Opinion
C088757
02-19-2020
THE PEOPLE, Plaintiff and Respondent, v. GREGORY RALPH ABRARIA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCCR-CRF-2016-717-1)
In July 2016 defendant Gregory Ralph Abraria pleaded guilty to willful resistance causing serious bodily injury of peace officer and other crimes in exchange for a probationary sentence. Probation was later revoked, and defendant was sentenced to prison; his sentence included a five year enhancement for a prior serious or violent felony. (Pen. Code, § 667, subd. (a).) Defendant now seeks remand, arguing the trial court was unaware of its discretion to strike the enhancement at his January 15, 2019 sentencing, although this discretion was conferred by Senate Bill No. 1393 in 2018 and effective January 1, 2019.
Further undesignated statutory references are to the Penal Code.
We disagree with the Attorney General's position that defendant's appeal should be dismissed for lack of a certificate of probable cause (CPC), but hold defendant has forfeited his sole contention on appeal due to his failure to raise it in the trial court at any time before the enhancement at issue was imposed. We affirm the judgment but direct correction of the abstract of judgment, as we explain post.
BACKGROUND
The underlying facts of defendant's crimes are irrelevant to the issues raised on appeal. It suffices to say that in July 2016, defendant pleaded guilty to six felonies: willful resistance causing serious bodily injury of peace officer (§ 148.10, subd. (a); count 3); second degree burglary (§ 459; count 4); two counts of unauthorized use of personal identifying information (§ 530.5, subd. (a); counts 5 & 7); theft from an elder or dependent adult (§ 368, subd. (d); count 6); and possession of a completed check as forgery (§ 475, subd. (c); count 8). Defendant admitted the special allegation that he had been convicted of a prior serious felony within the meaning of section 667, subdivision (a) and that this conviction constituted a prior strike under section 1170.12. In return, he agreed to a maximum exposure of 20 years four months in prison, and also agreed to several otherwise discretionary details of sentencing that we recite in full immediately post, as the details of the plea agreement are critical to our holding.
The Plea Agreement and Probationary Sentence
The prosecutor orally explained the plea agreement as follows:
"[Defendant] would be initially placed on five years felony probation with suspended imposition, not suspended execution. Stipulated 365 days terminal on the misdemeanors. . . . (italics added)
"The strike is not going to be Romeroed (sic) at initial sentencing, it's simply going to be held in abeyance. If he successfully completes five years probation . . . [t]he strike will remain in abeyance.
"If he violates in any way . . . the strike comes back and he's waived permanently -- irrevocably it's waived, period, forever in this case, he cannot be reinstated to probation, [h]e has to go to prison. There's not going to be a conversation about reinstate. He waives the claim to -- to strike the strike per Romero and agrees that it will not be stricken. [¶] He . . . agrees that all the felony counts . . . have to be sentenced consecutively
The prosecutor then explained that defendant's "exposure if he's perfect is the 365 days in county that he's agreeing to. His exposure if he's not perfect is what I'm calculating now. Is 20 years and four months."
The trial court confirmed that this exposure was "pursuant to agreement" and "consistent with the tally on the plea form." The first paragraph of the plea form reflects a handwritten tally of "20 yrs 4 mo" as the "aggregate maximum time of imprisonment" for the charges.
In addition to the standard signed plea form, there was a typewritten, single page document generated by the prosecutor and signed on the final page by counsel for defendant, the prosecutor, and the judge, initialed by defendant and subsequently attached to the plea form. The portion of the agreement related to sentencing reads in relevant part as follows:
"5 years felony probation, stipulated 365 days in jail . . . . If [defendant] has any probation violation of any kind whatsoever, he stipulates in advance, permanently and irrevocably, as part of this plea deal, that (1) he will not be reinstated to probation; (2) he waives any claim that the strike should be stricken per [People v. Superior Court (Romero) (1996) 13 Cal.4th 497)], and agrees that the strike will not be stricken per Romero; and (3) he agrees that the felony counts (Counts 3, 4, 5, 6, 7, and 8) must be sentenced consecutively pursuant to PC 667(c)(6) and (c)(7), and stipulates that the Court lacks power to sentence him concurrently for any of these offenses. Regardless of whether he has any probation violations, he waives any claim that any of the charges should be reduced to misdemeanors . . . .
"His exposure if he . . . commits ANY violation of probation . . . during the term of probation is 4 years doubled for Count 3 (he agrees that, if he is sentenced to state prison, he would receive the upper term on Count 3, doubled, as the principal term), plus 5 years pursuant to Penal Code Section 667(a)(1), plus one year doubled for Count 6, plus 8 months each, doubled, for Counts 4, 5, 7, and 8."
In August 2016 the trial court suspended imposition of sentence and placed defendant on probation for five years pursuant to the plea agreement.
The Probation Violations and Subsequent Sentencing
In December 2017 a probation officer filed the first of multiple petitions to revoke probation, alleging defendant violated various conditions of probation.
At a May 23, 2018 hearing, defendant admitted the non-drug-related allegations in exchange for no remand. The remaining violations were put over for contested hearing multiple times; in August defendant was taken into custody after arriving late to court. His hearing remained pending until the parties reached an apparent resolution that resulted in the preparation of a supplemental probation report and setting of his case for sentencing.
The record before us does not reflect the disposition of the remaining probation violations alleged in the many petitions but apparently never admitted. It does not appear any were ultimately contested and adjudicated. We assume they were properly dismissed.
On January 15, 2019, the parties appeared for sentencing. The original probation report had recommended a 20 year four month term in prison, because "aggravation outweighs mitigation," without mention of any agreed-upon sentence other than a verbatim recitation of the plea agreement (which at the time required a probationary sentence). The supplemental probation report recommended in relevant part that defendant be sentenced to prison of an unspecified duration and that "the previously held special allegations and enhancements be imposed."
The trial court first disclosed that there had been an unreported chambers conference wherein it had indicated that "it would be following the recommendation." Defense counsel discussed defendant's concern regarding credits and his ability to pay any financial penalties; there were no other objections or requests to be heard regarding any component of sentencing. The court then sentenced defendant to state prison for an aggregate term of 20 years four months, consisting of: eight years for count 3 (the upper term, doubled for the strike); five years for the section 667, subdivision (a) enhancement; two years (one-third the middle term, doubled) for count 6; and four additional terms of 16 months each (one-third the middle terms, doubled) for counts 4, 5, 7, and 8.
After the trial court pronounced sentence, counsel for defendant, in the context of voicing defendant's continuing objection to the credits calculations, offered that the case was "one of those unfortunate cases where we inherited a 20 year four month execution suspended probation case from another attorney." (Italics added.) No one corrected this erroneous observation.
Defendant timely appealed.
DISCUSSION
I
Application of Senate Bill No. 1393
On September 30, 2018, while defendant's remaining probation violations were pending in the trial court and before his sentencing hearing was set, the Governor signed Senate Bill No. 1393. The bill went into effect on January 1, 2019 and amended sections 667, subdivision (a) and 1385, subdivision (b) (Stats. 2018, ch. 1013, §§1- 2), to allow a trial court to exercise its discretion to strike or dismiss a prior serious felony allegation--such as defendant's here--for sentencing purposes. (People v. Garcia (2018) 28 Cal.App.5th 961, 971.)
Because defendant's sentencing was held on January 15, a full two weeks after Senate Bill No. 1393 took effect, at the time of defendant's sentencing the trial court had discretion to dismiss the section 667, subdivision (a)(1) allegation. No one asked it to do so. Dismissing the allegation was never raised, although the only agreement had been to refrain from seeking relief from the strike under Romero. In fact, defense counsel's comment at sentencing that she had "inherited" an "execution suspended" indicates that she thought defendant's sentence had previously been imposed. In fact, it had not.
As we discuss post, although certain agreements were made (and honored) as to the composition of the sentence at the time of the plea, moving for dismissal of this particular five-year enhancement was not included in the covered material. The ameliorative benefits of Senate Bill No. 1393 could potentially have been applied by the trial court to defendant's case at sentencing.
II
Certificate of Probable Cause
The Attorney General argues that defendant's appeal should be dismissed regardless of the applicability of Senate Bill No. 1393, as it attacks a stipulated sentence and defendant did not request or obtain a CPC.
Indeed, defendant's notice of appeal indicates only that he is appealing "after a contested violation of probation." But the issues raised on appeal do not concern defendant's violations of probation, and in any event the record does not reflect that any of the allegations were ever contested. Instead, defendant challenges the imposition of the enhancement we have discussed, and asks for remand to permit the trial court to exercise its discretion to consider striking it.
We note that we would be justified in resolving this appeal against defendant solely due to deficiencies in the notice of appeal, as defendant failed to note thereon that the appeal was after a plea of guilty or an admission of a probation violation, and incorrectly indicated that the appeal was "after a contested violation of probation." (See Cal. Rules of Court, rule 8.304(b)(1) & (b)(4)(B); People v. Earls (1992) 10 Cal.App.4th 184, 193 [dismissing appeal where defense counsel filed a notice of appeal that did not comply with section 1237.5 or the rules of court, and did not attempt to amend the notice of appeal or seek other relief]; People v. Gamble (2008) 164 Cal.App.4th 891, 895 fn. 2, 896 [court requested supplemental briefing on the inadequacy of defendant's notices of appeal and granted a motion for relief from default since the errors in the notices of appeal were made by an uncounseled defendant].)
As a general rule, a criminal defendant who enters a guilty or no contest plea with a stipulated sentence pursuant to a negotiated plea agreement may not challenge that sentence on appeal unless he first obtains a CPC from the trial court. (§ 1237.5, subd. (b); People v. Cuevas (2008) 44 Cal.4th 374, 376-377, 379-380.) Two types of issues may be raised after such a plea absent a CPC: "(1) search and seizure issues for which an appeal is provided under section 1538.5, subdivision (m); and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed." (People v. Panizzon (1996) 13 Cal.4th 68, 74.)
As to the second exception, "the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5." (People v. Panizzon, supra, 13 Cal.4th. at p. 76.)
"A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.] 'The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. (Civ. Code, § 1636.) If contractual language is clear and explicit, it governs. (Civ. Code, § 1638.) On the other hand, "[i]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it." [Citations.]' [Citation.]" (People v. Shelton (2006) 37 Cal.4th 759, 767.) If ambiguity remains after application of the aforementioned rule, courts will resolve an ambiguous promise against the drafter. (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1265; see also Victoria v. Superior Court (1985) 40 Cal.3d 734, 745 [" 'the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist' (Civ. Code, § 1654.)"].)
The aggregate sentence of 20 years four months was consistently couched in the plea form, the addendum thereto, and the oral representations as defendant's maximum exposure, rather than a stipulated sentence. The parties stipulated to certain components of the sentence, including upper term on the principal count, consecutive sentences, and that the strike would apply as a strike, but the record does not reflect a stipulation that the strike would also necessarily be included as a separate five-year enhancement under section 667, subdivision (a)(1), only that the enhancement was part of defendant's maximum exposure should his probation be revoked. The record does not reflect an agreement to a 20 year four month stipulated sentence if defendant's probation were revoked. The agreement bound defendant by the strike, doubling each of his consecutive terms of imprisonment, but not by the enhancement, adding a consecutive five years to the total. According to the signed document, defendant waived "any claim that the strike should be stricken per [Romero], and agrees that the strike will not be stricken per [Romero]." A specific sentence of 20 years four months was clearly anticipated, but it was not clearly bargained for. The Attorney General's assertion that the agreed-upon maximum sentence, or maximum exposure, was also the stipulated sentence is not clear from the agreement; thus the contract is ambiguous. We resolve the ambiguity against the drafter, who here was the prosecutor. Thus, we decline to find the 20 year four month maximum exposure was the stipulated result of the probation violations.
Because there was no stipulated sentence, the trial court retained discretion to dismiss the section 667 enhancement under Senate Bill No. 1393 and the amended statutes resulting therefrom. Defendant's claim is that the trial court was unaware of its discretion and therefore erred by failing to exercise it. A claim that the trial court abused its sentencing discretion is not, in substance, an attack on the validity of the plea, and therefore no CPC is required. (People v. Buttram (2003) 30 Cal. 4th 773, 787.)
III
Forfeiture
Recognizing that Senate Bill No. 1393 was not raised at the sentencing hearing, defendant maintains his claim is not forfeited because the record suggests the trial court was unaware of the discretionary choices afforded to it by the bill. He admits that defense counsel did not request consideration under the bill, but instead apparently labored under the mistaken belief that sentence had already been imposed.
In a footnote, defendant alludes to possible ineffective assistance of counsel at sentencing. This is not a sufficiently developed argument stated under a separate heading or subheading, and therefore we do not consider it. (See Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1226, fn. 10; Cal. Rules of Court, rule 8.204(a)(1)(B).) Our resolution of this appeal does not foreclose defendant from properly pursuing a claim of ineffective assistance of counsel in a petition for writ of habeas corpus in the trial court.
"In making sentencing choices, the trial judge is confronted with a maze of statutes and rules, the intricacy of which rival the Internal Revenue Code. By reason of this complexity and the ever-changing guidelines, sentencing error is not uncommon. In an effort to avoid error, it is therefore reasonable to place the obligation to formulate specific objections squarely on defense counsel, and not on the judge." (People v. De Soto (1997) 54 Cal.App.4th 1, 9, italics added.) Therefore, "claims of error in the trial court's exercise of its sentencing discretion are [] forfeited if not raised at the sentencing hearing." (People v. Trujillo (2015) 60 Cal.4th 850, 856.)
Defendant's reliance on In re Sean W. (2005) 127 Cal.App.4th 1177 and People v. Bui (2011) 192 Cal.App.4th 1002 for the proposition that an "issue is not forfeited if the trial court is unaware of its discretion," is unpersuasive. In those cases the record affirmatively showed that the trial court misunderstood the scope of its discretion. Discretion was discussed and rejected by the trial courts in those cases. Here, defendant cites no portion of the record that affirmatively indicates the trial court was unaware of its recently granted discretion generally to strike prior serious felony allegations, and we see no evidence of any misunderstanding regarding Senate Bill No. 1393. The potential application of the discretion conferred by the bill to the circumstances in this case was simply not brought to the trial court's attention. Sentence was imposed after Senate Bill No. 1393 was effective, and after the July 2018 publication of People v. Hurlic (2018) 25 Cal.App.5th 50, one of the cases on which defendant relies on in his opening brief. In Hurlic, the appellate court ruled that a defendant may challenge even an agreed-upon sentence if the challenge is "based on [the] Legislature's enactment of a statute that retroactively grants a trial court the discretion to waive a sentencing enhancement that was mandatory at the time [the enhancement] was incorporated into the agreed-upon sentence." (Id. at p. 53.) But here there was no request and no challenge.
Defendant had nonfrivolous grounds to argue that the trial court should consider dismissing the section 667, subdivision (a) allegation at his sentencing hearing. (See People v. Hurlic, supra, 25 Cal.App.5th at pp. 56-57; People v. Ellis (2019) 43 Cal.App.5th 925 [no CPC required to seek relief on appeal from stipulated sentence under Senate Bill No. 1393]; see also People v. Howard (1997) 16 Cal.4th 1081, 1087 ["If the trial court . . . had originally suspended imposition of sentence before placing defendant on probation, the court unquestionably would have had full sentencing discretion on revoking probation"].) The claim that the trial court abused its discretion in failing to consider the application of Senate Bill No. 1393 at defendant's sentencing is forfeited.
IV
Abstract of Judgment
Some fees and fines reflected in the abstract were waived by the trial court at sentencing; others were not orally imposed at sentencing, and were not mandatory. We direct that these clerical errors in the abstract of judgment be corrected to accurately reflect defendant's sentence as orally imposed by the trial court. (People v. Mitchell (2001) 26 Cal.4th 181, 185-188.)
The following fines in paragraph 9(f) ("Other") were not pronounced at the sentencing hearing: the section 1203.1, subdivision (1) fine of $389.19; the section 1202.4 subdivision (1) fine of $1,000; the section 1203.1b fine of $2,820; the Government Code section 29550 fee of $148; the section 987.8 cost of $180, and the section 1205 subdivision (d) fine of $35. In fact, the court explicitly waived three of those fines/fees: those under sections 1203.1b and 987.8, and Government Code section 29550.
DISPOSITION
The judgment is affirmed. The trial court is directed to generate a corrected abstract of judgment and to forward a certified copy thereof to the Department of Corrections and Rehabilitation.
/s/_________
Duarte, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Hoch, J.