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People v. Pimentel

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Apr 25, 2018
F074766 (Cal. Ct. App. Apr. 25, 2018)

Opinion

F074766

04-25-2018

THE PEOPLE, Plaintiff and Respondent, v. CESAR PIMENTEL, Defendant and Appellant.

Elaine Forrester, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook A. Bennigson, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VCF274937, VCF327067B)

OPINION

THE COURT APPEAL from a judgment of the Superior Court of Tulare County. H.N. Papadakis, Judge. (Retired judge of the Fresno County Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Elaine Forrester, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.

Before Poochigian, Acting P.J., Detjen, J. and Smith, J.

-ooOoo-

In case No. VCF274937 (4937), appellant Cesar Pimentel pled no contest to receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)/count 2) and admitted three prior prison term enhancements (§ 667.5, subd. (b)). In case No. VCF327067B (7067), Pimentel pled guilty to second degree burglary (§ 459/count 1), grand theft (§ 487, subd. (a)/count 2), and admitted three prior prison term enhancements.

All further statutory references are to the Penal Code unless otherwise noted.

On appeal, Pimentel contends the court violated section 654's prohibition against multiple punishment when it imposed a concurrent term on his grand theft conviction in case No. 7067. We affirm.

FACTS

On October 25, 2012, police officers responded to a disturbance at a Best Buy store in Visalia. They arrested Pimentel after determining he was the driver of a truck in the parking lot that had been reported stolen (case No. 4937).

On August 13, 2013, in case No. 4937, the Tulare County District Attorney filed an information charging Pimentel with the unauthorized taking of a vehicle (Veh. Code, § 10851, subd. (a)/count 1), receiving a stolen vehicle (count 2), and three prior prison term enhancements.

On August 23, 2013, pursuant to a plea bargain, after Pimentel pled no contest to receiving a stolen vehicle and admitted the three prior prison term enhancements, the court dismissed the remaining charge. The court also imposed a six-year term as follows: the aggravated term of three years on Pimentel's receiving a stolen vehicle conviction and three one-year prior prison term enhancements. The court then suspended execution of sentence and placed Pimentel on probation for three years.

On November 17, 2014, Pimentel was involved in the burglary of a business in Tulare, during which data wire, two doors, and two trash cans were taken (case No. 7067).

On May 23, 2016, the Tulare County District Attorney filed an information in case No. 7067 charging Pimentel with second degree burglary, grand theft, misdemeanor receiving stolen property (§ 496, subd. (a)), and three prior prison term enhancements.

On September 27, 2016, as part of a plea bargain involving both cases, in case No. 7067, Pimentel pled guilty to second degree burglary and grand theft and admitted the three prior prison term enhancements; in case No. 4937, he admitted violating his probation. The plea bargain provided that the court would lift the stay of execution on the six-year sentence it had previously imposed in case No. 4937. It also provided that, in case No. 7067, the receiving stolen property count would be dismissed and the court would impose an aggregate five-year term, the aggravated three-year term on Pimentel's burglary conviction, a concurrent term on his grand theft conviction, and two one-year prior prison term enhancements with the remaining enhancement stayed. Additionally, the aggregate term in case No. 7067 would run concurrent to the aggregate term imposed in case No. 4937. After Pimentel entered his plea in both cases, as noted above, the court granted the prosecutor's motion to dismiss the receiving stolen property count in case No. 7067.

On October 26, 2016, the court sentenced Pimentel, without objection, in accord with the terms of his plea bargain to the aggregate term of five years in case No. 7067 that ran concurrent to the aggregate six-year term it imposed in case No. 4937.

DISCUSSION

Pimentel contends the court erred by its failure to stay, pursuant to section 654, the sentence it imposed on his grand theft conviction in case No. 7067 because he committed the burglary and grand theft offenses during a continuous course of conduct that was motivated by a singular objective, i.e., "theft." We disagree.

Section 654 provides:

"An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for
the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."

"Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citation.] If, for example, a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. [Citation.] Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences." (People v. Deloza (1998) 18 Cal.4th 585, 591-592.)

However, California Rules of Court, rule 4.412(b) provides:

All further references to rules refer to the California Rules of Court. --------

"By agreeing to a specified term in prison ... personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654's prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record."

In People v. Hester (2000) 22 Cal.4th 290 (Hester), the Supreme Court analyzed the interplay between section 654 and rule 4.412(b):

"Ordinarily, a section 654 claim is not waived by failing to object below. '[T]he waiver doctrine does not apply to questions involving the applicability of section 654. Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.' [Citation.] This is an exception to the general rule that only those claims properly raised and preserved by the parties are reviewable on appeal. This exception is not required by the language of section 654, but rather by case law holding that a court acts in excess of its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of a sentence under section 654. [Citation.]

"The rule that defendants may challenge an unauthorized sentence on appeal even if they failed to object below is itself subject to an exception: Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial
court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process. [Citations.] While failure to object is not an implicit waiver of section 654 rights, acceptance of the plea bargain here was. 'When a defendant maintains that the trial court's sentence violates rules which would have required the imposition of a more lenient sentence, yet the defendant avoided a potentially harsher sentence by entering into the plea bargain, it may be implied that the defendant waived any rights under such rules by choosing to accept the plea bargain.' [Citation.] Rule [4.412(b)] and section 654 are, therefore, not in conflict. In adopting the rule, the Judicial Council merely codified one of the applications of the case law rule that defendants are estopped from complaining of sentences to which they agreed." (Hester, supra, 22 Cal.4th at pp. 644-645.)

Pimentel did not assert a section 654 claim when he agreed to the plea bargain involving both cases. Nor did he object or move to withdraw his plea at his sentencing hearing. Therefore, since Pimentel accepted the plea bargain, in accord with Hester and rule 4.412(b) we conclude Pimentel forfeited his right to challenge on section 654 grounds the concurrent term the court imposed on his grand theft conviction in case No. 7067.

DISPOSITION

The judgment is affirmed.


Summaries of

People v. Pimentel

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Apr 25, 2018
F074766 (Cal. Ct. App. Apr. 25, 2018)
Case details for

People v. Pimentel

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CESAR PIMENTEL, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Apr 25, 2018

Citations

F074766 (Cal. Ct. App. Apr. 25, 2018)