Opinion
B295405
03-19-2020
THE PEOPLE, Plaintiff and Respondent, v. JESUS CLAUDIO, Defendant and Appellant.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Colleen M. Tiedemann, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. NA085301) APPEAL from a judgment of the Superior Court of Los Angeles County, Richard R. Romero, Judge. Appeal dismissed. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Colleen M. Tiedemann, Deputy Attorney General, for Plaintiff and Respondent.
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Jesus Claudio faced 16 charges, including five counts of attempted murder, but agreed to a plea bargain for a 22-year sentence that avoided the prospect of life in prison. At a resentencing hearing, the trial court modified components of Claudio's sentence but did not change the total term of 22 years. Claudio argues this new sentence is unlawful. We dismiss this appeal because Claudio did not obtain a certificate of probable cause. Code references are to the Penal Code.
I
A 2010 information charged Claudio with 16 counts. The first five counts were charges of assault with a semiautomatic firearm. (§ 245, subd. (b).)
Claudio pleaded no contest to the first five counts in this information. As to each count, he also admitted personal use of a firearm and violent felony gang allegations. (§§ 12022.5, subd. (a), 186.22, subd. (b)(1)(C).) In exchange, the trial court dismissed the 11 other counts, including five counts of attempted murder.
On each of the five counts, the trial court sentenced Claudio to a nine-year base term for the assault with a semiautomatic firearm, enhanced by ten years for the gang allegation and three years for the firearm allegation. The court ordered the terms to run concurrently, yielding a total sentence of 22 years. Claudio's counsel joined in the waivers and concurred with the plea and admissions.
Eight years later, the Department of Corrections and Rehabilitation wrote the trial court under section 1170, subdivision (d) to state Claudio's sentence was unlawful under People v. Rodriguez (2009) 47 Cal.4th 501 (Rodriguez). Rodriguez held the trial court could not impose both a firearm enhancement and a violent felony gang enhancement when both enhancements were based on firearm use in a single offense. (Id. at p. 509.) Rodriguez cited section 1170.1, subdivision (f), which requires the court to impose only the greater of the two enhancements in this situation. (Ibid.) The department recommended the trial court recall Claudio's sentence or resentence him.
In 2019, the trial court held a resentencing hearing. The court resentenced Claudio to the same total term: five concurrent terms of 22 years. The court imposed the same nine-year base term for assault with a firearm, but now imposed three years for the gang enhancement instead of ten years, and ten years for the firearm enhancement instead of three years. The earlier sentence contained a violent felony gang enhancement under section 186.22, subdivision (b)(1)(C), which mandates ten years. In the new sentence, the court instead imposed a general felony gang enhancement under section 186.22, subdivision (b)(1)(A), which has a middle term of three years. The court modified the firearm enhancement under section 12022.5, subdivision (a) from the low term of three years to the high term of ten years.
Claudio's counsel objected, arguing the underlying crime was assault with a firearm, which qualifies as a serious or violent crime under section 186.22, subdivision (b)(1)(B) or (C). Counsel contended that, because both the firearm and gang enhancements were based on Claudio's firearm use in a single offense, the trial court could not recharacterize the enhancement and simply impose the general, non-violent or non-serious felony gang enhancement. Claudio's counsel further argued Claudio specifically pleaded to the gun enhancement and the violent felony gang enhancement, and should benefit from the law allowing only the greater of the two enhancements when both were based on the gun use in a single offense.
The trial court stated there was "no prejudice, in my mind," to Claudio from the new sentence but Claudio could take "appropriate appellate steps" if he wished to do so. Claudio appealed.
II
We requested supplemental briefing on whether this appeal should be dismissed because Claudio failed to obtain a certificate of probable cause, as required by section 1237.5. We conclude a certificate of probable cause was a prerequisite to appeal because Claudio effectively is challenging the validity of his original plea.
Defendants must obtain a certificate of probable cause to appeal a guilty or no contest plea. (§ 1237.5.) Postplea appeals that do not challenge the plea's validity are exempt from this requirement. (People v. Cuevas (2008) 44 Cal.4th 374, 379; Cal. Rules of Court, rule 8.304(b)(4)(B).)
Claudio claims his new sentence, imposed years after his original plea, is unlawful. The question is whether Claudio's challenge to his new sentence is in substance a challenge to the original plea's validity, thus requiring a certificate of probable cause under section 1237.5. (People v. Panizzon (1996) 13 Cal.4th 68, 76 (Panizzon).) The answer is yes.
Claudio argues he "does not seek to undo the plea or to challenge the total sentence to which he agreed in his plea agreement" but rather seeks "solely to have this [new] sentence vacated insofar as the sentencing components were unlawful under the statutes." Claudio also argues he does not "seek a sentence less than the 22 years to which he agreed."
These arguments miss the crucial element here: Claudio agreed to a specific 22-year sentence in his negotiated plea deal. Although the court vacated the original sentence and imposed a new sentence in response to a letter from the Department of Corrections and Rehabilitation, the court modified the sentence to preserve the agreed-upon term. Claudio thus appeals the very sentence he negotiated as part of his plea. A challenge to a negotiated sentence imposed as part of a plea bargain is a challenge to the validity of the plea itself. (Panizzon, supra, 13 Cal.4th at p. 79.) Claudio's attack on his new sentence challenges an integral part of the original plea agreement, and is, in substance, a challenge to the original plea's validity. (Ibid.)
We therefore dismiss the appeal because Claudio did not obtain a certificate of probable cause, as required by section 1237.5.
DISPOSITION
The appeal is dismissed.
WILEY, J. We concur:
BIGELOW, P. J.
GRIMES, J.