Opinion
C080079
03-10-2017
THE PEOPLE, Plaintiff and Respondent, v. JEROME JOE JOE WHITE, JR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SF129584A)
As part of a negotiated plea bargain, defendant Jerome Joe Joe White, Jr., pleaded guilty to second degree robbery and admitted allegations of four prior prison terms, one prior serious felony conviction, and two prior strike convictions in exchange for, among other things, dismissal of an allegation that he personally used a firearm during commission of the robbery. (Pen. Code, § 12022.53, subd. (b).)
Unspecified statutory references are to the Penal Code.
On appeal, defendant contends he should be allowed to withdraw his plea because the trial court lacked statutory authority to dismiss the firearm use enhancement. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The parties agreed to the following factual basis for defendant's guilty plea:
On September 26, 2014, defendant entered the BBVA Compass Bank building at 200 North Church Street in Lodi. He approached the teller at window 5, placed a roll of $1 bills on the counter, along with a note informing the teller that "this was a robbery and to hand over the money." Defendant also showed the teller something in his waistband. The teller turned over the money and defendant left the building. The crime was captured on the bank's surveillance video.
Defendant was charged by criminal complaint with second degree robbery, a felony. (§ 211.) The complaint alleged defendant personally used a firearm during commission of the robbery (§ 12022.53, subd. (b)), suffered two prior strike convictions (§§ 667, subd. (d), 1170.12, subd. (b)), and suffered two prior serious felony convictions (§ 667, subd. (a)(1)). The complaint was subsequently amended to allege four prior prison terms. (§ 667.5, subd. (b).)
On February 23, 2015, defendant entered a negotiated plea of guilty to the robbery charge and admitted all four prior prison terms, one prior serious felony conviction, and two prior strike convictions in exchange for a 24-year state prison sentence and dismissal of the remaining prior strike allegation, the firearm use enhancement, and two other pending cases.
The trial court sentenced defendant to the upper term of five years for the robbery, doubled pursuant to the prior strike conviction, plus two consecutive five-year terms for the two prior serious felony convictions, and four consecutive one-year terms for the four prior prison terms, for an aggregate sentence of 24 years in state prison. The court imposed fees and fines and awarded defendant presentence custody credit.
Defendant filed a timely notice of appeal. The trial court granted his request for a certificate of probable cause. We shall affirm the judgment.
DISCUSSION
Defendant contends his guilty plea should be set aside as illusory because the trial court lacked the statutory authority to dismiss the firearm use enhancement. (§ 12022.53, subd. (b).)
The People argue defendant is estopped from challenging the plea pursuant to case law prohibiting a defendant who has received the benefit of his bargain from trifling with the courts. (See In re Griffin (1967) 67 Cal.2d 343, 348; People v. Webb (1986) 186 Cal.App.3d 401, 411-412; People v. Flood (2003) 108 Cal.App.4th 504, 508.)
Section 12022.53 provides that any person who personally uses a firearm in the commission of certain specified felonies, including robbery, "shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years." (§ 12022.53, subd. (b).) Subdivision (h) of section 12022.53 provides, "Notwithstanding [s]ection 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section."
Here, the parties agreed defendant would plead guilty to the robbery charge and admit the four prior prison terms, one of the prior serious felony convictions, and two of the prior strike convictions in exchange for a 24-year sentence and dismissal of, among other things, the firearm use enhancement. The parties agree that subdivision (h) of section 12022.53 expressly prohibits the trial court from striking the enhancement.
Parties "may not enter into a negotiated disposition, either by negligence or design, which specifies a sentence not authorized by law." (People v. Velasquez (1999) 69 Cal.App.4th 503, 505.)
The People argue that " '[a] litigant who has stipulated to a procedure in excess of jurisdiction may be estopped to question it when "[t]o hold otherwise would permit the parties to trifle with the courts." [Citation.]' " (People v. Ellis (1987) 195 Cal.App.3d 334, 343, quoting In re Griffin, supra, 67 Cal.2d at p. 348.) However, a condition for applying estoppel is that the defendant admitted the specific crime or enhancement for which he was sentenced. (Ellis, at p. 344.) Here, as defendant points out and the People seem to ignore, the firearm use enhancement was never admitted by defendant or proved by the People.
Under a term of the plea bargain entered into by defendant, the prosecutor was obliged to ask the court to dismiss a firearm use enhancement. The prosecutor asked and the court dismissed.
Defendant now asserts that by virtue of Penal Code section 12022.53, the court was without authority to dismiss the allegation. He argues in effect that once a firearm enhancement is alleged, the court is without authority to strike it, even with the agreement of the prosecution for the purpose of effecting a plea arrangement. Defendant cites no authority for this proposition, nor does he explain why he did not receive the full benefit of his bargain, except to suggest that "he remains subject to possible prosecution for the 10-year enhancement," notwithstanding the adjudication by plea of the underlying robbery charge to which the enhancement was attached. This notion of a free-floating enhancement that may someday be charged against defendant is fanciful, as is the argument he attempts to construct around it. Defendant has suffered no prejudice.
Nonetheless the issue is not cognizable on appeal. "It has long been the rule in this state that, in the absence of prejudice, a defendant may not complain of error favorable to the defendant . . . ." (People v. Lee (1999) 20 Cal.4th 47, 57.) The striking of the firearm use enhancement was manifestly favorable to the defendant in the present proceeding.
Although the People may appeal from "[a]n order setting aside . . . any portion of the . . . complaint" (§ 1238, subd. (a)(1)), they have not elected to do so. --------
DISPOSITION
The judgment is affirmed.
/s/_________
Blease, J. We concur: /s/_________
Raye, P. J. /s/_________
Robie, J.