Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F10726
ROBIE, J.
Defendant Richard Karelas pled no contest to possession of ammunition by a person prohibited from possessing a firearm in exchange for dismissal of a prior strike allegation and a two-year prison sentence to be served concurrently with another sentence he was already serving.
On appeal, he contends: (1) the trial court violated his right to due process by not complying with the terms of the plea agreement regarding custody credits; and (2) the trial court erred in imposing a 10-year no-contact order because it lacked the authority to do so. We reject defendant’s argument that his right to due process was violated, but agree the trial court acted in excess of jurisdiction in imposing the no-contact order. Nevertheless, because the court imposed the no-contact order pursuant to the terms of a negotiated plea agreement that greatly benefited defendant, we conclude defendant is estopped from challenging the no-contact order on appeal. Accordingly, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 2004, in case No. 01F05331, (the first stalking case) defendant was convicted of stalking pursuant to Penal Code section 646.9 and two other offenses and was granted probation. In December 2005, law enforcement officers found ammunition in a dresser in his bedroom. As a result, defendant was charged in this case (case No. 05F10726 (the ammunition case)) with possession of ammunition by a person prohibited from possessing a firearm, along with a prior strike allegation.
All further statutory references are to the Penal Code unless otherwise indicated.
In March 2006, the court held a combined preliminary hearing in the ammunition case and another case in which defendant was charged with stalking and another charge (case No. 05F10725 -- the second stalking case), along with a probation violation hearing in the first stalking case. The court found defendant violated his probation in the first stalking case and held him to answer in the two other cases.
In September 2006, the trial court denied reinstatement of probation in the first stalking case and sentenced defendant to four years in prison. (People v. Karelas (Jan. 30, 2008, C053741) [nonpub. opn.].)
In March 2007, defendant pled no contest to possession of ammunition in this case with the understanding that the court would dismiss the prior strike allegation and he would serve the middle term of two years concurrently with his sentence in the first stalking case. It was also agreed that the second stalking case would be dismissed conditioned on issuance of a 10-year no-contact order. The court clerk pointed out that the no-contact order could not be connected to the second stalking case because that case was being dismissed. At the request of the district attorney, the court said it would issue the no-contact order in the ammunition case instead. Asked if he understood the court was going to issue the no-contact order in the ammunition case, defendant said, “Yes, sir.” The court then asked defendant whether there were any matters that were not discussed in open court, and defendant responded that there were not. The prosecutor requested that defendant’s sentencing be continued so she could deal with the issue of credits. At no time during the plea hearing did the prosecutor or defendant indicate that presentence credits were part of the plea agreement.
On March 16, 2007, the court sentenced defendant to two years in state prison for the ammunition case to run concurrently with the four-year prison term he was serving already in the first stalking case. The court stated that defendant was entitled to a total of 669 days of presentence credits. Defendant’s attorney asserted that to apply the credits, the court would have to resentence defendant on all of his cases, including the first stalking case. The court purported to do so and again asserted defendant was entitled to 669 days of presentence credits. The court also issued a 10-year no-contact order in the ammunition case on a Judicial Council form (CR-160) designed for protective orders issued pending trial (§ 136.2) and as a condition of probation (§ 1203.097, subd. (a)(2)).
The court reached this figure by erroneously adding together 447 actual days of credit and 220 days of good-time/work-time credit. The total should have been 667.
Despite the court’s representation that defendant was entitled to 669 days of presentence credits, the abstract of judgment shows he received a total of only 23 presentence credits in the ammunition case. The abstract also shows, however, that he received a total of 934 credits in the first stalking case.
DISCUSSION
I
Due Process
Defendant argues he was denied his right to due process because the People did not live up to their contractual obligation under the plea agreement. He asserts that the People promised him 667 (or 669) days of presentence credit and that this promise was an integral part of the plea agreement. Defendant contends that because the court gave him only 23 days of credit, the People did not live up to their obligations under the agreement. Therefore, defendant argues he must be allowed the opportunity to withdraw his plea.
The People claim there was no due process violation because presentence credits were never addressed during the plea, thus they were not part of defendant’s plea agreement. The People further argue that defendant was not entitled to the credits in the ammunition case because they applied to the first stalking case, for which he was already in custody.
“A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles.” (People v. Shelton (2006) 37 Cal.4th 759, 767.) “When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agreed upon.” (People v. Walker (1991) 54 Cal.3d 1013, 1024.)
For defendant to prove a due process violation here, he must prove presentence credits were part of his plea agreement, but the record does not show any evidence of that. The minute order of the March 2 plea does not mention presentence credits. Moreover, the reporter’s transcript is silent as to presentence credits during the plea hearing save for the prosecutor’s request that sentencing be held at a later date so she could “deal with the issue of credits.” Thus, the “terms of the agreement” did not include the issue of presentence credits.
Were the presentence credits an “integral part of the plea” agreement as defendant asserts, surely he would have raised the issue at some point during the plea agreement process. He did not do so. Therefore, the amount of presentence credits cannot reasonably be viewed as part of the plea agreement.
Defendant asserts his case is analogous to In re Williams (2000) 83 Cal.App.4th 936. He is mistaken. In Williams, the presentence credit was a “material term of the plea bargain.” (Id. at p. 945.) Here, however, the evidence does not show presentence credits were any part of the plea agreement. The trial court did mistakenly state that defendant was entitled to 669 days of presentence credits, but the court did so only at sentencing, two weeks after the terms of the plea agreement were put forth on the record.
For the foregoing reasons, defendant has shown no violation of his right to due process.
II
No-Contact Order
Defendant argues that because the trial court lacked authority to impose the no-contact order, it should be stricken. We agree the court acted in excess of jurisdiction in imposing the no-contact order in the ammunition case, but we further conclude that defendant is estopped from challenging the order on appeal because it was imposed as part of a negotiated plea agreement that greatly benefited him.
Subdivision (k)(1) of section 646.9 authorizes the court to impose a no-contact order of up to 10 years when a defendant has been convicted of stalking. Thus, that provision would have authorized the imposition of the no-contact order in the second stalking case against defendant had defendant pled guilty or no contest to the stalking charge in that case. That provision, however, provided no authority for imposing the no-contact order in the ammunition case.
Section 136.2 authorizes the imposition of no-contact orders in criminal cases in general. In People v. Stone (2004) 123 Cal.App.4th 153, however, the court found a three-year restraining order “transcended the authorization of section 136.2” because it was not limited to the pendency of the criminal proceeding or imposed as a probation condition. (Stone, at p. 160.) Relying on Stone, defendant asserts the no-contact order imposed here must be stricken as unauthorized under section 136.2 because it was not limited to the pendency of the criminal proceedings and was not imposed as a probation condition.
Defendant correctly states that the court cannot extend no-contact orders issued pursuant to section 136.2 beyond the duration of the criminal proceedings. Section 136.2 authorizes protective restraining orders when the trial court has good cause belief that harm, intimidation, or dissuasion is likely to occur to a victim or a witness. (§ 136.2 subd. (a).) By its very nature, this type of protective order applies only during the pendency of a criminal proceeding. (People v. Selga (2008) 162 Cal.App.4th 113, 118; People v. Stone, supra, 123 Cal.App.4th at pp. 159-160.) The purpose of orders under section 136.2 “‘is to protect victims and witnesses’” during criminal proceedings so they can participate without “fear of reprisal.” (People v. Selga, supra, 162 Cal.App.4th at p. 118.)
Because the no-contact order made here pursuant to section 136.2 extends beyond the duration of the criminal proceedings, the court acted in excess of jurisdiction in imposing it.
In their respondent’s brief, the People argued that instead of striking the no-contact order, as defendant requests, we should permit the trial court to correct the order by attaching it to the first stalking case because (as we have noted) section 646.9 (which defendant was convicted of violating in that case) permits a court to issue a no-contact order for up to 10 years in connection with a stalking conviction. The People asserted that in the interest of justice and because the trial court has inherent power to correct clerical errors, the case should be remanded to the trial court so that it could correct its error and issue the no-contact order in the first stalking case.
The People’s suggestion is untenable because the first stalking case is not before us and therefore would not be before the trial court on remand. Although the trial court purported to resentence defendant in the first stalking case in conjunction with the sentencing in this case, the trial court had no jurisdiction to do so because defendant had already been sentenced and was serving his sentence in that case. “[A] trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced.” (People v. Karaman (1992) 4 Cal.4th 335, 344.) The only case before the trial court at sentencing on March 16, 2007, was the ammunition case, which is the only case before us. Because a 10-year no-contact order could not be attached to the ammunition case, the trial court acted in excess of jurisdiction in imposing it.
Because the no-contact order was a material condition bargained for by the People, however, we cannot simply strike it, as defendant requests, because doing so would deprive the People of a benefit of their bargain. A plea agreement is a judicially and legislatively recognized procedure that provides reciprocal benefits to the People and the defendant. (People v. Masloski (2001) 25 Cal.4th 1212, 1216; People v. Orin (1975) 13 Cal.3d 937, 942.) Striking the no-contact order would strip the plea agreement of one of the People’s reciprocal benefits.
Given that defendant specifically agreed to the issuance of the no-contact order in the ammunition case as part of the negotiated plea agreement, we asked for supplemental briefing from the parties on whether defendant should be estopped from challenging the no-contact order on appeal. “When, as here, the court has jurisdiction of the subject, a party who seeks or consents to action beyond the court’s power as defined by statute or decisional rule may be estopped to complain of the ensuing action in excess of jurisdiction. [Citations.] Whether he 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. A litigant who has stipulated to a procedure in excess of jurisdiction may be estopped to question it when ‘To hold otherwise would permit the parties to trifle with the courts.’” (In re Griffin (1967) 67 Cal.2d 343, 347-348.)
In his supplemental brief, defendant contends he should not be estopped from challenging the no-contact order because “the irregularity is too great” because what the trial court did was, in effect, issue a civil restraining order in a completely unrelated criminal case. Defendant also suggests that it offends public policy to “impose what amounts to a civil judgment on unrelated criminal conduct.”
We are not persuaded. The irregularity here is not nearly as significant as defendant contends, nor do we perceive any public policy that is offended by the agreed-upon imposition of the 10-year no-contact order in the ammunition case. By agreeing to the order, defendant did not agree to a consequence that was unsupported by the law based on the charges that were then facing him. As we have noted, the no-contact order could have been imposed in the second stalking case had defendant pled guilty or no contest to the stalking charge in that case. Indeed, absent the plea agreement defendant potentially faced not only the imposition of a 10-year no-contact order in the second stalking case, but also a prison term in that case and a prison term in the ammunition case. Additionally, the prison term in the ammunition case could have included additional time for the prior conviction enhancement, and the prison terms in both the second stalking case and the ammunition case could have been imposed to run consecutively to each other and to the term defendant was already serving in the first stalking case. By agreeing to a no-contact order and a two-year prison term to run concurrently to the term he was already serving in exchange for dismissal of the second stalking case and of the prior conviction allegation in the ammunition case, defendant obtained a significant benefit by ensuring himself of no additional prison time beyond what he was already serving.
It is also important to note that in arguing against the no-contact order, defendant does not seek to set aside the plea agreement as a whole; rather, he seeks simply to excise the no-contact order from the agreement, thereby depriving the People of one of the benefits they bargained for but leaving him with all of the benefits he bargained for. “In this circumstance, we comfortably can say that defendant is merely ‘trifling with the courts.’ [Citations.] Accordingly, defendant is estopped from avoiding the plea agreement which he voluntarily accepted . . . .” (People v. Beebe (1989) 216 Cal.App.3d 927, 935.)
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., NICHOLSON, J.