Opinion
C086127
11-08-2019
THE PEOPLE, Plaintiff and Respondent, v. TOKETEE SUNRISE RADABAUGH, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCCRCRF2017496, SCCRCRF20171409, SCCRCRF20171530)
Resolving several cases, defendant Toketee Sunrise Radabaugh pleaded guilty to three counts of grand theft (Pen. Code, § 487, subd. (a); statutory section references that follow are to the Penal Code unless otherwise stated), two counts of unlawfully carrying a loaded firearm in public (§ 25850, subd. (a)), bringing a controlled substance into a penal institution (§ 4573), the misdemeanor possession of a firearm with identification numbers removed (§ 23920), accessory after the fact (§ 32) and two counts of petty theft (§§ 484, subd. (a), 488), while admitting two on-bail enhancements (§ 12022.1). The trial court imposed a 10-year eight-month state prison sentence, stayed execution of sentence, and placed defendant on three years' informal probation.
On appeal, defendant contends he was given inadequate notice that he was subject to a state prison rather than a county jail term, the suspended state prison sentence violated the plea agreement, a parole revocation fine was improperly imposed, and the amount of the probation and parole revocation fines were improper in one of his cases. We shall modify the probation and parole revocation fines in case No. SCCRCRF2017496 and affirm the modified judgment.
LEGAL PROCEEDINGS
We dispense with the facts of defendant's crimes as they are unnecessary in order for us to decide this appeal.
On October 24, 2017, defendant entered a plea agreement covering three felony cases, case Nos. SCCRCRF2017496, SCCRCRF20171530, and SCCRCRF20171409, along with three misdemeanor cases that are not subjects of this appeal. For the sake of brevity and simplicity, we refer to these cases as, respectively, case No. 496, case No. 1530, and case No. 1409.
In case No. 1530, defendant pleaded guilty to unlawfully carrying a loaded firearm in public, bringing a controlled substance into a penal institution, misdemeanor accessory after the fact and possession of a firearm with the serial numbers removed, and admitted on-bail enhancements. The plea form indicated defendant would be subject to an eight-year state prison term for the case, and would be placed on five years' probation with 180 days in county jail. In the part of the form listing any stipulated term, the box for state prison was checked with the box for county jail marked out, and the term length was set at eight years. Defendant initialed the respective boxes for these terms.
In case No. 496, defendant pleaded guilty to two counts of grand theft and single counts of unlawful possession of a loaded firearm in public and petty theft. The plea form indicated a two-year term, with the boxes for county jail and state prison checked, along with a 180-day jail term from case No. 1530 and five years' probation. Defendant initialed the respective boxes for these terms.
Defendant pleaded guilty to grand theft and petty theft in case No. 1409. The change of plea form indicated a stipulated eight-month term, with the state prison box checked and the county jail box marked out, along with the five-year probation term and 180-day jail term. As with the other two forms, defendant initialed the respective boxes for these terms.
At the change of plea hearing, defense counsel was unsure of whether bringing drugs into jail was subject to a county jail term. After counsel discussed the matter with the prosecutor, defendant initialed the state prison plea form in case No. 1530. The prosecutor then interjected, "It was the firearm count that makes him CDC eligible. Believe it or not bringing contraband into jail isn't prison eligible." Defense counsel replied, "That's correct, I misspoke." Describing the terms of the plea to defendant, the trial court stated that in case No. 1530, if he violated probation he "could be subjected to all the penalties [in this case] that . . . had not yet been imposed. So that could be in this case up to eight years in prison." Defendant affirmed understanding this potential consequence.
As to case No. 496, the trial court stated this case would carry a maximum term of two years in state prison. The court told defendant this would add two years to the term in case No. 1530. Defendant affirmed he understood this.
Regarding case No. 1409, the court told defendant this would add "an additional potential eight months to the prison term but there's also six months of jail possible." Defendant stated he understood.
The probation report indicated the plea in the three cases included, respectively, state prison terms of eight years, two years, and eight months, along with "180 days in the county jail" as a condition of probation. The report further stated: "It is unclear if the defendant is eligible to serve his commitment at the California Department of Corrections and Rehabilitation. The District Attorney's office is looking into the matter and two sets of terms are provided for the Court's consideration, reflecting a suspended state prison sentence and suspended a local prison sentence." In the section on drug use, the report related defendant's statement that he started using methamphetamine when he was 13, but after he was made a ward of the juvenile court at the age of 16, he stopped using methamphetamine, but started using illegal drugs again when he completed probation at the age of 19. There was no other reference to defendant's criminal or juvenile record in the probation report.
At the sentencing hearing, defense counsel expressed his confusion over whether defendant was eligible for state prison, and yielded to the prosecutor, who had been researching the issue. The prosecutor replied, "Well, keeping in mind that I'm covering this, it's my understanding that the parties had essentially reached a meeting of the minds when the plea was entered." After determining this was not the case, the prosecutor asked for a sidebar, and, following the sidebar, the trial court stated the matter needed further research.
The prosecution subsequently submitted a memo on the issue, which stated that possession of a loaded firearm is a felony if the person possessing the loaded firearm was generally prohibited from possessing firearms. (See § 25850, subd. (c)(4).) Pursuant to section 29820, any person adjudged a ward of the court for an offense listed in section 29805 was prohibited from owning a firearm until reaching age 30. Defendant, who was born in October 1994, had a juvenile adjudication for sexual battery (§ 243.4), a crime listed in section 29805, subdivision (a), which rendered his possession of a loaded firearm offense a felony.
After court reconvened, defense counsel stated that he received two copies for the probation department's recommendation, one recommending state prison and the other a county jail term, but had not realized they were different. Counsel was not aware of defendant's juvenile prior adjudication "at any time during the presentence and plea proceedings," becoming aware of it only after reviewing the probation report. Counsel agreed with the prosecutor's memorandum as a correct statement of the law, and had explained the issue to defendant, who had read the presentence report.
Counsel raised "some objections on general due process grounds" because six separate complaints were being resolved in this case, and one prison eligible count will render defendant ineligible for county jail even if the remaining counts were eligible for county jail.
Continuing, counsel stated that defendant realizes he is dealing with a prison eligible count, and that he "understands the ramifications of . . . the sentencing and he wishes to go forward with sentencing today. He feels that he can make it through probation because he's done it before." The trial court then imposed the stipulated resolution, a 10-year eight-month state prison sentence, stayed execution of sentence, and placed defendant on three years' informal probation.
We note that, while the stipulated resolution was for a five-year probation term, the prosecutor did not object to the three year probation term, and the Attorney General does not raise the matter here, forfeiting any contention based on this variance.
DISCUSSION
I
State Prison Term
If a state prison sentence is imposed for one count, then "the term for all crimes shall be served in the state prison, even if the term for any other offense specifies imprisonment in a county jail pursuant to subdivision (h) of Section 1170." (§ 669, subd. (d).) Of defendant's three felony offenses, two - grand theft and bringing a controlled substance into a penal institution - were, subject to exceptions not relevant here, punishable by county jail terms pursuant to section 1170, subdivision (h). (§§ 489, subd. (c), 4573, subd. (a).) The crime of carrying a loaded firearm in public is a misdemeanor unless one of the conditions in section 25850, subdivision (c)(1)-(6) is met. (§ 25850, subd. (c)(7).) As pertinent here, the crime is a felony when "the person is not in lawful possession of the firearm, or is within a class of persons prohibited from possessing or acquiring a firearm pursuant to Chapter 2 (commencing with Section 29800) or Chapter 3 (commencing with Section 29900) of Division 9 of this title, or Section 8100 or 8103 of the Welfare and Institutions Code[.]" (§ 25850, subd. (c)(4).) Since there is no statement in section 25850 or elsewhere in the Penal Code that provides for the punishment of a felony violation of this crime, punishment defaults to a 16 month, two year, or three year state prison term. (§ 18, subd. (a).)
A person judged a ward of the juvenile court for an offense listed in section 29805 is ineligible to possess a firearm until the age of 30. (§ 29820.) Section 243.4 is one of the offenses listed in section 29085. (§ 29805, subd. (a).) Therefore, a person under the age of 30 who has a juvenile adjudication for section 243.4 would be subject to felony punishment for any violation of section 25850.
Defendant contends the imposition of a suspended state prison term based on his convictions for section 25850 was improper because he had inadequate notice the juvenile adjudication which rendered him eligible for state prison, and because the suspended state prison term violated his plea agreement. The claims fail because defendant knew throughout the plea process that he was subject to a state prison term and proceeded to enter the plea to sentencing without objection.
The two cases raising the section 29580 offenses, case Nos. 496 and 1530, charged the crimes as felonies. Defendant's plea forms establish that he would be pleading to felony convictions of section 25850 and would be placed on probation with a suspended state prison sentence as part of the plea agreement.
The plea form in case No. 496 indicated defendant would plead to section 25850 with a maximum term of eight months, which is one-third the middle term for a felony violation. Of the four counts listed in this part of the plea form, one count, petty theft, was specified to be a misdemeanor, while the remaining three counts, two counts of grand theft and the section 25850 count, were not identified as misdemeanors. The plea form thus plainly identifies the section 25850 offense as a felony, which in turn is punishable only by a state prison commitment. This interpretation is reinforced by the next part of the plea form that spells out the stipulated term of the plea agreement, which indicated a two-year state prison term along with probation, this showing defendant would receive a suspended state prison sentence with probation as part of the plea agreement.
The plea form for case No. 1530, is the same. It shows a maximum three-year felony term for the section 25850 count, identifies the crimes that are misdemeanors, and shows a stipulated eight-year suspended state prison term with probation.
The change of plea hearing is consistent with this understanding of the plea agreement. There, the prosecutor informed defense counsel that the firearm offense made defendant prison eligible. Rather than objecting, defense counsel agreed. For each of the three cases that were part of the plea, the trial court informed defendant he could be subject to a state prison sentence if he violated probation. Defendant acknowledged understanding this consequence all three times.
The sentencing hearing was no different. While the probation report stated it was unclear whether defendant's suspended term would be for state prison or county jail under section 1170, subdivision (h), the prosecutor was able to clarify the matter and show to the satisfaction of the trial court and defense counsel that defendant's age and his prior juvenile adjudication for sexual assault rendered the section 25850 crimes state prison offenses. In response, defense counsel told the trial court he discussed this consequence with defendant, who wished to proceed with sentencing anyway because he was confident he would complete his probation.
A defendant has a due process right to notice of the charges. (People v. Graff (2009) 170 Cal.App.4th 345, 360.) However, an objection to lack of notice of the charges must be raised in the trial court and cannot be raised for the first time on appeal. (People v. Seaton (2001) 26 Cal.4th 598, 641.) Defendant's claim that the forfeiture doctrine does not apply because the resulting suspended state prison sentence is unauthorized (see People v. Scott (1994) 9 Cal.4th 331, 354-355) is wrong. Defendant was charged with two felony violations of section 25850. In both the relevant change of plea forms and at the change of plea hearing, he pleaded guilty to felony violations of that statute. While defendant was not charged with, and did not admit to the juvenile adjudication which rendered the crime a felony, his guilty plea admits every element of the offense. (People v. Saez (2015) 237 Cal.App.4th 1177, 1206.) The only incarceration available for a felony violation of section 25850 is a state prison sentence, which in turn subjects every other felony violation to a state prison term. Rather than an unauthorized sentence, the suspended state prison sentence is the only authorized term of incarceration available in this case. Since defendant knew of the alleged lack of notice regarding the juvenile adjudication but proceeded to sentencing without objection, his notice claim is forfeited.
Defendant's notice claim would fail even if it was not forfeited. As recounted above, defendant knew at every stage of the proceeding that he would be subject to a felony conviction for section 25850, and a corresponding state prison sentence if he did not successfully complete his probation. At the change of plea hearing, defendant was notified that he would be subject to a suspended state prison rather than county jail sentence because of the section 25850 crimes. At sentencing, he was informed the means by which section 25850 was a felony, the prior juvenile adjudication for sexual assault, and proceeded to sentencing without objection. His due process right to notice was satisfied.
These same procedural facts equally defeat defendant's claim that the state prison term violates the plea agreement. Defendant pleaded guilty to felony violations of section 25850 and knew he would be subject to a suspended state prison term as a result. While the mechanism for how section 25850 would be considered a felony, the terms of the plea could not be more clear. The judgment rendered by the trial court did not violate the plea agreement.
II
Parole Revocation Fine
The trial court imposed and stayed a parole revocation fine (§ 1202.45) in all three cases. Defendant asks us to strike the fine because he was placed on probation and therefore not subject to parole.
Section 1202.45, subdivision (a) provides: "In every case where a person is convicted of a crime and his or her sentence includes a period of parole, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4."
Defendant relies primarily on People v. Hannah (1999) 73 Cal.App.4th 270. In Hannah, the defendant was given a five-year prison sentence, suspended, and five years of probation. (Id. at p. 272.) The trial court imposed a parole revocation fine pursuant to section 1202.45. (Ibid.) The Second Appellate District, Division Five, found it inappropriate to impose the fine when the defendant was not then subject to parole, in light of a commonsense interpretation of section 1202.45. (Id. at pp. 274-275.)
The First District Court of Appeal, Division Five, reached a contrary result in People v. Tye (2000) 83 Cal.App.4th 1398. Tye was sentenced to four years in prison but the sentence was suspended and he was placed on five years' probation. (Id. at pp. 1399-1400.) The appellate court noted that Hannah relied upon an earlier decision in which the parole revocation fine under section 1202.45 was held not to apply to a defendant sentenced to life in prison without possibility of parole, because " 'the [defendant's] sentence does not presently allow for parole and there is no evidence it ever will.' [Citation.]" (Tye, at p. 1401.) However, the Tye court concluded a sentence includes the possibility of parole when a sentence is imposed, but its execution is suspended, because the defendant could violate probation, serve time in prison, be released on parole and then violate parole. Therefore the sentence "includes a period of parole." (Ibid.)
A panel of this court concluded that the parole revocation fine applied even when sentencing occurs after the imposition of the restitution fine in People v. Preston (2015) 239 Cal.App.4th 415, 425. In so holding we noted, "[w]hen execution of sentence is suspended, the court must impose a restitution fund fine, a probation revocation fine, and a parole revocation fine." (Id. at p. 429.) In support of our holding, we relied on the language in section 1202.45 that the fine applied "in every case," and the general purpose of the statutory scheme to provide for compensation for crime "victims." (Id. at pp. 425-426, 429.)
We find Tye and Preston well-reasoned, and, applying them to this case, reject defendant's claim.
III
Restitution Fine
In case No. 496, the trial court imposed an $1,800 section 1202.4 restitution fine, a stayed $3,600 section 12022.44 probation revocation fine, and a stayed $3,600 section 1202.45 parole revocation fine. Defendant asserts and the Attorney General concedes this is erroneous. We agree.
The probation revocation and parole revocation fines must equal the amount imposed for the restitution fine. (§§ 1202.44, 1202.45, subd. (a).) We shall modify the probation and parole revocation fines in case No. 496 accordingly.
DISPOSITION
The probation revocation (§ 12022.44) and parole revocation (§ 12022.45) fines in case No. SCCRCRF2017496 are modified to $1,800. As modified, the judgment is affirmed.
/s/_________
HULL, J. We concur: /s/_________
BLEASE, Acting P. J. /s/_________
DUARTE, J.