Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF06-523
DAVIS, Acting P.J.
Defendant Susan Marie Netherton entered a negotiated guilty plea to two counts of gross vehicular manslaughter while intoxicated and one count of driving under the influence of alcohol with resulting injuries, and admitted three allegations of inflicting great bodily injury on three victims in connection with the latter (People v. Ausbie (2004) 123 Cal.App.4th 855, 864-865). The People agreed to the dismissal of a fourth charge in exchange for a maximum sentence of 17 years 8 months (in the determination of which the court would not impose anything greater than the middle term for the principal offense, and three years for each of the three injury enhancements). The court denied probation, and found that that the disposition on the principal offense had to be the lower term because the defendant lacked a prior criminal record and acknowledged her guilt at an early stage in the proceedings. It therefore imposed the lower term for one manslaughter conviction (four years), a consecutive sentence of one-third of the middle term for the other (two years), and a consecutive sentence of one-third of the middle term for the drunken-driving offense (eight months) with three consecutive enhancements of nine years, for a total of 15 years 8 months. The court premised its imposition of consecutive terms on the separate acts of violence against each of the five victims.
On appeal, the defendant contends that the imposition of full consecutive terms for the enhancements of a subordinate term is an unauthorized sentence. (Pen. Code, § 1170.1, subd. (a).) The People concede that the court imposed an unauthorized sentence in this regard, but assert that the defendant is estopped from raising the issue on appeal; if the issue is cognizable, they would accede to a remand for the trial court to reconsider the sentence. We do not find estoppel to be present under the circumstances of this case. However, we must dismiss the appeal for want of a certificate of probable cause (an issue on which we have given the parties the opportunity to file supplementary briefing).
Discussion
In arguing that the defendant is estopped to challenge her unauthorized sentence, the People cite People v. Hester (2000) 22 Cal.4th 290, 295, which reiterated the principle that where a defendant has pleaded guilty “in return for a specified sentence, appellate courts will not find error . . . [because those] who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better [it] through the appellate process.” The defendant in the present case, however, did not enter a negotiated guilty plea in return for a specified sentence. Rather, she entered a negotiated guilty plea in exchange for a “‘lid’ constraining the maximum sentence that the trial court may impose.” (People v. Shelton (2006) 37 Cal.4th 759, 763 (Shelton).) As a result, estoppel is not the relevant principle. Shelton, however, is.
Where the parties negotiate a maximum sentence in exchange for a guilty plea, and mistakenly and necessarily presume that the court has the authority to impose that maximum sentence, the defendant may only appeal the trial court’s exercise of its sentencing discretion within the limits of the plea. Any attempt to challenge the court’s authority to impose the sentence is a challenge to the plea itself and requires a certificate of probable cause. (Shelton, supra, 37 Cal.4th at pp. 769-770.)
In the present case, the only way in which the trial court could have reached the sentencing lid would have been to impose the full consecutive sentences on a subordinate term. It could not impose the upper term for the principal offense, so either of the manslaughter convictions could be at most six years, with two years for the other one, eight months for the drunken driving offense, and nine years for the enhancements (a total of 17 years 8 months). If the enhanced drunken driving conviction were to be the principal offense, the sentence at most could be only 15 years 8 months (its middle term being only two years). Consequently, the issue of the violation of Penal Code section 1170.1, subdivision (a), in imposing full consecutive enhancements on a subordinate term is a challenge to the plea and requires a certificate of probable cause. As the defendant did not obtain one, we must dismiss the appeal. (Shelton, supra, at p. 769.)
“The subordinate term for each consecutive offense shall consist of one-third of the middle term . . ., and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses.”
The defendant’s supplementary briefing misapprehends the point of this principle. It is not that the unauthorized sentence is insulated from review--it is simply insulated from review without a certificate of probable cause because the error regarding the court’s sentencing authority was part of the bargain.
Disposition
The appeal is dismissed.
We concur: NICHOLSON, J., RAYE, J.