Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA068480, Patrick Hegarty, Judge.
Law Offices of Conrad Petermann and Conrad Petermann for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Jamie Lee Galang pleaded no contest to one count of home invasion robbery and to the special allegation she was personally armed with a firearm during the commission of the offense under Penal Code section 12022, subdivision (c). On appeal Galang argues there is no factual basis for her plea to the firearm enhancement. We affirm.
Statutory references are to the Penal Code unless otherwise indicated.
PROCEDURAL BACKGROUND
1. The Complaint
On January 27, 2007 a felony complaint was filed against Galang alleging one count each of first degree (home invasion) robbery, kidnapping to commit robbery, automated teller machine robbery, extortion and dissuading a witness by force or threat. The complaint specially alleged Galang’s codefendant Jose Serranzana Mandanas personally used a firearm in committing the charged offenses, but contained no firearm allegations as to Galang.
2. Galang’s Plea and Sentence
At a preliminary setting hearing on May 24, 2007 Galang, represented by retained counsel, indicated she had reached a negotiated disposition with the People: Galang would plead no contest to one count of home invasion robbery and to an amended firearm enhancement under section 12022, subdivision (c), and would receive an aggregate state prison sentence of 11 years; all remaining counts would then be dismissed.
Codefendants Mandanas and Xyan Timothy Reyes agreed to the same negotiated plea. They are not parties to this appeal.
At the time Galang entered her plea, she was informed of her constitutional rights and the nature and consequences of her plea. The prosecutor specifically advised Galang of the added enhancement, “which is an armed with a handgun allegation for 5 years. Do . . . you understand that?” Galang replied, “Yes, sir.” The trial court then confirmed Galang’s understanding she would be sentenced under the plea agreement to 11 years in state prison, the middle term of six years for home invasion robbery plus five years for the section 12022, subdivision (c), enhancement.
Galang stated she wished to accept the terms of the negotiated disposition and thereafter pleaded no contest to both the first degree robbery charge and the “allegation under 12022(c) that [she] used a handgun during the commission of the crime.” Defense counsel joined in the waivers of Galang’s constitutional rights and concurred in the plea. The trial court expressly found Galang’s waivers and plea were voluntary, knowing and intelligent. The court also found, and defense counsel stipulated to, a factual basis for Galang’s plea, “based on the police report and information [defense counsel] received from [his] client[].”
The record on appeal does not contain a police report, probation officer’s report or any other document containing details about the factual basis for Galang’s plea.
Galang was sentenced to an aggregate state prison term of 11 years in accordance with the negotiated disposition. The remaining counts were dismissed on the People’s motion. Galang filed a notice of appeal, and her request for a certificate of probable cause was granted on September 27, 2007.
CONTENTION
Galang contends her sentence must be vacated and her plea set aside because the trial court failed to make an adequate inquiry as to the factual basis for her plea to the amended firearm allegation under section 12022, subdivision (c).
Galang is entitled to present this issue on appeal even though she did not object to the trial court’s failure to comply with section 1192.5 at the time her plea was entered or raise the issue in a motion to withdraw her plea. (People v. Holmes (2004) 32 Cal.4th 432, 438.)
DISCUSSION
Before accepting a negotiated guilty or no contest plea in a felony case, section 1192.5 requires the trial court to “cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea.” “‘The purpose of the requirement is to protect against the situation where the defendant, although he realizes what he has done, is not sufficiently skilled in law to recognize that his acts do not constitute the offense with which he is charged. [Citation.] Inquiry into the factual basis for the plea ensures that the defendant actually committed a crime at least as serious as the one to which he is willing to plead.’” (People v. French (2008) 43 Cal.4th 36, 50-51.)
To comply with section 1192.5, the trial court “must garner information regarding the factual basis for the plea from either defendant or defense counsel.” (People v. Holmes (2004) 32 Cal.4th 432, 436 (Holmes).) “If the trial court inquires of the defendant regarding the factual basis, the court may develop the factual basis for the plea on the record through its own examination by having the defendant describe the conduct that gave rise to the charge [citation], or question the defendant regarding the factual basis described in the complaint or written plea agreement. [Citations.] If the trial court inquires of defense counsel regarding the factual basis, it should request that defense counsel stipulate to a particular document that provides an adequate factual basis, such as a complaint, police report, preliminary hearing transcript, probation report, grand jury transcript, or written plea agreement. [Citation.] Under either approach, a bare statement by the judge that a factual basis exists, without the above inquiry, is inadequate.” (Ibid.; see also id. at pp. 432, 434.)
In this case defense counsel specifically stipulated there was a factual basis for the negotiated plea and admission, based on the police report and information provided to him by Galang. This satisfied the statutory mandate as explained in Holmes, supra, 32 Cal.4th at page 436.
In People v. McGuire (1991) 1 Cal.App.4th 281, 283, the appellate court held a stipulation by the parties there was a factual basis for the plea, without any reference to a specific document, is sufficient to satisfy section 1192.5’s inquiry requirement. The Supreme Court in Holmes declined to address whether McGuire is correct, but observed “the better approach under section 1192.5 is for a stipulation by counsel to a factual basis to be accompanied by reference to a police report [citation], reference to the probation report or preliminary hearing transcript [citation], or reference to grand jury testimony.” (Holmes, supra, 32 Cal.4th at p. 441, fn. 8.)
Galang argues this stipulation was nonetheless insufficient for her admission of the firearm enhancement because, by its terms, section 12022, subdivision (c), applies only to persons personally armed with a firearm in the commission of certain offenses involving controlled substances, none of which was charged against Galang or her codefendants. Therefore, she insists, no possible factual basis existed for her admission, and the trial court abused its discretion in accepting the negotiated disposition.
Section 12022, subdivision (c), provides, “Notwithstanding the enhancement set forth in subdivision (a), any person who is personally armed with a firearm in the commission of a violation or attempted violation of Section 11351, 11351.5, 11352, 11366.5, 11366.6, 11378, 11378.5, 11379, 11379.5, or 11379.6 of the Health and Safety Code, shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years.”
Galang’s argument, although framed as a challenge to the factual basis for her plea, in reality asserts imposition of a sentence enhancement under section 12022, subdivision (c), without a conviction for one of the drug offenses enumerated in that provision, constitutes an unauthorized sentence that must be vacated on appeal. (See generally People v. Scott (1994) 9 Cal.4th 331, 354 [“sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstances in the particular case”].) Whether viewed as a challenge to the factual basis for her plea to the firearm enhancement or to the trial court’s authority to impose the enhancement when the underlying offense was first degree robbery, not an enumerated drug offense, Galang’s argument lacks merit.
As discussed, the felony complaint alleged Galang’s codefendant Mandanas personally used a firearm in committing the offenses charged. As a result, Galang certainly could have pleaded no contest to an amended enhancement allegation that she was a principal in the commission of a felony in which one of the other principals was armed with a firearm, as provided in section 12022, subdivision (a)(1), authorizing a one-year sentence enhancement for “any person who is a principal in the commission of a felony or attempted felony if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm.” Indeed, as part of the negotiated agreement, even a plea to a special allegation Galang herself was personally armed with a firearm would have been entirely proper: “We permit a defendant in connection with a plea bargain to plead guilty to an offense with which he was not charged, and which the prosecution cannot prove, so long as it is reasonably related to defendant’s conduct. [Citation.] A defendant should have the same latitude with respect to enhancements . . . .” (People v. Jackson (1985) 37 Cal.3d 826, 836, overruled on another ground in People v. Guerrero (1988) 44 Cal.3d 343; accord, People v. Thomas (1986) 41 Cal.3d 837, 840.)
Although a sentence enhancement under section 12022, subdivision (a)(1), would have had an adequate factual basis and would unquestionably have been valid, imposition of an enhancement under section 12022, subdivision (c), was outside the statutory jurisdiction of the court because Galang was not charged with, and did not plead to, any of the enumerated drug offenses. Nonetheless, this statutory violation -- which apparently resulted from an oversight while attempting to construct an aggregate sentence that was agreeable to both the People and Galang -- does not justify vacating the plea agreement: “Where 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. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process.” (People v. Hester (2000) 22 Cal.4th 290, 295.)
A lack of fundamental jurisdiction means “the court was entirely without power over the subject matter or the parties.” (In re Harris (1993) 5 Cal.4th 813, 836.) “A court [with power over the subject matter and parties] acts in excess of its jurisdiction when ‘it has no “jurisdiction” (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.’” (People v. Tindall (2000) 24 Cal.4th 767, 776.) An act in excess of jurisdiction is voidable but subject to forfeiture and estoppel; an act without fundamental jurisdiction is void and not subject to forfeiture or estoppel. (In re Harris, at pp. 836-837.)
In Hester, in exchange for an agreed term of four years, the defendant pleaded no contest to five substantive counts, including battery on one victim and assault on a second victim, and admitted the use of a knife. On appeal the defendant claimed the trial court’s failure to stay the term imposed on the assault count pursuant to section 654 produced an unauthorized term. The Supreme Court rejected the argument, explaining, “‘When a defendant maintains that the trial court’s sentence violates rules which would have required the imposition of a more lenient sentence, yet the defendant avoided a potentially harsher sentence by entering into the plea bargain, it may be implied that the defendant waived any rights under such rules by choosing to accept the plea bargain.’ . . . [D]efendants are estopped from complaining of sentences to which they agreed.” (People v. Hester, supra, 22 Cal.4th at p. 295.)
Here, Galang agreed to a negotiated disposition with a specified aggregate sentence of 11 years in return for the dismissal of the remaining four felony counts, including the charge of kidnapping to commit robbery, which carries an indeterminate life term. Like the defendant in People v. Hester, supra, 22 Cal.4th 290, she avoided a potentially harsher sentence by entering into the plea bargain. Accordingly, she is estopped from now challenging the factual or legal basis for the sentence to which she agreed. (People v. Level (2002) 97 Cal.App.4th 1208, 1213 [“‘defendant may not retain the favorable aspects of his negotiated disposition and at the same time jettison its unfavorable aspects’”]; see People v. Borland (1996) 50 Cal.App.4th 124, 127-128 [defendant who received concession in a negotiated disposition was estopped from challenging factual basis of plea on appeal]; see also People v. Pinion (1979) 96 Cal.App.3d 904, 909-910.)
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J, ZELON, J.