Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County Super. Ct. No. F05909538-1, Houry A. Sanderson, Judge.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
Appellant was convicted of two counts of robbery with firearm enhancements after pleading no contest to those counts. He challenges the sentence on each count. We will affirm the judgment of conviction, but remand for sentencing on count 2.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant, holding an object that looked like a handgun, demanded money from Marsha Solorio when she, her son, and her boyfriend, Almae Wesson, went to a credit union after hours to use the ATM. Solorio gave appellant $49. Meanwhile, Tonia Timberlake and her son arrived to use the ATM. Appellant’s accomplice, armed with a shotgun, demanded money from Timberlake and made her use the ATM; she asked for more money than was in her account and the ATM refused the transaction. The man with the shotgun then made her empty her purse and he took two $1 bills from the contents. In the meantime, appellant demanded Solorio’s car keys; Solorio refused to surrender them. The man with the shotgun went to Solorio’s car and held the shotgun to Wesson’s head. While the men’s attention was on Solorio and Wesson, Timberlake got in her car and fled. The suspects chased her. While they were so occupied, Solorio drove away. Solorio and Timberlake later identified appellant as the man with the handgun.
Appellant was charged with three counts of first degree ATM robbery (Pen. Code § 211), with a different victim in each count: (1) Timberlake, (2) Solorio, and (3) Wesson. He was also charged with one count of attempted carjacking (Pen. Code, §§ 664, 215, subd. (a)) and firearm enhancements. He pled no contest to counts 1 and 2 and to a Penal Code section 12022.5, subdivision (a) firearm enhancement on each count. In exchange, the People dismissed the remaining counts and enhancements, and the court indicated a six-year lid on the sentence. The court sentenced appellant to the upper term (six years) on count 1 and a concurrent term on count 2; it stayed the firearm enhancements. Appellant contends the court imposed the upper term on the first count, in violation of his constitutional rights as discussed in Blakely v. Washington (2004) 542 U.S. 296, Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham), and People v. Black (2007) 41 Cal.4th 799. He contends the abstract of judgment incorrectly reflects that the upper term was also imposed on count 2, although the court did not orally pronounce any sentence on count 2; alternatively, the upper term on count 2 is not supported by any statement of reasons. Respondent contends appellant’s claims are barred by his failure to obtain a certificate of probable cause and waived by his failure to object at the time of sentencing.
The plea form indicates appellant pled no contest. Orally in court, appellant pled guilty to counts 1 and 2 and no contest to the Penal Code section 12022.5, subdivision (a), enhancements. His attorney represented that appellant admitted the robberies, but denied being armed. The discrepancy does not affect the outcome of his appeal.
DISCUSSION
I. Cunningham Error
In Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856], the United States Supreme Court held that, under California’s determinate sentencing law, the middle term was the statutory maximum sentence that could be imposed and, except for a prior conviction, any fact that increased the penalty for a crime beyond that statutory maximum had to be submitted to the jury and proved beyond a reasonable doubt. (Id. at p. __ [127 S.Ct. at p. 868].) Appellant contends he was improperly sentenced to the upper term on count 1 because the aggravating factors the court relied on were not submitted to a jury or proved beyond a reasonable doubt.
A defendant may not appeal from a judgment of conviction based on a plea of guilty or no contest unless he obtains a certificate of probable cause from the trial court. (Pen. Code, § 1237.5.) Two types of issues may be raised without such a certificate: (1) “‘issues relating to the validity of a search and seizure’” and (2) “‘issues regarding proceedings held subsequent to the plea[, to determine] the degree of the crime and the penalty to be imposed.’ [Citation.]” (People v. Shelton (2006) 37 Cal.4th 759, 766.) In determining whether a certificate is required, courts look to the substance of the appeal, i.e., to what the defendant is challenging, not the time or manner in which the challenge is made. (People v. Buttram (2003) 30 Cal.4th 773, 781.) Thus, when a defendant contends a certificate of probable cause is not required because HILL, J. he is challenging only his sentence, “the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of [Penal Code] section 1237.5.” (Id. at p. 782.)
When a plea agreement provides for a maximum sentence or “lid,” the court must distinguish between a challenge to the authority of the court to impose the maximum sentence and a challenge to the exercise of the court’s discretion in determining the sentence to be imposed within the agreed maximum. (People v. Shelton, supra, 37 Cal.4th at p. 770.) A challenge to the exercise of individualized sentencing discretion within an agreed maximum sentence is not an attack on the validity of the plea and does not require a certificate of probable cause. (People v. Buttram, supra, 30 Cal.4th at pp. 790-791.)
By agreeing to a maximum sentence, however, a defendant effectively agrees that maximum is a legally authorized sentence. “[T]he specification of a maximum sentence or lid in a plea agreement normally implies a mutual understanding of the defendant and the prosecutor that the specified maximum term is one that the trial court may lawfully impose and also a mutual understanding that, absent the agreement for the lid, the trial court might lawfully impose an even longer term.” (People v. Shelton, supra, 37 Cal.4th at p. 768.) Accordingly, a defendant who enters into a plea agreement with a specified maximum sentence, then challenges the maximum sentence on the ground it is unconstitutional or violates a statute, is challenging the validity of the plea and must obtain a certificate of probable cause. (Id. at p. 769; People v. Young (2000) 77 Cal.App.4th 827, 832-834.)
Appellant’s plea included a six-year lid on the sentence. By entering into the plea agreement, appellant effectively agreed that the upper term was a legally authorized sentence for his offenses. On count 1, the upper term of six years was imposed, in accordance with the agreement. Appellant’s challenge to imposition of the upper term on count 1 on Cunningham grounds is a challenge to the court’s authority to impose that term. It is a challenge to the validity of the plea, which requires a certificate of probable cause. No certificate of probable cause was obtained, and this challenge to appellant’s sentence on count 1 may not be considered. To the extent appellant challenges the sentence on count 2 as violating Cunningham on the same grounds, the same analysis applies and that challenge also may not be considered.
II. Sentencing on Count 2
A. Certificate of probable cause
Appellant challenges the sentence on count 2 on two alternative grounds. First, the court did not orally pronounce sentence on count 2, and therefore the upper term sentence reflected in the minute order and abstract of judgment is unauthorized. Second, if the court did impliedly impose an upper term on count 2, it failed to state its reasons for doing so on the record and, in the absence of such reasons, only the middle term could be imposed.
When a defendant negotiates for a specified sentence and receives that sentence, an appellate challenge to the sentence imposed is a challenge to an integral part of the negotiated plea, and therefore is a challenge to the validity of the plea itself, for which a certificate of probable cause is required. (People v. Buttram, supra, 30 Cal.4th at p. 782.) A plea agreement with a specified maximum sentence, however, leaves open the actual sentence to be imposed within that maximum; that issue is left to the normal sentencing discretion of the trial court. (Id. at p. 785.) A challenge to the exercise of that sentencing discretion does not require a certificate of probable cause.
“[A]bsent contrary provisions in the plea agreement itself, a certificate of probable cause is not required to challenge the exercise of individualized sentencing discretion within an agreed maximum sentence. Such an agreement, by its nature, contemplates that the court will choose from among a range of permissible sentences within the maximum, and that abuses of this discretionary sentencing authority will be reviewable on appeal, as they would otherwise be. Accordingly, such appellate claims do not constitute an attack on the validity of the plea, for which a certificate is necessary.” (People v. Buttram, supra, 30 Cal.4th at pp. 790-791.)
Appellant’s negotiated plea provided for a maximum sentence. It did not include any express waiver of the right to appeal based on a challenge to the trial court’s exercise of its sentencing discretion within that maximum. Appellant contends the court failed to pronounce any sentence on count 2, essentially arguing that the court did not exercise its sentencing discretion at all on that count. He challenges the sentence recorded in the minutes and abstract of judgment as an erroneous recording by the clerk, which does not represent an exercise of the court’s discretion. This challenge raises issues regarding proceedings held subsequent to the plea, to determine the degree of the crime and the penalty to be imposed. It does not require a certificate of probable cause.
B. Failure sentence on count 2
“In a criminal case, judgment is rendered when the trial court orally pronounces sentence. [Citations.]” (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9.) The subsequent minute order merely records the judgment orally pronounced.
“Entering the judgment in the minutes being a clerical function [citation], a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error. Nor is the abstract of judgment controlling. ‘The abstract of judgment is not the judgment of conviction. By its very nature, definition and terms [citation] it cannot add to or modify the judgment which it purports to digest or summarize.’ [Citation.]” (People v. Mesa (1975) 14 Cal.3d 466, 471.)
Appellant asserts that the court failed to orally pronounce sentence on count 2.
In pronouncing sentence, the trial court stated:
“I will deny you probation, sir, in any form or fashion. Commit you to Department of Corrections for the aggravated term in [sic] six years in Count One of the Information as filed for the offense of Penal Code Section 211. I find that the multiple victims aggravate the situation to the point where the mitigating factors are outweighed by aggravating. The fact that a weapon was used either by you or anyone else is another aggravating factor. And therefore, give you the aggravated term of six years. I will stay the 12022.5(a), but you will still get the benefit of the plea. Count Two will run concurrent to Count One with credits for time served …”
The court did not state what sentence was being imposed on count 2. The minute order and abstract of judgment erroneously reflect the same sentence on count 1 and count 2: a six-year sentence with the Penal Code section 12022.5, subdivision (a), enhancement stayed. That sentence was not pronounced by the court, and it was clerical error to include it in the minute order and abstract of judgment.
Respondent argues that a concurrent upper term for each count was contemplated by the parties and intended by the court. Respondent cites no authority for inferring a sentence from extrinsic evidence, where no sentence was expressly pronounced by the court. Further, the record does not support such an inference. At the plea hearing, appellant acknowledged he was promised “a maximum of six-year lid.” At the sentencing hearing, the probation officer recommended consecutive middle terms totaling 10 years and eight months. Defense counsel’s sentencing memorandum argued for a mitigated three-year term on each count, to run concurrently, or a four-year middle term on each count, to run concurrently.
The probation report recommended the middle term on count 1 (four years) and the middle term on the firearm enhancement on count 1 (four years). It recommended one-third the middle term on count 2 and the count 2 firearm enhancement (one year and four months for each).
The record indicates appellant agreed to a maximum total sentence of six years, with an opportunity to argue for a sentence less than the maximum. After argument, the court imposed the upper term on count 1, but failed to expressly pronounce any sentence on count 2. Under the circumstances, this court cannot infer the imposition of any particular sentence on count 2.
“Upon conviction it is the duty of the court to pass sentence on the defendant and impose the punishment prescribed. [Citations.] Pursuant to this duty the court must either sentence the defendant or grant probation in a lawful manner; it has no other discretion. [Citations.]” (People v. Cheffen (1969) 2 Cal.App.3d 638, 641.) The trial court is not authorized simply to waive sentencing on some counts; any error in failing to impose sentence on some counts would be subject to judicial correction when it ultimately comes to the attention of the trial court or the appellate court. (People v. Cunningham (2001) 25 Cal.4th 926, 1044-1045.) Thus, the court was required to pronounce sentence on count 2, but failed to do so.
Respondent contends defendant waived this claim by failing to object during sentencing. A defendant is required “to raise certain issues at the time of sentencing,” and, as to those issues, failure to make “a timely and meaningful objection forfeits or waives the claim. [Citations.]” (People v. Scott (1994) 9 Cal.4th 331, 351.) “[C]laims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner.” (Id. at p. 354.) Where a defendant does not contend the court imposed a commitment “‘in a procedurally or factually flawed manner,’” but rather contends the court completely failed to exercise its discretion, lack of objection is not fatal to the claim. (In re Sean W. (2005) 127 Cal.App.4th 1177, 1181-1182.) “‘Failure to exercise a discretion conferred and compelled by law constitutes a denial of a fair hearing and a deprivation of fundamental procedural rights, and thus requires reversal. [Citations.]’ [Citation.]” (People v. Downey (2000) 82 Cal.App.4th 899, 912.)
The court did not exercise its sentencing discretion on count 2; it did not impose any sentence on that count. Because appellant is entitled to the exercise of that discretion, the case must be remanded for sentencing on that count.
DISPOSITION
The judgment of conviction is affirmed, the sentence is vacated, and the matter is remanded for sentencing on count 2. After sentencing, the trial court is directed to prepare a corrected abstract of judgment and forward it to the Department of Corrections.
WE CONCUR: LEVY, Acting P.J., CORNELL, J.