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People v. Gallegos

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
Mar 7, 2017
No. H042731 (Cal. Ct. App. Mar. 7, 2017)

Opinion

H042731

03-07-2017

THE PEOPLE, Plaintiff and Respondent, v. DANIEL ERIK GALLEGOS, Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Benito County Super. Ct. Nos. CR1201739, CR1301032)

Defendant Daniel Erik Gallegos was sentenced to a total term of 14 years four months in prison after he pleaded no contest to assault with a deadly weapon (Pen. Code, § 245, subd. (a)) and participation in a criminal street gang (§ 186.22, subd. (a)). He also admitted a probation violation in a separate case. On appeal, he argues the trial court's imposition of a consecutive sentence for his conviction of participation in a criminal street gang violates section 654, which provides that a defendant may be punished only once for an act or omission that is punishable in different ways under the law. We affirm the judgment, because his claim is barred by California Rules of Court, rule 4.412(b). As a condition of his plea, defendant agreed to a consecutive term for his conviction of participation in a criminal street gang, and he failed to raise his section 654 claim when his sentence was imposed.

Unspecified statutory references are to the Penal Code.

Unspecified rule references are to the California Rules of Court.

BACKGROUND

On October 31, 2012, victim 1 and victim 2 were walking down a street when a group of three Hispanic males, including defendant, whistled at victim 1 and told her she was pretty. Victim 1 told the men to "shut up" and continued walking. Subsequently, the men attacked victim 2. Across the street from where this altercation occurred, another set of victims told officers that defendant had used force against them and threatened them earlier in the day.

Since defendant pleaded no contest to the charges in this case, we derive our facts from the probation officer's report.

On November 20, 2012, defendant was charged by complaint in case No. CR1201739 (hereafter case No. 1739) with a count of dissuading a witness by force or threat (§ 136.1, subd. (c)(1); count 1) with a gang enhancement (§ 186.22, subd. (b)(4)), assault by force likely to produce great bodily injury (§ 245, subd. (a)(4); count 2) with a gang enhancement (§ 186.22 subd. (b)(1)(A)), and three counts of misdemeanor assault and battery (§ 242; counts 3-5) with a gang enhancement (§ 186.22, subd. (d)) alleged as to count 3 only.

On March 28, 2013, defendant pleaded no contest pursuant to a negotiated disposition to counts 2, 3, 5, and a newly added count 6 (battery of a cohabitant/spouse, § 243, subd. (e)). Defendant admitted the gang enhancement attached to count 2. It was agreed the remaining charges and enhancements would be dismissed. The trial court suspended imposition of sentence for four years and placed defendant on four years' probation subject to various terms and conditions.

On July 21, 2013, Hollister police were dispatched to Hazel Hawkins Hospital in response to a report of an assault with a deadly weapon. The victim had been admitted to the hospital suffering from a wound in his neck. The victim had been drinking earlier in the evening and had encountered someone at a liquor store who looked at him "in a way he didn't like." The victim recounted he said something to the individual, and they ended up fighting. Officers obtained surveillance video from the liquor store, which had recorded the incident. Officers identified defendant as one of the assailants after recognizing him from previous contacts.

Again, since defendant pleaded no contest to the charges alleged in this case, we derive our facts from the probation officer's report.

On June 11, 2014, an information was filed in case No. CR1301032 (hereafter case No. 1032) charging defendant with a count of willful, deliberate, and premeditated attempted murder (§§ 664, 187, subd. (a)) with a gang enhancement (§ 186.22, subd. (b)(1)(C), (b)(5)) and allegations that he used a deadly weapon during the commission of the offense (§ 12022, subd. (b)(1)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)), a count of assault with a deadly weapon (§ 245, subd. (a)(1)) with a gang enhancement (§ 186.22, subd. (b)(1)(C)) and allegations that he personally inflicted great bodily injury (§ 12022.7, subd. (a)), and a count of the substantive gang offense (§ 186.22, subd. (a)) with the allegations that he personally inflicted great bodily injury (§ 12022.7, subd. (a)) and personally used a deadly weapon (§ 12022, subd. (b)(1)). It was further alleged as to all of the counts that defendant had a prior strike conviction (§ 667, subds. (b)-(i)) and a prior serious felony conviction (§ 667, subd. (a)).

On May 28, 2015, defendant entered into a plea agreement in case No. 1032 where he would plead no contest to the count of assault with a deadly weapon, admit the allegation associated with that count that he personally inflicted great bodily injury, and plead no contest to the gang participation count. Defendant would also admit he had a prior strike conviction and admit he violated his probation in case No. 1739. At the initial plea hearing, defense counsel informed the court: "This was the case that we discussed that was either going to be 14 years, four months, or 12 years, four months, when we come back at sentencing. [The district attorney] informed us that she was going to be going for the consecutive term, and we can argue for the concurrent."

Later during the same hearing, the following colloquy occurred between the court and defense counsel: "THE COURT: Okay. [¶] Given all that, what's the maximum there that would be possible? [¶] [DEFENSE COUNSEL]: It's 14 years, four months. [¶] MS. PORCELLO: Does that also include his violation of probation in [case No. 1739]? [¶] [DEFENSE COUNSEL]: Yes. It's a possible concurrent. [¶] THE COURT: So 14 years, four months. And then it could be—the violation of probation could add to that? [¶] [DEFENSE COUNSEL]: No. That's including the violation. And it could actually go down to 12, four."

The trial court held a sentencing hearing on July 24, 2015. At the beginning of the sentencing hearing, defense counsel informed the court: "We're prepared to go forward with sentencing. It's my understanding the D.A. wants a new plea. We have no objection. He pled no contest to [sections] 245(a), 12022.7 and 186.22(a) for a 14-year-four-month cap. And the Court did indicate that we can argue for concurrent treatment of 12, 4. So, actually, if the Court's [sic] entertains a new plea, we're going to argue that at sentencing."

Thereafter, the court again advised defendant of the possible consequences of his plea. When reviewing the plea with defendant, the court referred to defendant's sentence and stated: "THE COURT: Now, my understanding is that the original indication, which I'm just going over right now, and stipulation was the maximum 14 years, 4 months in state prison. [¶] Is that correct? [¶] [DISTRICT ATTORNEY]: That's the maximum, yes, Judge. He would be allowed to argue for concurrent which would bring it down to 12 years, 4 months. [¶] . . . [¶] THE COURT: Okay. So, Mr. Gallegos, I'm told that the maximum exposure you have with these two cases would be 14 years, 4 months, in state prison, that being calculated by, in Case 1032, that being the principal term, the 245(a)(1). And when all of the special allegations and charges are added up, it would be 12 years, 4 months, in connection with Case 1032. And the additional time that could be imposed in connection with the charges in Case 1739 would be an additional two years. So your maximum exposure would be 14 years, 4 months."

Subsequently, the trial court sentenced defendant. The court selected the assault with a deadly weapon charge (§ 245, subd. (a)(1)) in case No. 1032 as the principal term and sentenced defendant to the upper term of four years, which was doubled to eight years because of defendant's prior strike conviction. The court also imposed an additional three years for the great bodily injury allegation (§ 12022.7, subd. (a)). The court sentenced defendant to a consecutive 16-month term (one-third of the middle term of two years, doubled) for the gang count (§ 186.22, subd. (a)), in case No. 1032. Next, the court imposed a consecutive sentence of one year (one-third of the middle term of three years) for the count of assault with force likely to inflict great bodily injury (§ 245, subd. (a)(1)) in case No. 1739 and an additional year (one-third the middle term of three years) for the gang enhancement associated with that count (§ 186.22, subd. (b)(1)(A)). In total, defendant was sentenced to a term of 14 years four months in prison.

Defendant requested certificate of probable cause, which the trial court granted. He timely appealed.

DISCUSSION

On appeal, defendant argues the court violated section 654 when it imposed a consecutive 16-month sentence for his gang conviction (§ 186.22, subd. (a)). Defendant argues the facts underlying the gang crime are the same facts underlying his crime of assault with a deadly weapon (§ 245, subd. (a)(1)). Citing rule 4.412(b), the People argue defendant is precluded by his plea bargain from challenging his sentence under section 654, because he agreed to a specified term and did not raise the issue of double punishment at the time he entered his plea.

Defendant disagrees with the People's characterization of his plea. He insists he never agreed to a specified term. Rather, the trial court's delineation of his "maximum exposure" in the case as 14 years four months was nothing more than a description of the maximum sentence he could face as a consequence of his plea, which defendants must be advised of under settled California law. (See In re Yurko (1974) 10 Cal.3d 857, 864.)

Defendant finds support in the record from several of the court's statements during the initial plea hearing and the sentencing hearing. At the initial plea hearing, the trial court asked defense counsel what defendant's maximum sentence would be if he pleaded no contest to the charges of assault with a deadly weapon, admitted the enhancement for personal infliction of great bodily injury, and admitted the gang count. Later, during the sentencing hearing, the trial court informed defendant the "maximum exposure" he could face for both cases would be 14 years four months. Read alone, the court's characterization of the 14-year four-month sentence as the "maximum exposure" defendant could face aids his claim that the court was merely advising him of the consequences of his plea.

However, when we consider the trial court's statements in context, we must reject defendant's characterization of his plea. At the beginning of the sentencing hearing, defense counsel indicated to the court that he had discussed the case with the People and the agreed-upon sentence would be either 14 years four months or 12 years four months. Specifically, defense counsel said, "[t]his was the case that we discussed that was either going to be 14 years, four months or 12 years, four months, when we come back at sentencing. [The People] informed us that [they were] going to be going for the consecutive term, and we can argue for the concurrent." (Italics added.)

Later during the same hearing, the People clarified that defendant would plead no contest in case No. 1032 to the counts of assault with a deadly weapon and gang participation, and admit he personally inflicted great bodily injury and suffered prior strike conviction. Defendant also agreed to admit to violating his probation in case No. 1739. Defendant's ability to "argue for the concurrent" was made in reference to his ability to argue for concurrent sentencing for case No. 1739, not to concurrent sentencing for the charges set forth in case No. 1032. During the initial plea hearing, the People acknowledged that defendant's sentence could be reduced to 12 years four months, should the court impose a concurrent sentence for case No. 1739.

In short, defense counsel's statements to the court during the initial plea hearing reflect that defendant entered into a plea agreement where he agreed to be sentenced consecutively for his convictions of assault with a deadly weapon and gang participation in case No. 1032. The only way for defendant's sentence to be either 14 years four months or 12 years four months is if he received consecutive sentences for these two convictions. Thus, the record demonstrates defendant agreed to a specified term in prison of 12 years four months for case No. 1032. Defendant, however, reserved the ability to argue for concurrent sentencing on his probation violation in case No. 1739.

The fact that defendant specifically agreed to consecutive sentences for his convictions in case No. 1032 is also evident from the trial court's recitation of the plea during the sentencing hearing. During the sentencing hearing, defense counsel initially characterized defendant's plea as pleading "no contest to [sections] 245(a), 12022.7 and 186.22(a) for a 14-year-four-month cap" with the ability to argue for concurrent sentencing for case No. 1739. When advising defendant of the possible consequences of the plea, the trial court stated the 14-year four-month sentence was the "original indication . . . and stipulation" in the case. The People and defense counsel agreed to the trial court's characterization of the sentence. The People reiterated the sentence was the "maximum" and indicated defendant would be allowed to argue for concurrent sentencing for case No. 1739. In exchange for his plea, defendant's attempted murder charge and several other sentencing enhancements in case No. 1032 would be dismissed.

Defendant's agreement to consecutive sentences for his convictions of assault with a deadly weapon and gang participation in case No. 1032 amounts to an agreement to a specified sentence as set forth under rule 4.412(b). Rule 4.412(b) provides: "By agreeing to a specified prison term personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654's prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record." In People v. Hester (2000) 22 Cal.4th 290, the California Supreme Court concluded that "[w]here the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction." (Id. at p. 295.)

Like in Hester, defendant agreed to a specified term in prison. Since he failed to assert his section 654 claim before the trial court, he has estopped from pursuing this claim on appeal under rule 4.412(b).

Additionally, the fact that defendant's plea involved a maximum term in prison of 14 years four months with the possibility the trial court may impose a 12-year four-month sentence does not change our conclusion. Rule 4.412(b) would still bar his claim. In People v. Jones (2013) 217 Cal.App.4th 735 (Jones) the Third Appellate District concluded that when a defendant agrees to a maximum term of imprisonment, rule 4.412(b) precludes an argument that the trial court violated section 654 unless the argument was raised below. (Jones, supra, at p. 746.) The court concluded a term is " 'specified' " in a plea agreement as set forth under rule 4.412(b) even when it is a maximum term because the term is identified explicitly. (Jones, supra, at p. 745.)

Defendant attempts to distinguish Jones. He argues the sentence in Jones was clearly a sentence " 'lid,' " because the offenses the defendant pleaded guilty to in that case carried a maximum statutory penalty that was higher than the agreed-upon three-year eight-month sentence. (Jones, supra, 217 Cal.App.4th at p. 739.) Thus, defendant claims the 14-year four-month sentence cannot be a specified sentence under rule 4.412(b), because it was not a sentence "lid." It was merely the maximum sentence the trial court could impose as a consequence of his plea.

We disagree. As stated in Jones, the term " 'specified' in [rule 4.412(b)] did not limit the rule to situations in which the plea agreement names the one and only term that may be imposed." (Jones, supra, 217 Cal.App.4th at p. 745.) Essentially, defendant's section 654 claim attacks the trial court's jurisdiction to impose the maximum term of 14 years four months. His plea, however, specifically agreed that the trial court could impose this maximum term. The fact that the maximum term specified in defendant's plea was also the statutory maximum does not change this analysis.

Thus, defendant is estopped from arguing on appeal that his sentence violates section 654, because he did not assert the claim when the agreement was recited on the record. His claim is barred by rule 4.412(b).

DISPOSITION

The judgment is affirmed.

/s/_________

Premo, J.

WE CONCUR: /s/_________

Rushing, P.J. /s/_________

Grover, J.


Summaries of

People v. Gallegos

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
Mar 7, 2017
No. H042731 (Cal. Ct. App. Mar. 7, 2017)
Case details for

People v. Gallegos

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DANIEL ERIK GALLEGOS, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

Date published: Mar 7, 2017

Citations

No. H042731 (Cal. Ct. App. Mar. 7, 2017)