Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. No.INF063882, James S. Hawkins, Judge.
Martha L. McGill, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAMIREZ P.J.
Defendant, Matthew David McQueary, was sentenced to three years in prison pursuant to a sentence bargain. His notice of appeal challenges the validity of the plea.
Background
Defendant was the caretaker for the victim, a drug addict who suffers from AIDS, hepatitis C, cancer, and MRSA. The victim’s father gave the victim a credit card to use for pharmaceutical expenses, and the victim, who was bed ridden, allowed defendant to use the card on the victim’s behalf. The victim was eventually admitted to a care facility. Subsequently, the defendant ran up $15,000 in charges on the credit card, without authorization.
On December 18, 2008, defendant was charged with embezzlement from a dependent adult by a caretaker (Pen. Code, § 368, subd. (e), count 1) and unlawful use of an access card (§ 484g, subd. (a), count 2). It was further alleged that defendant had previously been convicted of a felony for which he had served a separate prison term (prison prior) (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
On January 14, 2009, defendant pled guilty to counts 1 and 2, and admitted the prison prior, in return for a stipulated sentence of three years in prison, to run concurrent with another case. He requested an immediate sentence, waiving his right to a probation report. The court imposed the agreed upon term of 3 years by imposing the low term of 2 years for count 1, a concurrent term of 1 year, 4 months for count 2, pursuant to section 654, and a 1 year enhancement for the prison prior, for an aggregate term of 3 years in state prison. The court also ordered defendant to pay $15,000 in direct victim restitution, as well as a restitution fine pursuant to sections 1202.4, subdivision (b), and 1202.45. Defendant appealed and a certificate of probable cause was issued pursuant to defendant’s request.
Discussion
Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error.
Defendant’s notice of appeal includes a request for a certificate of probable cause which indicates he believed he should have received a sentence of two years from the judge. Unfortunately, defendant signed a plea agreement in which he stipulated to a sentence of three years in state prison. He has forfeited any right to challenge the length of the sentence. (See People v. Scott (1994) 9 Cal.4th 331, 351 [forfeiture for failure to object].) By obtaining a certificate of probable cause, defendant has preserved his right to challenge the validity of the plea (see People v. Pannizzon (1996) 13 Cal.4th 68, 78), but he has failed to establish that the plea suffers from any constitutional or jurisdictional infirmity. (People v. Howard (1992) 1 Cal.4th 1132, 1178.) Under the totality of the circumstances, we find defendant’s plea was voluntary, knowing and intelligent.
Regarding the question of whether the defendant was entitled to the sentence indicated by the court during the pre-plea negotiations, we note that the record fails to support any inference that the court actually indicated a specific sentence in the event defendant pled guilty to all charges and admitted the enhancements. During the on-the-record discussion of the prior negotiations, it came to light that the People had not agreed to any disposition that did not include the enhancement for the prison prior, and the court only agreed to accept a plea to the charges and impose a two year term because it was unaware defendant had another case. The court had no authority to substitute itself as the representative of the People in the negotiation process and under the guise of “plea bargaining” to “agree” to a disposition of the case over prosecutorial objection (People v. Orin (1975) 13 Cal.3d 937, 943), so defendant had no right to a lower sentence in the absence of an agreement by the prosecutor.
Finally, we note that the court erroneously ordered the sentence imposed with respect to count 2 to run concurrent, while simultaneously directing a stay of that term pursuant to section 654. A concurrent term is one that begins on the day it is imposed and is not postponed until the completion of a prior term. (People v. Bruner (1995) 9 Cal.4th 1178, 1182, fn. 4.) Concurrent sentences constitute double punishment (People v. Quinn (1964) 61 Cal.2d 551, 555), and section 654 bars double punishment for a course of conduct constituting an indivisible transaction or single course of conduct. (Ibid.) A sentence may either run concurrent with another term, or run consecutive to it, or be stayed, but cannot be both concurrent and stayed at the same time. At the time of sentencing, the court’s comments indicated it intended to stay the term for count 2. The sentencing minutes and the abstract of judgment must be corrected to reflect that the term for count 2 is stayed pursuant to section 654.
We have completed our independent review of the record and find no arguable issues.
Disposition
The clerk is ordered to amend the minutes and the abstract of judgment to show only that the term for count 2 is stayed pursuant to section 654, deleting all references to concurrent sentences for that count. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST J., MILLER J.