P. v. Piepenbrink
Filed 11/14/13 P. v. Piepenbrink CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
MARK ADAM PIEPENBRINK,
Defendant and Appellant.
D063617
(Super. Ct.
No. SCE322157)
APPEAL from
a judgment of the Superior Court
of
County, John M. Thompson, Judge. Affirmed.
John L.
Staley for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Senior Assistant Attorney General, William Wood and Heather
Ferrick Crawford, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
In December 2012, pursuant to a
pled guilty to attempted burglary of an inhabited residence (Pen. Code, §§
664/459, 460, 667.5, subd. (c)(21)),
terms (§§ 667.5, subd. (b), 668) and having suffered one prior strike
conviction (§ 667, subds. (b)-(i)). At
the time Piepenbrink pled guilty, he entered into a plea agreement that
provided that he would receive a stipulated sentence of three years in prison,
and that he would be released on his own recognizance pending sentencing. The plea agreement also states that if
Piepenbrink were to willfully fail to appear for sentencing, he would be
sentenced "unconditionally," and would not be permitted to withdraw
his plea. After Piepenbrink pled guilty,
the court said to him, "Come back when we tell you to come back, we've got
a deal at three." The court then accepted
Piepenbrink's plea.
Piepenbrink
failed to appear at the scheduled sentencing
hearing, and the trial court issued a warrant for his arrest. Piepenbrink was later arrested and brought
before the court for sentencing. The
court sentenced Piepenbrink to seven years in prison.
On appeal, Piepenbrink
claims that the trial court erred in sentencing him to seven years in prison
because the plea agreement required that he be sentenced to three years in
prison unless he committed another crime while on release pending
sentencing. We reject this claim and affirm.
II.
FACTUAL AND
PROCEDURAL BACKGROUND
On July 10, 2012, Piepenbrink attempted to burglarize an
apartment in La Mesa.
On December 4, 2012, Piepenbrink pled
guilty to attempted burglary of an inhabited residence (§§ 664/459, 460, 667.5,
subd. (c)(21)), and admitted having served four prior prison terms (§§ 667.5,
subd. (b), 668) and having suffered one prior strike conviction (§ 667, subds.
(b)-(i)).
The plea
agreement provides that the "parties stipulate to [three] years," and
that Piepenbrink would be released on his own recognizance pending
sentencing. In addition, Piepenbrink
initialed a portion of the plea agreement that states in relevant part:
"(Cruz[
title="">[2]]
Waiver) Negotiated Disposition pursuant to [section] 1192.5; I understand that
if pending sentencing I am arrested for or commit another crime, violate any
condition of my release, or willfully fail to appear for my probation interview
or my sentencing hearing, the sentence portion of this agreement will be
cancelled. I will be sentenced
unconditionally, and I will not be allowed to withdraw my guilty/no contest
plea(s)."
At the plea
hearing, in summarizing the terms of the plea agreement, the court stated:
"[Defense counsel] has indicated
that you are requesting a release pending sentencing to take care of certain
matters before you go in. I've agreed to
do that, give you an o.r. on the case; bring you back for sentencing; you do
your three. If we go along with that deal,
you pick up any new cases, anything, I'm going to do you for seven years on
this case, plus what I give you on the new case."
The court
also stated, "Come back when we tell you to come back, we've got a deal at
three. Is that your understanding?" Piepenbrink responded in the affirmative. The trial court proceeded to accept
Piepenbrink's plea of guilty to one count of attempted burglary of an inhabited
residence (§§ 664/459, 460, 667.5, subd. (c)(21)). In addition, Piepenbrink admitted to having
served four prior prison terms (§§ 667.5, subd. (b), 668), and having suffered one
prior strike conviction (§ 667, subds. (b)-(i)). The trial court set sentencing for January 3,
and instructed Piepenbrink to return on that date.
Piepenbrink
failed to appear for the scheduled January 3 sentencing hearing. The trial court issued a warrant for
Piepenbrink's arrest. Approximately one
week later, Piepenbrink was taken into custody by law enforcement officers.
On January 24, the court held a sentencing
hearing. At the hearing, defense counsel
requested that the trial court impose a three-year sentence. Counsel stated that Piepenbrink had been in a
serious car accident while on release awaiting sentencing.
counsel also explained that she had been on a lengthy vacation, and that
Piepenbrink had lost a card that she had provided to him with her supervisor's
name and phone number.
The court
asked defense counsel, "Do you have any documentation to suggest that on
the date that that this matter was calendared for sentencing, Mr. Piepenbrink
was either in the hospital or in custody?"
Defense
counsel responded, "No, none of those things. I don't even have documentation, and he does
not remember the date he was in a car accident."
The court sentenced
appellant to seven years in state prison,
consisting of a two-year middle term on count 1, doubled based on the strike
conviction, plus one year for his three prison priors.
Piepenbrink
timely appealed.
III.
DISCUSSION
The trial court was not required to sentence Piepenbrink to three years
in prison
Piepenbrink
contends that his "sentence should be modified to three years in state
prison" because his "plea bargain was for three years in custody
unless he committed another crime while released pending sentencing."
A. Governing
law and standard of review
In People v. Paredes (2008)
160 Cal.App.4th 496, 506-507, this court described the law that governs the
interpretation of the plea agreement in this case:
according to the same rules as other contracts . . . .' ( People v. Toscano (2004) 124
Cal.App.4th 340, 344 (Toscano); accord People v. Vargas (2001) 91
Cal.App.4th 506, 533 [' " ' "A plea agreement is, in essence, a
defendant and the prosecutor to which the court consents to be bound" ' "
'].)
"In interpreting [a] plea agreement . .
. , we apply the ordinary standards of
of contracts generally. (See Toscano,
supra, 124 Cal.App.4th at p. 345.) '[T]he
"interpretation of a contract is subject to de novo review where the
interpretation does not turn on the credibility of extrinsic evidence." ' (People ex rel. Lockyer v. R.J. Reynolds
Tobacco Co. (2003) 107 Cal.App.4th 516, 520, quoting Morgan v. City of
Los Angeles Bd. of Pension Comrs. (2000) 85 Cal.App.4th 836, 843.)"
B.
In pleading
guilty, Piepenbrink expressly acknowledged that he could receive a sentence that
was greater than three years if he were to willfully fail to appear at his sentencing
hearing. As noted previously, the plea
agreement states in relevant part: "I understand that if pending
sentencing I . . . willfully fail to appear for . . . my sentencing hearing,
the sentence portion of this agreement will be cancelled. I will be sentenced unconditionally, and I
will not be allowed to withdraw my guilty/no contest plea(s)." Thus, the plea agreement does
commission of a crime pending sentencing is the sole basis on which he could be
sentenced to a sentence greater than three years. On the contrary, the plea agreement expressly
permits the imposition of a sentence of greater
than three years if Piepenbrink willfully failed to appear at his sentencing
hearing.
Piepenbrink
contends that he "reasonably believed [that] he would serve no more than
three years in state prison as long as he did not commit another crime." Piepenbrink raises two arguments in support
of this contention. First, he argues
that the plea agreement does not state that he would receive a sentence of seven
years if he willfully failed to appear. That
much is true. However, the plea
agreement does state that Piepenbrink
would be sentenced "unconditionally" if he willfully failed to
appear. Thus, contrary to Piepenbrink's
argument, the plea agreement did not mandate a sentence of three years if
Piepenbrink were to refrain from committing a crime pending sentencing.
Piepenbrink
also appears to argue that the trial court's comments at the plea hearing suggested
that he could receive a sentence of more than three years only if he were to
commit a crime while awaiting sentencing.
We disagree. To begin with, the
trial court asked Piepenbrink whether he had had the opportunity to review with
defense counsel the plea agreement form "in its entirety," and asked
Piepenbrink whether he felt that he understood the form. Piepenbrink responded in the affirmative to
both questions. As noted above, the plea
agreement expressly states that Piepenbrink could receive a sentence of more than
three years if he were to willfully fail to appear at sentencing. In addition, the trial court specifically
admonished Piepenbrink to return to the court when instructed, and directed
Piepenbrink to return to court on January 3 for sentencing. Further, at no time did the trial court state,
contrary to the plea agreement, that Piepenbrink would be sentenced to a term of
other than three years only if he were to commit a crime. We therefore reject Piepenbrink's contention
that he reasonably believed that he
would serve no more than three years in state
prison as long as he did not commit another crime pending sentencing.
Accordingly,
we conclude that the trial court was not required to sentence Piepenbrink to
three years in prison.
IV.
DISPOSITION
The
judgment is affirmed.
AARON, J.
WE CONCUR:
O'ROURKE,
Acting P. J.
IRION,
J.
name="_ftn1" title="">[1] Unless
otherwise specified, all subsequent statutory references are to the Penal Code.
name="_ftn2" title="">[2] (See
People v. Cruz (1988) 44 Cal.3d 1247, 1254 [permitting
a defendant to waive the right to withdraw a guilty plea if trial court imposes
a sentence in excess of a plea-bargained sentence].)
