Opinion
F049512
5-4-2007
THE PEOPLE, Plaintiff and Respondent, v. TYRECE DEVELLE JEFFERSON, Defendant and Appellant.
Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Stephen G. Herndon and Alison Elle Aleman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
Before Ardaiz, P.J., Gomes, J. and Kane, J.
Pursuant to a plea bargain, appellant entered a plea of guilty to two counts of robbery (Pen. Code, § 211), admitted two firearm use allegations (§ 12022.5), and was sentenced to a prison term of 10 years. Four other counts were dismissed. On this appeal he contends that his sentence is unauthorized and that "the proper remedy is to remand the case to permit the trial court to exercise discretion with respect to resentencing or to permit appellant to withdraw his plea."
All further references are to the Penal Code unless otherwise stated.
As we shall explain, appellant is estopped from challenging the sentence to which he agreed. We will affirm the judgment.
FACTS
The pertinent facts here are procedural. The deputy district attorney told the court at the plea hearing: "The offer by the People in this case is that the defendant will be pleading in the refiled complaint to Count One and Count Two. The enhancement under 12022.53(b) will be amended to 12022.5. The exposure of three, four, and ten, we are fixing it at a four-year term, the middle term, for the enhancement. The defendant would be admitting Count Two, as well, with the 12022.5 enhancement. We have agreed to a total term of ten years arrived at, as an aggravated term under Count One of five years. The four-year term as I mentioned under 12022.5 of [sic] the middle term of what that enhancement. A subordinate one-year term under Count Two, one-third of three years, and the remaining gun enhancement of 12022.5 would be run concurrently. The total term being ten years." Appellant accepted this offer. The "Felony Advisement, Waiver of Rights, and Plea Form" initialed and signed by appellant described the term as a "stipulated term of 10 years."
Appellants robberies were "punishable by imprisonment in the state prison for two, three, or five years." (§ 213, subd. (a)(2).) Personal use of a firearm in the commission of a felony "shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense." (§ 12022.5, subd. (a).) Appellant thus received the five-year upper term on his Count One robbery, plus the four-year middle term on his Count One, section 12022.5 enhancement, plus one year on his Count Two robbery (one-third of the middle term of three years), for a total of 10 years. The court ordered appellants Count Two, section 12022.5firearm use enhancement to run concurrently.
DISCUSSION
Appellant correctly points out that under the plain language of section 12022.5, subdivision (a), the firearm use enhancement called for by that statute cannot be imposed concurrently. It is "an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years ...." (§ 12022.5, subd. (a), italics added.) He argues that because of this, we must remand the case so that appellant can be resentenced or can withdraw his plea. We do not agree.
"The rule that defendants may challenge an unauthorized sentence on appeal even if they failed to object below is itself subject to an exception: Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. 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. [Citations.]" (People v. Hester (2000) 22 Cal.4th 290, 295; see also In re Griffin (1967) 67 Cal.2d 343, 347-348, and People v. Jones (1989) 210 Cal.App.3d 124, 132-137.) There is no question that the court had the power to sentence appellant for his crimes. There is furthermore no question that appellant could have been sentenced to 10 years in a lawful manner, such as by simply striking the Count Two firearm use enhancement instead of attempting to impose it as a concurrent term. "Whether [a party] shall be estopped depends on the importance of the irregularity not only to the parties but to the functioning of the courts and in some instances on other considerations of public policy. ... [¶] In the present case no policy, substantive or procedural precludes estoppel ...." (In re Griffin, supra, 67 Cal.2d at p. 348.)
Appellant attempts to distinguish People v. Hester, by calling our attention to Hesters statement that "[h]ad defendant been truly surprised at the time of sentencing to find that concurrent terms were being imposed, his remedy would have been to attempt to withdraw his plea on grounds of violation of the plea bargain." (People v. Hester, supra, 22 Cal.4th at p. 296.) He argues that he did move to withdraw his plea, and that his motion was denied. What he does not mention, however, is that his motion to withdraw his plea never raised any contention that his concurrent one-year section 12022.5 enhancement was unauthorized. Nor did the motion contend that he was surprised to receive the concurrent one-year firearm use enhancement he had agreed to. Nor did the motion contend that appellant was surprised to receive the 10-year term he had expressly agreed to orally at his plea hearing and in writing on his "Felony Advisement, Waiver of Rights, and Plea Form." Rather, his argument on his motion to withdraw was that the prosecutors above-quoted statement "[a] subordinate one-year term under Count Two, one-third of three years, and the remaining gun enhancement of 12022.5 would be run concurrently" should be construed to mean that both the robbery "one-year term" and the Count Two firearm use enhancement should "run concurrently," so that his actual term of imprisonment would be only nine years (five on the Count One robbery plus four on the Count One firearm use enhancement) and not 10. This argument was of course belied by the very next words out of the prosecutors mouth ("[t]he total term being ten years" and by the lack of any evidence from appellant that he understood the plea bargain as being for anything less than 10 years.
Appellant was represented by a Mr. Harvey when appellant entered his plea. The transcript of the hearing on appellants motion to withdraw his plea shows that when appellant expressed a wish to withdraw his plea, Mr. Harvey "felt he had a conflict based upon ... that request," and another attorney was appointed to represent appellant on appellants motion to withdraw his plea. In sum, there was no evidence that appellant received any sentence other than the one he agreed to. Nor does he contend otherwise on this appeal. His contention on this appeal is that his sentence was unauthorized. As we have explained, he is estopped from so contending.
DISPOSITION
The judgment is affirmed.