Opinion
F061459 Super. Ct. No. 1403867
10-25-2011
THE PEOPLE, Plaintiff and Respondent, v. JESUS EMMANUEL VAZQUEZ, Defendant and Appellant.
Matthew H. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Levy, Acting P.J., Cornell, J. and Franson, J.
APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T. Steffen, Judge.
Matthew H. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellant Jesus Emmanuel Vazquez was sentenced to a term of nine years in state prison for each of two first degree robbery convictions, with the terms to be served concurrently. He received an additional one-year commitment for an arming enhancement. He contends the sentence was unauthorized because he was never charged or admitted that the robberies were committed in concert; therefore, the maximum term for each conviction is six years. Vazquez also contends the evidence was insufficient to support a finding that he could pay a $900 fee pursuant to Penal Code section 1203.1b.
All further statutory references are to the Penal Code unless otherwise stated.
--------
Vazquez has forfeited any objection to the section 1203.1b fee. We agree, however, that the sentence was unauthorized and will remand for resentencing.
FACTUAL AND PROCEDURAL SUMMARY
On April 9, 2010, an information was filed in Stanislaus County Superior Court charging Vazquez with two counts of first degree robbery pursuant to section 212.5, subdivision (a). The information also alleged as to both counts that Vazquez was armed with a firearm during the commission of both offenses. Vazquez pled not guilty and denied both enhancements.
Count I of the information alleged that Vazquez "did willfully, unlawfully and feloniously and by means of force and fear take personal property from the person, possession and immediate presence of LAURA DIARTE, a person who was then and there in an inhabited dwelling." (Bold omitted.) The count II allegation used the same language, substituting the name of Isaiah Diarte for that of Laura Diarte. The only enhancement alleged was a firearm enhancement pursuant to section 12022, subdivision (a)(1). There was no allegation or enhancement set forth in the information that alleged Vazquez acted in concert with two or more other persons, pursuant to section 213, subdivision (a)(1)(A), in committing the robberies.
On August 16, 2010, the trial court denied Vazquez's motion to suppress evidence and Vazquez then withdrew his not guilty plea. The trial court then read the exact language set forth in the information and Vazquez pled no contest to each count after it was read. He also admitted the firearm enhancements set forth in the information. As was stated by defense counsel at the hearing when Vazquez entered his plea:
"We don't want to accept an offer as made by the prosecution. Basically my client is willing to plead no contest rather than proceed to trial with the hopes sentencing will be more favorable by doing so rather than going to trial and being found guilty by a jury."
The prosecutor confirmed that "[t]he prosecution has engaged in no plea bargaining." The parties stipulated that the preliminary hearing transcript provided a sufficient factual basis for Vazquez's plea. The trial court found "a factual basis for the plea," but made no specific factual findings.
Prior to the trial court accepting Vazquez's no contest plea, the People opined that an "[a]ggravated nine years on one count" was the maximum sentence that could be imposed. The trial court noted additional time could be imposed for the firearm enhancements. There was no specified sentence in return for the plea.
On September 28, 2010, the trial court denied probation and sentenced Vazquez to the upper term of nine years for count 1, plus a one-year term for the firearm enhancement. The trial court imposed an identical term for count 2 and the enhancement appended to that count, with the term to be served concurrently. Among the fines and fees imposed by the trial court was a $900 fee for the preparation of his probation report pursuant to section 1203.1b, subdivision (a).
At the sentencing hearing, Vazquez's counsel opined that the "most he [Vazquez] should receive" was a six-year term, although there is an indication the trial court and perhaps defense counsel viewed this as a request for the midterm. Defense counsel did not object more specifically to the sentence on the grounds a nine-year term was an unauthorized sentence.
DISCUSSION
Vazquez raises two issues in this appeal: (1) the nine-year term imposed for each robbery count was an unauthorized sentence, and (2) insufficient evidence supported the $900 section 1203.1b probation fee.
I. Sentence an Abuse of Discretion
Vazquez contends the trial court imposed an unauthorized sentence and thereby abused its discretion when it imposed an aggravated term pursuant to section 213, subdivision (a)(1)(A) because no special allegation under this code section was pled and he did not admit to committing the robberies in concert with others. We agree.
Section 1237.5 provides that, in most instances, a defendant must obtain a certificate of probable cause in order to challenge a judgment entered on a guilty or no contest plea. (People v. Buttram (2003) 30 Cal.4th 773, 780 (Buttram).)One of the judicially created exceptions to section 1237.5 permits a defendant to challenge on appeal the trial court's exercise of sentencing discretion after entry of a plea, so long as the challenge is not, in effect, a challenge to the "validity of the plea." (Buttram, at pp. 781-782.) Here, Vazquez is not challenging the validity of his no contest plea to the charges and enhancements set forth in the information; he is challenging the trial court's exercise of discretion in imposing a nine-year term, essentially claiming an abuse of discretion by imposing an unauthorized sentence.
Where the defendant has 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.' [Citation.]" (People v. Couch (1996) 48 Cal.App.4th 1053, 1056-1057; People v. Nguyen (1993) 13 Cal.App.4th 114, 122-123; see also In re Griffin (1967) 67 Cal.2d 343, 347-348.)
Vazquez, however, did not enter a plea pursuant to a plea bargain or in return for a specified sentence. "By agreeing only to a maximum sentence, the parties leave unresolved between themselves the appropriate sentence within the maximum. That issue is left to the normal sentencing discretion of the trial court, to be exercised in a separate proceeding." (Buttram, supra, 30 Cal.4th at p. 785.) If the appeal attacks only the exercise by the trial court of sentencing discretion reserved to the trial court by the plea agreement, no certificate is required. (See People v. Scott (1994) 9 Cal.4th 331, 353).
In In re Jonathan T. (2008) 166 Cal.App.4th 474, the appellate court analyzed section 213, subdivision (a)(1)(A) and concluded section 213 set forth an enhancement. (Jonathan T., at p. 482.) As an enhancement, it must be pled and proven beyond a reasonable doubt. (Id. at p. 483; People v. Mancebo (2002) 27 Cal.4th 735, 747.) The appellate court concluded that since an enhancement must be pled and proven, and no in concert enhancement was pled or admitted, the trial court erred in imposing punishment for a robbery committed in concert. (Jonathan T., at p. 483.)
In Vazquez's case, the information did not plead a section 213 enhancement. Additionally, the trial court never asked Vazquez to admit an in concert enhancement as a part of his plea and no in concert enhancement was admitted by Vazquez.
The recent case of People v. Mitchell (2011) 197 Cal.App.4th 1009 (Mitchell) also is persuasive. In Mitchell, the defendant pled to several charges, including robbery counts. The information did not allege the robberies were committed in concert and the defendant did not admit the robberies were committed in concert. (Id. at p. 1013.) When the trial court imposed sentence on the robbery counts, it imposed the upper term of nine years on the premise that the robberies had been committed in concert. (Ibid.)In reducing the sentence, the appellate court stated:
"Here, defendant did not admit to the robbery in concert enhancement at all. Thus, the public interest manifestly weighs most heavily against
upholding the terms of the plea bargain. It is one thing for a defendant to plead guilty to a crime he knows he did not commit in order to implement a plea bargain. It is quite another for a court to sentence a defendant to a crime or enhancement of which he was never notified or charged and to which he did not admit or plead. Equally stunning, neither the prosecutor nor defense counsel caught the error." (Id. at p. 1017.)
Just as in Mitchell, here there was no admission or plea by Vazquez to a robbery in concert allegation to which he was sentenced. The due process clauses of the Fifth and Fourteenth Amendments require that a defendant be given notice of the charges and enhancements against him. (People v. Jones (1990) 51 Cal.3d 294, 317; People v. Hernandez (1988) 46 Cal.3d 194, 208.) By sentencing Vazquez on an offense with which he was not charged and to which he did not admit, the trial court effectively imposed on him a waiver of his constitutional right to be given notice of the charges against him. (Mitchell, supra, 197 Cal.App.4th at p. 1018.)
The trial court abused its sentencing discretion by imposing a sentence based upon a section 213 enhancement that neither was pled nor admitted. Pursuant to section 1260, this court has the ability to modify the sentence, but we decline to do so. Instead, we will remand for resentencing consistent with this opinion to allow the trial court to exercise its discretion within the sentencing options available to it.
II. Section 1203.1b Probation Fee
Vazquez also contends the trial court erred in imposing a $900 fee for preparation of the probation report pursuant to section 1203.1b because the evidence was insufficient to support the finding of ability to pay. The People argue that Vazquez failed to lodge an objection to the trial court's imposition of the fee or his ability to pay it; therefore, the issue is subject to forfeiture on appeal.
In light of our decision to vacate the judgment and remand this case for resentencing, we need not decide this issue in this appeal. Vazquez has a remedy set forth in the statute itself. Section 1203.1b, subdivision (c) provides for additional hearings on a defendant's ability to pay and subdivision (f) of section 1203.1b provides for a modification of a judgment. Vazquez can request a section 1203.1b, subdivision (c) hearing on his ability to pay after remand.
DISPOSITION
The judgment is vacated and the matter is remanded for resentencing in accordance with this opinion.