Summary
recognizing the trial court's discretion in sentencing under section 667, subdivision
Summary of this case from People v. BuenoOpinion
B287272
11-20-2019
The PEOPLE, Plaintiff and Respondent, v. Damion WILSON, Defendant and Appellant.
Edward Mahler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of parts I, II, and IV of the Discussion.
Edward Mahler, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
DHANIDINA, J. Damion Wilson pleaded no contest to forcible rape and admitted prior felony convictions after the trial court denied his Faretta motion. On appeal, he contends that the motion should have been granted and that he did not knowingly and intelligently waive his right to a jury trial on his priors. We reject these contentions. And, in the published portion of this opinion, we reject his contention that he is entitled to remand for resentencing under Senate Bill No. 1393 (2017–2018 Reg. Sess.) (Senate Bill No. 1393). Where, as here, the sentence resulted from a negotiated plea, a defendant is not entitled to remand under that law.
Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 .
BACKGROUND
Wilson and the victim had a brief relationship. After it ended, he forcibly entered the victim's home and raped her. An information therefore charged Wilson with kidnapping ( Pen. Code, § 207, subd. (a) ; count 1), forcible rape in the course of a burglary ( §§ 261, subd. (a)(2), 667.61, subds. (a), (d)(4) ; count 2), first degree burglary, person present (§ 459; count 3), and assault to commit a felony during commission of a first degree burglary (§ 220, subd. (b); count 4). On November 6, 2017, Wilson pleaded no contest to forcible rape and admitted he had a prior strike and a prior serious felony conviction ( § 667, subd. (a)(1) ). Pursuant to the negotiated plea, the trial court sentenced him to six years, doubled to 12 years based on the prior strike, plus five years for the prior serious felony, for a total of 17 years.
All further statutory references are to the Penal Code unless otherwise indicated.
DISCUSSION I.-II. [NOT CERTIFIED FOR PUBLICATION]
See footnote *, ante , at page 408.
III. Senate Bill No. 1393
Alternative to his argument that his admission to the five-year prior conviction must be reversed, Wilson argues that he is at least entitled to a remand so that the trial court can consider whether to strike the prior under Senate Bill No. 1393. When Wilson was sentenced in 2017, the trial court had no discretion to strike a section 667, subdivision (a)(1), enhancement. Senate Bill No. 1393 went into effect on January 1, 2019. (Sen. Bill No. 1393 (2017–2018 Reg. Sess.).) That bill amended sections 667, subdivision (a)(1), and 1385, subdivision (b), to allow a court to exercise its discretion to strike or to dismiss a serious felony prior for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1 – 2.) Courts of Appeal are divided as to the interplay between Senate Bill No. 1393 and sentences arising from plea agreements. The first area of disagreement concerns whether defendants like Wilson whose sentences arise from plea agreements must obtain a certificate of probable cause before raising on appeal Senate Bill No. 1393, or its counterpart Senate Bill No. 620. (See, e.g., People v. Stamps (2019) 34 Cal.App.5th 117, 245 Cal.Rptr.3d 821 [certificate unnecessary], review granted June 12, 2019, S255843 ( Stamps ); People v. Baldivia (2018) 28 Cal.App.5th 1071, 239 Cal.Rptr.3d 704 [same]; People v. Hurlic (2018) 25 Cal.App.5th 50, 235 Cal.Rptr.3d 255 [same] ( Hurlic ); but see People v. Alexander (2019) 36 Cal.App.5th 827, 254 Cal.Rptr.3d 195 (conc. & dis. opn. of Needham, J.) [certificate necessary], review granted Oct. 16, 2019, S257190; People v. Galindo (2019) 35 Cal.App.5th 658, 247 Cal.Rptr.3d 553 [same], review granted Aug. 28, 2019, S256568; People v. Fox (2019) 34 Cal.App.5th 1124, 246 Cal.Rptr.3d 873 [same], review granted July 31, 2019, S256298.) This issue is not before us, because Wilson has a certificate of probable cause.
The issue before us is whether Wilson is entitled to a remand so that the trial court can exercise its discretion whether to strike the five-year prior. As we have said, Senate Bill No. 1393 gives trial courts discretion to strike a five-year prior, and it applies retroactively to cases, such as Wilson's, not final when the bill took effect. (See People v. Garcia (2018) 28 Cal.App.5th 961, 973, 239 Cal.Rptr.3d 558.) However, that does not mean Wilson is entitled to a remand for resentencing. Rather, Wilson's 17-year sentence was negotiated. A negotiated or agreed-upon sentence must be distinguished from an open plea. In an open plea, the defendant pleads unconditionally to all charges, and is therefore exposed to the maximum possible sentence. ( People v. Cuevas (2008) 44 Cal.4th 374, 381, fn. 4, 79 Cal.Rptr.3d 303, 187 P.3d 30.) While the trial court may indicate the sentence it will impose, there is no promise it will do so. ( People v. Clancey (2013) 56 Cal.4th 562, 570, 155 Cal.Rptr.3d 485, 299 P.3d 131.)
In contrast, a negotiated plea is one in which the defendant pleads to specific charges and enhancements, and the trial court plays no part except to approve or disapprove the plea and to enter sentence thereon. ( People v. Segura (2008) 44 Cal.4th 921, 931, 80 Cal.Rptr.3d 715, 188 P.3d 649.) The People and the defendant negotiate the agreement. The trial court is not a negotiating party to the transaction. Once a trial court accepts a plea bargain, it is bound to impose sentence within the limits of the bargain. If the trial court finds the bargain to be unacceptable, it has no discretion to modify it. Its remedy is to reject it, not to violate it directly or indirectly. ( Ibid. ; see People v. Fox , supra , 34 Cal.App.5th at p. 1138, 246 Cal.Rptr.3d 873, rev. granted.)
Notwithstanding the limited discretion a trial court has with respect to negotiated pleas, some courts have found that Senate Bill No. 1393 gives trial courts discretion on remand to modify a negotiated plea by striking a firearm enhancement or a five-year prior. The court in Hurlic , supra, 25 Cal.App.5th at page 53, 235 Cal.Rptr.3d 255 did not publish its discussion regarding remand for resentencing and instead merely stated in its introduction that being "unable to say that there is no ‘reasonable possibility’ that the trial court would decline to exercise its newfound sentencing discretion, we vacate the judgment and remand for a new sentencing hearing to decide whether to exercise that discretion." Stamps , supra , 34 Cal.App.5th at page 124, 245 Cal.Rptr.3d 821, review granted, similarly advised that on remand the trial court could consider whether striking the five-year prior would be incompatible with the agreement on which the plea was based. If the trial court struck the enhancement, it could resentence defendant but could not impose a term in excess of the negotiated term without giving the defendant an opportunity to withdraw his plea. ( Ibid . )
Hurlic and Stamps give trial judges a power they have never had, making them active players in plea negotiations. Neither the law nor Senate Bill No. 1393 supports giving trial judges such a role. Senate Bill No. 1393 does not empower "a trial court to disregard the express terms of a plea agreement by imposing a sentence that does not reflect an agreed-upon term for a firearm enhancement." ( People v. Fox , supra , 34 Cal.App.5th at p. 1138, 246 Cal.Rptr.3d 873, rev. granted; accord, People v. Kelly (2019) 32 Cal.App.5th 1013, 1017, 244 Cal.Rptr.3d 394, review granted June 12, 2019, S255145.) Rather, the discretion afforded trial courts under Senate Bill No. 1393 arises only when a defendant is sentenced or resentenced under another law, and nothing in the bill disposes of "existing limits on a trial court's discretion when sentencing a defendant convicted by plea." ( Fox , at p. 1137, 246 Cal.Rptr.3d 873.)
Our California Supreme Court decisions in Harris v. Superior Court (2016) 1 Cal.5th 984, 209 Cal.Rptr.3d 584, 383 P.3d 648 and Doe v. Harris (2013) 57 Cal.4th 64, 158 Cal.Rptr.3d 290, 302 P.3d 598 do not support a contrary view. The defendant in Harris v. Superior Court entered a negotiated plea that included dismissal of a robbery charge and allegations. Thereafter, the electorate passed Proposition 47, which reduced certain nonviolent crimes to misdemeanors and created a petitioning procedure for defendants to have their felonies reclassified. The People moved to withdraw from the plea agreement and to reinstate charges on the ground resentencing would deprive it of the benefit of the bargain. The court, however, found that Proposition 47 expressly applied to someone serving a sentence " ‘whether by trial or plea.’ " ( Harris v. Superior Court , at p. 991, 209 Cal.Rptr.3d 584, 383 P.3d 648, italics omitted.) Hence, the People were not entitled to set aside the plea agreement when the defendant sought to have his sentence recalled. In contrast to Proposition 47, Senate Bill No. 1393 "does not expressly mention convictions by plea but grants discretion to the trial court to strike or dismiss such enhancements" and does not have a procedural mechanism allowing defendants to reduce their sentences. ( People v. Galindo , supra , 35 Cal.App.5th at p. 671, 247 Cal.Rptr.3d 553, rev. granted.) Harris v. Superior Court therefore does not help Wilson. Doe v. Harris , supra , 57 Cal.4th 64, 158 Cal.Rptr.3d 290, 302 P.3d 598 also does not help him. Doe said the general rule in California is that unless a plea agreement contains a term requiring the parties to apply only the law in existence when the agreement is made, parties to a plea agreement are deemed to know and to understand that the state, subject to constitutional limitations, may enact laws that will affect the consequences attending the conviction entered upon the plea. ( Id. at pp. 66–67, 158 Cal.Rptr.3d 290, 302 P.3d 598.) "That the parties enter into a plea agreement thus does not have the effect of insulating them from changes in the law that the Legislature has intended to apply to them." ( Id. at p. 67, 158 Cal.Rptr.3d 290, 302 P.3d 598.) Even so, this general rule has no applicability to Senate Bill No. 1393. There is "no language or evidence to suggest the Legislature" in enacting Senate Bill No. 1393 "intended trial courts to exercise discretion they do not have for defendants sentenced pursuant to stipulated sentences." ( People v. Galindo , supra , 35 Cal.App.5th at p. 672, 247 Cal.Rptr.3d 553, rev. granted.) Stated otherwise, nothing in Senate Bill No. 1393 indicates a legislative intent to change the very nature of negotiated pleas.
Permitting a trial court, under the guise of Senate Bill No. 1393, to strike a five-year prior from a negotiated plea is thus contrary to the real-world practicalities of plea bargaining. In practice, what happens in negotiated pleas is the prosecution has a number in mind. That number is not arbitrary. It is based on numerous factors that may include policies of the district attorney's office, the charged crimes and enhancements, and consultation with the victim or victims. The prosecution then crafts an offer using the various options—high, mid or low terms and enhancements—to reach that number.
With this in mind, assume that a trial court acting in the here and now, with the benefit of Senate Bill No. 1393, is presented with a stipulated plea that includes a five-year term under section 667, subdivision (a)(1). This, of course, means that the defendant has agreed to the five-year term. But let us indulge the fanciful notion that the trial court refuses to take the plea if it includes such a term because it would strike it. What would then happen? The trial court could not modify the plea to reduce it by five years. The trial court would have to reject the plea. The prosecution would then find another way to get to its number, or the plea agreement would fall through. The point is this: what the trial court thinks the number should be is largely irrelevant, as this is not an open plea. A trial court must accept the negotiated plea or reject the bargain outright, but it cannot come up with its own number. The "whole point of a conditional plea, as well as the expectation of the parties who negotiate them," is "that the court would not have such discretion" to change the length of the sentence. ( People v. Alexander , supra , 36 Cal.App.5th at p. 846, 254 Cal.Rptr.3d 195 rev. granted.) Now consider the circumstances here. The prosecutor's pre-preliminary hearing offer was 21 years, which Wilson did not take. Thereafter, the prosecutor offered 17 years but explained that her unit almost never went below the pre-preliminary hearing offer. To get the offer of 17 years, the prosecutor had to consult the victim, investigating officer, assistant head deputy and head deputy. So, the prosecutor informed defendant, "[i]t's not getting any better than this. I can't do any better than this. This is as good as it gets." Wilson, who was facing multiple life terms and decades more in state prison if convicted of all charges and allegations, took the deal. We can infer that the trial court found the plea bargain to be consistent with the interests of justice, as the trial court approved it. Were we to find that the trial court could on remand strike the five-year term and reduce Wilson's sentence to 12 years, this makes the plea more akin to an open one, thereby flipping long-standing law on its head. (See People v. Alexander , supra , 36 Cal.App.5th at p. 847 rev. granted , 254 Cal.Rptr.3d 195.) The general rule may be that pleas, even negotiated ones, are not immune from changes in the law. But the change in law specifically effected by Senate Bill No. 1393 has no bearing on the negotiated plea in this case. Senate Bill No. 1393 is not a vehicle to allow Wilson to "whittle down" his sentence but to otherwise leave the plea agreement intact. ( People v. Kelly , supra , 32 Cal.App.5th at p. 1018, 244 Cal.Rptr.3d 394, rev. granted.)
Wilson is not entitled to a remand.
IV. Ability to pay hearing [NOT CERTIFIED FOR PUBLICATION]
See footnote *, ante , page 408.
DISPOSITION
The judgment is affirmed.
Edmon, P. J., and Egerton, J., concurred.
A petition for a rehearing was denied December 17, 2020, and the opinion was modified to read as printed above. Appellant's petition for review by the Supreme Court was granted March 11, 2020, S259903, and on October 14, 2020, cause transferred to Court of Appeal, Second Appellate District, Division Three, with directions.