Opinion
C042263/C042264.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. ROBERT A. INGRAM, Defendant and Appellant.
Defendant Robert Ingram pled guilty and stipulated to a maximum sentence of 22 years 8 months for convictions arising from three different cases. As part of the plea, he waived his appeal rights. On appeal, defendant contends that: (1) there was a possible dual use enhancement violation; and (2) the court violated the plea agreement by sentencing him to a consecutive term on a misdemeanor conviction. In fact, defendant received a more lenient sentence than the one for which he bargained. Because of his waiver of appeal rights, we shall dismiss this appeal.
BACKGROUND
In Sacramento County case No. 00F09494 (case No. 9494), defendant was charged with possession of a firearm by a felon and assault with personal use of a firearm with a special allegation that he suffered a strike due to a 1993 conviction for assault with a firearm.
In case No. 00F07179 (case No. 7179), defendant was charged with transportation of methamphetamine and driving under the influence (DUI) causing injury to four persons, with great bodily injury as to one of the victims. The information in case No. 7179 also alleged a strike for a 1985 robbery conviction.
At the time the Sacramento cases were filed, defendant had recently been convicted in Placer County case No. 62-017507 on a felon-in-possession-of-firearm charge, for which he was sentenced to nine years in prison.
At a hearing on the two Sacramento cases, defendant reached an agreement with the prosecutor. Under its terms, in case No. 7179 defendant would plead no contest to transportation of methamphetamine and DUI causing injury; he would also admit the DUI injury enhancements, as well as the robbery strike. With respect to case No. 9494, defendant would plead guilty to misdemeanor brandishing a firearm.
Although the judge outlined the potential ranges of punishment for each charge, the agreement was that defendant would receive a "stipulated" sentence of 20 years 4 months in state prison on both Sacramento cases.
It was further acknowledged that defendants sentence on the Placer County case would be restructured which, the trial judge noted, "is going to add 2 years, 4 months" to defendants aggregate prison sentence.
Defendant also waived "all appeal rights to . . . Sacramento County cases," and the matter was referred for a probation report.
Although the waiver referred to the Sacramento cases, it was in the Sacramento proceeding that the total sentence was agreed upon and there is no claim that addition of the Placer County case resulted in a sentence in excess of the bargain.
The probation report calculated defendants prison sentence as 19 years, rather than 20 years 4 months, not including the misdemeanor. When the two-year four-month Placer County sentence was added, the total aggregate term was 21 years 4 months, rather than the originally agreed 22-year 8-month prison term. When the trial judge asked defense counsel if he "wish[ed] to be heard as to that issue," he replied negatively and the matter was submitted.
The chart below summarizes the sentence imposed by the court on all three cases:
Sacramento County Case No. 7179 ------------------------------------------------------------------------- | Charge | Term | |-----------------------------------|-------------------------------------| | DUI with injury (Veh. Code, | 6 years principal term - 3 | | § 23153, subd. (a)) | years (upper) doubled (Pen. | | | Code, § 667, subd. (e)(1)) | |-----------------------------------|-------------------------------------| | Enhancement - multiple victims | 3 years consecutive | | (Veh. Code, § 23558) | | |-----------------------------------|-------------------------------------| | Enhancement - great bodily | 3 years consecutive | | injury (Pen. Code, § 12022.7, | | | subd. (a)) | | |-----------------------------------|-------------------------------------| | Transportation - methamphetamine | 2 years 1/3 midterm (1 year) | | (Health & Saf. Code, § 11379, | doubled (Pen. Code, § 667, | | subd. (a)) | subd. (e)(1)) consecutive | |-----------------------------------|-------------------------------------| | Prior (Pen. Code, § 667, subd. | 5 years consecutive | | (a)) | | |-----------------------------------|-------------------------------------| | Total | 19 years | ------------------------------------------------------------------------- Sacramento County Case No. 9494 ------------------------------------------------------------------------- | Charge | Term | |-----------------------------------|-------------------------------------| | Misdemeanor brandishing a | 1 year county jail, credited | | firearm (Pen. Code, § 417, subd. | against time already served | | (a)(2)) | in custody. | ------------------------------------------------------------------------- Placer County Case No. 7507 ------------------------------------------------------------------------- | Charge | Term | |-----------------------------------|-------------------------------------| | Felon with a firearm (Pen. Code, | 16 months 1/3 midterm (8 | | § 12021, subd. (a)(1)) | months) doubled (Pen. Code, | | | § 667, subd. (e)(1)) | | | consecutive | |-----------------------------------|-------------------------------------| | Charge | Term | |-----------------------------------|-------------------------------------| | Enhancement - Placer County | 1 year consecutive | | prior (Pen. Code, § 667.5) | | |-----------------------------------|-------------------------------------| | Total | 2 years, 4 months | ------------------------------------------------------------------------- Aggregate Prison Total: 21 years 4 months.
After obtaining certificates of probable cause in both Sacramento cases, defendant filed this appeal.
I
"Possible" Prior Conviction Double-Use Violation
The probation report stated that "It should be noted, if the 667(a) P.C. prior conviction alleged in Sacramento County represents the same prior alleged in Placer County Case #62-017507, only one may be imposed." The report noted the probation report from Placer County had been requested, but had not yet been received.
Citing People v. Jones (1993) 5 Cal.4th 1142, 1152-1153 (Jones), defendant claims the probation officer rightly observed that a single prior felony cannot be used as an enhancement under both Penal Code section 667, subdivision (a) and Penal Code section 667.5. Because the record fails to preclude the possibility that this occurred, defendant urges the case be remanded for clarification and correction of this "possible" sentencing error.
Defendants waiver of his right to appeal encompassed any claim of error as set forth in Jones. Where a defendant negotiates for a specific sentence and a waiver of appellate rights is included in the bargain, he or she gives up all claims of sentencing error which do not violate the bargain or run afoul of the courts fundamental jurisdiction. (People v. Nguyen (1993) 13 Cal.App.4th 114, 121-123.) "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." (Id. at p. 123, citing People v. Beebe (1989) 216 Cal.App.3d 927, 932.) The prohibition on dual enhancements set forth in Jones is a garden variety sentencing error — it is not an act in excess of the courts fundamental jurisdiction. (See People v. Olson (1989) 216 Cal.App.3d 601, 603 [court declined to redress dual-use-of-facts error].)
II
Consecutive Sentencing for Misdemeanor
Defendant next claims the court violated the plea agreement when it ran the misdemeanor brandishing count consecutively to the prison term. He claims that at the hearing at which the agreement was struck, it was contemplated that the misdemeanor jail term would run concurrently.
The court did not explicitly state that the misdemeanor sentence was to run consecutively. It merely sentenced him to one year, to be taken from time already served in custody. We nevertheless assume the sentence was run consecutively, since by using presentence custody time to satisfy the misdemeanor, the court deprived defendant of credit he would otherwise have been able to use against his prison time.
We find the waiver of appeal rights applicable to this claim as well, since even with a consecutive sentence, the total sentence was with the bargain.
Having waived his right to appeal to the sentence to which he stipulated, defendant cannot challenge the judgment which imposed a more lenient sentence than that which he agreed.
Although defendant obtained certificates of probable cause in both Sacramento cases, this does not affect our decision since these certificates cannot serve to modify or nullify defendants waiver of appeal rights.
DISPOSITION
The appeal is dismissed.
We concur: SCOTLAND, P.J. and HULL, J.