Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR-455102
Jenkins, J.
INTRODUCTION
This case returns after remand ordered in People v. Chan-Tapia (May 24, 2007), A113166 ([2007 Cal.App. Unpub. Lexis 4176], [unpub. opn.], rehg. den. June 13, 2007, review den. Aug. 29, 2007, S154021) (Chan-Tapia I). For reasons explained below, we dismiss this appeal for appellant’s failure to obtain a certificate of probable cause pursuant to section 1237.5.
The issues in this appeal are purely legal and require no recapitulation of the underlying facts. All statutory references are to the Penal Code unless otherwise noted.
BACKGROUND
In Chan-Tapia I, defendant and appellant Sergio Chan-Tapia appealed the sentence of ten years and eight months imposed after he pleaded no contest to voluntary manslaughter (§192, subd. (a)) and kidnapping (§ 207, subd. (a)), and admitted a grievous bodily injury (GBI) enhancement (§12022.7, subd. (a)) to the kidnapping charge. He contended that: (1) the three-year GBI enhancement to his consecutive sentence for kidnapping violated section 654 because it amounted to double punishment for manslaughter; and (2) the trial court erred when it imposed a full, three-year sentence for the GBI enhancement. (Chan-Tapia I, supra, at pp. *1, 4.)
In Chan-Tapia I, we rejected appellant’s section 654 contention. We reasoned he waived any error on that point by entering into a plea bargain involving a reduction in the charges in return for a sentence not to exceed ten years and eight months, citing People v. Hester (2000) 22 Cal.4th 290, 295. (Chan-Tapia I, supra, at pp. *6-8.)
On the other hand, we concluded the trial court committed sentencing error because it should have reduced the GBI enhancement from three years to one-third of that statutory term, pursuant to section 1170.1. (Chan-Tapia I, supra, at p. *11). We noted that the Attorney General (AG) conceded the error. (Chan-Tapia I, supra, at p. *12.) We concluded: “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.” (Ibid, fn. omitted.)
In Chan-Tapia I, the AG argued the case should be remanded “with all sentencing options available to the court, including imposition of a longer term.” We rejected the AG’s argument because “[t]o do so would unravel the plea agreement entirely and deprive appellant of the benefit of his bargain.” (Chan-Tapia I, supra, at p. *12, fn. 4.)
Upon remand, the trial court held a re-sentencing hearing on November 21, 2007. Counsel for appellant informed the court that appellant “has been a model prisoner” and on that basis asked the court to suspend the GBI enhancement in its entirety and “impose a sentence of 7 years and 8 months as opposed to 8 years and 8 months.” In response, the trial court stated: “Since the Court of Appeal specifically mentioned that the question of sentencing should not be reopened but this was a ministerial duty on my part, I am not sure I even have the jurisdiction to do what you requested, but if I did have the jurisdiction, I would not suspend the GBI.” As we directed in Chan-Tapia I, the trial court then imposed a mid-term of six-years for voluntary manslaughter, a consecutive term of one-year and eight months for kidnapping, and a consecutive term of one-year for the GBI enhancement, for a total sentence of eight years and eight months. Appellant filed a timely notice of appeal on December 17, 2007.
DISCUSSION
In this appeal, appellant reiterates the same section 654 argument raised in Chan-Tapia I by contending that the trial court should have stayed the GBI enhancement because it was based on the same act and intent as his manslaughter conviction. Appellant acknowledges that we declined to address the merits of his section 654 contention in Chan-Tapia I because we concluded he had waived it by entering into a plea agreement. However, he argues that our reasoning in Chan-Tapia I was erroneous because at the original sentencing hearing “there was an ‘indicated sentence’ ” rather than a “promised sentence,” and an indicated sentence “is expressly not a plea bargain.”
The AG contends that appellant’s renewed section 654 claim should be rejected on two grounds. First, the AG argues that the jurisdiction of the trial court upon remand was strictly limited by our directions to the trial court in Chan-Tapia I to amend the abstract of judgment to reflect the correct, one-year term for the GBI enhancement and impose a sentence of eight years and eight months. “Because the court had no jurisdiction to do anything other than carry out this court’s directions,” the AG states, “appellant has no basis for claiming error.” Second, the AG contends appellant’s section 654 claim should be rejected on this appeal because reconsideration of the claim “is barred by law of the case,” citing People v. Dutra (2006) 145 Cal.App.4th 1359, 1364-1365. The AG further asserts that appellant failed to recognize the law of the case doctrine in his opening brief, failed to argue any exception to it applies, and therefore his claim is barred.
In his reply brief, appellant counters the AG’s jurisdictional argument by asserting “the ordinary rules regarding to [sic] the duty of the trial court to follow the terms of the remittitur do not apply in this case” because both the original sentence and the sentence imposed upon remand were “ ‘unauthorized,’ ‘void,’ or ‘excessive’ sentences” in violation of section 654, and are therefore open to challenge at any time. Appellant also argues in his reply brief that Chan-Tapia I is not law of the case on the section 654 issue on this appeal. That is so, according to appellant, because we did not consider the merits of his section 654 claim in Chan-Tapia I: Instead, we ruled appellant waived the section 654 issue by entering a plea agreement, and he has shown why we were wrong on that point in his opening brief.
No discussion of these various competing contentions is required. After we issued our opinion in Chan-Tapia I, our Supreme Court issued its decision in People v. Cuevas (2008) 44 Cal.4th 374 (Cuevas), which is dispositive here. In Cuevas, the Supreme Court built upon its earlier decision in People v. Shelton (2006) 37 Cal.4th 759 (Shelton). The Cuevas Court noted that “[n]egotiated plea agreements may include a sentence “lid,” which constrains the maximum sentence a trial court may impose but is less than the maximum exposure the defendant would otherwise face absent the agreed-upon lid.” (Cuevas, supra, 37 Cal.4th at p. 376.) The Cuevas Court further noted that in Shelton, supra, it “held that when a plea agreement specifies a sentence lid, ‘a challenge to the trial court’s authority to impose the lid sentence is a challenge to the validity of the plea requiring a certificate of probable cause.’ Absent such certificate, a defendant may not later complain that the imposed sentence lid violated Penal Code section 654’s proscription against multiple punishment, which in substance is a challenge to the plea’s validity. (Citation.)” (Ibid.)
In Cuevas, the defendant’s negotiated sentence “was not technically a sentence lid.” (Cuevas, supra, 37 Cal.4th at p. 377.) Rather, “defendant and the prosecution negotiated a plea by which certain charges would be dismissed or reduced, and the defendant agreed that the maximum possible sentence for the remaining charges would be 37 years eight months.” (Id. at pp. 376-377.) However, after the trial court sentenced defendant to a term within the agreed-upon maximum (35 years and eight months), “the defendant attempted to raise a section 654 challenge to the sentence in the Court of Appeal.” (Id. at p. 377.) Thus, the Cuevas Court came to the question of whether Shelton governed in cases where the negotiated sentence is not technically a sentence lid but is “significantly less than the sentence [defendant] faced under the original charges.” (Cuevas, supra, 37 Cal.4th at p. 377.)
The Cuevas court stated that a defendant “may not appeal ‘from a judgment of conviction upon a plea of guilty or nolo contendere,’ unless he has obtained a certificate of probable cause. (Citations.) Exempt from this certificate requirement are postplea claims, including sentencing issues, that do not challenge the validity of the plea. (Citations.)” (Cuevas, supra, 44 Cal.4th at p. 379.) On this basis, the Supreme Court reasoned that for purposes of the certificate of probable cause requirement, “the critical question is whether defendant’s section 654 challenge to his sentence is in substance a challenge to the validity of his plea. (Citations.) In other words, the question is whether defendant ‘seeks only to raise [an] issue[ ] reserved by the plea agreement, and as to which he did not expressly waive the right to appeal.’ (Citations.)” (Cuevas, supra, 44 Cal.4th at p. 381.)
The Cuevas Court noted that “defendant received a significant reduction in sentence” because in exchange for his plea the prosecution reduced the charges and dismissed firearm allegations. (Cuevas, supra, 44 Cal.4th at p. 383.) “By negotiating the reduction and dismissal of these charges,” the Court stated, “defendant necessarily understood and agreed that he faced a significantly reduced sentence of 37 years eight months. This maximum sentence was ‘part and parcel’ of the plea bargain the parties negotiated. (Citations.) Thus, by challenging the negotiated maximum sentence imposed as part of the plea bargain, defendant is challenging the validity of his plea itself. (Citations.)” (Id. at pp. 383-384.)
The Supreme Court explained that “[i]n asserting that section 654 requires the trial court to stay any duplicative counts, defendant is not challenging the court’s exercise of sentencing discretion, but attacking its authority to impose consecutive terms for these counts. This amounts to a challenge to the plea’s validity, requiring a certificate of probable cause, which defendant failed to secure. (Citations.) Therefore, his appeal based on section 654 is barred.” (Cuevas, supra, 44 Cal.4th at p. 384.)
In sum, Cuevas clarifies that where a defendant enters a guilty or nolo contendere plea in return for “specified benefits,” such as the dismissal of other counts, an agreed sentencing lid or maximum sentence, and is sentenced within the agreed sentencing range, then in any subsequent appeal a section 654 claim is an attack on the validity of the plea itself requiring a certificate of probable cause under section 1237.5. (Cuevas, supra, 44 Cal.4th at pp. 383, 384.) If defendant fails to secure a certificate of probable cause to appeal under section 654, the appeal is barred and must be dismissed by the Court of Appeal. (Id. at p. 384; People v. Mendez (1999) 19 Cal.4th 1084, 1098-1099 [requirements of section 1237.5 “must be strictly applied” and Court of Appeal may not reach the merits on issues whose consideration would otherwise be precluded by lack of a certificate of probable cause].)
Here, appellant pled guilty to reduced charges in return for the People’s agreement to a sentence of no more than ten years and eight months and to dismiss charges of murder, assault with a deadly weapon and burglary. (Chan-Tapia I, supra, at p. *7.) Appellant received the benefit of his bargain. Thus, absent a certificate of probable cause, appellant may not challenge the trial court’s authority to impose the term for the GBI enhancement consecutive to the term for voluntary manslaughter by invoking section 654. “This amounts to a challenge to the plea’s validity, requiring a certificate of probable cause, which defendant failed to secure. (Citations.)” (Cuevas, supra, 44 Cal.4th at p. 384.) Accordingly, the appeal is dismissed.
We reject appellant’s contention that his was an “indicated sentence” rather than a plea bargain. “In an indicated sentence, a defendant admits all charges, including any special allegations and the trial court informs the defendant what sentence will be imposed. No ‘bargaining’ is involved because no charges are reduced. (Citations.) In contrast to plea bargains, no prosecutorial consent is required. (Citation.)” (People v. Allan (1996) 49 Cal.App.4th 1507, 1516-1517 [reversing trial court for engaging in an illegal plea bargain where it offered the high term of three years for felony possession of controlled substance “in exchange for dismissal of the section 667.5(b) priors and the misdemeanor charged in count 2”]; in accord People v. Superior Court (Ramos) (1991) 235 Cal.App.3d1261, 1264 [holding that career-criminal statute “does not prohibit a trial court from indicating a sentence it will impose if a given set of facts is confirmed and the accused enters a guilty plea to all pending charges and admits all special allegations”].) Here, appellant was not subject to an indicated sentence because, as we concluded in Chan-Tapia I, he pled guilty to reduced charges in return for the People’s agreement to dismiss charges of murder, assault with a deadly weapon and burglary. (Chan-Tapia I, supra, at p. *7.)
DISPOSITION
The appeal is dismissed.
We concur, McGuiness, P.J.,Siggins, J.