From Casetext: Smarter Legal Research

People v. Boyd

Court of Appeals of California, Third District.
Nov 7, 2003
C043164 (Cal. Ct. App. Nov. 7, 2003)

Opinion

C043164.

11-7-2003

THE PEOPLE, Plaintiff and Respondent, v. TONY ARTHUR BOYD, Defendant and Appellant.


Defendant Tony Arthur Boyd pled guilty to driving under the influence with a prior conviction for driving under the influence (Veh. Code, §§ 23152, subd. (a); 23550.5, subd. (a)(1)), driving with a blood alcohol level of .08 percent or more with a prior conviction for driving under the influence (Veh. Code, §§ 23152, subd. (b); 23550.5, subd. (a)(1)), and driving with a suspended license (Veh. Code, § 14601.2, subd. (a)), with enhancements on the drunk driving charges for committing a felony while out of custody on a separate pending felony (Pen. Code, § 12022.1) and for prior prison terms (Pen. Code, § 667.5, subd. (b)). Sentenced to seven years in state prison, defendant appeals.

FACTS AND PROCEDURE

An officer with the Corning Police Department observed defendant speeding on Highway 99. After stopping defendant, the officer noted that defendant smelled of alcohol, had red and bloodshot eyes, and had slurred speech. Defendant failed a field sobriety test and the officer arrested him. A subsequent breath test showed his blood alcohol level was .13 percent. At the time, defendant was out on bail in case number NCR58640, a felony driving under the influence case.

Pursuant to a plea agreement, defendant pled guilty to the charges contained in the present case and admitted committing a felony while on bail. In exchange, the People dismissed case number NCR58640. When he entered into the plea agreement, defendant acknowledged that the maximum sentence available was seven years six months.

The trial court sentenced defendant to seven years in state prison: three years for driving under the influence, two years for the on bail enhancement, and one year for each of his two prior prison term enhancements. His three-year sentence for driving with a .08 percent or higher blood alcohol level and two-year sentence for the on bail enhancement for that charge were stayed pursuant to Penal Code section 654. Defendant filed a timely notice of appeal but did not obtain a certificate of probable cause.

DISCUSSION

Defendant contends the trial court erred in sentencing him for the on bail enhancement under Penal Code section 12022.1. He asserts the trial court should have stayed the sentence on that enhancement because his primary offense (case number NCR58640) did not result in a conviction. (See In re Jovan B. (1993) 6 Cal.4th 801, 808-809 [requiring conviction on primary offense to impose unstayed term for on bail enhancement].) Defendants argument has been waived.

Penal Code section 1237.5 prohibits an appeal from a conviction based on a guilty plea unless the trial court files a certificate of probable cause for the appeal. (Pen. Code, § 1237.5.) The People contend defendant cannot proceed with his appeal because he did not get a certificate of probable cause from the trial court. We conclude defendant may proceed without a certificate of probable cause.

Although the general rule requires a certificate of probable cause to appeal after a guilty plea, "[t]he requirements of [Penal Code] section 1237.5 do not apply to errors alleged to have occurred at sentencing proceedings following the entry of the guilty plea." (People v. Pinon (1979) 96 Cal.App.3d 904, 910.) "In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, courts must look to the substance of the appeal: `the crucial issue is what the defendant is challenging . . . ." (People v. Panizzon (1996) 13 Cal.4th 68, 76, quoting People v. Ribero (1971) 4 Cal.3d 55, 63.) "[A]n appeal following conviction on a guilty or no-contest plea must be dismissed absent a certificate `if, in substance, it challenges the validity of the plea. [Citation.] It does so if the sentence was part of a plea bargain. [Citation.] It does not if it was not . . . ." (People v. Buttram (2003) 30 Cal.4th 773, 784-785, italics in original.)

"The parties to a plea agreement are free to make any lawful bargain they choose, and the exact bargain they make affects whether a subsequent appeal, in substance, is an attack on the validity of the plea. When the parties negotiate a maximum sentence, they obviously mean something different than if they had bargained for a specific or recommended sentence. By agreeing only to a maximum sentence, the parties leave unresolved between themselves the appropriate sentence within the maximum. That issue is left to the normal sentencing discretion of the trial court, to be exercised in a separate proceeding." (People v. Buttram, supra, 30 Cal.4th at p. 785, italics in original.)

Here, the parties did not agree to a specific sentence. Instead they agreed that defendant would admit guilt to all charges and face a maximum sentence of seven years six months in exchange for dismissal of case number NCR58640. "`[W]hen the question of whether to impose the negotiated maximum is left to the courts discretion at an adversary hearing, an appeal challenging the courts exercise of that discretion is not, in substance, an attack on the validity of the plea." (People v. Buttram, supra, 30 Cal.4th at p. 787.) Because defendant is not challenging the validity of his plea but instead asserts the trial court should have stayed the sentence on the on bail enhancement, his appeal is not barred for failure to obtain a certificate probable cause from the trial court.

Defendant, however, has waived this sentencing issue on appeal. The record shows no objection to the sentence imposed by the trial court.

Only those claims properly raised and preserved by the parties are reviewable on appeal. (People v. Hester (2000) 22 Cal.4th 290, 295.) A narrow exception to this rule applies in cases in which the sentence imposed is unauthorized. (People v. Scott (1994) 9 Cal.4th 331, 354.) A sentence is unauthorized when it cannot lawfully be imposed under any circumstance in the particular case. (Ibid.)

However, "[t]he 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." (People v. Hester, supra, 22 Cal.4th at p. 295, italics in original.)

Although defendant did not bargain for a specific sentence, he did acknowledge that a maximum sentence was specified in the negotiations. This maximum sentence was based on convictions for both drunk driving charges, the driving with a suspended license charge, and all enhancements charged in this case. It was also based on an agreement by the People to dismiss the charges currently pending against defendant in case number NCR58640. Thus, the defendant was able to benefit by receiving a sentence of, at most, seven years six months without suffering conviction in case number NCR58640, while the People were able to place a dangerous, recidivist drunk driver behind bars for up to seven years six months.

"When a defendant maintains the trial courts 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." (People v. Couch (1996) 48 Cal.App.4th 1053, 1057.) If defendants argument were accepted he would be subject to a maximum sentence of five years six months instead of the seven years six months he bargained for. Defendant gained the benefit of his bargain when he successfully avoided conviction in case number NCR58640 by pleading guilty to the charges in this case. Accepting his argument now would only allow him to "trifle with the courts by attempting to better the bargain through the appellate process." (People v. Hester, supra, 22 Cal.4th at p. 295.)

DISPOSITION

The judgment is affirmed.

We concur: MORRISON, J. and ROBIE, J.


Summaries of

People v. Boyd

Court of Appeals of California, Third District.
Nov 7, 2003
C043164 (Cal. Ct. App. Nov. 7, 2003)
Case details for

People v. Boyd

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. TONY ARTHUR BOYD, Defendant and…

Court:Court of Appeals of California, Third District.

Date published: Nov 7, 2003

Citations

C043164 (Cal. Ct. App. Nov. 7, 2003)