P. v. Bean

Filed 3/23/07 P. v. Bean CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Michael Lewis, Judge.

Susan F. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Appellant, Zentory Bean, pled no contest as a part of a negotiated plea to unlawful possession of a firearm (count 2/Pen. Code, 12021, subd. (c)(1))^[1]and voluntary manslaughter (count 3/ 192, subd. (a)) and admitted a gun use enhancement ( 12022.5) in count 3. On appeal, Bean contends: 1) the court abused its discretion when it imposed the aggravated term on the arming enhancement in count 3; and 2) the court committed Blakely^[2]error. We will affirm.

FACTS

At approximately 8:07 p.m. on November 4, 2005, Bakersfield police officers responded to an apartment complex and found Marcel Lincoln mortally wounded. The officers eventually interviewed codefendant Anterrell Jackson who told them that Bean shot the victim. On November 5, 2005, police officers interviewed Bean. Bean told them that he shot Lincoln after Lincoln pointed a gun at him.

On February 9, 2006, Bean entered his plea in this matter in exchange for a maximum sentence of 13 years and the dismissal of a murder charge and other enhancements. During the change of plea proceedings the following colloquy occurred:

MR. LUKEHART [DEFENSE COUNSEL]: We have a disposition, your Honor. Would the court like me to recite it?

THE COURT: Please.

MR. LUKEHART: Mr. Bean will enter a plea of no contest to a lesser of Count 1, a violation of 192(a), voluntary manslaughter.

He will also enter into an admission of a new and additional enhancement pursuant to Penal Code Section 12022.5(a). Thats the personal use allegation.

He will also enter a no contest plea to the charge in Count 2, a violation of 12021(c)(1). The enhancement will be dismissed.

And all that for a 13-year lid.

THE COURT: And, Mr. Lukehart, the calculations to the 13-year lid?

MR. LUKEHART: Well, if the court wanted to give 13, it could give low term on the manslaughter, plus the full 10 years on the enhancement, and run Count 2 concurrent or stay it. That would get to 13. There are other permutations.

The least Mr. Bean can get under this disposition is a six-year sentence. (Italics added.)

At Beans sentencing hearing on March 21, 2006, the court found one mitigating circumstance, i.e., Beans early plea in the proceedings and one aggravating circumstance, i.e., that his offense involved planning. It also imposed an aggregate 13-year term as follows: the mitigated term of 3 years on Beans voluntary manslaughter conviction, the aggravated term of 10 years on the arming enhancement in that count, and a concurrent, mitigated term of 16 months on Beans conviction for unlawful possession of a firearm. In imposing the mitigated term on the two substantive offenses the court found that the single mitigating circumstance outweighed the single aggravating circumstance. The court, however, did not state any reasons for imposing the aggravated term on the arming enhancement. Neither Bean nor his defense counsel objected to the courts failure to state reasons for imposing the aggravated term on this enhancement.

DISCUSSION

Imposition of the Aggravated Term on the Arming Enhancement

Section 12022.5 provides for an arming enhancement term of 4, 6, or 10 years. Bean contends the court abused its discretion when it imposed the aggravated term of 10 years on his arming enhancement because: 1) the courts failure to state whether the enhancement term imposed was the low, middle or upper term indicates that it was unaware it could impose one of three terms on the arming enhancement; 2) it improperly reasoned backwards to achieve a specific sentence; and 3) the upper term was not justified because the court found that the mitigating circumstances outweighed the aggravating circumstances. Alternatively, Bean contends that he was denied the effective assistance of counsel by defense counsels failure to object to the trial courts failure to state reasons for imposing the aggravated enhancement term. Respondent, in pertinent part, contends that this issue is not cognizable on appeal because Bean did not obtain a certificate of probable cause pursuant to section 1237.5.^[3] Assuming, without deciding, that these issues are properly before us, we will find that Bean is precluded from raising them on appeal by the terms of his plea bargain.

Plea bargaining is a widely used practice that is essential to the efficient and fair operation of the criminal justice system. (People v. West (1970) 3 Cal.3d 595, 604.) In a plea bargain, the defendant agrees to plead guilty in order to obtain a reciprocal benefit, generally consisting of a less severe punishment than that which could result if he were convicted of all offenses charged. [Citation.] This more lenient disposition of the charges is secured in part by prosecutorial consent to the imposition of such clement punishment [citation], by the Peoples acceptance of a plea to a lesser offense than that charged, either in degree [citation] or kind [citation], or by the prosecutors dismissal of one or more counts of a multi-count indictment or information. Judicial approval is an essential condition precedent to the effectiveness of the bargain worked out by the defense and prosecution. [Citations.] But implicit in all of this is a process of bargaining between the adverse parties to the case - the People represented by the prosecutor on one side, the defendant represented by his counsel on the other - which bargaining results in an agreement between them. [Citation.] (People v. Orin (1975) 13 Cal.3d 937, 942-943; see 1192.1, 1192.2, 1192.4, 1192.5.)

As a general rule, a plea bargain approved by the court is enforceable under contract principles. (See Santobello v. New York (1971) 404 U.S. 257, 260-261; People v. Walker (1991) 54 Cal.3d 1013, 1024.) When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. (Ibid.) A court may not impose punishment significantly greater than what was agreed upon. Moreover, the specification of a maximum sentence or lid in a plea agreement normally implies a mutual understanding of the defendant and the prosecutor that the specified maximum term is one that the trial court may lawfully impose and also a mutual understanding that, absent the agreement for the lid, the trial court might lawfully impose an even longer term. (People v. Shelton (2006) 37 Cal.4th 759, 768.)
Here, during the change of plea proceedings defense counsel specifically agreed that if the court imposed the maximum, aggregate term of 13 years under the plea agreement, it could do so by imposing the lower term of 3 years on Beans voluntary manslaughter conviction and the aggravated term of 10 years on the arming enhancement. Further, by imposing the aggravated term on the arming enhancement and the mitigated term on his manslaughter offense the court merely sentenced Bean in a manner authorized by his plea agreement. In view of this, we conclude that the courts failure to state that it was imposing the aggravated term on the arming enhancement does not indicate that it misunderstood its discretion to impose a lower term. Similarly, the imposition of a sentence in accord with Beans plea bargain refutes Beans contentions that the court reasoned backwards to a specific sentence or that it was required to impose the mitigated term because the mitigating circumstances outweighed the aggravating circumstances. Accordingly, we reject Beans contention that the court abused its discretion when it sentenced him to an aggregate term of 13 years.^[4]

The Blakely Issue

Bean argues that the courts imposition of the aggravated term without a jury finding on circumstances in aggravation violated his constitutional due process and jury trial rights. Respondent contends that this issue is not cognizable on appeal. We agree with respondent.

In People v. Bobbit (2006) 138 Cal.App.4th 445, 447, the court held that a defendant who challenges the trial courts authority to impose an upper term sentence based on the absence of a jury finding on one or more aggravating circumstances (see Blakely v. Washington, supra, 542 U.S. 296) is required to obtain a certificate of probable cause. Further, since Bean raises an identical contention, this contention is not cognizable on appeal because Bean failed to obtain a certificate of probable cause.

DISPOSITION

The judgment is affirmed.

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^* Before Wiseman, A.P.J., Gomes, J., and Kane, J.

^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2]Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403.

^[3] Section 1237.5 provides: No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.

^[4] In view of this conclusion, we will not address Beans ineffective assistance of counsel claim.