Opinion
B161608.
7-25-2003
THE PEOPLE, Plaintiff and Respondent, v. RUBEN ALBERT MARTINEZ, Defendant and Appellant.
Laurance S. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
Ruben Martinez appeals from the judgment entered following a jury trial in which he was convicted of possession of a firearm by a felon and six narcotics offenses and a bifurcated court trial in which he was found to have sustained three prior felony convictions. He was sentenced to an aggregate term of 20 years 4 months in state prison. Defendants trial took place after he had withdrawn an earlier negotiated plea to two narcotics counts in exchange for a 10-year sentence. Defendant contends that he should not have been given the opportunity to withdraw his plea and his 10-year sentence should have been modified to 6 years 4 months. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with possession of a firearm by a felon and seven narcotics offenses arising out of cocaine sales transactions in September 2000. At a hearing conducted on June 13, 2001, the parties discussed a possible negotiated disposition. The prosecutor, who had previously offered a term of 20 years in prison that later had been reduced to 13 years, stated that the offer once again had been reduced, this time to 10 years.
Defendant accepted the offer. To effectuate this disposition, an agreement was reached off the record that defendant would enter pleas of no contest to counts 1 and 8. Those counts alleged cocaine transportation or sale in violation of Health and Safety Code section 11352, subdivision (a), which is punishable by 3, 4, or 5 years in state prison. Defendant then entered pleas to those two counts, and the remaining counts and allegations of prior convictions were dismissed in furtherance of justice.
On July 24, 2001, defendant was sentenced to an upper term of 5 years on count 1 and a consecutive upper term of 5 years on count 8, for an aggregate term of 10 years in state prison.
On September 28, 2001, the Department of Corrections (Department) wrote a letter to the trial court, which provided in pertinent part as follows: "A review of the documents delivered with the above-named inmate indicates the Abstract of Judgment may be in error, or incomplete, for the following reasons: [P] The Abstract of Judgment reflects the full upper term of 5 years imposed as to Count 8 for H&S Section 11352(a), Sale/Cont Sub, to run consecutive one-third non violent. However, we know of no provision in the law that will allow the Court to run this count fully consecutive. Pursuant to PC Section 1170.1(a), the subordinate term for each consecutive offense, which is not a violent felony, shall consist of one-third the middle term. Please clarify. [P] Please review your file to determine if a correction is required. When notified by the Department of Corrections that an illegal sentence exists, the trial court is entitled to reconsider all sentencing choices, People v. Hill, 185 Cal. App. 3d 831, 230 Cal. Rptr. 109. We would appreciate you providing a certified copy of any Minute Order or modified Abstract of Judgment to this Department." (Emphasis omitted.) A "second request" copy of letter was sent to the trial court on November 21, 2001.
An abstract of judgment filed on July 25, 2001 (the day after sentencing), had erroneously indicated that the 5-year sentence on count 8 was a "consecutive one-third non violent" term. On December 17, 2001, the abstract was amended to reflect that count 8 was a "consecutive full term."
In December 2001, defendant served a motion on the trial court, "joining the second request of the Department as to the abstract of judgments errors." In it, he requested that his sentence be corrected by modifying the term on count 8 to one-third of the middle term, or 1 year 4 months, for a aggregate sentence of 6 years 4 months.
The matter was called by the trial court for a resentencing hearing on April 16, 2002. Defendant was told by the court that "the 10 years they gave you [was] an illegal sentence because they couldnt do it." The court proposed that defendant admit the prior conviction enhancements under Health and Safety Code section 11370.2 that previously had been dismissed. This would allow him to be sentenced to a middle term of 4 years on count 1 and 6 years on the enhancements, thus again resulting in an aggregate sentence of 10 years. (Sentence on count 8 would be imposed concurrently.) Alternatively, defendant could withdraw his plea and the matter would be set for trial on all counts.
Defendant personally responded that "on my priors I am doing double jeopardy on my other convictions." The court answered that the greater sentencing exposure that defendant was facing did not constitute double jeopardy. Defense counsel did not address the double jeopardy issue and stated that he had recommended to defendant that defendant enter a new plea as proposed by the trial court. Defendant chose to ignore the advice of counsel and withdrew his plea.
Once the plea was withdrawn, the matter was set for trial, and defendant was ultimately convicted of most of the charged offenses and found to have sustained the alleged prior convictions. On September 4, 2002, defendant was sentenced to state prison for an aggregate term of 20 years 4 months.
As defendants appellate contention does not implicate the facts underlying his convictions, we need not recount them here.
DISCUSSION
We agree with the Attorney General that the principles of double jeopardy do not apply to correction of a sentence that is not authorized by statute. (People v. Jackson (1981) 121 Cal. App. 3d 862, 870, 176 Cal. Rptr. 166.) And we also agree with defendant that the trial court was correct in concluding that no statutory basis exists for the imposition of full-term consecutive sentences. But we disagree with defendants contentions that he should not have been given the opportunity to withdraw his plea and that we ought to modify his sentence to 6 years 4 months.
Defendant finds himself in a similar situation as the defendant in People v. Jackson, supra, 121 Cal. App. 3d 862. Jackson entered a negotiated plea to second degree murder in return for an 11-year sentence. After the trial court was advised by the Department that the law prescribed a 15-year-to-life sentence, Jackson was given the choice of accepting the lawful sentence or withdrawing his plea. He chose the latter, went to trial, and was ultimately convicted of first degree murder with special circumstances and sentenced to life without the possibility of parole.
On appeal, Jackson contended he was wrongfully denied the benefit of his plea bargain, the 11-year sentence. This court affirmed, concluding that "the trial courts initial sentence was in excess of its jurisdiction because it acted wholly outside of its statutory authority . . . ." (People v. Jackson, supra, 121 Cal. App. 3d at p. 868.) As the trial court could not effectuate the terms of the plea bargain, it had to permit Jackson to withdraw his guilty plea. As this court explained: "The plea bargain must comply with the statutory mandated sentence and the trial court has no discretion to make its own ad hoc adjustment to fit what it perceives as equity and justice. [Citation.] This is so because the Legislature has the sole authority to determine the appropriate punishment for criminal behavior. [Citation.]" (Id. at p. 869.)
"Although [Jackson] could not be sentenced on the plea bargain . . . [citations] and without his consent the court could not impose [a sentence of 15 years to life] on the plea bargain . . . for second degree murder, there is no merit to his contention that following the jury verdict he was improperly sentenced to a term longer than 11 years. The sentence having been judicially set aside as void is no bar to the subsequent imposition of a proper sentence upon conviction by a jury although that sentence is more severe than the initial one. [Citations.] The increased penalty ultimately imposed was (1) not on the plea bargain and (2) not for second degree murder. Had [Jackson] desired the benefit of his bargain - to be sentenced on . . . second degree murder - he could have requested the court to impose the legally authorized sentence of 15 years to life instead of withdrawing his pleas of guilty and taking the chance of conviction on a first degree murder count. . . . Further, contrary to [Jacksons] contention, imposition of the proper but more severe sentence does not violate the proscription against double jeopardy contained in either the federal or state Constitutions. [Citations.]" (People v. Jackson , supra, 121 Cal. App. 3d at pp. 869-870.)
We follow Jackson. Defendant had the choice of admitting prior conviction enhancements and taking the 10-year sentence he had been promised or withdrawing his plea and going to trial. Ignoring his attorneys advice, he chose the latter course, was convicted, and received a 20-year-4-month sentence. Having made his bed, he must lie in it.
DISPOSITION
The judgment is affirmed.
We concur: SPENCER, P.J. VOGEL (MIRIAM A.), J.