Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR 455102
Parrilli, J.
INTRODUCTION
Defendant and appellant Sergio Chan-Tapia appeals his sentence, imposed after he pleaded no contest to voluntary manslaughter and kidnapping and admitted a grievous bodily injury (“GBI”) enhancement to the kidnapping charge. Appellant contends the three-year GBI enhancement to his consecutive sentence for kidnapping violates Penal Code section 654 because it amounts to double punishment for manslaughter. Appellant also contends the superior court erred by imposing a full, three-year sentence for the GBI enhancement. Because we agree the three-year sentence was incorrectly calculated, we remand.
FACTUAL BACKGROUND
On December 25, 2004, appellant and three associates drove from their house on Santa Ana Drive, in Santa Rosa, to another home on Kingwood Drive. The group intended to confront one of the Kingwood Drive residents, accuse him of vandalizing one of their cars and demand restitution. Upon arriving at Kingwood Drive, appellant and his companions forced their way into the house, brandishing empty beer bottles. Three individuals, including the victim, William Sulub, sat inside the downstairs living area. A verbal confrontation ensued and rapidly escalated into physical violence between all seven men. Punches and kicks were thrown as well as blows from beer bottles and a baseball bat produced by one of the residents. The baseball bat changed hands several times during the fight and appellant, the victim and others sustained injuries from it. The fight moved from the living area, into the garage and out into the street. Once in the street, the intruders retreated to their car. As they did, appellant and an accomplice grabbed William Sulub and forced him into their car. They continued to strike Sulub while abducting him and despite his ceasing to resist.
Meanwhile, the commotion awoke a fourth Kingwood Drive resident who had been sleeping upstairs. Seeing the kidnapping in progress, this resident produced a handgun and fired at least twice at the intruders’ car. Ultimately the intruders made their escape, taking Sulub with them. The Sonoma County coroner later determined one of the bullets fired at the car struck Sulub in the head.
Santa Rosa Police responded to the Kingwood Drive and Santa Ana Drive locations. At the Santa Ana residence they found Sulub lying on the kitchen floor, unconscious, bleeding and gasping. Appellant, his accomplices, and a number of other men present at the house were detained by police. Two of the victims positively identified appellant and his accomplices when interviewed by police.
William Sulub died from his wounds. The coroner stated the cause of death as a combination “gunshot wound and blunt force injuries of his head.”
PROCEDURAL BACKGROUND
In an amended complaint, filed on December 30, 2004, appellant and five co-defendants were charged as follows: count one – the murder of William Sulub (Pen. Code, § 187, subd. (a)); count two – the kidnapping of William Sulub (Pen. Code, § 207, subd. (a)); count three – assault with a deadly weapon on Timoteo Sulub (one of the other victims and William’s brother) (Pen. Code, § 245, subd. (a)(1)); and, count four – burglary of the Kingwood Drive house (Pen. Code, § 459.).
All further statutory references are to the Penal Code unless otherwise indicated.
On September 22, 2005, the complaint was again amended. This amendment added a grievous bodily injury enhancement (§ 12022.7, subd. (a)) to count two – the kidnapping charge, and a new count five – voluntary manslaughter. (§ 192, subd. (a).)
In exchange for dismissal of the murder, assault and burglary charges, appellant agreed to plead no contest to voluntary manslaughter and kidnapping, and to admit the GBI enhancement. At the change of plea hearing on September 22, 2005, speaking through an interpreter, appellant acknowledged his plea was knowing and voluntary and stipulated to the police report and the transcript of the preliminary hearing as the factual basis for his plea. The court accepted appellant’s plea and stated: “I have indicated that your sentence will not exceed 10 years and 8 months.”
Appellant’s sentencing hearing took place on January 30, 2006. Defense counsel argued for probation, and failing that a mitigated sentence. The People argued the full, 10 year, 8 month term should be imposed. The court imposed the 10 year, 8 month term. The sentence consisted of a base term of six years, the midterm for voluntary manslaughter; a consecutive term of one year and eight months, one third of the midterm for kidnapping; and, another consecutive term of three years, the statutory term for the GBI enhancement. This appeal timely followed.
DISCUSSION
I
Appellant contends the superior court erred in imposing the three-year GBI enhancement to his consecutive term for kidnapping. According to appellant, the factual basis for both the manslaughter plea and the GBI enhancement was the beating inflicted on the victim before he was kidnapped. Appellant therefore argues his consecutive sentences for manslaughter and the GBI enhancement amount to double punishment for the same criminal act. As such, appellant argues, the sentences violate section 654.
When a single criminal act is punishable under different provisions of law, section 654, subdivision (a) explicitly prohibits punishment under more than one of those provisions. Section 654 applies to enhancements of prison terms as well as underlying offenses. (People v. Douglas (1995) 39 Cal.App.4th 1385, 1392-1393.) “The proper procedure for remedying a violation of section 654 is to ‘eliminate the effect of the judgment as to the less severely punishable offense insofar as penalty alone is concerned.’ ” (In Re Adams (1975) 14 Cal.3d 629, 636-637.)
However, California law is equally explicit in stating a defendant who accepts a plea bargain has waived his right to claim a section 654 violation on appeal. “By agreeing to a specified prison term personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654’s prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record.” (Cal. Rules of Court, rule 4.412, subd. (b); see also People v. Valenzuela (1993) 14 Cal.App.4th 837, 841; People v. Hester (2000) 22 Cal.4th 290, 295 [“defendants are estopped from complaining of sentences to which they agreed”]; People v. Couch (1996) 48 Cal.App.4th 1053, 1057 [when “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”].)
Appellant entered a voluntary and knowing plea of no contest to voluntary manslaughter and kidnapping and specifically admitted the GBI enhancement. In exchange for his plea, the People agreed to dismiss the charges of murder, assault with a deadly weapon and burglary. Moreover, the court itself indicated appellant’s sentence would not exceed 10 years and 8 months if he agreed to the plea bargain. These terms were expressed and agreed to in open court and in a written plea agreement signed by appellant, his counsel and Spanish interpreter. Throughout the proceedings, appellant had the assistance of counsel and a Spanish interpreter. The police report and transcript of the preliminary hearing provide ample factual basis for appellant’s plea, as stipulated by him. Accordingly, appellant waived his right to raise a section 654 claim by his voluntary, knowing entry into a lawful plea agreement and by his failure to assert a section 654 claim on the record at trial. (Cal. Rules of Court, rule 4.412, subd. (b); People v. Hester, supra, 22 Cal.4th at pp. 290, 295.)
Appellant’s contention the plea agreement was invalid is without merit. A plea bargain was authorized here because it reduced the original murder charge to one of voluntary manslaughter. (§ 1192.7, subd. (a)(2) [plea bargaining permitted when there is insufficient evidence to prove the People’s case.].) Also, a valid plea agreement need not specify a particular term. A maximum term is acceptable and the trial court retains its discretion to impose sentence up to that term. (§ 1192.5 [“the plea may specify the punishment to the same extent as it may be specified by the jury on a plea of not guilty[.]”.)
We therefore affirm the validity of the plea agreement and need not address appellant’s substantive section 654 arguments.
The trial court has broad latitude in the factual application of section 654. We presume the sentencing order correct and affirm if it is supported by any substantial evidence. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313.) Here, the police report, the testimony of one of the victims at the preliminary hearing, and the circumstances in which police found William Sulub, support a finding of grievous bodily injury inflicted during the kidnapping. Viewing this evidence in a light most favorable to respondent, we cannot find the GBI enhancement to the kidnapping charge factually unsupported in any case.
II
Appellant also argues, in the alternative, the superior court erred by sentencing him to a consecutive three year sentence for the GBI enhancement on the kidnapping charge. He asserts section 1170.1 limits the maximum consecutive sentence for an enhancement to one-third of the statutory term. On this basis, appellant requests we reduce his sentence for the GBI enhancement to one year.
A. Standard of Review
“[O]bvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings are not waivable.” (People v. Smith (2001) 24 Cal.4th 849, 852.) An unauthorized sentence is one not permitted for the offense of conviction and, as such, is an error of law subject to correction whenever brought to the attention of the court or, on appeal. (Ibid.) Appellant has not waived his claim of an unauthorized sentence for his GBI enhancement and may bring it on appeal. Upon finding an unauthorized sentence, we take whatever steps are necessary to correct the trial court’s error. (§ 1260; People v. Odle (1951) 37 Cal.2d 52, 57.)
B. Penal Code and Unauthorized Sentences
When a defendant is found to have inflicted grievous bodily injury while committing a felony, the court may impose a consecutive three-year sentence enhancement. (§ 12022.7, subd. (a).) However, the term is reduced when the enhanced felony runs consecutively to a principal felony. Consecutive felony sentences are set at one-third the midterm. Enhancements to consecutive-running felonies are set at one-third the statutory term for the enhancement. (§ 1170.1, subd. (a) [“The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes . . . . The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses.”].)
Here, the superior court correctly used voluntary manslaughter as the principal term. It then correctly determined the length of appellant’s sentence for the kidnapping charge when it imposed a one-year, eight month term. (§ 208, subd. (a) [five year midterm for kidnapping].) However, the superior court also imposed a full, three-year term on the GBI enhancement to the kidnapping charge. (§ 12022.7, subd. (a).) The superior court did not reduce the GBI enhancement to one-third of the statutory term, pursuant to section 1170.1. The correct term for appellant’s GBI enhancement should have been one year. Therefore, the three-year sentence imposed was unauthorized. Respondent concedes the error in sentencing on the GBI enhancement.
Because this sentencing error is a clear and easily correctable matter of law, we remand with instructions to the superior court to amend the abstract of judgment to reflect the correct, one-year term for the GBI enhancement to the consecutive kidnapping sentence. Appellant’s total, amended sentence will consist of a six-year term for voluntary manslaughter; a consecutive, one-year, eight month term for kidnapping; and, a one-year, consecutive term for the GBI enhancement. The total sentence length will be eight years and eight months.
We disagree with respondent’s position that the proper remedy is remand with all sentencing options available to the court, including imposition of a longer term. To do so would unravel the plea agreement entirely and deprive appellant of the benefit of his bargain. (People v. Collins (1978) 21 Cal.3d 208, 214 [“Critical to plea bargaining is the concept of reciprocal benefits.”].) Because the People agreed to a maximum, not a specific, term, correcting the error by amendment will not deprive them. Both parties expected a sentence of 10 years, 8 months or less. Had the superior court imposed the correct, 8 year, 8 month sentence at trial, the People would have had no grounds for appeal. They cannot now seek a “bounty in excess” of their entitlement under the original, valid plea. (Id. at p. 215.)
DISPOSITION
We remand for further proceedings consistent with this opinion.
We concur: McGuiness, P. J., Siggins, J.