Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Ventura, Herbert Curtis III, Judge, Super. Ct. No. 2005006237
Dee Hayashi, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul Roadarmel, Jr., Supervising Deputy Attorney General, Sonya Roth, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Appellant Robert Parker Young was charged by felony information with elder or dependent adult abuse, resulting in death. (Pen. Code, § 368, subd. (b)(1).) It was alleged that he had proximately caused the death of the victim, who was 70 years of age or older. (Id., subd. (b)(3)(B).) It was further alleged that the crime involved a high degree of cruelty, viciousness, or callousness; the victim was particularly vulnerable; and appellant took advantage of a position of trust and confidence to commit the offense. (Cal. Rules of Court, rule 4.421(a)(1), (3) & (11).)
All further statutory references are to the Penal Code unless otherwise stated.
The Felony Information inadvertently listed the enhancement as section 368 subdivision (a)(3).)
Appellant entered a plea of not guilty and denied the special allegations. After voir dire commenced, he withdrew his not guilty plea and pleaded guilty and admitted the special allegations. The trial court denied probation and sentenced appellant to nine years in state prison, consisting of the low term of two years, plus a seven-year enhancement pursuant to section 368, subdivision (b)(3)(B). He was given 780 days of presentence custody credits and ordered to pay $2,073.56 in victim restitution. (§ 1202.4, subd. (f).)
Appellant claims that the trial court mistakenly believed it lacked discretion to strike his seven-year enhancement, thus the matter must be remanded. We affirm his conviction, but remand for resentencing.
FACTS
Appellant and his mother lived together in a mobile home park in the City of Moorpark. On February 23, 2005, the Ventura County Sheriff's Office responded to a suspicious death investigation at their residence. The mobile home was extremely cluttered with hundreds of empty beer containers, trash and boxes. There was an overpowering odor of urine and feces and rotting trash.
The deceased victim was appellant's 80-year old mother. The officers entered her bedroom and saw her lying on the floor. There was bedding near her feet. She was lying in her feces, urine and rotting food. A rotting banana was between her legs and pieces of rotting food were around and underneath her. Dirty plates and bowls were under the bed, beside her and on the dresser. There were no sheets or blankets on the bed and the mattress was stained with what appeared to be bodily fluids. The victim was wearing adult diapers that were filled with feces that had overflowed to the floor. The bathroom was cluttered. The shower was covered with soap scum and mildew and there were boxes in the bathtub. On the floor was an open box of adult diapers.
An autopsy was performed the following day. The victim was wearing a t-shirt, which was stained around the front of the collar and shoulders with some type of bodily fluid and food debris. Under that shirt was another t-shirt. Flesh material was attached to the inside of the t-shirt. The victim was caked with fecal matter. When the fecal material was removed, it exposed ulcerated areas in the victim's mid-back area that extended to her lower buttocks and legs. She was very thin, dehydrated and had long dirty fingernails. The coroner determined the cause of death to be bronchial pneumonia with contributing factors of dementia and hypertension. It was estimated that she had been dead for 24-48 hours before the officers arrived.
Appellant was present when the officers were called to the mobile home. He told them that he had lived there for seven years, and worked part time repairing computers. The victim had previously broken a hip and a leg, both of which required hospitalization, resulting in her use of a cane or walker. Appellant was aware that the victim had taken medication, but the prescriptions had expired about six months earlier. She had not seen a doctor for over a year.
Appellant told the officers that he fed the victim frozen dinners and sodas. She had been lying on the floor for two weeks because she felt more comfortable there. He tried to move her back to the bed, but she refused. He did not change her clothes or bathe her during those two weeks. When she was on the floor, he would place a dinner plate on her chest and she fed herself. She began having difficulty holding onto her drinks and appellant bought her a cup with a straw. During the last two days she did not eat, drink or talk.
On February 23, 2005, appellant spoke to the victim, but she did not reply or move. He waited several hours, then went into her room a second time, and noticed she still had not moved. At about 1:00 p.m. he called 911. Earlier that morning, a neighbor had called appellant, and asked for the victim. Appellant responded that she had died a couple of days earlier.
A forensic psychologist, Dr. Carl E. Osborn, examined appellant and submitted a written report to the public defender. He described appellant as a "minor savant" who is "markedly immature and socially incompetent." However, the psychologist concluded that appellant loved and respected his mother and there was no evidence of "ill will, malice or ulterior motivation."
Entry of Guilty Plea and Sentencing
After withdrawing his plea, appellant entered into a plea agreement which stated that the trial court could impose a maximum sentence of 11 years. He admitted the special allegations and indicated that he understood the terms of the agreement and the consequences of his plea.
The probation department issued a report in which the probation officer concluded appellant had not behaved with malice or an ulterior motive. Appellant was described in the report as "timid, unsure, and lacking common sense, barely capable of taking care of himself and completely devoid of [the] abilities necessary to care for a dependant [sic]." The probation officer questioned appellant's mental capacity and stated that it appeared he loved and cared about the victim and relied upon her to give him directives, which he complied with unquestioningly. It was recommended that appellant be committed to the California Department of Corrections and Rehabilitation for a 90-day diagnostic study, pursuant to section 1203.03.
At the sentencing hearing, the court found a factual basis for appellant's plea. It indicated that it had carefully considered the reports and documents and had great difficulty in reaching its decision. It stated, however, that "the bottom line for me is this is just not a case for probation. . . . [¶] . . . I can't, in good conscience, . . . grant you probation. So probation is formally denied. I have an issue with the enhancement, but I'm stuck by law. It's a mandatory requirement of the seven years. I don't think it's necessarily a nine-year case but, again, it's a sentencing scheme that I can't do anything about." The court imposed a total term of nine years in state prison, consisting of the low term of two years, plus the seven-year enhancement, due to the victim's age. (§ 368, subd. (b)(3)(B).)
DISCUSSION
Certificate of Probable Cause
Appellant argues that the trial court erroneously believed that it had no discretion to strike a section 368, subdivision (b)(3)(B) enhancement, so the case should be remanded to allow the court to exercise its discretion. He contends that he is not challenging the validity of the plea, so a certificate of probable cause was not required. Respondent counters that a certificate was required, pursuant to People v. Shelton (2006) 37 Cal.4th 759. It acknowledges that, should we determine that a certificate was not required, the matter should be remanded for resentencing.
"[T]wo types of issues may be raised on appeal following a guilty or nolo plea without the need for a certificate: issues relating to the validity of a search and seizure, for which an appeal is provided under section 1538.5, subdivision (m), and issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. [Citations.]" (People v. Buttram (2003) 30 Cal.4th 773, 780.)
Here, appellant has not attacked the validity of the plea, but simply sought to assert discretionary error in a sentencing proceeding that occurred after the plea. "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." (People v. Buttram, supra, 30 Cal.4th at p. 785.) Under these circumstances, a certificate of probable cause is not required. (Id. at p. 787.)
Respondent argues that the facts before us are analogous to those in Shelton. There, the defendant entered a no contest plea, after which the trial court imposed consecutive sentences. The plea agreement contained a provision specifying a "lid," an agreed-upon maximum possible sentence of three years and eight months. (People v. Shelton, supra, 37 Cal.4th at p. 764.) At sentencing, the defendant argued that the trial court could not impose consecutive terms, pursuant to section 654. (Shelton, at p. 765.) The Supreme Court held that the appellant's section 654 argument was a challenge to the trial court's authority to impose the lid sentence, constituting a challenge to the validity of the plea. Thus, a certificate of probable cause was required. (Shelton, at p. 769.)
Shelton is distinguishable from Buttram, because the former case concerned the court's authority to impose the agreed-upon maximum sentence. Buttram concerned an entirely different issue—the exercise of a trial court's discretion to strike an enhancement. (People v. Shelton supra, 37 Cal.4th at p. 770.) There is another important factual distinction. Unlike the defendant in Shelton, appellant's plea agreement did not include a sentencing lid protecting him from receiving a longer term. Instead, it stated that the statutory maximum he could receive was eleven years, consisting of the high term of four years plus a seven-year enhancement.
Discretion to Strike Enhancement
Any person having the care or custody of an elder or dependent adult and who "willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered, is punishable by . . . imprisonment in the state prison for two, three or four years." (§ 368, subd. (b)(1).) If the defendant caused the death of the victim, and the victim is 70 years of age or older, "the defendant shall receive an additional term" of seven years in state prison. (Id., subd. (b)(3)(B).)
Absent a clear legislative directive to the contrary, section 1385 gives the trial court the power to strike an enhancement or the punishment for an enhancement in the furtherance of justice. (People v. Meloney (2003) 30 Cal.4th 1145, 1155; People v. Hatch (2000) 22 Cal.4th 260, 269; People v. Thomas (1992) 4 Cal.4th 206, 209.) General mandatory language that a sentence "shall" be imposed is not itself sufficient to divest the trial court of its section 1385 discretion. (People v. Wilson (2002) 95 Cal.App.4th 198, 202-203.)
The trial court in this case erroneously believed it was required to impose the seven-year enhancement. It is well-established that criminal defendants are entitled to sentencing decisions made by a trial court exercising "'informed discretion.'" (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) "A court which is unaware of the scope of its discretionary powers can no more exercise that 'informed discretion' than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record." (Ibid., citing People v. Ruiz (1975) 14 Cal.3d 163, 168.) Appellant is entitled to a remand so the trial court may consider whether to strike the enhancement. (People v. Rodriguez (1998) 17 Cal.4th 253, 257; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13; People v. Rivas (2004) 119 Cal.App.4th 565, 574-575.)
DISPOSITION
The judgment is affirmed. We remand the case for resentencing, to allow the trial court to exercise its discretion to strike the section 368 subdivision (b)(3)(B) enhancement, should it so choose.
We concur: GILBERT, P.J., PERREN, J.