Opinion
B228992
09-22-2011
THE PEOPLE, Plaintiff and Respondent, v. HECTOR LISANDRO SANCHEZ, Defendant and Appellant.
Pamela J. Voich, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen and Lauren E. Dana, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. VA112967)
APPEAL from a judgment of the Superior Court of Los Angeles County. Roger T. Ito, Judge. Appeal dismissed.
Pamela J. Voich, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Hector Lisandro Sanchez appeals from the judgment entered following his negotiated no contest plea to a charge of possessing cocaine base for sale and admission of strike and prior narcotics conviction enhancement allegations. Defendant contends the trial court abused its discretion by denying his motion to vacate his admission of the strike allegation. We dismiss the appeal because defendant failed to obtain a certificate of probable cause.
BACKGROUND
On November 12, 2009, Los Angeles Sheriff's Deputy Francisco Enriquez stopped defendant's car near 76th Place and Hooper Avenue in Los Angeles County for a traffic violation. Defendant, who was alone in the car, told Enriquez he was on parole for narcotics offenses and had some marijuana in the car. As defendant got out of his car, he kicked something under the floor mat. Enriquez found a plastic bag containing smaller plastic bags containing rock-like objects resembling rock cocaine. Enriquez also found $600 in various denominations, marijuana, and a loaded nine-millimeter semiautomatic handgun hidden where the passenger-side airbag should have been. The parties stipulated at the preliminary hearing that there were nine containers of solid substance with a gross weight of 5.23 grams; one of those containers was tested and found to contain 0.92 grams of solid substance containing cocaine base; there were two containers of powder with a gross weight of 0.93 grams; and one of those containers was tested and found to contain 0.44 grams of cocaine.
Defendant was charged with (1) possessing cocaine base for sale, with allegations that he was personally armed with a gun and had a prior conviction of possessing cocaine base for sale, and (2) being a felon in possession of a gun. It was further alleged that defendant had suffered a prior serious felony within the scope of the "Three Strikes" law and had served a prior prison term within the scope of Penal Code section 667.5, subdivision (b). (Undesignated statutory references are to the Penal Code.)
Pursuant to a negotiated plea agreement, defendant pleaded no contest to the charge of possessing cocaine base for sale, and admitted the strike allegation and prior possession for sale conviction enhancement allegation (Health & Saf. Code, § 11370.2, subd. (a)). The parties agreed that defendant would be sentenced to a second strike term of eight years in prison, calculated as double the four-year midterm. The agreement further provided that if defendant succeeded in withdrawing his 1999 plea to his prior strike conviction, he would be sentenced to eight years in prison, calculated as the five-year high term plus three years for the Health and Safety Code section 11370.2, subdivision (a) enhancement. Defendant acknowledged that this reflected his understanding of the plea agreement and that the difference between the two possible calculations lay in the credits he would receive in prison.
At the sentencing hearing five months later, defendant informed the court that the motion to withdraw his 1999 plea had been denied by another judge as untimely. Defendant filed a written Romero motion at the sentencing hearing to dismiss his strike admission. The court denied the motion and sentenced defendant to the second strike term of eight years, in accordance with the plea agreement.
Defendant applied for a certificate of probable cause, which the trial court denied. Defendant appealed anyway.
DISCUSSION
The Attorney General contends that this appeal is not cognizable because the trial court denied defendant's application for a certificate of probable cause. We agree.
A defendant who pleads guilty or nolo contendere generally may not appeal, unless he timely obtains from the trial court a certificate of probable cause for such appeal. (§ 1237.5; Cal. Rules of Court, rule 8.304(b).) No certificate of probable cause is required if the appeal is based solely upon (1) "[g]rounds that arose after entry of the plea and do not affect the plea's validity" or (2) "[t]he denial of a motion to suppress evidence under Penal Code section 1538.5." (Cal. Rules of Court, rule 8.304(b).) In determining whether a certificate of probable cause is required, courts must look to what the defendant is challenging, not its time or manner. The "critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5." (People v. Panizzon (1996) 13 Cal.4th 68, 76 (Panizzon).)"The parties to a plea agreement are free to make any lawful bargain they choose, and the exact bargain they make affects whether a subsequent appeal, in substance, is an attack on the validity of the plea." (People v. Buttram (2003) 30 Cal.4th 773, 785 (Buttram).)
Generally, a certificate of probable cause is required to challenge imposition of a sentence specified in the plea agreement because such a contention attacks the validity of the plea. (Panizzon, supra, 13 Cal.4th at pp. 77-78.) If a plea agreement instead specifies the maximum sentence or "lid," it necessarily contemplates further adversary proceedings in which the trial court will exercise its discretion to determine the appropriate sentence. (Buttram, supra, 30 Cal.4th at p. 785.) "In such a circumstance, 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.'" (Id. at pp. 785-786.)
If a certificate is required, but is not timely obtained by the defendant, the appeal is inoperative and its merits may not be considered. (Panizzon, supra, 13 Cal.4th at p. 75.) The purpose of this rule is to eliminate frivolous appeals challenging guilty and nolo contendere pleas. (Ibid.)
Here, the plea agreement did not provide a maximum term (or lid). Instead, the plea agreement was for an agreed second strike sentence of eight years, with a reconfiguration of the eight years if defendant were successful in withdrawing his 1999 plea. Before defendant entered his no contest plea to the possession for sale charge and admitted the strike and enhancement allegations in the present case, the trial court summarized the agreement as follows: "Your attorney says what you want to do is plead no contest to count 1, the possession-for-sale charge, admit the previous conviction of a possession-for-sale charge, admit the strike prior with the understanding that you're going to be sentenced to eight years at 80-percent time. [¶] We've also agreed that if the other court sets aside your previous plea to the strike conviction because that court finds it was defective, then you can be brought back here and be re-sentenced to high term on the possession-for-sale charge, which is five years, plus three years on the previous conviction of a possession-for-sale charge, which is three years, then you'll still do eight years but at half time." Defendant agreed that that was his understanding of the agreement. The agreement did not contemplate an exercise of sentencing discretion by the court hearing this case, but a reconfiguration of the eight years conditioned on a modification of the judgment in defendant's 1999 case. As defendant admitted at the sentencing hearing, that condition was not satisfied.
Accordingly, defendant's challenge to the trial court's ruling on his Romero motion constitutes a challenge to a imposition of an agreed sentence, which requires a certificate of probable cause. His appeal is not cognizable and must be dismissed.
Even if defendant were able to pursue this appeal, we would find it had no merit. In exercising its discretion to dismiss or vacate prior strike conviction allegations or findings in the furtherance of justice, the trial court must consider the defendant's background, his constitutional rights, the nature of the current offense, and the interests of society. (Romero, supra, 13 Cal.4th at pp. 529-531.) The court should not dismiss or vacate a strike unless it concludes that the defendant may be deemed to be outside the anti-recidivist "spirit" of the Three Strikes law. (People v. Williams (1998) 17 Cal.4th 148, 161.)
The trial court's decision is reviewed deferentially. (People v. Carmony (2004) 33 Cal.4th 367, 374.) The "trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.) The Three Strikes law "not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [¶] In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances," such as where the court was unaware of its discretion or considered impermissible factors. (Id. at p. 378.) "Where the record is silent [citation], or '[w]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance' [citation]. Because the circumstances must be 'extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack' [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary." (Ibid.)
In explaining its denial of defendant's Romero motion, the trial court noted that defendant had been paroled just eight months before his arrest in this case; he had previously been given opportunities to change his life, such as the one-year jail term and probation he received in his strike case; the current offense was "the same type of behavior" as in his strike case; and he was carrying a loaded gun when arrested in this case. The court noted the unusually numerous letters of support submitted on defendant's behalf, but did not find that the circumstances warranted an exercise of discretion under Romero. In addition to the factors cited by the trial court, we note that defendant's record is far more extensive than portrayed in either his Romero motion or his appellate briefs. Defendant had two sustained juvenile petitions, the first in 1996 for burglary and the second in 1997 for car theft. He was sent to camp for the burglary. Defendant's 1999 case consisted of five felony convictions: possessing cocaine base for sale, possessing marijuana for sale, possessing or training a fighting dog, furnishing or giving marijuana to a minor, and furnishing or giving controlled substances to a minor (the strike). His probation was modified and extended in 2002, then revoked in 2003 when he was found to possess marijuana while driving. In 2003 he was also convicted of stalking and sent to prison. He was released on parole on March 5, 2009, and was arrested on the current case on November 12, 2009. Thus, notwithstanding prior opportunities to turn his life around and at least six years of incarceration between his conviction of five felonies in December 1999 and his November 2009 arrest, defendant resumed the same type of behavior, this time while on parole and while carrying a loaded, concealed gun.
The record thus demonstrates that the trial court was fully aware of its discretion, the pertinent factors it was to consider, and the facts. Nothing indicates that the court's ruling was not impartial or that the court considered any improper factors. Defendant's disagreement with the court's ruling does not render it arbitrary or irrational. This case did not present the "even more extraordinary" circumstances in which all reasonable people would agree that defendant fell outside the anti-recidivist spirit of the Three Strikes law. Accordingly, even if the appeal were cognizable, we would find no abuse of discretion.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
MALLANO, P. J. We concur:
CHANEY, J.
JOHNSON, J.
People v. Superior Court (Romero)(1996) 13 Cal.4th 497 (Romero).