Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD206395, Melinda J. Lasater, Judge.
O'ROURKE, J.
After pleading guilty to crimes committed in Orange County and being sentenced to a state prison term for those offenses, Charles Lamont Miller entered into a negotiated plea agreement having a stipulated four-year, eight-month state prison term for offenses he committed in San Diego County, which was to be served consecutively to the sentence imposed by the Orange County Superior Court. On appeal, Miller contends the trial court imposed an unauthorized sentence when it did not recalculate and aggregate his sentence under Penal Code section 1170.1 and award appropriate credits to him under the new sentence. He asks us to vacate his sentence and remand the matter for resentencing consistent with section 1170.1. We affirm.
All statutory references are to the Penal Code unless otherwise indicated.
PROCEDURAL BACKGROUND
Because Miller challenges his sentencing after guilty pleas, we need not detail the facts of the underlying offenses. We further grant Miller's unopposed request to take judicial notice of the August 29, 2007 minute orders and August 31, 2007 abstracts of judgment in Orange County Superior Court case Nos. 07HF0852 and 07SF0534. (Evid. Code, §§ 452, subd. (d), 459.)
In 2007, Miller pleaded guilty to offenses he committed in Orange County (People v. Miller (Super. Ct. Orange County, 2007, Nos. 07HF0852, 07SF0534)): two counts of second-degree burglary (§§ 459, 460, subd. (b)), one count of writing a check on nonsufficient funds (§ 476a, subd. (a)), and one count of grand theft (§ 487, subd. (a)) in case No. 07HF0852, and one count of second-degree burglary and one count of identity theft (§ 530.5, subd. (a)) in case No. 07SF0534. In case No. 07HF0852, the court imposed the two-year midterm on one burglary count and a consecutive eight months on the second burglary count, and stayed sentences on the remaining counts under section 654. Miller received a concurrent sentence of two years, eight months in case No. 07SF0534. In both cases, the court awarded Miller 41 actual credits and 20 local conduct credits for time served.
In August 2008, the People filed an information consolidating three San Diego Superior Court cases (People v. Miller (Super. Ct. San Diego County, 2008, Nos. SCD206395, SCN232253 and SCN237176)) into lead case No. SCD206395, charging Miller with multiple offenses. In an acknowledgement concerning his self-representation, Miller acknowledged the maximum punishment that could be imposed on his conviction was eight years. Thereafter, Miller pleaded guilty to three counts of burglary (counts 1, 6, and 9) and two counts of grand theft (counts 13 and 15). The plea includes a stipulated prison sentence of four years, eight months "consecutive to [the] Orange County Case" and specified restitution.
Specifically, Miller was charged with four counts of second degree burglary (counts 1, 3, 6 and 9), seven counts of grand theft (counts 2, 4, 6, 10 13, 15, and 17) and six counts of writing an insufficient funds check (counts 5, 8, 11, 12, 14 and 16). The People further alleged he had suffered six probation denial prior convictions (§ 1203, subd. (e)(4)) and one prison prior (§ 667.5).
During the plea hearing, the trial court acknowledged that Miller was under sentence and had been sent to state prison on the Orange County case. It received Miller's plea form, went over its contents and confirmed that Miller read it, understood it, and did not have questions about the form or its contents. Miller advised the court that the deal had been offered by the district attorney and he had decided to accept it; that the trial court had not done anything to cause him to want to plead guilty. The court continued questioning Miller:
"[The Court]: As I understand this plea bargain, what is going to happen is you're going to plead guilty to Counts 1, 6, 9, 13, and 15. That is a burglary, burglary, burglary, and two counts of grand theft. [¶] Is that your understanding of what you're pleading guilty to?
"[Miller]: Yes, ma'am.
"The Court: Then you're both agreeing that there's going to be a stipulated prison sentence and that the sentence will be four years, eight months, and it will be consecutive to the Orange County case. [¶] Is that your understanding?
"[Miller]: Yes, ma'am.
[¶]... [¶]
"The Court: And that the rest of the charges are going to be dismissed. It's what we call a Harvey waiver which means that the Court can consider those other charges in deciding what the sentence is. Or in this case what it basically means is to come up with the restitution amount. But it's stipulated.
"[Miller]: Yes, ma'am.
"The Court: Is that your understanding of the negotiation?
"[Miller]: Yes, ma'am.
"The Court: Have any other promises been made to you to get you to plead guilty?
"[Miller]: No, ma'am.
"The Court: Have any threats been made to you to get you to plead guilty?
"[Miller]: No, ma'am."
The trial court advised Miller and took his waiver of his rights, and in doing so, stated further, "Do you understand that as a consequence of this that this could be sentenced consecutive to your Orange County case and, in fact, it will be?" Miller responded "Yes, ma'am." He entered his guilty pleas and the court sentenced Miller in accordance with their stipulation, with the People explaining that the calculation was based on the midterm of two years for count 1, and one-third the midterm of eight months for each of the four subsequent charges. Miller confirmed that the calculation was acceptable.
The court turned to custody credits. It acknowledged Miller's status as a sentenced prisoner, and asked him if the "idea is to get a sentence so you start getting credit on this...." Miller confirmed that was correct, and the court advised him that there would be "zero good-time/work-time credits and zero custody credits, and you'll start today with your first credit."
After his sentencing, Miller filed a combined notice of appeal and motion for certificate of probable cause, requesting a certificate in part because "pretrial credits should have been awarded for the time defendant spent in San Diego County Jail in the case(s)." In the certificate, the court found Miller had shown reasonable constitutional, jurisdictional, or other grounds for appeal relating to the legality of the proceedings and certified that there was probable cause for an appeal from the judgment.
The clerk's transcript contains two notices of appeal (with accompanying certificate of probable cause), one filed on October 16, 2008 and a second filed on October 20, 2008. The second appears to correct Miller's failure to date his certificate of service. Miller also sought a certificate of probable cause on grounds his Trombetta/Youngblood (California v. Trombetta (1984) 467 U.S. 479; Arizona v. Youngblood (1988) 488 U.S. 51) motion had been improperly denied and his severance motion should not have been denied.
DISCUSSION
Miller contends his full consecutive sentence was unauthorized under section 1170.1, which required the trial court to treat the aggregate sentence as one unified sentence such that it was to impose a term of one-third the mid term as to each previously imposed count, and then award the appropriate credits as to the new, aggregate sentence. He maintains he may challenge the sentence notwithstanding that it was reached as a result of a plea bargain, because he obtained a certificate of probable cause on the improper calculation of credits, and even if he had not obtained a certificate, he could proceed with this appeal because the ultimate sentence imposed by the court is unauthorized.
Miller is correct that under section 1170.1, when a defendant is sentenced consecutively for multiple convictions occurring in different proceedings, the second court designates the longest term as the principal term, and any other consecutive term is considered a subordinate term, for which the sentence can be no more than one-third the midterm for the offense. (People v. Baker (2002) 144 Cal.App.4th 1320, 1328-1329; § 1170.1, subd. (a).) In doing so, the second court is empowered to modify another different court's previously imposed sentence, and make it subordinate to the later-imposed term. (People v. Baker at p. 1329; People v. Bozeman (1984) 152 Cal.App.3d 504, 507.)
Section 1170.1, subdivision (a) provides: "Except as otherwise provided by law, and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses."
However, Miller's challenge to his sentence — even if it is unauthorized — fails because the record unambiguously shows he pleaded guilty in return for a specified sentence. Under those circumstances, he is estopped from contesting it on appeal by virtue of the benefit he received from the plea. (People v. Hester (2000) 22 Cal.4th 290, 295 (Hester); see also People v. Buttram (2003) 30 Cal.4th 773, 776; People v. French (2008) 43 Cal.4th 36, 49.) Hester and numerous cases point out that in such a case, an appellate court will not find error on grounds the sentence is unauthorized: "The rule that defendants may challenge an unauthorized sentence on appeal even if they failed to object below is itself subject to an exception: 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." (Hester, supra, 22 Cal.4th at p. 295; see also People v. Chatmon (2005) 129 Cal.App.4th 771, 773; People v. Flood (2003) 108 Cal.App.4th 504, 508; People v. Couch (1996) 48 Cal.App.4th 1053, 1056; People v. Beebe (1989) 216 Cal.App.3d 927, 932-935; People v. Ellis (1987) 195 Cal.App.3d 334, 343-345, disapproved on other grounds in People v. Guzman (1991) 226 Cal.App.3d 1060, 1066, fn. 4.) "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." (Couch, at p. 1057.)
The estoppel doctrine articulated in Hester and the above-mentioned cases applies to the sentence that a defendant received for a crime to which he pleaded guilty as part of a negotiated plea agreement in which he participated to his benefit. (Hester, supra, 22 Cal.4th at pp. 293-294; People v. Beebe, supra,216 Cal.App.3d at p. 929.) Under such a circumstance, a defendant "is estopped from avoiding the plea agreement which he voluntarily accepted on the day of trial" (Beebe, at p. 935), even if the sentence imposed for the crime or the enhancement is unauthorized by the statutory scheme. (Id. at p. 932.) In such situations, the trial court simply would have exceeded its jurisdiction in imposing the sentence, but would not have lacked fundamental jurisdiction to do so. (Ibid.)
Miller does not address these authorities, nor does he challenge the trial court's fundamental jurisdiction to sentence him to state prison. "In its fundamental sense, 'jurisdiction' refers to a court's power over persons and subject matter." (People v. Mower (2002) 28 Cal.4th 457, 474, fn. 6.) Failure to aggregate sentences under section 1170.1 does not concern "the trial court's fundamental jurisdiction in the sense of personal jurisdiction, which is the authority of the court to proceed against a particular defendant in a criminal action" (People v. Posey (2004) 32 Cal.4th 193, 208) nor does it concern "the trial court's fundamental jurisdiction in the sense of subject matter jurisdiction, which is the authority of the court to consider and decide the criminal action itself...." (Ibid.)
Instead, Miller contends he may challenge his sentence and the court's denial of any credits because he obtained a certificate of probable cause. Relying on the principles expressed in People v. Scott (1994) 9 Cal.4th 331, 353, he alternatively contends that he does not need a certificate of probable cause in order to challenge an unauthorized sentence. Miller's compliance with certificate of probable cause requirements, however, does not give merit to his appellate contentions; it allows him to present those contentions and have this court address them on their substance rather than face a summary rejection or dismissal of his appeal. (E.g., People v. Shelton (2006) 37 Cal.4th 759, 769 [where a sentence challenge requires a certificate probable cause, the defendant's failure to meet certificate requirement requires that court dismiss the appeal]; People v. Lovings (2004) 118 Cal.App.4th 1305, 1311 ["a certificate of probable cause only perfects an appeal; it does not expand or limit the cognizable issues"].)
As for Miller's claims related to custody and/or conduct credits, we conclude based on the colloquy at the sentencing hearing that the issue of credits was part of his plea agreement to which he acquiesced. Miller does not argue otherwise, he merely asks that we vacate his sentence and remand the matter for resentencing on grounds of the trial court's failure to apply section 1170.1. For the reasons set forth above, we decline to do so.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., HALLER, J.