Opinion
F078516
09-19-2019
THE PEOPLE, Plaintiff and Respondent, v. ALEX LEON HOPKINS, Defendant and Appellant.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F13911181)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Don Penner, Judge. Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Levy, Acting P. J., Poochigian, J. and DeSantos, J.
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INTRODUCTION
Appellant Alex Leon Hopkins pled no contest to misdemeanor driving under the influence, a violation of Vehicle Code section 23152, subdivision (a), in case No. F13911181 (case No. 181); and to a felony violation of Vehicle Code section 10851, vehicle theft, in case No. F13910824 (case No. 824). He also admitted to a violation of the terms of mandatory supervised release in case No. F11900006 (case No. 006). Hopkins appealed, and appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
Hopkins was placed on mandatory supervised release status on March 9, 2012, with 1,321 days. Mandatory supervised release was revoked on April 26, 2012.
The complaint in case No. 181 was filed against Hopkins on November 25, 2013, and alleged multiple criminal counts. It also was alleged that Hopkins had served four prior prison terms, within the meaning of Penal Code section 667.5, subdivision (b).
References to code sections are to the Penal Code unless otherwise noted. --------
Hopkins was arraigned on December 5, 2013, in case No. 181. When he failed to appear for the pre-preliminary examination hearing on February 10, 2014, a bench warrant was issued.
On October 23, 2018, Hopkins appeared with counsel for a disposition in case Nos. 181 and 824. He pled no contest to misdemeanor driving under the influence, a violation of Vehicle Code section 23152, subdivision (a), in case No. 181; and to a felony violation of Vehicle Code section 10851, vehicle theft, in case No. 824.
The parties stipulated that Hopkins would receive a term of two years in case No. 824, with the term for the misdemeanor offense in case No. 181 to run concurrently with the term for case No. 824. The terms for the offenses in case Nos. 181 and 824 were also to run concurrently to the term to be imposed in another matter, case No. 006, pending before another judicial officer. The terms in case Nos. 181 and 824 running concurrently to the term in case No. 006 were conditioned upon Hopkins being sentenced in case No. 006 before being sentenced in the other two cases. Also at this time, after entry of Hopkins's pleas, charges in two other cases were dismissed.
The trial court confirmed that there was no agreement between the parties that Hopkins receive a "split term" at sentencing. Whether a "split term" was imposed at sentencing "would be left up to the court." Hopkins was ordered to return on November 27, 2018, for sentencing.
Hopkins was sentenced in case No. 006 on October 23, 2018, after admitting to a violation of mandatory supervised release. He was committed for a period of 1,005 days.
At the November 27, 2018 sentencing hearing on case Nos. 181 and 824, the trial court verified that the agreed upon term in case No. 824 was a stipulated two-year term. The trial court then stated, "I assume the defense isn't applying for a split term." When defense counsel responded that the defense was requesting a split term, the trial court noted that Hopkins "had close to a thousand days" as of October to serve in case No. 006. The defense replied, "Then we're not, Your Honor. We'll leave it up to the court."
The trial court stated it intended to deny probation in case No. 181 and impose a concurrent misdemeanor sentence, which the defense said was acceptable.
The trial court imposed a term of two years for the conviction in case No. 824 and did not impose a split term because Hopkins was serving a term of commitment that exceeded two years. Therefore, Hopkins was to serve the entire two-year term in custody.
After a recess in which Hopkins could confer with his counsel, the trial court asked if Hopkins had enough time to confer, and Hopkins responded, "Yes." Defense counsel affirmed that the defense was ready to proceed with sentencing.
For the misdemeanor offense in case No. 181, the trial court imposed a term of 364 days. Various fees and fines were imposed in case No. 824. Credits were awarded in both cases.
On December 7, 2018, Hopkins filed a notice of appeal. It states that the appeal is based on the sentence or other matters occurring after the plea. However, Hopkins sought and obtained a certificate of probable cause.
DISCUSSION
Appellate counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436 on July 15, 2019. That same day, this court issued its letter to Hopkins inviting supplemental briefing. No supplemental brief was filed.
In the request for a certificate of probable cause, defense counsel stated that Hopkins "may not have been a sentenced prisoner" at the time of the November 27, 2018 sentencing hearing in case Nos. 181 and 824 and that the trial court did not split the sentence because a split would not benefit Hopkins.
It appears the parties contemplated allowing the trial court to exercise discretion to impose a split sentence, wherein Hopkins would serve a portion of the term in custody and a portion on mandatory supervised release. (§ 1170, subd. (h)(5)(A), (B).)
We first note that when the plea agreement was reached, a split sentence was not part of the agreement. It was in the trial court's discretion whether to impose a split sentence. At the November 27, 2018 sentencing hearing, defense counsel did not request a split sentence.
The probation report reflects that Hopkins was committed for 1,005 days on October 23, 2018. Therefore, Hopkins was in custody at the time of the November 27, 2018 sentencing hearing, as noted by the trial court.
Whether to impose a split sentence was a discretionary sentencing choice that the parties consciously did not include in the plea agreement and left to the discretion of the trial court. No objection to the sentence was raised in the trial court. Having failed to object in the trial court, the issue is not cognizable on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353; People v. Welch (1993) 5 Cal.4th 228, 235.)
Furthermore, the sentence imposed by the trial court was the sentence agreed to as part of the plea bargain; two years for the offense in case No. 824 with the term for the offense in case No. 181 to run concurrently. Hopkins received the benefit of his bargain and is estopped from challenging the sentence on appeal. (People v. Hester (2000) 22 Cal.4th 290, 295.)
To the extent Hopkins is challenging the trial court's exercise of its discretion under the plea agreement (People v. Buttram (2003) 30 Cal.4th 773, 785-786), he has failed to establish an abuse of that discretion. We do not overturn a trial court's exercise of discretion unless the exercise of that discretion exceeds the bounds of reason. (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1225.) As of the November 27, 2018 sentencing hearing, Hopkins had served only 35 days of the 1,005 days imposed on October 23, 2018, leaving 970 days remaining to be served. As the trial court noted, Hopkins would be in custody in case No. 006 for a period exceeding the two years imposed in case No. 824 and a split term would provide no benefit to Hopkins.
After an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.