing behind the cash register at the front of the store. Appellant pulled a shotgun from his pants, approached Ahmadi, and told him, “Go to the ground, go to the ground.” As appellant held Ahmadi on the ground, the three other men grabbed several items of clothing and ran from the store. The merchandise was later recovered.
At some point, appellant and another man pulled out plastic rope and attempted to tie up Ahmadi. Ahmadi struggled with appellant and tried to run; appellant grabbed him and pulled him back. Ahmadi was eventually able to break free and escape through the front door. He ran into a neighboring business and told them to call the police. Police arrived at the location a few minutes later.
Officers Carl Dean, Robert Greenberg, James Melville, and Brent Pucci responded to the location of the reported armed robbery. As Dean approached the scene in his police vehicle, he observed appellant walking eastbound, about a quarter of a mile from the robbery location. When appellant saw Dean, he immediately turned and began running, and a foot chase ensued. Another officer assisted in stopping appellant so that Dean could arrest him. Ahmadi positively identified appellant during an in-field line-up.
A surveillance system at Fashions 4 All recorded the robbery and the earlier visit to the store by appellant and three others that day. From his review of the surveillance images, Detective Melville was able to positively identify appellant as the gunman during the robbery.
One of the participants in the robbery, Hyckeem Frazier, admitted his involvement to police shortly after being apprehended. Frazier told them that appellant was behind most of the planning, which took place earlier that day at a residence in College Park. He said he saw appellant with the shotgun earlier that day at the College Park residence, and he told police where to find the gun. Officers found the shotgun in that location the following day. It was a loaded.12 gauge shotgun and had a modified, shortened barrel. Detective Melville took the gun to Fashions 4 All, where Ahmadi identified it as the gun that was used during the robbery.
Appellant made various statements to police after he was arrested. He claimed his role was to bring a BB gun for purposes of intimidation. He said the robbery was planned in advance during the hour after the first visit to the store and before they returned to commit the robbery.
On May 8, 2008, appellant pleaded no contest to all four counts and admitted the section 12022.5, subdivision (a), enhancement. The parties agreed to a sentence of no fewer than 7 years 4 months, and no more than 16 years 4 months, in prison, and that the section 12022.53, subdivision (b), enhancement would be dismissed.
The court accepted appellant’s change of plea after questioning appellant and the attorneys, and set a sentencing hearing.
Both parties submitted sentencing briefs. Appellant's counsel recommended that appellant be sentenced to 7 years 4 months as follows: (1) the midterm of 3 years for robbery; (2) the midterm of 4 years for use of a firearm; (3) one-third the midterm for 4 months for attempted false imprisonment; and (4) concurrent midterms of 3 years and 2 years for conspiracy and use of a short-barreled shotgun, respectively. The People requested 15 years: (1) the upper term of 5 years for robbery; (2) the upper term of 10 years on the enhancement for use of a firearm; and (3) all other sentences to run concurrently.
On July 25, 2008, the court sentenced appellant to a total prison term of 15 years, including the upper term of 5 years for robbery (count 2), plus the upper term of 10 years for the section 12022.5, subdivision (a), firearm enhancement. The court imposed concurrent terms of the midterm of 3 years for conspiracy (count 1), the midterm of 1 year for attempted false imprisonment (count 3), and the midterm of 2 years for possession of a short-barreled shotgun (count 4). The court also imposed a section 1202.4 restitution fine of $5,000 and stayed a section 1202.45 parole revocation fine of $5,000. On August 28, 2008, the court awarded custody credits of 467 days and conduct credits of 70 days, a total of 537 days.
On November 4, 2008, appellant requested permission to file a late notice of appeal. This court granted the request on May 19, 2009. Appellant did not request or obtain a certificate of probable cause.
III. DISCUSSION
Appellant contends that the trial court erred in imposing concurrent sentences on count 1 for conspiracy to commit robbery and false imprisonment, count 3 for attempted false imprisonment, and count 4 for possession of a short barreled shotgun. Those sentences should have been stayed pursuant to the section 654 proscription against multiple punishment, according to appellant, because those offenses were “part and parcel of the robbery with the use of a gun for which appellant received a fifteen year sentence.”
Respondent contends this claim is barred because appellant failed to obtain a certificate of probable cause. (§ 1237.5, subd. (b).)
“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) [§ 1237.5’s purpose is ‘to weed out frivolous and vexatious appeals from pleas of guilty or no contest, before clerical and judicial resources are wasted’].) 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.)” (People v. Cuevas (2008) 44 Cal.4th 374, 379 (Cuevas).)
In People v. Shelton (2006) 37 Cal.4th 759 (Shelton), the Supreme Court addressed the issue whether a defendant may challenge the trial court’s authority to impose a sentence lid on the ground that the sentence violated section 654. The court held that the “inclusion of a sentence lid implies a mutual understanding and agreement that the trial court has authority to impose the specified maximum sentence and preserves only the defendant’s right to urge that the trial court should or must exercise its discretion in favor of a shorter term.” (Shelton, supra, 37 Cal.4th at p. 763.) A claim that the sentence violates section 654 challenges the validity of the plea because it is an assertion that the court lacked authority to impose the agreed-upon sentence. (Ibid.) Having failed to secure a certificate of probable cause, Shelton’s appeal was dismissed. (Id. at p. 771.)
A sentence lid is the maximum sentence the trial court may impose under a plea agreement and ordinarily is “less than the maximum possible sentence the trial court may lawfully impose for the offenses admitted by the defendant’s guilty or no contest plea.” (Cuevas, supra, 44 Cal.4th at pp. 376, 377, discussing Shelton, supra, 37 Cal.4th 767, 768.)
In Cuevas, the Supreme Court clarified that “the presence or absence of a sentence lid does not dictate the result here. For purposes of the certificate of probable cause requirement, the critical question is whether defendant’s section 654 challenge to his sentence is in substance a challenge to the validity of his plea. [Citations.] In other words, the question is whether defendant ‘seeks only to raise [an] issue[] reserved by the plea agreement, and as to which he did not expressly waive the right to appeal.’ [Citations.]” (Cuevas, supra, 44 Cal.4th at p. 381.)
In Cuevas, in exchange for the reduction and dismissal of certain charges, Cuevas pled no contest to two counts of kidnapping, 27 counts of second degree robbery, one count of attempted robbery, and one count of grand theft; he also admitted a single weapon enhancement. (Cuevas, supra, 44 Cal.4th at p. 378.) Under the original charges, he had faced two life sentences plus 37 years. (Id. at pp. 382-383.) Under the plea agreement, his maximum possible sentence was 37 years 8 months. (Cuevas, supra, 44 Cal.4th at pp. 377-378.) The court sentenced him to 35 years 8 months, consisting of the upper term of 8 years for one kidnapping count, 27 consecutive 1-year terms for the robbery counts, and a consecutive term of 8 months for grand theft. The court imposed concurrent terms for the attempted robbery count and the second kidnapping count and struck the remaining allegations. (Id. at p. 378.)
On appeal, in response to the appellate court’s request for supplemental briefing, Cuevas argued that his sentence violated section 654 because 15 of the robbery counts and the attempted robbery count arose from eight incidents in which Cuevas robbed or attempted to rob a single store employee of both the employee’s personal property and the store’s money. (Id. at pp. 378-379.) He argued that the sentences on the eight duplicative counts should have been stayed. The court of appeal agreed and remanded for resentencing. (Id. at p. 379.)
The Supreme Court reversed, holding that a certificate of probable cause was required because the section 654 argument was a challenge to the validity of the plea. (Cuevas, supra, 44 Cal.4th at p. 384.) Cuevas had agreed to the maximum possible sentence of 37 years 8 months, and in return had received a significant reduction in sentence. “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.” (Id. at p. 384.)
Phrased another way, the defendant negotiated a significant reduction in his possible sentence in exchange for his plea. By then asserting that section 654 required the court to stay the duplicative counts, the defendant was not challenging the court's exercise of sentencing discretion within the maximum possible sentence. Rather, he was challenging the court’s authority to impose consecutive terms for those counts, which he had impliedly agreed to in negotiating the plea. This amounted to a challenge to the validity of the plea, which, in turn, required a certificate of probable cause. Having failed to obtain a certificate of probable cause, his appeal was barred. (Cuevas, supra, 44 Cal.4th at pp. 383-384.)
“The foundation of the Supreme Court’s decision in Cuevas is by now well-established: (1) a challenge to the court’s authority to impose an agreed upon maximum sentence is a challenge to the validity of the plea requiring a certificate of probable cause, but (2) a challenge to the trial court’s exercise of individualized sentencing discretion within an agreed maximum sentence does not require a certificate of probable cause because it does not challenge the trial court’s authority to impose the upper term, i.e., it does not attack the validity of the plea agreement but instead attacks the court’s exercise of discretion permitted by the agreement.” (People v. Rushing (2008) 168 Cal.App.4th 354, 359-360 (Rushing).)
In Rushing, the court discussed what it means to challenge the trial court’s authority to impose an agreed upon sentence, comparing the Supreme Court’s decisions in People v. French (2008) 43 Cal.4th 36 (French) and Cuevas, supra, 44 Cal.4th 374. (Rushing, supra, 168 Cal.App.4th at pp. 360-362.) The trial court in French imposed the maximum term under the plea agreement after finding true a single aggravating factor. On appeal, the defendant argued that he was denied a jury trial on aggravating factors. This claim was not a challenge to the trial court’s authority to impose the maximum allowable term. “Consequently, if his claim on appeal succeeded, it did not mean the trial court would be precluded from imposing the maximum sentence when the case was remanded to the trial court. The prosecution would still be able to prove the aggravating factors by appropriate procedures. (French, supra, 43 Cal.4th at pp. 45-46.) For that reason, there was no attack on the validity of the plea, and thus, no violation of the plea bargain. [¶] On the other hand, in Cuevas, if the defendant’s section 654 argument was successful on appeal, the maximum sentence could not be imposed on remand. Accordingly, the section 654 claim was a challenge to the trial court’s authority to impose that sentence.” (Rushing, supra, 168 Cal.App.4th at p. 442.)
Here, appellant negotiated a significant reduction in his possible sentence in exchange for his plea. He agreed to a maximum possible sentence of 16 years 4 months. If his section 654 argument is successful, the maximum sentence agreed to by the parties could not be imposed.
Appellant contends that Cuevas is distinguishable because he does not seek to shorten his term of imprisonment and seeks only to stay the concurrent terms. This distinction, however, is not relevant to the issue whether appellant’s claim is a challenge to the validity of the plea on the one hand, or to the trial court’s exercise of discretion permitted by the agreement on the other. It makes no difference that the trial court did not impose consecutive terms totaling the maximum sentence, and chose instead to impose concurrent sentences. “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.” (Cuevas, supra, 44 Cal.4th at p. 384.) Accordingly, the appeal is barred.
In light of this conclusion, we need not, and do not, reach either the issue whether this appeal is barred by rule 4.412(b) of the California Rules of Court or the parties' arguments on the merits.
IV. DISPOSITION
The appeal is dismissed and the judgment is affirmed.
We concur: Kline, P.J.Lambden, J.