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People v. Bright

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 3, 2012
D058076 (Cal. Ct. App. Jan. 3, 2012)

Opinion

D058076

01-03-2012

THE PEOPLE, Plaintiff and Respondent, v. WILLIAM MCKINLEY BRIGHT, JR., Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN192841)

APPEAL from an order of the Superior Court of San Diego County, Daniel B. Goldstein, Judge. Affirmed as modified and remanded.

William McKinley Bright, Jr. appeals the order revoking probation, sentencing him to prison for eight years and imposing two restitution fines of $1,600 each. Bright contends, and the People concede, that based on the plea agreement pursuant to which probation was granted, the prison term must be reduced to four years, and the restitution fines must be reduced to $200 apiece. The parties also agree that Bright is entitled to credit against his state prison term for time he served in federal custody, but no such credit was awarded. We modify the order and remand the matter for a determination of the amount of time Bright spent in federal custody and an award of credit in that amount.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2005, a grand jury indicted Bright and seven others for conspiracy to commit murder. (Pen. Code, §§ 182, subd. (a)(1),187, subd. (a).) The People negotiated a plea agreement with Bright pursuant to which he pleaded guilty to the lesser included offense of assault with a deadly weapon (§ 245, subd. (a)(1)); admitted he personally used a deadly weapon (§ 1192.7, subd. (c)(23)); and admitted he had a prior conviction that qualified as a strike under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12). In exchange, the People dismissed all other charges and allegations against Bright.

Subsequent undesignated statutory references are to the Penal Code.

The trial court accepted the plea agreement and sentenced Bright to four years in prison, consisting of the lower term of two years for assault with a deadly weapon (§ 245, subd. (a)(1)), which was doubled because of the prior strike (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)); stayed execution of the prison term; granted summary probation for six years; imposed a $200 restitution fine (§ 1202.4, subd. (b)); and imposed a $200 probation revocation restitution fine (§ 1202.44), which was suspended unless probation was revoked. One of the terms of probation required Bright to obey all laws.

At a probation revocation hearing held in August 2010, the trial court found Bright's possession of marijuana for sale violated the term of probation requiring him to obey all laws. (See Health & Saf. Code, § 11359.) The court formally revoked probation; sentenced Bright to eight years in prison, consisting of the upper term of four years for assault with a deadly weapon (§ 245, subd. (a)(1)), which was doubled because of the prior strike (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)); ordered Bright to pay a $1,600 restitution fine (§ 1202.4, subd. (b)); imposed a $1,600 parole revocation restitution fine (§ 1202.45), which was suspended unless parole was revoked; and awarded a total of 507 days of presentence credit.

The trial court refused to execute the previously imposed but stayed four-year prison sentence because it was "illegal" in that "the People, as part of a plea bargain, struck a [section] 667[, subdivision] (a) allegation, that there's a mandatory five years."

DISCUSSION

Bright contends, and the People concede, that the trial court erred when, after revoking Bright's probation, it sentenced him to prison for eight years instead of executing the previously stayed four-year prison sentence. Bright also contends, and the People again concede, that the trial court erred when, after revoking Bright's probation, it imposed a second restitution fine in the amount of $1,600 and imposed a parole revocation restitution fine in the same amount. The People contend, and Bright agrees, that, pursuant to the plea agreement, Bright is entitled to credit against his state prison sentence for time he served in federal custody, and that the matter must be remanded for a determination of the amount of credit to which he is entitled. We agree with the parties.

As to Bright's prison sentence, the trial court erred by imposing an eight-year term. When a trial court revokes probation and commits a defendant to prison, if the court had previously imposed a prison term but stayed execution thereof, the court must order execution of the exact term previously imposed. (§ 1203.2, subd. (c); Cal. Rules of Court, rule 4.435(b)(2); People v. Howard (1997) 16 Cal.4th 1081, 1088; People v. Ramirez (2008) 159 Cal.App.4th 1412, 1425.) Hence, when the trial court revoked Bright's probation, it was required to execute the four-year prison term that previously had been imposed but stayed.

In refusing to execute the previously imposed but stayed four-year prison sentence, the trial court recognized what the People concede on appeal: "the original plea agreement had problems." Specifically, the trial court that accepted the plea agreement improperly dismissed a prior serious felony conviction allegation, which carried a mandatory five-year consecutive prison term. (§§ 667, subd. (a)(1), 1385, subd. (b); People v. Turner (1998) 67 Cal.App.4th 1258, 1269.) Because the four-year prison sentence specified in the plea agreement did not include this five-year enhancement, the sentence was legally unauthorized, and the trial court presented with the plea agreement should not have accepted it.
Nevertheless, we decline to upset the parties' plea agreement. The parties have relied and acted upon the plea agreement, and neither party has ever challenged the legality of the fouryear prison sentence that constituted an integral part of the agreement. Further, our Supreme Court has held that when a defendant has "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." (People v. Hester (2000) 22 Cal.4th 290, 295.) Here, the parties do not contend, and nothing in the record indicates, that the trial court that accepted the plea agreement lacked personal jurisdiction over Bright or subject matter jurisdiction over the criminal charges asserted against him. Under these circumstances, we deem "[i]t is especially appropriate to enforce an appeal waiver as to [any] issues" regarding the legality of the fouryear prison term imposed by the trial court when it accepted the plea agreement. (People v. Nguyen (1993) 13 Cal.App.4th 114, 123.)

As to the restitution fine and parole revocation restitution fine, the trial court also erred. Section 1202.4, subdivision (b) generally requires a court to impose "a separate and additional restitution fine" in every criminal case resulting in a conviction. (Italics added.) "[A] trial court has no statutory authority to order a second restitution fine upon revocation of probation, because a restitution fine imposed as a condition of probation remain[s] in force despite revocation of probation." (People v. Arata (2004) 118 Cal.App.4th 195, 201-202.) Thus, the $1,600 restitution fine imposed at Bright's probation revocation hearing was unauthorized, because the $200 imposed when probation was granted remained in effect. Also, a parole revocation restitution fine must be set "in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4." (§ 1202.45.) The trial court therefore erred by imposing a $1,600 parole revocation restitution fine, and the amount of that fine must be reduced to $200. (See People v. Downey (2000) 82 Cal.App.4th 899, 921.)

Finally, we agree with the parties that the matter must be remanded for a determination of the amount of time Bright spent in federal custody and an award of credit in that amount against his state prison sentence. According to the plea agreement, it was "anticipated Mr. Bright will be transferred to federal custody to resolve his federal probation violation. If [he] receives a total of 4 years combined between the time served in county [jail] and custody time for [the] federal probation violation, then Mr. Bright shall stay on summary probation." When the court granted probation, it advised Bright that the time he was required to serve in state prison would "run concurrent[ly] with [his] federal time," so that Bright "shouldn't do any more time than four years." It thus appears that Bright is entitled to credit against his state prison sentence for the time he spent in federal custody for a probation violation. Although the Attorney General asserts she "is informed and believes [Bright] served a 51-month federal prison sentence following his 2005 plea in this case," the trial court made no such determination and awarded Bright no credit for time served in federal custody. We therefore remand to allow the court to do so. (See People v. Black (2009) 176 Cal.App.4th 145, 155 [remanding for calculation of credits when People conceded credits should have been awarded]; People v. Knox (2004) 123 Cal.App.4th 1453, 1458 [in enforcing plea agreements, courts should effectuate parties' reasonable expectations].)

DISPOSITION

The order revoking probation is modified (1) to reduce the prison term for the conviction of assault with a deadly weapon (§ 245, subd. (a)(1)) from eight years to four years; (2) to reduce the restitution fine (§ 1202.4, subd. (b)) from $1,600 to $200; and (3) to reduce the suspended parole revocation restitution fine (§ 1202.45) from $1,600 to $200. The matter is remanded for a determination of the amount of credit against the four-year state prison sentence to which Bright is entitled for the time he served in federal custody. After the amount of that credit is calculated and added to the 507 days of presentence credit already awarded, the court shall prepare an amended abstract of judgment reflecting the total amount of presentence credit to which Bright is entitled, as well as the modifications ordered above; and the court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the order is affirmed.

____________

IRION, J.
WE CONCUR: ______________________
HUFFMAN, Acting P. J.
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HALLER, J.


Summaries of

People v. Bright

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 3, 2012
D058076 (Cal. Ct. App. Jan. 3, 2012)
Case details for

People v. Bright

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. WILLIAM MCKINLEY BRIGHT, JR.…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jan 3, 2012

Citations

D058076 (Cal. Ct. App. Jan. 3, 2012)