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People v. Beverly

California Court of Appeals, Second District, Fifth Division
Jul 22, 2008
No. B199932 (Cal. Ct. App. Jul. 22, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. YA062596, James Brandlin, Judge.

Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Marc A. Kohm, Deputy Attorney General, for Plaintiff and Respondent.


MOSK, J.

INTRODUCTION

Defendant and appellant Milton Beverly (defendant) appeals an order of the trial court revoking his probation after a contested hearing. Defendant contends that the trial court violated his right to a jury trial, as set forth in Cunningham v. California (2007) 549 U.S. 270 (Cunningham), by executing a previously imposed but suspended term of imprisonment that included an upper term on his conviction for firearm assault. We conclude that defendant is estopped from challenging imposition of the upper term because he accepted that sentence as a term of his plea agreement. We therefore affirm.

BACKGROUND

A. Case No. YA062596

In Case No. YA062596, defendant was charged in a four-count information with two counts of attempted murder (Pen. Code, §§ 664; 187, subd. (a)), one count of shooting at an occupied motor vehicle (§ 246), and one count of firearm assault (§ 245, subd. (a)(2)). According to defendant’s probation report and testimony at his preliminary hearing, defendant and another member of the 99th Street Mafia Crips street gang shot at a car traveling along 99th Street in south Los Angeles, wounding one of the two occupants in the forehead.

All statutory references are to the Penal Code.

Pursuant to a plea agreement, the charges of attempted murder and shooting at an occupied motor vehicle were dismissed. Defendant pleaded guilty to one count of firearm assault and admitted that his crime was committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(B)). As specified by the plea agreement, the trial court imposed a term of nine years in state prison, consisting of the high term of four years for the firearm assault plus five years for the gang enhancement. Defendant was ordered to pay a $200 restitution fine; a $200 parole revocation restitution fine, stayed; and a $20 court security fee. The trial court ordered execution of the sentence suspended and placed defendant on three years formal probation, conditioned on defendant serving one year in county jail, with credit for time served.

B. Case No. YA066349

In November 2006, eight months after he was sentenced in Case No. YA062596, defendant was arrested and charged in Case No. YA066349 with second degree robbery while armed with a firearm. (§§ 211; 212.5, subd. (c); 12022, subd. (a)(1).) According to the evidence at defendant’s contested probation revocation hearing, defendant robbed Joseph Washington of $300 and two bags of marijuana while defendant’s accomplice stood by with a gun. The trial court found by a preponderance of the evidence that defendant had violated the terms of his probation.

At sentencing, defendant objected to execution of the nine-year suspended sentence imposed in Case No. YA062596, arguing that the upper term sentence for firearm assault violated his right to a jury trial under Cunningham, supra, 549 U.S. 270. The trial court overruled defendant’s objection and ordered into effect the full sentence previously imposed but suspended in Case No. YA062596. Defendant was given presentence credit of 554 days, consisting of 482 days of actual custody and 72 days of conduct credit. Case No. YA066349 was dismissed pursuant to section 1382. Defendant timely appealed.

While this appeal was pending, the trial court corrected defendant’s presentence credit to give him credit for 482 days of actual custody plus 240 days of conduct credit, for a total of 722 days.

DISCUSSION

We appointed counsel to represent defendant in this appeal. After examining the record, counsel filed an opening brief asking this court independently to review the record in accordance with People v. Wende (1979) 25 Cal.3d 436. On February 28, 2008, we gave notice to defendant that counsel had failed to find any arguable issues and that defendant had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or arguments he wished this court to consider. Defendant did not submit a brief or letter. We examined the record and requested supplemental briefing. Defendant argues that the trial court committed Cunningham error by ordering the execution of his sentence that included the upper term of four years on his conviction for firearm assault.

We assume without deciding that a challenge to defendant’s sentence is cognizable on this appeal from the revocation of his probation.

Defendant is estopped from asserting error with respect to his upper term sentence. The nine-year prison term imposed by the trial court—consisting of the four-year upper term for the firearm assault and a five-year term for the gang enhancement—was a negotiated term of a plea agreement pursuant to which defendant obtained the dismissal of two counts of attempted murder and one count of shooting at an occupied motor vehicle. “Where the defendant[] ha[s] 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. [Citations.]” (People v. Hester (2000) 22 Cal.4th 290, 295 (Hester); People v. Couch (1996) 48 Cal.App.4th 1053, 1056-1057.)

Defendant relies on People v. French (2008) 43 Cal.4th 36 (French) to argue that, because defendant did not admit the existence of any aggravating circumstance in his plea, the rule of Hester, supra, 22 Cal.4th 290 should not apply. French, however, is distinguishable. In French, the defendant entered a plea agreement specifying that he would receive an aggregate sentence of not more than 18 years in prison for multiple offenses. (French, supra, 43 Cal.4th at p. 42.) The trial court sentenced the defendant to the maximum of 18 years. The sentence included an upper term sentence on one count, based on the trial court’s finding of the aggravating factor that the defendant had taken advantage of a position of trust and confidence. (Id. at p. 43.)

The Supreme Court reversed, holding inter alia that, by entering into a plea agreement with a specified maximum term, the defendant “did not implicitly admit that his conduct could support that [maximum] term.” (French, supra, 43 Cal.4th at p. 48.) In so holding, the court expressly distinguished Hester, supra, 22 Cal.4th 290 on the ground that the plea agreement in Hester contained a specified sentence. A plea agreement that includes a specified sentence “constitutes an implicit waiver of [the defendant’s] right to contend that the sentence imposed” is unlawful. (French, supra, 43 Cal.4th at p. 49 .) In contrast, “[a] sentencing agreement pursuant to which the defendant pleads guilty or no contest with the understanding that he or she will receive a sentence within an agreed-upon maximum term . . . ‘contemplates that the court will choose from among a range of permissible sentences within the maximum . . . .’ [Citation.]” (Ibid.) Because the trial court retains discretion to impose any appropriate sentence up to the specified maximum, the plea agreement cannot be deemed an implicit admission to any aggravating circumstance. (Ibid.)

In this case, like Hester, supra, 22 Cal.4th 290, defendant agreed to a specified sentence that included a four-year upper term for firearm assault. French, supra, 43 Cal.4th 36 is therefore inapposite. Defendant is estopped from challenging the imposition of the upper term sentence.

DISPOSITION

The judgment is affirmed.

We concur: TURNER, P. J., KRIEGLER, J.


Summaries of

People v. Beverly

California Court of Appeals, Second District, Fifth Division
Jul 22, 2008
No. B199932 (Cal. Ct. App. Jul. 22, 2008)
Case details for

People v. Beverly

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MILTON BEVERLY, Defendant and…

Court:California Court of Appeals, Second District, Fifth Division

Date published: Jul 22, 2008

Citations

No. B199932 (Cal. Ct. App. Jul. 22, 2008)