P. v. Prado

Filed 10/30/07 P. v. Prado 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Madera County. Edward P. Moffat, Judge.

Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.

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Jose Angelo Prado entered a plea of no contest to charges that he had willfully inflicted corporal injury on the mother of his children, in violation of Penal Code section 273.5,^[1]and had a prior conviction for spousal battery ( 243, subd. (e)(1)). His plea also constituted a violation of his probation in Madera County Superior Court case No. MCR014615, a 2003 conviction for violation of section 273.5, subdivision (a). The trial court sentenced Prado to an aggravated term of four years, with a concurrent term for the violation of probation.

Prado asserts his sentence violates his Sixth Amendment right to a jury trial as explained in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856]. The People argue the appeal must be dismissed because Prado did not obtain a certificate of probable cause from the trial court. We conclude Prado was required to obtain a certificate of probable cause before pursuing this appeal. His failure to do so requires dismissal of this appeal.

FACTUAL AND PROCEDURAL SUMMARY

The complaint charged Prado with willfully inflicting corporal injury on the mother of his children ( 273.5) and making a criminal threat ( 422). The complaint also alleged that Prado incurred two prior convictions -- a 2003 conviction for willfully inflicting corporal injury on the mother of his children ( 273.5) and a 2001 conviction for spousal battery ( 243, subd. (e)(1)). The People also filed a petition alleging the same incident constituted a violation of his probation for the 2001 conviction. Although the record is not clear, it appears that Prado admitted he violated probation, and the sentencing on that matter trailed to permit resolution of the complaint.

An agreement was reached at the trial confirmation hearing to resolve both the new charges and the violation of probation. We will discuss the proceedings in the trial court in detail because they dictate the outcome of this appeal.

At the commencement of the trial confirmation, the prosecutor advised the trial court that Prado had made an offer to resolve both the complaint and the violation of probation. Prado agreed to (1) plead no contest to count 1, willful infliction of corporal injury on the mother of his child ( 273.5), and (2) admit he suffered a prior conviction for the same offense. The parties agreed the maximum sentence to be imposed would be a four-year prison term on the complaint and a concurrent three-year prison term on the violation of probation. The prosecutor stated she would not oppose resolution of the matter on that basis, but she could not require the trial court to comply with the terms.

The trial court responded it would be willing to resolve both matters on the suggested basis and then suggested that Prado enter a Felmann^[2]plea. There was some discussion regarding whether count 2, which would constitute a strike pursuant to the three strikes law ( 667, subds. (b)-(i)), could be dismissed by the People. The trial court stated that it would either accept the Peoples motion to dismiss count 2 or, if that could not be done, would accept a plea on count 2 and then dismiss the count in the interests of justice. Prado signed a plea agreement form consistent with this agreement.

When advising Prado of his trial rights, the trial court identified a problem with the agreement. The sentencing triad that would apply to the crime and the enhancement to which Prado agreed was two, four, or five years, while the parties anticipated a two-, three-, or four-year triad. The parties considered various methods to arrive at the intended sentencing triad and finally agreed that if Prado pled guilty to count 1 and admitted the prior conviction for spousal battery, he could be sentenced pursuant to section 273.5, subdivision (e)(2), which carried a sentencing triad of two, three, or four years. Prado pled no contest to the charge and prior conviction as agreed to by the parties.

At the sentencing hearing, the trial court concluded that because of Prados numerous prior convictions and poor performance on probation, it would impose an aggravated term of four years and a concurrent three-year term on the violation of probation.

DISCUSSION

The People assert the appeal must be dismissed because Prado failed to obtain a certificate of probable cause from the trial court. Penal Code section 1237.5 provides that a defendant may not appeal from judgment of conviction after a plea of guilty or no contest unless he or she first files with the trial court a challenge to the legality of the proceedings and the trial court executes and files a certificate of probable cause for such appeal. (Id., subds. (a) & (b).) A defendants appeal when he or she fails to obtain a certificate of probable cause when one is required must be dismissed. (In re Brown (1973) 9 Cal.3d 679, 683.)

Despite the mandatory nature of the statute, there are exceptions to the certificate of probable cause requirement. Penal Code section 1538.5 provides that, notwithstanding a guilty plea, a defendant may obtain appellate review of the validity of a search or seizure. (Id., subd. (m).) In addition, the defendant may appeal from a postplea determination of the degree of the crime or the punishment imposed. (People v. Shelton (2006) 37 Cal.4th 759, 766 (Shelton); People v. Hoffard (1995) 10 Cal.4th 1170, 1178, fn. 6.)

Prado is appealing from a postplea determination of the punishment imposed, apparently within an exception to the certificate of probable cause requirement. The People argue, however, that Prado is appealing the legality of the sentence that was imposed, which requires a certificate of probable cause. The People rely on Shelton to support their position, which we find dispositive.

As part of a plea agreement, Shelton pled guilty to one count of stalking, in violation of a court order, and one count of making criminal threats. In exchange, four felony counts were dismissed, and the parties agreed that the maximum sentence to be imposed would be three years eight months, which consisted of the middle term for the stalking count and one-third the midterm for the criminal threats count.

At the sentencing hearing, Shelton argued the trial court could not impose the eight-month term for the criminal threats count because section 654 precludes multiple punishments for the same course of conduct. The trial court rejected the argument and sentenced Shelton to the agreed-upon maximum term.

The appellate court held that the trial court erred, but determined the prosecution should have the opportunity to withdraw its offer because the sentence to which the parties agreed legally could not be imposed.

The Supreme Court reversed, concluding that Shelton was required to obtain a certificate of probable cause to challenge his sentence and, having failed to do so, his appeal must be dismissed. The Supreme Court began its analysis by recognizing the bar of section 1237.5 and the exceptions thereto. (Shelton, supra, 37 Cal.4th at p. 766.) It then identified the issue as whether Shelton was appealing from the punishment imposed, which would not require a certificate of probable cause, or was challenging the validity of the plea itself, which would require a certificate of probable cause. (Id. at pp. 766-767.)

To resolve this issue, the Supreme Court first recognized that a plea agreement was in essence a contract, and that the terms of the agreement were to be determined utilizing contract principles. (Shelton, supra, 37 Cal.4th at p. 767.) Since the term of the agreement at issue, the sentence to be imposed, was ambiguous, the Supreme Court was required to ascertain the intent of the parties. (Id. at pp. 767-768.) The Supreme Court resolved this issue in the following passage:

Thus, 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.

Viewed in this light, when a plea agreement includes a specified maximum sentence, a provision recognizing the defendants right to argue for a lesser term is generally understood to mean only that the defendant may urge the trial court to exercise its sentencing discretion in favor of imposing a punishment that is less severe than the maximum punishment authorized by law. In this case, it is reasonable to conclude that both the prosecutor and the trial court believed, when the plea bargain was made and accepted by the court, that defendant understood it in the same manner, as reserving to him a right to argue for a sentence less than the specified maximum of three years and eight months only on the ground that the trial court should impose a lesser sentence in the exercise of its sentencing discretion, and not on the ground that the trial court lacked authority to impose the specified maximum sentence. (Shelton, supra, 37 Cal.4th at p. 768.)

This result, of course, makes perfect sense because a different conclusion would invite mischief. A defendant could agree to any maximum sentence and obtain numerous benefits thereby (dismissal of other counts or enhancements), but at sentencing argue the trial court legally could not impose the sentence to which he or she had agreed.

Prado is in a position that is indistinguishable from Shelton. He reached an agreement with the prosecutor to plead guilty to willfully inflicting corporal injury on his childrens mother, with a maximum sentence that could be imposed of four years. In exchange, the prosecutor agreed to dismiss the criminal threats count and to agree with the request that the sentence for the violation of probation be imposed concurrently. As in Shelton, had the prosecutor known that Prado would challenge the legality of the maximum sentence to which Prado agreed, she could have reached the same maximum term through different means. (See Shelton, supra, 37 Cal.4th at pp. 768-769.) Also as in Shelton, Prado did not either explicitly or implicitly reserve the right to challenge imposition of the maximum sentence to which he agreed at the time he entered the plea, i.e., the time the parties reached an agreement. (See id. at p. 769.)

Because the plea agreement was based on a mutual understanding (as determined according to principles of contract interpretation) that the court had authority to impose the lid sentence, defendants contention that the lid sentence violated [his Sixth Amendment right to a jury trial] was in substance a challenge to the pleas validity and thus required a certificate of probable cause, which defendant failed to secure. (Shelton, supra, 37 Cal.4th at p. 769.) The failure to obtain a certificate of probable cause requires dismissal of the appeal.

Prado makes two arguments in an attempt to distinguish his case from Shelton. First, he argues that since the lid agreed to by the parties was the maximum sentence that could be imposed by the trial court for the count to which he pled, the parties did not have a mutual understanding that the trial court might lawfully impose a greater term. We disagree. First, review of the record reveals that the parties and the trial court worked hard to arrive at the sentencing triad to which Prado pled. As the plea was originally conceived, Prado agreed to plead to count 1and admit a prior violation of section 273.5. When the parties discovered that the proposed plea would result in a sentencing triad of two, four, or five years, they agreed to change the agreement to permit Prado to admit a prior violation of section 243, which would result in a sentencing triad of two, three, or four years. This agreement obviously would have limited the trial court to a maximum sentence of four years instead of five.^[3]

Second, Prado ignores the fact that the agreement included a promise by the trial court that it would impose the violation of probation sentence concurrent to the term imposed for the current crime. Absent this agreement, the trial court could have imposed consecutive sentences for the two crimes, thereby greatly increasing the maximum sentence to which Prado was exposed. Clearly, absent the agreement, the trial court lawfully could have imposed an even longer term.

Prados second attempt to distinguish Shelton also fails. He suggests that he is not challenging the trial courts authority to impose the lid sentence because he is merely challenging the manner in which the lid sentence was imposed. This is a distinction without a difference. The parties agreed that if Prado pled to the crime and enhancement, the trial court could impose a maximum sentence of four years. The parties did not agree that the lid sentence could be imposed only if a jury trial was held to determine whether any aggravating factors existed that would justify imposition of an aggravated term. As in Shelton, Prado is attempting to add terms to the plea agreement to which the prosecutor never agreed. If Prado wanted to reserve the issue of whether an aggravated term could be imposed absent a jury trial of aggravating factors, he should have done so at the time the agreement was reached. It was too late to do so at the sentencing hearing.

DISPOSITION

The appeal is dismissed because Prado failed to obtain a certificate of probable cause as required by section 1237.5.

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^* Before Vartabedian, Acting P.J., Cornell, J. and Dawson, J.

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

^[2]People v. Superior Court (Felmann) (1976) 59 Cal.App.3d 270.

^[3] The analysis is the same even if we indulge Prado and assume an aggravated sentence could not be imposed. The maximum sentence that could be imposed under the final agreement would therefore be the midterm of three years instead of the midterm of four years under the original agreement.