Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF087807B
BUTZ, J.Defendant Luis Alberto Dominguez entered a negotiated plea to a reduced charge of voluntary manslaughter and attempted first degree robbery in concert and admitted certain enhancements in exchange for dismissal of other charges and enhancements and a stipulated state prison sentence of 26 years. His subsequent motion to withdraw his plea was denied and the trial court sentenced him to an aggregate term of 26 years. On appeal, defendant contends that he should be allowed to withdraw his plea because the structure of his sentence is unauthorized and no lawful way exists for the court to arrive at 26 years. While we conclude he is estopped to challenge the “structure” of his sentence, we shall modify the judgment insofar as the trial court chose the wrong number of years to fulfill the parties’ agreement of a concurrent midterm sentence for attempted first degree robbery in concert.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and other gang members planned to burglarize a home and steal guns. During the burglary on November 5, 2002, defendant waited in the car while his accomplices shot and killed a 14-year-old boy who lived in the home.
An information filed September 10, 2003, charged defendant as follows: first degree murder (Pen. Code, § 187--count 1) with special circumstances (§ 190.2, subd. (a)(17)(A), (G)) and an intentional discharge of a firearm with great bodily injury and death allegation (§ 12022.53, subds. (d), (e)(1)); first degree residential burglary (§ 459--count 2) with an arming allegation (§ 12022, subd. (a)); and attempted first degree robbery in concert (§§ 664/211, 213, subd. (a)(1)(A)--count 3) with an intentional discharge of a firearm with great bodily injury and death allegation (§ 12022.53, subds. (d), (e)(1)) and a gang enhancement (§ 186.22, subd. (b)(1)).
Undesignated statutory references are to the Penal Code.
On September 16, 2004, defendant entered a negotiated plea of guilty to voluntary manslaughter (§ 192, subd. (a)--count 1 as amended) and attempted first degree robbery in concert (count 3). In connection with count 3, defendant admitted the intentional discharge of a firearm allegation as amended (§ 12022.53, subds. (c), (e)(1)) and the gang enhancement. Defendant entered his pleas and admissions in exchange for dismissal of the remaining charge, allegations and enhancements, dismissal of an unrelated case charging a violation of section 243 (case No. TF031769A), a stay on the punishment for the gang enhancement and a stipulated state prison sentence of 26 years. The parties agreed that defendant would receive the midterm for voluntary manslaughter, a concurrent midterm for attempted first degree robbery in concert, and a consecutive 20-year term for the section 12022.53, subdivisions (c) and (e)(1) enhancement.
The plea agreement also recognized that defense counsel had assisted defendant in negotiating a settlement of two Stanislaus County cases, whereby one case would be dismissed (case No. 1052217) and in the second case, a sentence of 18 years would be imposed for kidnapping with great bodily injury and a gang enhancement (case No. 1055418) with time to run concurrent to the current San Joaquin County case, and an agreement to file no charges related to weapons found when defendant was arrested in Modesto or any additional burglary charges.
In June 2005, defendant moved to withdraw his plea, claiming his attorney incorrectly advised him with respect to the applicability of an enhancement the Stanislaus County district attorney planned to add to one of the Stanislaus County cases. The court denied defendant’s motion to withdraw his plea.
The court sentenced defendant to state prison for an aggregate term of 26 years, that is, the midterm of six years for voluntary manslaughter, a concurrent midterm of 18 months for attempted first degree robbery in concert, and a consecutive 20-year term for the section 12022.53, subdivisions (c) and (e)(1) enhancement. The court stayed sentence on the gang enhancement.
Defendant appealed and his request for a certificate of probable cause (§ 1237.5) was granted.
DISCUSSION
Defendant entered his plea in exchange for a 26-year prison sentence as well as other substantial benefits. In order to withdraw his plea, he seeks to undo the now-challenged arrangement as unauthorized because the court “does not have the discretion to order an enhancement applicable to a certain count [count 3] to run consecutive to a different count [count 1] . . . [and] the midterm sentence [which was run concurrent] for the attempted home invasion robbery charged in count 3 is not [18] months [but instead] is three years.” This he cannot do.
In general, a defendant who fails to object in the trial court does not forfeit a challenge to an unauthorized sentence on appeal. An exception applies where a defendant has entered a negotiated plea in exchange for a specified sentence even if the court acted in excess of jurisdiction, provided the court did not lack fundamental jurisdiction. (People v. Hester (2000) 22 Cal.4th 290, 295 (Hester).) “The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process.” (Ibid.; People v. Chatmon (2005) 129 Cal.App.4th 771, 773; In re Giovani M. (2000) 81 Cal.App.4th 1061, 1065.) A lack of fundamental jurisdiction means “the court was entirely without power over the subject matter or the parties.” (In re Harris (1993) 5 Cal.4th 813, 836.) “A court [with power over the subject matter and parties] acts in excess of its jurisdiction when ‘it has no “jurisdiction” (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.’” (People v. Tindall (2000) 24 Cal.4th 767, 776.) An act in excess of jurisdiction is voidable but subject to forfeiture and estoppel; an act without fundamental jurisdiction is void and not subject to forfeiture or estoppel. (In re Harris, supra, 5 Cal.4th at pp. 836-837; People v. Ellis (1987) 195 Cal.App.3d 334, 343, criticized on other grounds in People v. Panizzon (1996) 13 Cal.4th 68, 89, fn. 15.)
Defendant concedes that the court had fundamental jurisdiction over the subject matter (the case) and the parties (defendant). And rightly so. Rarely does a court have no power over the parties or the subject of the dispute. “Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.” (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288.)
Defendant argues that he should not be estopped from raising his claim because his plea did not waive the sentencing irregularity. Defendant relies upon People v. Nguyen (1993) 13 Cal.App.4th 114. The Nguyen court noted that it had not been presented with the question whether a defendant may waive appellate review of a sentence “when it was impossible for the court to reach the bargained term by proper sentencing means.” (Id. at p. 124, fn. 13.)
Defendant’s reliance upon Nguyen is misplaced. Nguyen was decided before Hester. Hester concluded that a defendant was estopped from complaining about the imposition of a concurrent term for one of the counts when section 654 would otherwise apply because the defendant had entered a negotiated plea and received the benefit of his bargain. (Hester, supra, 22 Cal.4th at pp. 293-296.) “[D]efendants are estopped from complaining of sentences to which they agreed.” (Id. at p. 295.)
Here, the parties agreed to a reduction of the murder count with special circumstances to voluntary manslaughter. Defendant entered a negotiated guilty plea to voluntary manslaughter (count 1). Defendant also pleaded guilty to attempted first degree robbery in concert (count 3). The parties agreed defendant would receive the midterm on counts 1 and 3, with the term on count 3 to run concurrent.
In connection with count 3, defendant admitted the intentional discharge of a firearm allegation as amended. (§ 12022.53, subds. (c), (e)(1).) As originally alleged in connection with both the murder count and the attempted first degree robbery in concert count, the firearm enhancement carried a term of 25 years to life. (§ 12022.53, subds. (d), (e)(1).)
As amended in connection with count 3, the firearm enhancement carried a term of 20 years. (§ 12022.53, subds. (a)(4),(18), (c), (e)(1).) Defendant also admitted the gang enhancement. The parties agreed the sentence on the gang enhancement would be stayed.
The firearm enhancement alleged in connection with count 1 no longer applied when count 1 was amended from murder to voluntary manslaughter. Section 12022.53 lists several offenses, including murder, to which the intentional discharge of a firearm enhancement applies. (§ 12022.53, subd. (a)(1).) Voluntary manslaughter is not listed.
Defendant entered his negotiated plea and admission in the current case in exchange for a stipulated sentence of 26 years. Based on his pleas and admissions, he obtained additional, substantial benefits, that is, the dismissal of the remaining charge (first degree burglary), allegations and enhancements, dismissal of an unrelated case charging a violation of section 243, negotiated settlements of two Stanislaus County cases, whereby one case would be dismissed and in the second case, a sentence of 18 years would be imposed for kidnapping with great bodily injury and a gang enhancement, with time to run concurrent to the current San Joaquin County case, and the district attorney’s agreement not to file charges related to weapons found when defendant was arrested in Modesto or any additional burglary charges.
The court imposed sentence according to the parties’ agreement, that is, the midterm on both counts with the midterm on count 3 to run concurrent, and a consecutive 20-year term for the firearm enhancement. Defendant, represented by counsel, knowingly, voluntarily and expressly agreed to the sentencing irregularity in order to obtain substantial benefits. The trial court imposed 20 years for the firearm enhancement; section 12022.53, subdivision (c) provides for the 20-year term. The trial court imposed an authorized term. That the court ordered the firearm enhancement attached to count 3 to run consecutive to count 1 instead is a sentence irregularity (§ 1170.1, subds. (a), (d)) but defendant never objected and he received the benefit of his negotiated plea bargain. He will not be allowed “to trifle with the courts” by attempting to gain an advantage by seeking to undo the agreement on appeal. His argument that he is not trying to improve his bargain or to lessen his sentence is rejected. Defendant is estopped from complaining on appeal about the structure of the sentence he specifically agreed to as part of his plea bargain.
Defendant claims that estoppel should not apply for public policy reasons, that is, the structure of his sentence “will cause unnecessary and disruptive uncertainty in trial courts and in the Department of Corrections and Rehabilitation.” Defendant provides no support for such a speculative statement and we reject it. (Cf. People v. Renfro (2004) 125 Cal.App.4th 223, 232-233.)
We shall modify the judgment insofar as the trial court imposed an unauthorized sentence, that is, 18 months for count 3. The plea agreement provided for a concurrent midterm sentence for count 3, attempted first degree robbery in concert. Neither the plea agreement nor the parties specified the number of months or years for the midterm sentence for count 3. The trial court imposed 18 months. Defendant claims the trial court erred and that the midterm is three years, that is, one-half of the midterm of six years for attempted first degree robbery in concert. (§§ 664/213, subd. (a)(1)(A).) We agree. The trial court simply stated the wrong number of years. The trial court imposed an unauthorized sentence and we shall thus modify the judgment. (People v. Smith (2001) 24 Cal.4th 849, 852.)
DISPOSITION
The judgment is modified to provide for a concurrent midterm of three years for count 3, attempted first degree robbery in concert (§§ 664/211, 213, subd. (a)(1)(A)). The trial court is directed to prepare an amended abstract of judgment accordingly and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: MORRISON, Acting P. J., ROBIE, J.