Opinion
F074506
05-11-2018
THE PEOPLE, Plaintiff and Respondent, v. DARRELL ANDRE JONES, Defendant and Appellant.
James E. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. F11900172, F10905634)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Houry A. Sanderson, Judge. James E. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J. and Franson, J.
-ooOoo-
Appointed counsel for defendant Darrell Andre Jones asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We sent a letter to defendant, advising him of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. He responded with four supplemental briefs, contending (1) on resentencing, the trial court imposed a consecutive sentence that violated defendant's original plea agreement; (2) the trial court failed to state reasons for imposing the upper term and may have relied on reasons it used to impose an enhancement; (3) the trial court was unjustified in imposing the upper term because the probation report found the factors in aggravation and mitigation to be balanced and recommended the middle term; (4) imposition of the upper term violated defendant's Sixth Amendment rights; and (5) the facts did not support the conviction for possessing drugs while in the possession of a loaded, operable firearm because the firearm was not operable. We affirm.
BACKGROUND
The record contains no factual background of the crimes.
On June 23, 2011, defendant pled no contest to several counts in two cases. In case No. F11900172, he pled no contest to two counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c); counts 3 & 6) and three counts of attempted second degree robbery (§§ 211, 212.5, subd. (c), 664; counts 1, 2 & 4). He admitted personally using a deadly or dangerous weapon as to all counts (§ 12022, subd. (b)(1)) and committing the offenses while released on bail or his own recognizance (§ 12022.1). The plea form noted a 10-year-four-month lid.
All statutory references are to the Penal Code unless otherwise noted.
Section 12022, subdivision (b)(1) provides: "A person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense."
Section 12022.1, subdivision (b) provides: "Any person arrested for a secondary offense that was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years, which shall be served consecutive to any other term imposed by the court."
In case No. F10905634, defendant pled no contest to possession of a controlled substance while armed with a loaded, operable firearm (Health & Saf. Code, § 11370.1, subd. (a); count 1); carrying a loaded firearm and not being the registered owner of the firearm (former § 12031, subds. (a)(1) & (a)(2)(F), repealed by Stats. 2010, ch. 711, § 4, pp. 4035-4036; now § 25850, subds. (a) & (c)(6), added by Stats. 2010, ch. 711, § 6, pp. 4100-4101; count 5); and receiving stolen property (§ 496, subd. (a); count 7). He admitted not being the registered owner of the firearm. The plea form noted a 10-year-four-month lid and stated the sentence would be served concurrently to the sentence in case No. F11900172.
On July 22, 2011, the trial court sentenced defendant in both cases. In case No. F11900172, the court imposed a term of 10 years four months in prison, as follows: five years on count 3, plus a one-year weapon use enhancement; one year on count 6, plus a four-month weapon use enhancement, to be served consecutively to the term on count 3; eight months on count 1, plus a four-month weapon use enhancement, to be served consecutively to the term on count 3; two years on count 2, plus a one-year weapon use enhancement, to be served concurrently to the term on count 3; and two years on count 4, plus a one-year weapon use enhancement, to be served concurrently to the term on count 3; plus two years for the on-bail enhancement, to be served consecutively to the term on count 3. The court granted custody credits and imposed various fines and fees.
In case No. F10905634, the court imposed terms of three years, two years, and two years on counts 1, 5, and 7, respectively, each to be served concurrently to the sentence imposed in case No. F11900172. The court granted custody credits and imposed various fines and fees.
Defendant appealed, contending (1) imposition of the two $2,400 restitution fines violated the plea agreement, and (2) the lab fee was not authorized by statute. We struck the lab fee and otherwise affirmed. (People v. Jones (Oct. 1, 2012, F063120) [nonpub. opn.].)
We take judicial notice of our prior opinion in People v. Jones, supra, F063120. --------
On February 24, 2016, the California Department of Corrections and Rehabilitation (CDCR) advised the trial court it had identified several sentencing errors and requested clarification.
On September 7, 2016, the trial court vacated the 2011 sentence and resentenced defendant. In case no. F11900172, the trial court imposed a total sentence of nine years four months in prison by changing the term on count 1 to a concurrent term, as follows: five years on count 3, plus a one-year weapon use enhancement; one year on count 6, plus a four-month weapon use enhancement, to be served consecutively to the term on count 3; two years on count 1, plus a one-year weapon use enhancement, to be served concurrently to the term on count 3; two years on count 2, plus a one-year weapon use enhancement, to be served concurrently to the term on count 3; and two years on count 4, plus a one-year weapon use enhancement, to be served concurrently to the term on count 3; plus two years for the on-bail enhancement, to be served consecutively to the term on count 3. The court granted custody credits and imposed various fines and fees.
In case No. F10905634, the trial court changed the sentence to include a consecutive term, imposing one year on count 1, to be served consecutively to the term on count 3 in case No. F11900172; two years on count 5, to be served concurrently to the term on count 1; and two years on count 7, to be served concurrently to the term on count 1. The court granted custody credits and imposed various fines and fees.
DISCUSSION
I. 2016 Resentencing
Defendant contends that on resentencing, the trial court violated the original plea agreement by changing his two cases to consecutive sentences pursuant to the requirement of section 12022.1. He asserts that he did not consent to either a new plea agreement or a new, consecutive sentence.
On resentencing, the trial court changed count 1 of case No. F10905634 from three years, to be served concurrently to the sentence in case No. F11900172, to one year, to be served consecutively to the sentence in case No. F11900172. Before this change, all three of the terms in case No. F10905634 were to be served concurrently to the sentence in case No. F11900172.
Defendant is correct that his plea form stated his sentence in case No. F10905634 would be served concurrently to the sentence in case No. F11900172. But we agree with the CDCR that section 12022.1 requires that the two cases share a consecutive relationship (§ 12022.1, subd. (e) ["If the person is convicted of a felony for the primary offense, is sentenced to state prison for the primary offense, and is convicted of a felony for the secondary offense, any sentence for the secondary offense shall be consecutive to the primary sentence and the aggregate term shall be served in the state prison, even if the term for the secondary offense specifies imprisonment in county jail pursuant to subdivision (h) of Section 1170."]). Thus, the trial court properly imposed a consecutive term on resentencing.
As required by section 1192.5, however, the resentencing did not impose punishment more severe than that to which defendant agreed in the original plea agreement. The trial court changed another term from consecutive to concurrent (count 1 in case No. F11900172), and defendant retained the 10-year-four-month sentence he bargained for.
II. - IV. Imposition of Upper Term
Defendant contends the trial court failed to state reasons for imposing the upper term and may have relied on reasons it used to impose the on-bail enhancement.
As we have noted, the only upper term was imposed on count 3 in case No. F11900172, and that term was imposed in 2011 and remained unchanged on resentencing. The time for appealing the 2011 sentence has passed. Defendant had the opportunity to appeal his 2011 convictions and sentences, which he did, and he may no longer raise issues he was required to raise in that appeal. The same applies to his contention that the trial court was unjustified in imposing the upper term because the probation report recommended middle terms, and his contention that imposition of the upper term violated his Sixth Amendment rights.
V. Factual Insufficiency Underlying Plea
Lastly, defendant contends his 2011 conviction for possessing drugs while in the possession of a loaded, operable firearm (Health & Saf. Code, § 11370.1, subd. (a)) should be stricken or reduced to a misdemeanor because the firearm he possessed was loaded with the wrong type of ammunition and was thus inoperable.
Again, defendant was required to appeal the 2011 conviction in the appeal that followed that conviction. Furthermore, defendant pled no contest to this offense. "A guilty [or no contest] plea admits every element of the crime and constitutes a conviction. [Citations.] For that reason, ... issues going to the determination of guilt or innocence are not cognizable on appeal; review is instead limited to issues going to the jurisdiction of the court or the legality of the proceedings, including the constitutional validity of the plea." (People v. Hoffard (1995) 10 Cal.4th 1170, 1177-1178.)
DISPOSITION
The judgment is affirmed.