Opinion
E067010
03-16-2017
THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; MORRELL JAMOUR OWENS, Real Party in Interest.
Michael A. Hestrin, District Attorney, Kirsten E. Seebart, Deputy District Attorney, for Petitioner. No appearance for Respondent. John F. Schuck for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1602132) OPINION ORIGINAL PROCEEDINGS; petition for writ of mandate. Becky Dugan, Judge. Petition granted. Michael A. Hestrin, District Attorney, Kirsten E. Seebart, Deputy District Attorney, for Petitioner. No appearance for Respondent. John F. Schuck for Real Party in Interest.
After considering the petition and the record supporting it, we issued an order to show cause, appointed counsel for real party in interest, and received a return and a traverse. As we now explain, we find merit in petitioner's contentions.
FACTUAL AND PROCEDURAL BACKGROUND
On August 19, 2016, real party in interest pled guilty to attempted robbery (Pen. Code, §§ 664, 211) and admitted a personal firearm use enhancement (§ 12022.53, subd. (b)). Because defendant's trial counsel maintained his client's innocence, the court entered the plea pursuant to People v. West (1970) 3 Cal.3d 595. The trial court sentenced him to 364 days in local custody, with formal probation for 36 months.
Unless otherwise specified, all statutory references are to the Penal Code.
DISCUSSION
The People timely sought review of the order granting probation. (§ 1238, subd. (d).) They contend the trial court erred in imposing probation and in failing to impose a mandatory 10-year prison term because real party in interest admitted the enhancement under section 12022.53, subdivision (b). We agree.
Section 12022.53, subdivision (b), reads: "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply." Subdivision (g) of section 12022.53 reads: "Notwithstanding any other provision of law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person found to come within the provisions of this section."
The trial court appears to have violated subdivisions (b) and (g) of section 12022.53 by declining to impose a 10-year prison sentence and by granting probation. Real party in interest does not argue to the contrary. Rather, he asks us to apply principles of estoppel because the People failed to object in the trial court. (See, e.g., People v. Hester (2000) 22 Cal.4th 290, 295 (Hester).) As we now explain, we decline to do so.
At the sentencing hearing in this case, the trial court expressed a belief that it could find special circumstances allowing it to grant probation. Section 1203, subdivision (e), disallows probation for defendants convicted of certain types of crimes "[e]xcept in unusual cases where the interests of justice would best be served if the person is granted probation." It makes no mention of persons convicted of a section 12022.53, subdivision (b) personal use enhancement, and we are aware of no reason why section 1203 would not be one of the "other provision(s) of law" to which subdivisions (b) and (g) of section 12022.53 apply, "notwithstanding." (§ 12022.53, subds. (b), (g).) --------
In this case, the information alleged the personal firearm use enhancement (§ 12022.53, subd. (b)), as well as that real party in interest was ineligible for probation under section 12022.53, subdivision (g). At the sentencing hearing, the People did not offer or negotiate the plea giving probation to real party in interest; the trial court indicated real party in interest would be pleading to it, not to the prosecutor, and that it, not the prosecutor, was offering probation. The prosecutor did not stand silently by, but instead said, "Can I say a few things?" He objected to the court's offer of probation on two grounds. His second objection was that, if real party in interest had in fact committed the attempted robbery using a firearm, "it's egregious and worth a lot more than probation." The trial court gave its reasoning for thinking that probation was the best outcome, and concluded with, "I like [my idea] a lot better than yours." The prosecutor responded with, "Okay."
First, we note the prosecutor's failure to mention section 12022.53 cannot automatically waive the People's right to rely on that statute in this petition. This is because an "unauthorized" sentence may be challenged at any time. (See, e.g., People v. Smith (2001) 24 Cal.4th 849, 852 ["obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings are not waivable"].) "[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (People v. Scott (1994) 9 Cal.4th 331, 354.) Since the trial court here imposed a sentence that violates two mandatory subdivisions of section 12022.53 in ways we have already described, the sentence was unauthorized, and the People's silence about section 12022.53's mandates does not amount to a waiver.
We realize real party in interest argues not so much that a waiver occurred, but that we should apply to the People a rule usually reserved for defendants who attempt to challenge sentences they accepted through plea bargaining, namely that: "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." (Hester, supra, 22 Cal.4th at p. 295; see People v. Jones (1989) 210 Cal.App.3d 124, 136-137 (Jones); People v. Ramirez (2008) 159 Cal.App.4th 1412, 1426-1428; People v. Nguyen (1993) 13 Cal.App.4th 114, 122-123 (Nguyen); People v. Beebe (1989) 216 Cal.App.3d 927, 932-933 (Beebe).) "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." (Hester, supra, 22 Cal.4th at p. 295.)
We take no position on whether this rule does or should apply to the People just as it applies to defendants. Instead, we find the cases on which real party in interest relies are distinguishable because they, unlike this case, involved challenges to pleas by parties that had unequivocally agreed to the plea's terms before sentence was imposed. (Hester, supra, 22 Cal.4th at p. 293 [defendant entered no contest pleas on five counts in exchange for an agreed term, but then on appeal argued the trial court erred in not staying the term on one of the counts under section 654]; Jones, supra, 210 Cal.App.3d at pp. 136-137 [defendant facing life with parole agreed to a second enhancement in exchange for specified sentence and then tried to "challenge[] the very terms of the bargain which he had previously agreed to, and which he had benefitted from"]; Nguyen, supra, 13 Cal.App.4th at pp. 122-123 [defendant accepted plea for specified term, but then attempted to argue various invalidities on appeal]; Beebe, supra, 216 Cal.App.3d at pp. 932-933 [defendant attempted to challenge plea bargain that a felony conviction would be reduced to a misdemeanor after completion of probation on the ground that the trial court lacked jurisdiction to so reduce the felony].)
Here, the prosecutor stated an objection to the court's intent to impose probation. While he later responded, "Okay," this brief vocalization seems as likely to be an expression of defeat after the court stated a preference for its own suggested sentence as it is to be an explicit agreement with the idea of giving real party in interest the sentence the court recommended. In this case, we do not see the same kind of attempting to better a completed bargain that was present in Hester and the other cases cited in conjunction with it ante. We therefore decline to find the People are estopped from challenging real party in interest's sentence in this writ petition.
The People acknowledge that real party in interest should be afforded an opportunity to withdraw his plea after remand. We agree and therefore include such language in the disposition. (See People v. Kim (2011) 193 Cal.App.4th 1355, 1362-1365.)
DISPOSITION
Let a peremptory writ of mandate issue, directing the Superior Court of Riverside County to vacate the sentence imposed on August 19, 2016, and to impose a new sentence in accordance with this opinion. In conjunction with this resentencing, real party in interest is to be given the opportunity to withdraw his guilty plea should he so choose.
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MILLER
J.