Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Ventura No. 2005046207, John E. Dobroth, Judge.
Kenneth I. Clayman, Duane Dammeyer, Public Defenders, Michael C. McMahon, Chief Deputy, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Sonya Roth, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
David Jimenez appeals from the judgment following his guilty plea to possession of ammunition by a felon. (Pen. Code, § 12316, subd. (b)(1).) The trial court sentenced Jimenez to state prison for the low term of 16 months and ordered the term was to be served consecutively to a period of confinement imposed for a parole violation in another case. Jimenez contends that the sentence is unauthorized because a sentence may not be imposed to run consecutively to time served for a parole violation. We agree that the sentence cannot be ordered to run consecutively with confinement after the revocation of parole, but that Jimenez waived the claim in his plea bargain. We affirm.
All statutory references are to the Penal Code.
PROCEDURAL HISTORY
Jimenez was arrested and charged with possession of a firearm by a felon (§ 12021, subd. (a)(1)) and possession of ammunition by a felon (§ 12316, subd. (b)(1)). After a trial resulted in a hung jury, Jimenez entered into a plea agreement in which he pleaded guilty to possession of ammunition in consideration for a sentence of 16 months. He also admitted a prior serious or violent felony conviction (§§ 667, subds. (c) and (e), 1170.12, subds (a) and (c)), and that he had served a prior prison term (§ 667.5. subd. (b)). The plea agreement provided for the dismissal of the possession of a firearm by a felon charge. Except for a claim of ineffective assistance of counsel, Jimenez waived the right to appeal "reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings . . . ." He acknowledged in open court that he understood this waiver.
At the time of his arrest, Jimenez was on parole from the sentence imposed for his prior felony conviction in a Los Angeles case. The Los Angeles court revoked his parole and ordered Jimenez to serve 12 months in state prison for the parole violation. At sentencing in the instant case, Jimenez had fully served his time for the parole violation.
At sentencing, the trial court struck Jimenez's prior conviction and prison term enhancement, and sentenced Jimenez to the low term of 16 months in state prison as specified in the plea agreement. The court also ordered the 16-month sentence to be served consecutively with the period of confinement for the parole violation in the Los Angeles case which, in effect, took no account of his custody credits for the time served on the parole violation. Jimenez did not object to any part of the sentence.
Jimenez filed a timely notice of appeal claiming error in ordering his sentence to be served consecutively with the confinement for the parole violation.
There is no contention that Jimenez's appeal requires a certificate of probable cause. A defendant may appeal a conviction based on a guilty plea without a certificate of probable cause if the appeal covers only "noncertificate" grounds that do not challenge the validity of the plea. (E.g., People v. Lloyd (1998) 17 Cal.4th 658, 663-664.)
DISCUSSION
Jimenez contends that the trial court did not have authority to order his 16-month sentence to be served consecutively with the confinement resulting from the revocation of his parole in another case. (See In re Tucker (1971) 5 Cal.3d 171, 176-177; People v. Mathews (1980) 102 Cal.App.3d 704, 713.) The People concede the consecutive sentence was unauthorized, but contend Jimenez waived the right to raise the claim on appeal by signing a plea agreement for a specified sentence and expressly waiving his right to appeal. We agree with both Jimenez and the People. The consecutive sentence was unauthorized, but Jimenez waived his claim to challenge the sentence.
During oral argument, counsel for Jimenez asserted that trial counsel objected to running the 16-month sentence consecutively with the period of confinement for the parole violation. The record shows no such objection, but does show that counsel discussed custody credits and the aggregate amount of time to be served. After the plea by Jimenez, the court commended counsel on reaching a good settlement and stated that its order: "will not be any worse than you have agreed to. It might get a bit better. I have told the lawyers . . . that I don't know if your parole officer would oppose concurrent time but I would not oppose it. But I will make my own independent decision. If he suggests it be consecutive, I will make my own independent decision about it. But there are some factors which you might control by trying to convince the Court that . . . you are not going to be creating any more issues . . . ." In addition, at the time of sentencing, both counsel noted their extensive discussions with the parole officer, and it appears that the only discretionary issue that remained was whether Jimenez would receive parole time credit. The record shows no objection to what was tantamount to a denial of pre-sentence custody credits attributable to the parole violation, and the court was careful to insure that Jimenez received 196 days of credit reflecting time in custody following the parole violation. No one at the sentencing hearing was surprised by the consecutive sentence.
Section 669 provides that when any person is convicted of two or more crimes in the same or different proceedings, "the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively." Revocation of parole, however, is not a judicial act and an order revokingparole is not a judgment. (In re Tucker, supra, 5 Cal.3d at p. 177; People v. Penner (1980) 111 Cal.App.3d 168, 172.) Parole is not a part of a defendant's term of imprisonment, but is a period of supervision imposed separately from the imprisonment. (People v. Reed (1993) 17 Cal.App.4th 302, 307.) When a defendant is released on parole after serving a determinate sentence, his or her term of imprisonment is completed. (Ibid.; People v. Mathews, supra, 102 Cal.App.3d at p.712.) A defendant recommitted to prison after revocation of parole is serving time for the parole violation, not the balance of his or her original sentence. (Mathews, at p. 713; § 3000, subd. (a).)
Although the trial court exceeded its authority by ordering Jimenez's sentence be served consecutively to confinement for his parole violation, he waived the right to appeal that error in his plea agreement. As a general rule, the imposition of a sentence that is not authorized under any circumstance is reviewable on appeal whether or not the defendant objects or argues the issue in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 353-354; People v. Welch (1993) 5 Cal.4th 228, 235.) A defendant has no right to challenge an unauthorized sentence on appeal, however, when the defendant has pleaded guilty in return for a specified sentence. (People v. Hester (2000) 22 Cal.4th 290, 295; see also, e.g., People v. Couch (1996) 48 Cal.App.4th 1053, 1056-1057; People v. Nguyen (1993) 13 Cal.App.4th 114, 122-123.)
Where "the defendant agrees to a bargain which includes a specific or indicated sentence, and if that is the sentence actually imposed, the defendant's waiver will foreclose appellate review of the sentence; any challenge to the sentence will be deemed a challenge to an integral component of the bargain. [Citations.] The waiver will not cover claims that the trial court imposed a sentence in excess of its fundamental jurisdiction or the terms of the bargain, but the waiver will not allow review of alleged error in the computation or imposition of the sentence . . . ." (In re Uriah R. (1999) 70 Cal.App.4th 1152, 1157-1158.) "[D]efendants 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." (People v. Hester, supra, 22 Cal.4th at p. 295.)
In addition, Jimenez not only avoided a harsher sentence by his plea bargain, he also expressly waived the right to appeal his sentence on "constitutional, jurisdictional, or other grounds going to the legality of the proceedings." Although the agreement stated that a maximum sentence of six years could be imposed, the court and counsel on both sides understood that there was a specific bargain for a sentence of 16 months. Jimenez's waiver of appellate rights standing alone extended to any error in the imposition of the bargained-for sentence. (See People v. Nguyen, supra, 13 Cal.App.4th at p. 121.)
Furthermore, although the trial court characterized its order as imposing a 16-month sentence to run consecutively to the confinement for Jimenez's parole violation, the record shows the court's intent was to prevent his immediate release and require Jimenez to actually serve a period of time in state prison for the offense. Jimenez had been in custody for more than 730 days prior to sentencing. Credits for that period of custody would have consumed the entire sentence and resulted in his immediate release to the parole board upon entry of judgment making his sentence a "paper commitment." (§ 1170, subd. (a)(3).)
In substance, the trial court's order was tantamount to a denial of custody credit for Jimenez's 12-month confinement for his parole violation. A defendant is not entitled to credit for presentence confinement unless he shows that the conduct which led to his conviction was the sole reason for his confinement. (People v. Johnson (2007) 150 Cal.App.4th 1467, 1485; see § 2900.5, subd. (b).) Where presentence custody "stems from multiple, unrelated incidents of misconduct, such custody may not be credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credited was also a 'but for' cause of the earlier restraint." (People v. Bruner (1995) 9 Cal.4th 1178, 1193-1194.)
Here, the record suggests that the criminal conduct for which he was convicted and sentenced was the basis for his parole revocation, but neither Jimenez nor the People addressed this issue, and it is not entirely clear from the record.
We cannot conclude that Jimenez has "shown" that the instant offense was the sole cause of his parole violation. (See People v. Pruitt (2008) 161 Cal.App.4th 637, 648-649.) Also, it is established that a defendant may waive presentence credits in order to obtain other sentencing considerations as part of a plea bargain. (People v. Johnson (2002) 28 Cal.4th 1050, 1053-1054; People v. Juarez (2004) 114 Cal.App.4th 1095, 1100-1101.)
The wisdom of the waiver rule is made evident by the facts of this case. The parties negotiated for a particular sentence. The issue of whether the time served for the parole violation could or would have been applied to the sentence and the term to be imposed were put to rest by the plea bargain. Having made his bargain and waived his right to appeal, Jimenez will not be heard to complain.
The judgment is affirmed.
We concur: EGAN, Acting P.J., COFFEE, J.