Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF216929C. Kathryn T. Montejano, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter, and Leanne Le Mon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Kane, J., and Detjen, J.
Appellant, Jesse Fernando Mendez, accepted a plea offer by the prosecution. Among other things, he agreed to admit a “personal use” of firearm enhancement (Pen. Code, § 12022.53, subd. (b)) and be sentenced to an indicated 25-year prison term, which included that 10-year enhancement. The court misspoke while taking his plea, however, and Mendez admitted instead that he “was armed” with a firearm. Apparently, no one in the courtroom noticed the mistake and the minutes reflect a no contest plea to an attempted murder charge that included the agreed upon section 12022.53, subdivision (b) enhancement. On appeal, Mendez contends that based on the offenses he actually admitted, the court lacked fundamental jurisdiction to impose the 10-year enhancement. We disagree and will affirm.
Further statutory references are to the Penal Code, unless otherwise indicated.
FACTS
About 8:10 p.m. on January 11, 2009, L.S. was walking in Farmersville with her daughter and her daughter’s friend. Mendez came out of a nearby car, yelled something unintelligible, fired one shot from a handgun in her direction, and left the scene. About four weeks later, L.S. was pumping gas at a mini-mart when she saw Mendez approach her children and nieces in the store and begin yelling at them. L.S. recognized Mendez as the person who had shot at her and told him to leave her children alone. Mendez told her she was lucky his gun “got stuck that day, ” or “you guys would have been gone right now.” He lifted his shirt and placed his hand on a semi-automatic handgun in his waistband. L.S. feared for her life and the life of her children so she left the area.
PROCEDURAL HISTORY
Mendez was charged with two counts of attempted premeditated murder (§§ 664/187, subd. (a)); two counts of assault with a firearm (§ 245, subd. (a)(2)), with personal use of a firearm (§ 12022.5, subd. (a)); and one count of misdemeanor brandishing a firearm (§ 417, subd. (a)(2)). A gang enhancement was alleged with each offense. (§ 186.22, subd. (b)(1)(C) and (5).)
Pursuant to the plea bargain, the prosecutor offered to amend the information as to the count 1 attempted premeditated murder charge. The prosecutor would add an additional victim to the count, amend the gang allegation to a violation of section 186.22, subdivision (b)(1)(C), and add an allegation of personal use of a firearm (§ 12022.53, subd. (b)). In exchange for Mendez’s plea to those charges, the prosecutor would dismiss the allegation that the attempted murder was deliberate and premeditated and dismiss the remaining counts and allegations. The maximum sentence available on the amended charges was a determinate prison term of 29 years. As originally charged, Mendez faced an indeterminate life term. The court then asked Mendez,
“THE COURT: Understanding that offer, is it your desire today to change your plea?
“[MENDEZ]: Yes.
“THE COURT: I have indicated to your attorney that the indicated sentence is for 25 years, and that would be a determinate sentence. That means you would have an outdate. Do you understand that?
“[MENDEZ]: Yes, ma’am.”
The court advised Mendez of the direct consequences of his plea, and of his trial rights, which Mendez indicated he understood and waived.
Mendez entered a plea of no contest to count 1, as amended, attempted murder, and admitted he committed the offense for the benefit of a criminal street gang. The plea colloquy continued:
“THE COURT: Do you admit in violation of 12022.53(b)
“[Deputy District Attorney]: That he was armed with a firearm.
“THE COURT: That you were armed with a firearm at the time?
“[MENDEZ]: Yes.
“THE COURT: All right. I’m going to accept your pleas and your admissions today, sir. I’m going to find that you have knowingly and intelligently waived all of your constitutional rights and that you willingly entered into these pleas today.”
At the sentencing hearing, Mendez asked to withdraw his plea because he believed the sentence was too long and wanted to proceed to trial. The matter was continued while counsel investigated whether there was a basis to withdraw the plea. Counsel consulted with another attorney, who reviewed the plea agreement. Neither counsel nor the court found a basis to withdraw the plea. When Mendez still requested to withdraw his plea, counsel stated she would file a notice of appeal on Mendez’s behalf.
The court committed Mendez to state prison for the mitigated term of five years for the attempted murder charge, plus 10 consecutive years for each enhancement, for a total term of 25 years. Mendez filed a timely notice of appeal and was permitted to file a belated certificate of probable cause.
DISCUSSION
Mendez contends the court lacked fundamental jurisdiction to sentence for personal use of a firearm because he admitted only that he was armed with a firearm. He claims the maximum prison term the court had jurisdiction to impose, based on the offenses he actually admitted, was the upper term for attempted murder, nine years (§ 664, subd. (a)), plus a 10-year gang enhancement (§ 186.22, subd. (b)(1)(C)), plus a one-year enhancement for being armed with a firearm (§ 12022, subd. (a)(1)), for a total term of 20 years. Mendez concedes his sentence cannot be modified unless the prosecutor agrees. In the alternative, he submits the matter should be remanded so he can reenter the plea correctly or the court should permit him to withdraw his plea and proceed to trial.
Respondent counters that it is clear Mendez intended to and did admit a section 12022.53, subdivision (b) enhancement, not a section 12022, subdivision (a)(1) enhancement. Thus, the court did not lack fundamental jurisdiction to impose the 25 year agreed to term, which included the section 12022.53, subdivision (b) enhancement. We agree. Our decision turns on whether Mendez’s ambiguous admission of a violation of section 12022.53, subdivision (b), deprived the court of subject matter jurisdiction to impose the 10-year term for that offense.
Subject matter jurisdiction is the power to hear and determine the cause. (2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, §§ 1, 2, 11, pp. 575-576, 584.) The subject matter jurisdiction of a criminal court is predicated on the offense. (People v. Vasilyan (2009) 174 Cal App.4th 443, 449.) If there is no crime, the court lacks subject matter jurisdiction. There must be a substantive crime and a punishment for that crime to constitute a criminal offense. (Id. at pp. 449-450 [the court lacked subject matter jurisdiction to sentence for a crime that did not exist and a plea admitting such a crime was a “legal nullity”].) Common jurisdictional defenses in criminal cases include the statute of limitations, invalidity of an information or complaint, double jeopardy and unconstitutional criminal statute. (2 Witkin, supra, § 98 at pp. 671-672.)
In contrast, errors or omissions in compliance with most procedural steps, even those regarded as mandatory, are not fatal to the fundamental subject matter jurisdiction of the court or to its jurisdiction to act. (2 Witkin, Cal. Procedure, supra, § 290, p. 898.) Further, procedural error is not reversible error unless it prejudices the defendant. “Neither a departure from the form or mode prescribed by this Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right.” (§§ 1404, 1258 [“After hearing the appeal, the Court must give judgment without regard to technical errors or defects, … which do not affect the substantial rights of the parties”].)
Here, the court simply misspoke and erroneously described the firearm enhancement Mendez had agreed to admit pursuant to the plea agreement. That error did not deprive the court of subject matter jurisdiction. The trial court had fundamental jurisdiction to sentence Mendez for the offenses he admitted pursuant to the negotiated plea agreement that included the section 12022.53, subdivision (b) enhancement.
A negotiated plea agreement is a form of contract, and is interpreted according to general contract principles. (People v. Feyrer (2010) 48 Cal.4th 426, 437.) The goal of contract interpretation is to give effect to the intention of the parties. (Civ. Code, § 1636.) The intention of the parties is determined by objective manifestations of their intent, including the words used in the agreement, the surrounding circumstances under which the parties negotiated the contract, the object, nature and subject matter of the contract, and the subsequent conduct of the parties. (People v. Feyrer, supra, at p. 437.)
In Mendez’s case, the terms of the plea agreement were clear. But, in eliciting Mendez’s oral admissions, the court misspoke―at the prosecutor’s prompting―so that the verbal description of the weapon enhancement, “armed with a firearm, ” did not correspond to the statutory provision he admitted, “violation of 12022.53(b), ” or the court’s indicated 25-year prison term. The surrounding circumstances and subsequent conduct of the parties, however, made clear the parties’ mutual intent: the prosecutor offered, Mendez accepted, and the court approved a plea agreement that included the section 12022.53, subdivision (b) enhancement and not a section 12022, subdivision (a)(1) enhancement. The minutes of the hearing reflect that agreement. And, the probation report, which neither Mendez nor his counsel challenged, indicates that Mendez admitted a section 12022.53, subdivision (b) enhancement. Accordingly, the court’s inadvertent reference to “armed with” rather than “personal use of” a firearm did not deprive it of subject matter jurisdiction to impose the indicated sentence.
Mendez’s contention that he never admitted the charge for which the enhancement term was imposed is not entirely accurate. He fails to acknowledge that the court, in eliciting his admission, set forth the correct statutory violation, “Do you admit in violation of 12022.53(b) --” before adding the erroneous descriptive language, “[t]hat you were armed with a firearm at the time?” Hence, Mendez’s admission was ambiguous but, read in context, does not support his claim that he was sentenced for a crime he did not admit.
Moreover, “[n]o judgment shall be set aside, or new trial granted, in any cause, … for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) Mendez has failed to show any miscarriage of justice. Mendez received the benefit of his plea bargain and 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.)
DISPOSITION
The judgment is affirmed.