Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Ct. No. RIF137999 Janice M. McIntyre, Judge. (Retired Judge of the Riverside S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
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, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr., and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Pursuant to a plea agreement, defendant pled guilty to possession of a tear gas device in violation of Penal Code section 12403.7, subdivision (a) (count 5), and misdemeanor resisting or obstructing a peace officer in violation of section 148, subdivision (a)(1) (count 9). Defendant also admitted that he had sustained two prior prison term convictions (§ 667.5, subd. (b)). In exchange, defendant received a mitigated sentence of three years four months as follows: the low term of 16 months on count 5, plus two consecutive one-year terms for the two prior prison term convictions. On appeal, defendant asserts several claims relating to his plea agreement being unauthorized and also argues the trial court failed to establish an adequate factual basis for his guilty plea. We agree with the parties that the plea was unauthorized; hence, we will reverse the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
Defendant also received a concurrent jail sentence of 80 days, with 80 total credits for time served, on count 9.
I
The details of defendant’s criminal conduct are not relevant to the issues he raises in this appeal, and we will not recount them here. Instead, we will recount only those facts that are pertinent to the issues we must resolve in this appeal.
In an amended felony complaint, defendant was charged with use of tear gas, a felony (§ 12403.7, subd. (g)) (count 5); being under the influence of a controlled substance, a misdemeanor (Health & Saf. Code, § 11550, subd. (a)) (count 8); and resisting or obstructing a peace officer, a misdemeanor (§ 148, subd. (a)(1)) (count 9). Defendant was also charged with six prior prison term convictions (§ 667.5, subd. (b)).
Four codefendants, who are not parties to this appeal, were charged with other crimes and probation violations in the remaining counts.
On September 21, 2007, the district attorney requested that the charging section of count 5 be changed by interlineation from subdivision (g) of section 12403.7 to subdivision (a) of section 12403.7. Subdivision (a) is unlawful possession of tear gas. The defense did not have any objection to the amendment, and the court ordered the amendment. Defendant then pled guilty to counts 5 and 9 and admitted he had suffered two of the six prior prison term convictions; in exchange, he was promised a sentence of three years four months.
Defendant contends, and the People agree, that the judgment of conviction on count 5 should be reversed and the matter remanded to the trial court for further proceedings on the ground that the plea agreement entailed an unauthorized sentence because the offense to which defendant pled guilty is a misdemeanor. We also agree.
Section 12403.7, subdivision (a) provides: “No person convicted of a felony or any crime involving an assault under the laws of the United States, the State of California, or any other state, government, or country or convicted of misuse of tear gas under subdivision (g) shall purchase, possess, or use tear gas or tear gas weapons.”
Section 12403.7, subdivision (a) itself does not specify a penalty for its violation. However, section 12420 states, in relevant part, “Any person . . . who within this state knowingly . . . possesses . . . any tear gas or tear gas weapon, except as permitted under the provisions of this chapter, is guilty of a public offense and upon conviction thereof shall be punishable by imprisonment in the county jail for not exceeding one year . . . .” (Italics added.) Hence, as defendant notes, section 12403.7, subdivision (a) is a misdemeanor punishable by imprisonment in county jail.
Subdivision (g) of section 12403.7 declares that “[a]ny person who uses tear gas or tear gas weapons except in self-defense is guilty of a public offense . . . punishable by imprisonment in a state prison for 16 months or two or three years or in a county jail not to exceed one year . . . .” (Italics added.) Thus, the unlawful use of tear gas or a tear gas weapon by any person (even those with no prior felony, assaults, or subdivision (g) convictions) constitutes a public offense under section 12403.7, subdivision (g).
In this case, defendant pled guilty to a violation of section 12403.7, subdivision (a), “a felony, as charged in count 5 as amended” by interlineation. In return for his guilty plea, defendant was promised a low term of 16 months on count 5. The record indicates that the trial court and both counsel believed defendant’s violation of section 12403.7, subdivision (a) was a felony. However, as discussed above, section 12420 renders “possession” of tear gas or tear gas weapons by a felon to be a misdemeanor. Defendant’s 16-month prison term, therefore, was unauthorized. (See People v. Scott (1994) 9 Cal.4th 331, 354.)
As the People point out, though defendant’s plea and sentence on count 9 appear to be a proper exercise of the court’s authority, defendant’s entire sentence is comprised of interlocking components; hence, once a part of that sentence has been found to have been improperly imposed, the entire sentence should be reversed to allow the court to impose a correct sentence as to all facets of his conviction. (See People v. Hill (1986) 185 Cal.App.3d 831, 834.)
We agree with the parties that, under the circumstances of this case, the plea agreement entailed a sentence that was in excess of the trial court’s jurisdiction, and therefore the matter must be reversed and remanded for further proceedings. In addition, because section 667.5, subdivision (b) applies only if the new or current offense is a felony (People v. Coronado (1995) 12 Cal.4th 145, 155), defendant’s sentence on the two prior prison term enhancements must also be reversed.
We find defendant’s issue that his plea to count 5 was involuntary because he was never informed his sentence was unauthorized is moot.
Finally, we also agree with defendant that the trial court erred in failing to properly establish a factual basis for the plea. Pursuant to section 1192.5, a trial judge, when accepting a negotiated plea, must satisfy him- or herself through inquiry that there is a sufficient factual basis in the record for the plea. (See, e.g., People v. Holmes (2004) 32 Cal.4th 432, 438.) The trial court is permitted to do this either through direct inquiry of the defendant or through inquiry of defense counsel. “If the trial court inquires of defense counsel regarding the factual basis, counsel may stipulate to a particular document that provides an adequate factual basis, such as a complaint, police report, preliminary hearing transcript, probation report, grand jury transcript, or written plea agreement.” (Id. at p. 442.)
Here, after defendant replied in the affirmative that he was pleading guilty to the misdemeanor in count 9, the trial court stated, “The Court finds a factual basis for the pleas and admissions.” The trial court never inquired of defendant of defense counsel as to the factual basis, and defense counsel never stipulated to a document that provided an adequate factual basis. In addition, because defendant was immediately sentenced, the record does not contain a probation report. The record also does not contain a police report or a preliminary hearing transcript. In addition, the written plea agreement here is inadequate. Regarding the factual basis, defendant merely initialed the paragraph of the plea agreement that stated “Factual Basis: I agree that I did the things that are stated in the charges that I am admitting.” There was no further inquiry by the court. Accordingly, we agree with defendant that the trial court’s factual basis determination did not conform to the requirements of section 1192.5. (See People v. Holmes, supra, 32 Cal.4th at pp. 436, 438.)
II
DISPOSITION
The judgment is reversed.
We concur: McKINSTER, Acting P.J., KING, J.