Opinion
F078376
02-06-2020
THE PEOPLE, Plaintiff and Respondent, v. CHARLES JOE SAENZ, JR., Defendant and Appellant.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. CF03902925)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, Judge. Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Peña, J. and Meehan, J.
-ooOoo-
Defendant Charles Joe Saenz, Jr., contends on appeal that his sentence must be recalled and he must be resentenced. We agree with the People that defendant's contention is not cognizable on appeal because defendant is challenging the validity of the plea agreement without obtaining a certificate of probable cause. Moreover, even if the appeal were cognizable, defendant would be estopped from raising the issue. Accordingly, we dismiss the appeal.
BACKGROUND
The underlying facts are irrelevant to this appeal.
On November 7, 2003, defendant pled guilty to assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b); count 2) and admitted personally using a firearm (§ 12022.5, subd. (a)(1)), personally inflicting great bodily injury (§ 12022.7, subd. (a)), and committing the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Defendant waived the right to withdraw the plea and "all appellate rights." He pled in exchange for a stipulated 23-year sentence and dismissal of an attempted murder count (§§ 664, 187) and multiple related allegations.
All statutory references are to the Penal Code.
On December 10, 2003, the trial court sentenced defendant to the stipulated 23-year prison term, as follows: six years for the assault conviction, four years for the firearm enhancement, three years for the great bodily injury enhancement, and 10 years for the gang enhancement.
Almost 15 years later, on September 20, 2018, the Secretary of the California Department of Corrections and Rehabilitation (CDCR) wrote a letter to the trial court regarding defendant's sentence. The letter directed the court to consider People v. Gonzales (2009) 178 Cal.App.4th 1325, where the court concluded the trial court erred in imposing enhancements under both section 12022.7, subdivision (a) and section 186.22, subdivision (b)(1)(C) because they were both based on the great bodily injury the defendant caused while committing the underlying offense. In the letter, the secretary recommended that defendant's sentence be recalled and he be resentenced as though he had not previously been sentenced, but not to a greater sentence, pursuant to section 1170, subdivision (d).
On October 25, 2018, after the trial court considered the secretary's letter, the parties' briefs, and the court file, the court concluded the sentence should not be recalled because defendant had entered into a negotiated plea agreement in exchange for dismissal of the attempted murder charge and related enhancement and avoidance of a 25-year-to-life sentence. The court concluded defendant was "estopped from challenging the imposition of his sentence enhancements in light of the significant benefit that he received under his plea agreement when he avoided an indeterminate life sentence."
On November 8, 2018, defendant filed a notice of appeal. The trial court denied his request for a certificate of probable cause on November 13, 2018.
DISCUSSION
Defendant contends his sentence must be recalled because the trial court imposed an unauthorized sentence by improperly enhancing his sentence in two ways: (1) by imposing both the firearm enhancement and the gang enhancement based on the same firearm use, in violation of section 1170.1, subdivision (f); and (2) by imposing both the great bodily injury enhancement and the gang enhancement based on the same infliction of great bodily injury, in violation of section 1170.1, subdivision (g). The People respond that even if the sentence was unauthorized, defendant's claim is not cognizable on appeal because he failed to obtain a certificate of probable cause (§ 1237.5), and even if his claim is cognizable, he is estopped from challenging the specific sentence he agreed to serve under the plea agreement. In reply, defendant argues he is not attacking the plea but the trial court's "choice of sentencing options" and the "incorrect structuring" of the sentence, and thus he does not require a certificate of probable cause. We agree with the People.
"A defendant may not appeal 'from a judgment of conviction upon a plea of guilty or nolo contendere,' unless he has obtained a certificate of probable cause. (§ 1237.5, subd. (b); see People v. Buttram (2003) 30 Cal.4th 773, 790 [§ 1237.5's purpose is 'to weed out frivolous and vexatious appeals from pleas of guilty or no contest, before clerical and judicial resources are wasted'].)" (People v. Cuevas (2008) 44 Cal.4th 374, 379.) "It has long been established that issues going to the validity of a plea require compliance with section 1237.5. [Citation.] Thus, for example, a certificate must be obtained when a defendant claims that a plea was induced by misrepresentations of a fundamental nature [citation] or that the plea was entered at a time when the defendant was mentally incompetent [citation]. Similarly, a certificate is required when a defendant claims that warnings regarding the effect of a guilty plea on the right to appeal were inadequate." (People v. Panizzon (1996) 13 Cal.4th 68, 76 (Panizzon).) "Exempt from this certificate requirement are postplea claims, including sentencing issues, that do not challenge the validity of the plea. [Citations.] For example, 'when the claim on appeal is merely that the trial court abused the discretion the parties intended it to exercise, there is, in substance, no attack on a sentence that was "part of [the] plea bargain." [Citation.] Instead, the appellate challenge is one contemplated, and reserved, by the agreement itself.' " (People v. Cuevas, at p. 379; People v. Buttram, at pp. 785-786.)
Accordingly, it is the general rule that when a specific sentence is an "integral part of the plea" agreement, a defendant may not challenge it on appeal without first obtaining a certificate of probable cause. (Panizzon, supra, 13 Cal.4th at p. 73; People v. Hester (2000) 22 Cal.4th 290, 295 [plea agreement for specified sentence constituted implicit waiver of defendant's right to contend sentence violated section 654].) This is because a specified sentence in a plea agreement "normally implies a mutual understanding of the defendant and the prosecutor that the specified [sentence] is one that the trial court may lawfully impose." (People v. Shelton (2006) 37 Cal.4th 759, 768.) A defendant's challenge to the specific sentence is "in substance a challenge to the validity of the plea." (Panizzon, at p. 76; People v. Hurlic (2018) 25 Cal.App.5th 50, 56 (Hurlic).) Thus, under the general rule, defendant was required to obtain a certificate of probable cause.
One exception to this general rule occurs when the defendant seeks on appeal to benefit from the retroactive benefit of a new law, even though he has pled and agreed to a specific sentence. (Hurlic, supra, 25 Cal.App.5th. at p. 53 [certificate of probable cause not required "when the defendant's challenge to the agreed-upon sentence is based on our Legislature's enactment of a statute that retroactively grants a trial court the discretion to waive a sentencing enhancement that was mandatory at the time it was incorporated into the agreed-upon sentence"].) In defendant's case, the statutes he argues violate the propriety of his sentence—section 1170.1, subdivisions (f) and (g)—were in effect when he entered into the plea agreement. In other words, they were "part of the legal landscape" when the plea agreement was negotiated and not accounting for them was " 'part of the deal' "; thus, the attack on the sentence goes to the validity of the plea itself. (Hurlic, at p. 58.) As a result, the exception does not apply to defendant and his appeal is not cognizable.
Defendant argues that the fact he received a benefit from the plea agreement "does not render him a helpless victim to misapplication of the law." He analogizes his situation to remand for resentencing pursuant to amended statutes regardless of the existence of a plea agreement. But in that situation, the defendants could not foresee a future change in law when they entered the plea agreement. (See, e.g., People v. Wright (2019) 31 Cal.App.5th 749, 753-754 [defendant's waiver of the right to appeal from a stipulated sentence pursuant to a plea bargain did not "waive the right to appeal future sentencing error based on a change in the law of which he was unaware at the time he entered his plea"]; People v. Millan (2018) 20 Cal.App.5th 450, 454-456 [despite plea agreement, court remanded for resentencing in light of newly enacted Health & Saf. Code, § 11370.2, subd. (c)].) Here, we presume defendant was aware of the law as it stood when he entered into the plea agreement. --------
We also note that the trial court did not abuse its discretion by finding appellant estopped from challenging the specific, agreed-upon sentence, even if it was unauthorized at the time the plea bargain was made. " 'Where defendants have pleaded guilty in return for a specified sentence, appellate courts are not inclined to find error even though the trial court acts in excess of jurisdiction in reaching that figure, as long as the court does 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.' [Citation.] 'Where a court is merely acting in excess of its jurisdiction, the defendant who agrees to such actions may be estopped later from challenging the court's actions on jurisdictional grounds.' " (People v. Couch (1996) 48 Cal.App.4th 1053, 1056-1057; see People v. Hester, supra, 22 Cal.4th at p. 295.) "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." (People v. Couch, at p. 1057.)
Here, defendant entered into a plea agreement for a specified, agreed-upon sentence. The trial court had fundamental jurisdiction to decide this matter and defendant received the benefit of a more lenient sentence as part of a negotiated plea agreement. The trial court properly concluded defendant was estopped from raising his claim.
DISPOSITION
The appeal is dismissed.