P. v. Langarica
Filed 3/22/07 P. v. Langarica CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. RICHARD J. LANGARICA, Defendant and Appellant. | E039975/E040452 (Super.Ct.Nos. INF33894 & INF047960) OPINION |
APPEAL from the Superior Court of Riverside County. Charles Everett Stafford, Jr., Judge. Affirmed with directions.
Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Christine Levingston Bergman, Deputy Attorney General, for Plaintiff and Respondent.
Defendant and appellant Richard Jaime Langarica was charged with robbery (Pen. Code, 211, count 1)[1]and taking personal property exceeding a value of $400 ( 487, subd. (a), count 2). He entered a plea bargain and agreed to plead guilty to robbery in exchange for dismissal of the other count. Under the agreement, the maximum possible custody commitment was five years. The court granted defendant probation for a period of five years under certain conditions, including that he serve one year in county jail. Defendant subsequently pled guilty to willful infliction of corporal injury on a spouse ( 273.5, subd. (a)), pursuant to another plea agreement. He also admitted violating his probation in the robbery case. The court revoked defendants probation and sentenced him to six years in the robbery case, plus one year in the corporal injury case.
On appeal, defendant contends that: 1) the trial court violated the plea agreement by sentencing him to six years on the robbery case; 2) the trial court failed to timely declare the degree of the robbery, and it should thus be declared second degree robbery. The People concede, and we agree, that the court should not have sentenced defendant to more than five years on the robbery charge, that the robbery charge should be declared second degree robbery, and that the matter should be remanded for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
On February 12, 2000, defendant gave a puppy to Augustine Hernandez. A week later, he went to Hernandezs home and demanded money for the puppy. While defendant was talking to Hernandez, a man named Tony went into Hernandezs home, punched Hernandez in the mouth, and forced him onto the couch. Tony held a knife to Hernandezs throat and told defendant to take Hernandezs stereo system and video cassette recorder. Defendant took the items and placed them in his car. Tony and defendant left the residence in defendants car.
On February 23, 2000, the district attorney filed a felony complaint charging defendant with robbery ( 211, count 1) and taking personal property exceeding a value of $400 ( 487, subd. (a), count 2) (case No. INF033894 or the robbery case).
On March 8, 2000, defendant pled guilty to count 1, pursuant to a plea agreement, and the court dismissed count 2. The plea agreement stated that the maximum possible custody commitment, based on the admitted charge, was five years. On March 29, 2000, the court granted defendant probation for a period of five years, with the condition that he serve one year in county jail.
On August 6, 2004, the district attorney filed a felony complaint and notice of revocation of probation charging defendant with inflicting corporal injury on a spouse ( 273.5, subd. (a), count 1); two counts of child abuse ( 273a, subd. (a), counts 2 & 3); and destroying the property of another ( 594, subd. (b)(1), count 4) (case No. INF047960 or the corporal injury case).
On December 28, 2004, defendant pled guilty to count 1 in the corporal injury case, in exchange for the dismissal of the other counts. The court sentenced him to three years in state prison, suspended the sentence, and granted defendant probation for a period of three years. That same day, defendant admitted violating probation in the robbery case. The court reinstated his probation in that case on the same terms and conditions.
On August 22, 2005, the district attorney filed a notice of violation of probation in the corporal injury case. The court ordered defendants probation revoked in that case. On September 8, 2005, the court revoked defendants probation in the robbery case.
On January 26, 2006, the trial court sentenced defendant to the midterm of six years in the robbery case. The court sentenced defendant to one year in the corporal injury case and ordered that sentence run consecutive to the sentence in the robbery case.
Defendant filed separate notices of appeal on the robbery and corporal injury cases and requested that the two cases be considered in a consolidated appeal. This court granted that request.
ANALYSIS
I. The Plea Agreement Limited the Maximum Sentence to Five Years
Defendant contends the trial court violated the plea agreement when it sentenced him to six years in the robbery case, since the maximum possible custody commitment agreed upon was five years. The People concede.
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. The punishment may not significantly exceed that which the parties agreed upon. (People v. Walker (1991) 54 Cal.3d 1013, 1024, superseded by statute on other grounds as stated in People v. Wilson (1994) 26 Cal.App.4th 1566, 1570.)
Here, the plea agreement specifically stated that the maximum possible custody commitment was five years. Thus, the court erred by sentencing defendant to more than five years on the robbery charge.
II. The Trial Court Did Not Timely Determine the Degree of the Robbery
Defendant argues that this court must declare his conviction to be second degree robbery since the court failed to timely determine the degree. The People concede.
Section 1192 provides: Upon a plea of guilty . . . of a crime . . . divided into degrees, the court must, before passing sentence, determine the degree. Upon the failure of the court to so determine, the degree of the crime [or attempted crime] of which the defendant is guilty, shall be deemed to be of the lesser degree. The phrase passing sentence is equal in meaning to pronouncing sentence or imposing sentence. (People v. Flores (1974) 12 Cal.3d 85, 93, fns. 5, 6.)
Here, the charging document and the plea agreement did not mention the degree of the robbery. Similarly, when the court took defendants plea, it did not specify the degree of the robbery. The first time the court mentioned the degree was at sentencing. The court stated: I still think it is appropriate under the circumstances to impose the midterm of six years since it is a first degree robbery . . . . (Italics added.) The court never determined the degree before sentencing. Thus, pursuant to section 1192, the robbery should be deemed to be second degree robbery. We note that the record indicates that the parties contemplated the robbery to be second degree, since the maximum possible custody commitment stated in the plea agreement was five years, and that is the upper term for second degree robbery. ( 213, subd. (a)(2).)
III. The Matter Must Be Remanded for Resentencing
Defendant argues that, even though the court erroneously believed the offense was first degree robbery and the midterm was six years, the courts finding that the midterm was appropriate should remain. Defendant therefore contends that this court should sentence him to the midterm for second degree robbery, which is three years. ( 213, subd. (a)(2).) We remand the matter for the trial court to determine the appropriate sentence.
At sentencing, the court stated that, under the circumstances, it was appropriate to impose the midterm of six years because it was first degree robbery and because it was going to impose a consecutive sentence on the corporal injury case, for a total of seven years in prison. The court also stated that if it were to impose the upper term of nine years, it probably would run the corporal injury sentence concurrently.
The record reflects that the trial court chose the midterm based on its belief that it was a first degree robbery. Moreover, the court improperly sentenced defendant to the midterm based on a conviction for first degree robbery committed by a defendant acting in concert with two or more people. The sentencing range for this type of first degree robbery is three, six, or nine years. ( 213, subd. (a)(1)(A).) The sentencing range for all other first degree robberies is three, four, or six years. ( 213, subd. (a)(1)(B).) Since the record reflects that defendant only acted in concert with one other person, the trial court used the wrong sentencing range when it imposed the midterm. In addition, from the courts comments, it appears that the court considered the sentence in the robbery case in conjunction with the sentence in the corporal injury case; in other words, it was concerned about the combined total of both sentences.
We conclude that the proper remedy is to remand the matter to the trial court to determine the appropriate sentence for defendant for second degree robbery.
DISPOSITION
The judgment is affirmed with directions.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P.J.
We concur:
KING
J.
MILLER
J.
Publication Courtesy of California lawyer directory.
Analysis and review provided by Escondido Property line attorney.
[1] All further statutory references are to the Penal Code unless otherwise indicated.
