Opinion
NOT TO BE PUBLISHED
Fresno Super. Ct. No. F06907125
MODIFICATION OF OPINION AND DENIAL OF PETITION FOR REHEARING [Change in Judgment]
Vartabedian, Acting P.J.
THE COURT
It is ordered that the nonpublished opinion filed herein on November 28, 2007, is modified as follows:
1. Under the heading INTRODUCTION, the third sentence and footnote in the first full paragraph on page four is deleted and the following sentence inserted in its place:
On October 30, 2007, seven months after filing his opening brief acknowledging that he had no certificate of probable cause, appellant filed a certificate of probable cause with this court.
2. Under the heading PRIOR PRISON TERM ENHANCEMENT on page four, in the second full paragraph beginning with the words “Appellant further contends” and ending on page six, the text is deleted and the following text and footnotes are inserted in their place:
Respondent contends that appellant is attempting to improve his plea agreement and should be estopped from complaining about his sentence because he agreed to it as part of the plea agreement. We do not agree and will reverse.
Where a defendant has pled guilty in return for a specified sentence, appellate courts will not find error even when the trial court has acted in excess of jurisdiction in reaching that sentence, as long as the trial court did not lack fundamental jurisdiction. Defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to improve the bargain through the appellate process. (People v. Hester (2000) 22 Cal.4th 290, 295.)
Here, the appellant agreed to the court’s indicated sentence of the midterm of two years plus the prior prison term enhancement. During the change of plea hearing, defense counsel stated that in chambers the court indicated a midterm of two years plus one prison prior. The court noted: “indicated is that it will strike one of your -- strike your serious felony prior and that you would receive no more than three years in state prison. If after reviewing the probation report the Court cannot abide by that agreement, you understand you would be allowed to withdraw your plea?” Appellant responded affirmatively. In the felony advisement, waiver of rights, and plea form, the defendant initialed the terms of the plea which set forth the court's indicated sentence. The sentence here was not for a specified term.
People v. Shelton (2006) 37 Cal.4th 759, 770, still requires that appellant seek a certificate of probable cause where he or she is challenging the court’s authority to impose the contemplated lid sentence. Where a defendant does not reserve, expressly or impliedly, a right to challenge the trial court’s authority to impose the lid sentence, the failure to obtain a certificate of probable cause is fatal to raising the issue on appeal. (Id. at pp. 769-770.) Because appellant now has a certificate of probable cause, he can challenge the trial court’s authority to impose the lid sentence where there is a potential defect in the imposition of the prior prison term enhancement.
Appellant contends and respondent concedes that the 1990 prior prison term enhancement was subject to the so called “wash out” provisions of the statute. We are not so sure that this is so. As we note in footnote three above, the probation reports refer to a 1997 guilty plea to possession of cocaine base with a lid of six years in prison. If appellant served any portion of that sentence into or past the year 2000, his felony drunk driving conviction in 2005 was arguably within five years of serving a prison term and, therefore, did not wash out. We cannot accurately discern the nature of this potential 1997 conviction or whether appellant served any prison sentence for it. We further note that the probation report fails to set forth when appellant was released from incarceration for his 1990 conviction. It is theoretically possible that the wash out provisions of the statute became operative prior to his 1997 felony conviction, if indeed he suffered such a conviction. The incomplete quality of the current probation report makes it impossible for us to resolve this point.
To be subject to a prior prison term enhancement, the defendant must be previously convicted of a felony, imprisoned as a result of that conviction, have completed that term of imprisonment, and remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. (People v. Tenner (1993) 6 Cal.4th 559, 563.)
We will remand this case to the trial court to hold a hearing to determine whether appellant’s prior prison term enhancement for his 1990 conviction washed out. If it did so, the court shall permit appellant, should he wish to do so, to withdraw his plea. (See People v. Renfro (2004) 125 Cal.App.4th 223, 233 (typical remedy for violation of plea agreement is to allow defendant to withdraw plea and to go to trial on original charges); People v. Vargas (2001) 91 Cal.4th 506, 533-534 (reciprocal nature of plea agreement mandates both parties entitled to enforce agreement.)
In light of our ruling that the trial court must conduct a hearing to make a factual determination as to whether the 1990 prior prison term enhancement washed out, we do not find People v. Epperson (1985) 168 Cal.App.3d 856, 864-856, cited by appellant for the proposition that he did not admit that the 1990 conviction washed out, to be applicable here. Whether or not this prior prison term enhancement is valid, or not, will be determined by a factual hearing on the matter. If it did not wash out, appellant’s admission of its truth provides the requisite elements of the enhancement.
3. Under the heading DISPOSITION on page 7, the text is deleted and the following inserted in its place:
DISPOSITION
The judgment is reversed. The case is remanded to the trial court to hold a hearing to determine whether the prior prison term enhancement from appellant’s 1990 conviction washed out. If it did wash out, the court shall permit the appellant, if he wishes to do so, to withdraw his plea and the People may proceed with their prosecution of this action. If the 1990 prior prison term enhancement did not wash out, the court may reimpose its original judgment.
The modification does affect the judgment.
Appellant’s petition for rehearing is denied.
WE CONCUR: Harris, J., Levy, J.
The respondent cites People v. Ellis (1987) 195 Cal.App.3d 334 for the proposition that a defendant can be estopped from challenging the court’s jurisdiction to impose an enhancement as part of a lid sentence (id. at p. 337), even where the enhancement does not so qualify as such under California law. In such a case, the court acts in excess of its jurisdiction but still retains fundamental jurisdiction over the matter. (Id. at pp. 342-348.) Whether a defendant is estopped depends on the importance of the irregularity and other considerations of public policy. (Id. at p. 343.) Because the probation report does not appear to set forth a complete record of appellant’s past convictions and prison record, public policy considerations favor a remand of this case to the trial court to clarify the record rather than application of the estoppel doctrine.