Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 10F02058
BUTZ, J.Defendant Devine Felice Millar entered a negotiated plea of no contest to two counts of robbery and admitted an allegation that she personally used a firearm. The trial court sentenced her to state prison in accordance with the plea.
Defendant’s ensuing appeal is subject to the principles of People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Kelly (2006) 40 Cal.4th 106, 110. In accordance with the latter, we will provide a summary of the offenses and the proceedings in the trial court.
On March 24, 2010, defendant and Zachariah Pauling met the victim at a parking lot to sell gift cards to him at a discounted rate. The victim brought $990 with him to buy the cards. When the victim entered their van, defendant pointed a handgun at the victim and demanded his wallet, keys and cell phone, threatening to kill him. The victim handed over the items.
On March 26, 2010, defendant, Pauling, and Jordan Wolfe, approached two young men who had been skateboarding in a park. Pauling pulled out a semiautomatic handgun and attempted to force one of the boys into a van. The boy resisted and was struck by Pauling. The victim then handed over his wallet and cell phone. Defendant stole property including a wallet out of the other boy’s car.
Defendant entered a plea of no contest to two counts of second degree robbery (Pen. Code, § 211—counts two & four) and admitted that she personally used a firearm (§ 12022.53, subd. (b)) in exchange for a stipulated state prison sentence of 12 years; that is, the low term of two years for the first robbery plus a 10-year enhancement for firearm use and a concurrent two-year term for the second robbery, with dismissal of the remaining counts.
Undesignated statutory references are to the Penal Code.
The trial court sentenced defendant according to the negotiated plea. Pursuant to section 2933.1, the court awarded 236 actual days and 35 conduct days for a total of 271 days of presentence custody credit.
The recent amendments to sections 2933 and 4019 do not operate to modify defendant’s entitlement to additional presentence custody credit as she was committed for serious and violent felony convictions. (§§ 211, 667.5, subd. (c)(9) & (22), 1192.7, subd. (c)(19) & (40), 4019, former subds. (b)(2) & (c)(2) [as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50], 2933, subd. (e)(3) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010].)
Defendant appeals. She obtained a certificate of probable cause. (§ 1237.5.)
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief, contending (1) her plea was “not completely voluntary, as the terms of the agreement were not explained in a manner in which they were able to be understood, and [she] believed she was agreeing to a different term of confinement, ” claiming that she stated these concerns at the entry of plea hearing; (2) there is no evidence that she used a firearm; and (3) she should have received a lesser sentence. We reject defendant’s claims.
Contrary to defendant’s claim otherwise, the terms of the plea agreement were explained to her at the entry of plea hearing, that is, the stipulated 12-year state prison sentence which included a 10-year firearm enhancement. She confirmed that that was the plea agreement. At the entry of plea hearing, she never stated on the record that she did not understand. She did ask about the amount of time she would have to serve (85%), about her plea to the current offenses constituting a parole violation, and about “getting two strikes.” She denied that her current medications for depression, anxiety, and back pain interfered with her understanding of her plea. At sentencing, after the court sentenced her and dismissed the remaining counts, defendant asked the court, “How do I get a ten-year gun enhancement if I never had a gun.” This statement does not support her claim that she did not understand the plea at the entry of plea hearing, especially in view of her statement to the probation officer prior to sentencing that she was reconsidering her plea even though acknowledging she made a “bad mistake.” The record reflects that her plea was voluntary and intelligently entered and we reject her claim otherwise. (People v. Howard (1992) 1 Cal.4th 1132, 1175.)
Defendant claims that she stipulated “to the evidence that no firearm was located, brought into evidence, or found on [her] person; per witness testimony a weapon was not clearly seen.” Even with a certificate of probable cause, she cannot challenge the evidence supporting the firearm use enhancement. She admitted the enhancement. Her admission admits that the prosecutor had the evidence to prove the enhancement. Her challenge to the evidence is forfeited. (People v. Jackson (1985) 37 Cal.3d 826, 835-836; People v. Turner (1985) 171 Cal.App.3d 116, 125-126.)
In any event, the record does not support her claim. She waived a preliminary hearing. At the entry of plea hearing, the prosecutor stated the factual basis for the plea. With respect to count two, the robbery of Fred P., and defendant’s use of a firearm, the prosecutor stated, “Specifically, [defendant] and codefendant met the victim at the Home Depot parking lot to buy gift cards. They informed him that they were in the wrong place. He entered into the van, and [defendant] pointed the handgun at the victim and demanded his wallet and keys, which he did hand over.” The prosecutor proceeded to state the factual basis for count four, the robbery of Alex K.: “[W]hile with Mr. [K.] at the park, [defendant] and the codefendants attempted to pull him into a van. He resisted, and was struck several times by Mr. Pauling. Once he fled the car that he had come in, property was taken from that vehicle by [defendant].” Defense counsel added that “on Count four [defendant] was an aider and abettor to that crime, was present, did participate in some of the taking, but was not the exact person who physically accosted the victim and attempted to pull him into the van. She does admit to being an accomplice, however, for purposes of entry of her plea to that count.” The factual basis for the firearm use enhancement in connection with count two shows that defendant “pointed the handgun at the victim and demanded his wallet and keys.” Defendant’s challenge is rejected.
The probation report reflects that the victim met defendant and codefendant to purchase gift cards at a discounted rate and carried $990 in his wallet to do so.
Finally, defendant requests that this court review her sentence “as it is within the jurisdiction of the court to impose a less stringent sentence based on the factors of the case and other mitigating circumstances, ” including that “she was trying to support her child after losing the other [three] children to child protective services.” Defendant was facing a lengthy sentence. Related to the first robbery, the dismissed charges included kidnapping to commit a robbery, which carried a life sentence (§ 209, subd. (b)(1)). Related to the second robbery, the dismissed charges included attempted kidnapping to commit a robbery. She entered into a negotiated plea agreement with the prosecutor to avoid a potential life sentence and agreed to a stipulated sentence of 12 years—quite a bargain. The plea agreement bound the trial court; it had no jurisdiction to alter the terms unless the parties agreed. (People v. Segura (2008) 44 Cal.4th 921, 931.) The trial court imposed the stipulated sentence. There was no violation of the plea agreement. This court has no jurisdiction to alter the sentence. (See People v. Walker (1991) 54 Cal.3d 1013, 1024.)
Although procedurally barred by her failure to raise the issue in the trial court (People v. Norman (2003) 109 Cal.App.4th 221, 229), defendant argues that the evidence and her culpability does not support the sentence she received, and misplaces her reliance upon People v. Dillon (1983) 34 Cal.3d 441 (Dillon).
In Dillon, the defendant, a 17-year-old high school student, and several classmates armed themselves and went to a marijuana farm with a plan to steal marijuana. Upon arrival, they saw one of the Johnson brothers tending the plants. One of the defendant’s friends accidentally discharged his shotgun twice. Dennis Johnson, armed with a shotgun, circled behind the defendant and his friends. The defendant panicked and fatally shot Johnson. (Dillon, supra, 34 Cal.3d at pp. 451-452.)
Dillon was convicted of first degree felony murder and attempted robbery. (Dillon, supra, 34 Cal.3d at p. 450.) He was sentenced to state prison for life. (Id. at p. 487.) Dillon found the sentence violated California’s constitutional proscription against cruel and unusual punishment. (Id. at pp. 477-489.) Dillon stated, “[A]t the time of the events herein [the] defendant was an unusually immature youth. He had had no prior trouble with the law [and]... was not the prototype of a hardened criminal who poses a grave threat to society. The shooting in this case was a response to a suddenly developing situation that [the] defendant perceived as putting his life in immediate danger. To be sure, he largely brought the situation on himself, and with hindsight his response might appear unreasonable; but there is ample evidence that because of his immaturity he neither foresaw the risk he was creating nor was able to extricate himself without panicking when that risk seemed to eventuate.” (Dillon, at p. 488.)
Here, defendant, who was 29 years old, and Pauling committed the first robbery. Defendant pointed a gun at the victim and threatened to kill him if he did not comply. Defendant, Pauling, and Wolfe committed the second robbery. Pauling was armed and struck one of the victims. Unlike the defendant in Dillon, defendant here was under no threat from any of the unarmed victims. And unlike the defendant in Dillon, defendant has a lengthy criminal record and was on parole when she committed the current offenses. Dillon is inapplicable.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, P. J., HOCH, J.