Opinion
E071703
11-20-2019
THE PEOPLE, Plaintiff and Respondent, v. ROBERT FRANCES SOBERIANIS, Defendant and Appellant.
Melanie L. Skehar, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FWV17002853) OPINION APPEAL from the Superior Court of San Bernardino County. Michael A. Knish, Judge, and Rafael A. Arreola, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions. Melanie L. Skehar, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
Judge Knish ruled on the probation revocation and retired Judge Arreola ruled on the motion to withdraw the plea.
I. INTRODUCTION
Defendant and appellant, Robert Frances Soberianis, pled no contest to receiving a stolen vehicle. (Pen. Code, § 496d.) Defendant also admitted to a prior strike conviction and a prior theft involving a vehicle. (§§ 1170.12, subds. (a)-(d), 667.5, subd. (b).) Defendant was sentenced to eight years in state prison, but the sentencing court suspended execution of this sentence and placed defendant on probation for three years. After violating the terms of his probation, defendant moved to withdraw his plea. The trial court denied his motion. Defendant appealed.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant argues that he should be permitted to withdraw his plea because the bargained-for sentence was unlawful. We affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
On May 31, 2017, defendant "received a stolen vehicle . . . without the knowledge of the owner," and "tried to conceal it, or sell it, or withhold it," despite the fact that he "knew that the property was stolen."
The San Bernardino County District Attorney charged defendant by complaint with receiving a stolen vehicle (Pen. Code, § 496d; count 1) and possession of an injection/ingestion device (Health & Saf. Code, § 11364; count 2). The People also alleged that defendant had a prior strike conviction and three prior prison offenses. (Pen. Code, §§ 1170.12, subds. (a)-(d), 667.5, subd. (b).)
At some point, defendant agreed to a plea bargain with the People. In exchange for pleading no contest to count 1 and admitting the prior strike offense and a prior prison offense, defendant was to receive the maximum term of eight years, execution of which would be suspended, and defendant would be placed on three years' probation.
On October 16, 2017, defendant pled no contest to receiving a stolen vehicle, admitted to the prior strike offense, and admitted to one of the prior prison offenses. Prior to sentencing, defendant requested that a probation report be prepared. Defendant's attorney reviewed this probation report prior to sentencing. This report noted that though the plea deal included probation, "the defendant is statutorily ineligible for a grant of probation, due to the admitted prior strike," and that "[a]s the plea . . . is seen as contradictory to the law, it is not supported by probation."
Nevertheless, the court decided to abide by the parties' plea bargain. On November 14, 2017, the court dismissed count 2. It then sentenced defendant to the upper term of four years for the conviction on count 1—doubled to eight years for the prior strike offense—but suspended execution of that sentence and placed defendant on probation for three years. The terms and conditions of his probation included a requirement that defendant "[r]eport to the Probation Officer in person immediately or upon release and thereafter as directed," as well as a requirement that he complete a work release program starting no later than December 15, 2017, completing it by June 30, 2019.
There is a discrepancy between the court's on-the-record order and the minute order. The record indicates that the court ordered work release "to be completed no later than June 30th, 2019," whereas the minute order states that it must be "[c]omplete by 1/30/2019." We thus direct the court to issue an amended minute order correcting this discrepancy and noting that work release was to be completed by June 30, 2019. --------
Defendant did not report to work release as ordered and failed to report to his probation officer. Accordingly, the People petitioned to revoke defendant's probation, and on May 24, 2018, the court set an initial date for the probation revocation hearing.
On September 27, 2018, defendant filed a motion to withdraw his plea. The court denied this motion on October 19, 2018. The trial court determined that the motion was untimely, that there was no good cause to grant it, and that defendant was estopped from withdrawing his plea because he received the "benefit of the bargain" in the deal.
The court held a contested probation revocation hearing just under a month later, on November 16, 2018. The court found that defendant violated three terms of his probation; namely, that he failed to obey all laws by pleading guilty to an unrelated charge, that he did not complete work release as ordered, and that he did not report to his probation officer as ordered. The court noted specifically that defendant was out of custody without reporting to probation until May 2018, five months after he was sentenced. The court revoked probation and executed the eight-year sentence.
Defendant timely appealed.
III. DISCUSSION
Defendant argues that the trial court erred in denying his motion to withdraw his plea because his ineligibility for probation meant the agreed to sentence was unauthorized. We disagree that the court erred in denying defendant's motion to withdraw his plea. A. The Trial Court Did Not Abuse Its Discretion in Denying Defendant's Motion to Withdraw His Plea
"On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may . . . for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted." (§ 1018.) "'Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea' under section 1018." (People v. Patterson (2017) 2 Cal.5th 885, 894, quoting People v. Cruz (1974) 12 Cal.3d 562, 566.) "A defendant seeking to withdraw a guilty plea on grounds of mistake or ignorance must present clear and convincing evidence in support of the claim." (People v. Patterson, supra, at p. 894.) "However, '[a] plea may not be withdrawn simply because the defendant has changed his mind.'" (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208, quoting People v. Nance (1991) 1 Cal.App.4th 1453, 1456.)
Generally, a motion to withdraw a guilty plea must be made either before judgment or within six months after an order granting probation. (§ 1018.) However, notwithstanding section 1018's time limits, a void sentence "'"may be set aside at any time by the court that made it . . . ."'" (People v. Amaya (2015) 239 Cal.App.4th 379, 386.) A sentence is void when a court exceeds its jurisdiction by granting relief it was not entitled to give. (Ibid.) That is exactly what occurred here as the court was not authorized to grant probation due to defendant's admission of the strike prior. (§§ 667 subd. (c)(2), 1170.12 subd. (a)(2).) Defendant's underlying motion was premised on this fact. Therefore, on that basis, defendant's motion below was timely.
"'Withdrawal of a guilty plea is left to the sound discretion of the trial court. A denial of the motion will not be disturbed on appeal absent a showing the court has abused its discretion.'" (People v. Huricks, supra, 32 Cal.App.4th at p. 1208, quoting People v. Nance, supra, 1 Cal.App.4th at p. 1456.) The abuse of discretion standard "'"asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts."'" (Roth v. Plikaytis (2017) 15 Cal.App.5th 283, 290, quoting People v. Giordano (2007) 42 Cal.4th 644, 663.) "A 'court abuses its discretion "'where no reasonable basis for the action is shown. [Citation.]'"'" (In re Tobacco Cases II (2015) 240 Cal.App.4th 779, 790, quoting Bui v. Nguyen (2014) 230 Cal.App.4th 1357, 1367.)
The central question before the trial court was whether there was good cause to permit defendant to withdraw his plea. To demonstrate good cause, a defendant must present clear and convincing evidence that defendant pled based on "'[m]istake, ignorance or any other factor overcoming the exercise of free judgment . . . .'" (People v. Patterson, supra, 2 Cal.5th at p. 894.) Evidence showing good cause to withdraw a plea is thus dependent on the defendant's subjective understanding of that plea, not necessarily the legal validity of the sentence.
The record here contains no evidence, let alone clear and convincing evidence, that defendant misunderstood what he was getting out of this plea bargain. Indeed, the record demonstrates that defendant understood the plea bargain perfectly well, including that defendant was or should have been aware of the potential invalidity of the sentence. Defendant's trial counsel testified that she read the probation report prepared in preparation of sentencing. This report stated that "the defendant is statutorily ineligible for a grant of probation, due to the admitted prior strike," and contained probation's recommendation that the bargained-for sentence not be imposed. That the bargained-for sentence was invalid has no bearing on whether defendant was mistaken or ignorant about the consequences of his plea, and defendant presented no additional evidence of his subjective understanding of the plea. Because there is no evidence that defendant misunderstood or was mistaken about the content and consequences of the plea bargain, defendant failed to meet his burden to show good cause.
Therefore the trial court did not abuse its discretion when it denied defendant's motion because it "[did not] see any good cause to grant the motion." B. Defendant Is Estopped from Challenging His Sentence as Unauthorized
Though unclear from the briefs, defendant also appears to challenge the validity of the sentence directly. We agree with defendant that an unauthorized sentence is "subject to judicial correction whenever the error came to the attention of the trial court or a reviewing court." (People v. Serrato (1973) 9 Cal.3d 753, 763, disapproved of on other grounds by People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.) However, defendant is estopped from asserting any such challenge.
Generally speaking "all 'claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' raised for the first time on appeal are not subject to review." (People v. Smith (2001) 24 Cal.4th 849, 852.) However, there is "a narrow exception to the waiver rule for '"unauthorized sentences" or sentences entered in "excess of jurisdiction."'" (Ibid.) In those cases "the errors present[] 'pure questions of law' [citation], and [a]re '"clear and correctable" independent of any factual issues presented by the record at sentencing.'" (Ibid.) "Matters presenting pure questions of law, not involving the resolution of disputed facts, are subject to de novo review." (Shewry v. Begil (2005) 128 Cal.App.4th 639, 642.)
However, "[t]he 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." (People v. Hester (2000) 22 Cal.4th 290, 295.) Thus, "[w]hen a defendant maintains that the trial court's sentence violates rules . . . 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 (1996) 48 Cal.App.4th 1053, 1057.)
We agree with the trial court that because defendant agreed to and received the benefit of a more lenient sentence than authorized under law, he is estopped from challenging that sentence as unauthorized. Defendant explicitly bargained for an invalid sentence, and made no attempt to challenge that sentence or withdraw his plea until after the People sought to revoke his probation. Because of the bargained-for sentence, defendant was granted probation when he otherwise faced a state prison commitment (§§ 667 subd. (c)(4), 1170.12 subd. (a)(4)) and remained out of custody for five months after his conviction. Indeed, had a valid sentence been imposed in the first place, defendant would have been committed to prison during that time. That defendant almost immediately violated the terms of his probation and was therefore subject to a much harsher sentence than might have been imposed under a more traditional plea deal does not change the fact that, in exchange for a grant of probation, he agreed to the negotiated sentence, including the threat of greater prison time should he violate probation. The doctrine of estoppel exists to prevent precisely what defendant seeks to do: bargain for an unauthorized sentence, receive some benefits of that sentence, then challenge it after the fact to obtain an even more favorable outcome.
Accordingly, defendant is estopped from challenging his sentence because he agreed to accept it and thereby waived the alleged errors which he now claims occurred.
IV. DISPOSITION
The clerk of the court is directed to amend the November 14, 2017, minute order to reflect that defendant was to complete work release by June 30, 2019. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: CODRINGTON
Acting P. J. RAPHAEL
J.