Opinion
C085439
08-08-2018
THE PEOPLE, Plaintiff and Respondent, v. STEVEN RODNEY OSUNA, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17F2421)
Pursuant to a written plea agreement, defendant Steven Rodney Osuna pleaded no contest to five sex crimes against a minor in exchange for the dismissal of 13 other sex crimes against the same victim and a sentencing "lid" (i.e., maximum term) of seven years eight months. The trial court sentenced him to an aggregate prison term of five years eight months.
On appeal, defendant's sole contention is that this matter must be remanded for resentencing due to sentencing error. We will dismiss the appeal for failure to obtain a certificate of probable cause.
FACTS AND PROCEEDINGS
In view of the limited issue raised on appeal, we only provide a brief summary of the relevant factual and procedural background.
In May 2017, defendant was charged by felony information with two counts of providing harmful matter (lewd material) to a minor (Pen. Code, § 288.2, subd. (a); counts 1 and 18; statutory section references that follow are found in the Penal Code), seven counts of oral copulation of a person under 18 years of age (§ 288a, subd. (b)(1); counts 2, 3, 6, 7, 9, 10, and 16), three counts of sexual penetration of a person under 18 years of age with a foreign object (§ 289, subd. (h); counts 4, 11, and 15), five counts of unlawful sexual intercourse with a person under 18 years of age who was more than three years younger than defendant (§ 261.5, subd. (c); counts 5, 8, 12, 14, and 17), and one count of forcible rape (§ 261, subd. (a)(2); count 13).
As to count 1, the information did not specify whether defendant violated subdivision (a)(1) or (a)(2) of section 288.2. Section 288.2, subdivision (a)(1) is a wobbler punishable by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for two, three, or five years. To be convicted under this provision, a person must, among other things, send a minor "harmful matter that depicts a minor or minors engaging in sexual conduct . . . ." (§ 288.2, subd. (a)(1).) Section 288.2, subdivision (a)(2) is also a wobbler. It is punishable by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for 16 months, or two or three years. This provision applies when the "harmful matter . . . does not include a depiction or depictions of a minor or minors engaged in sexual conduct . . . ." (§ 288.2, subd. (a)(2).
Pursuant to a written plea agreement, defendant agreed to plead no contest to counts 1 through 5 in exchange for the dismissal of the remaining 13 counts and a sentencing lid of seven years eight months. The agreement does not expressly state whether, as to count 1, defendant would plead no contest to a violation of subdivisions (a)(1) or (a)(2) of section 288.2. However, in selecting the sentencing lid of seven years eight months, the parties contemplated that defendant would plead to a violation of section 288.2, subdivision (a)(1). Under the terms of the agreement, the trial court was authorized to impose a maximum term of seven years eight months, calculated as follows: an upper term sentence of five years on count 1 (i.e., an upper term sentence for violating section 288.2, subdivision (a)(1), plus consecutive eight-month sentences (one-third the midterm) on counts 2, 3, 4, and 5. (See People v. Rodriguez (2012) 207 Cal.App.4th 204, 211-212 [Sentencing for determinate terms involves a three-step procedure; first, the trial court is required to select a base term, either the statutory low, middle or upper term, for each of the crimes, second, if the court determines that a consecutive sentence is merited, it must designate the crime with the "greatest" selected base term as the principal term and the other crimes as subordinate terms, and third, the court sentences the defendant to the full base term it selected for the principal term crime and one-third of the middle term for any crimes for which the sentence is ordered to run consecutive].)
Thus, the parties' agreement to a sentencing lid of seven years eight months necessarily depended on a five year maximum sentence as set forth in section 288.2, subdivision (a)(1).
After defendant entered his no contest pleas, the parties stipulated that the factual basis for his pleas could be found in the police report. The police report, which was summarized in the probation report, describes the conduct giving rise to the charges against defendant. As relevant to count 1, the police report states that defendant sent the 16-year-old victim pictures of his penis and pictures of them kissing. The victim also had a video of her and defendant naked in bed engaging in sexual intercourse.
Prior to sentencing, defendant filed a sentencing memorandum arguing for probation or, in the alternative, the low term of two years on count 1 (i.e., the low term for a violation of § 288.2, subd. (a)(1)), plus concurrent sentences for counts 2 through 5. The presentence report recommended the sentencing lid of seven years eight months, calculated as follows: the upper term of five years on count 1 for violating section 288.2, subdivision (a)(1), plus eight months consecutive (one-third the midterm) on counts 2, 3, 4, and 5.
At sentencing, defense counsel requested probation while the prosecutor requested the sentencing lid of seven years eight months. The trial court imposed an aggregate prison term of five years eight months, consisting of the midterm of three years on count 1 (i.e., the midterm sentence for violating § 288.2, subd. (a)(1)), plus consecutive eight-month sentences (one-third the midterm) on counts 2, 3, 4, and 5.
Defendant filed a timely notice of appeal. He did not obtain a certificate of probable cause.
DISCUSSION
Defendant contends that remand for resentencing is required due to sentencing error on count 1—providing harmful matter (lewd material) to a minor in violation of section 288.2, subdivision (a). In making this argument, defendant correctly points out that the information did not specify whether he was charged in count 1 with violating subdivision (a)(1) or (a)(2) of section 288.2. Instead, the information charged him with violating section 288.2, subdivision (a). Defendant also correctly points out that the trial court, in accepting his no contest plea on count 1, did not specifically mention that the harmful material provided to the victim depicted a minor engaging in sexual conduct. Based on these circumstances, defendant argues that it must be concluded that he pleaded no contest to the lesser offense of violating section 288.2, subdivision (a)(2) (sending harmful matter not depicting a minor engaging in sexual conduct). As a consequence, he argues that remand for resentencing is required because the trial court misunderstood the nature of its sentencing discretion in imposing the midterm of three years on count 1, as a midterm sentence for violating section 288.2, subdivision (a)(2) is two years. In response, the People contend that defendant's claim is barred because he failed to obtain a certificate of probable cause. We agree with the People.
When a defendant appeals from a sentence imposed pursuant to a plea bargain, he may not attack the validity of the plea without obtaining a certificate of probable cause. However, he may challenge postplea issues, including sentencing issues, that do not go to the validity of the plea. (§ 1237.5, subd. (b); People v. Panizzon (1996) 13 Cal.4th 68, 74-76 (Panizzon); People v. Cuevas (2008) 44 Cal.4th 374, 379.) "For example, 'when the claim on appeal is merely that the trial court abused the discretion the parties intended it to exercise, there is, in substance, no attack on a sentence that was "part of [the] plea bargain." [Citation.] Instead, the appellate challenge is one contemplated, and reserved, by the agreement itself.' [Citation.]" (Cuevas, at p. 379.)
In determining whether a certificate of probable cause is required, courts look to the substance of the error being challenged, not the time at which the hearing was conducted or the manner in which the challenge is made. (People v. Johnson (2009) 47 Cal.4th 668, 679; Panizzon, supra, 13 Cal.4th at p. 76.) "[T]he 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." (Panizzon, at p. 76.) "Even when a defendant purports to challenge only the sentence imposed, a certificate of probable cause is required if the challenge goes to an aspect of the sentence to which the defendant agreed as an integral part of a plea agreement." (Johnson, at p. 678; see also People v. Sem (2014) 229 Cal.App.4th 1176, 1187 ["A challenge to any part of the sentence to which the defendant agreed in a plea bargain is regarded as a challenge to the validity of the plea"].) "[A]n attack upon an integral part of the plea agreement 'is, in substance, a challenge to the validity of the plea . . . .' " (Johnson, at pp. 678-679.)
The certificate requirements of section 1237.5 should be applied strictly. (People v. Mendez (1999) 19 Cal.4th 1084, 1098.) We must order dismissal of an appeal that is based solely on grounds requiring a certificate of probable cause if the defendant has failed to secure a certificate. (Id. at p. 1096.)
Although defendant claims he is only raising a sentencing error that does not challenge the validity of the plea, his argument, in substance, disputes the factual basis underlying his no contest plea to count 1, that is, that the material he gave to the victim in this matter depicts a minor or minors engaged in sexual conduct.
Importantly, at sentencing, the trial court stated it was choosing a "midterm" of three years. The midterm of a subdivision (a)(1) sentence is three years; the midterm of a subdivision (a)(2) sentence is two years. Considering the lid of seven years eight months to which both parties stipulated and the trial court's comments at sentencing, it is apparent the court and the parties knew that defendant intended to and did plead no contest to a violation of section 288.2, subdivision (a)(1).
A no contest plea admits every element of the charged offense and constitutes a conviction. (People v. Zuniga (2014) 225 Cal.App.4th 1178, 1186.) A defendant challenging the factual basis for his no contest plea " 'is properly viewed as [challenging] the validity of the plea itself.' [Citation.]" (Id. at p. 1187.) When defendant entered his no contest pleas, he conclusively admitted guilt and acknowledged that the trial court could lawfully impose any sentence within the plea agreement's terms. His sentence complied with the plea agreement. The trial court imposed a term below the stipulated lid of seven years eight months.
At its essence, defendant's argument is that he was sentenced as if he had pleaded no contest to a violation of subdivision (a)(1) when, in actuality, he could only have pleaded no contest to a violation of subdivision (a)(2) given the nature of the lewd materials provided to the minor. That is a challenge to the plea requiring a certificate of probable cause.
On this record, defendant's claim requires a certificate of probable cause, which he failed to obtain. Thus, his claim is not cognizable on appeal, and the appeal must be dismissed. Because we dismiss the appeal, we need not and do not, address the People's other arguments.
DISPOSITION
The appeal is dismissed.
HULL, J. We concur: BLEASE, Acting P. J. RENNER, J.