P. v. Ray

Filed 7/27/06 P. v. Ray CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David J. Danielsen, Judge. Dismissed.

Brian James Ray pleaded guilty to one count of arson of an inhabited structure (Pen. Code, § 451, subd. (b)).^[1] As part of his plea, Ray also admitted he had previously been convicted of arson, and that his previous conviction constituted a prior arson conviction under section 451.1, a felony "strike" (§§ 667, subds. (b)-(i), 1170.12) and a "serious felony" under section 667, subdivision (a)(1). The trial court sentenced Ray to 14 years in prison.

Ray appeals, contending that the trial court erred in imposing sentence by unlawfully using Ray's single prior arson conviction to enhance his sentence five years under section 667, subdivision (a)(1) and an additional three years under section 451.1. We are required to dismiss Ray's appeal without reaching the merits of his contentions because the appeal is, in substance, a challenge to the validity of his plea agreement, and Ray did not obtain a certificate of probable cause.

FACTS

Ray entered his guilty plea at a hearing on June 9, 2005. The terms of Ray's plea agreement were memorialized on a written plea form and discussed in open court with the trial judge. The plea form states that Ray pleaded guilty in exchange for: "mid lid (19 yrs)[,] dism[iss] balance."^[2] At the hearing, the trial court restated the terms of the plea as follows: "[I]n exchange for [Ray's] plea, the D.A. is going to strike and dismiss everything else, and the D.A. has agreed to put a limit on what they will argue for at the time of sentencing. They are not going to argue for more than nineteen years [in] state prison, which is the mid term." Ray acknowledged that these were the terms of the plea. The court then stated, "I will not give you more than [the] nineteen years, obviously, that the D.A. has agreed to, but I have told your lawyer that I am seeing this case as a fourteen-year case, at worst . . . ." The court noted that there were "psychological issues involved" in Ray's offense that it would consider, and stated that depending on what occurred at the sentencing hearing, "there is a possibility of anywhere from a fourteen-year prison sentence, down to something significantly less, and maybe probation."

During the colloquy with the trial court, Ray stated he understood, and had signed and initialed the change of plea form, and had adequate time to discuss the plea with his lawyer. Both in the plea colloquy and on the plea form, Ray acknowledged that the maximum penalty for the offense to which he was pleading guilty was "twenty-six years in state prison."

At the subsequent sentencing hearing, the trial court sentenced Ray to 14 years in prison. This sentence consisted of the low term for arson of an inhabited structure of three years (§ 451, subd. (b)), doubled by virtue of his prior strike conviction (§ 667, subd. (e)(1)), enhanced by three years for a prior arson conviction under section 451.1, subdivision (a)(1) (prior arson enhancement),^[3] and enhanced an additional five years for a prior serious felony conviction under section 667, subdivision (a)(1) (serious felony enhancement).^[4] All of the sentencing enhancements were based on the single prior arson conviction Ray acknowledged in his plea. Ray did not object to the sentence in the trial court.^[5]

Ray filed a notice of appeal. Ray did not obtain a certificate of probable cause under section 1237.5, stating in his notice of appeal that the appeal was solely "based on the sentence or other matters occurring after the plea."

DISCUSSION

On appeal, Ray contends that the sentence imposed by the trial court is erroneous because the court improperly used Ray's single prior arson conviction to enhance his sentence five years as a prior serious felony conviction (§ 667, subd. (a)(1)), and three additional years as a prior arson conviction (§ 451.1). Ray contends, on various legal grounds, that the trial court was lawfully permitted to impose only one of the two enhancements in these circumstances. We cannot reach the merits of Ray's contention, however, because, as discussed below, Ray's appeal is in substance a challenge to his negotiated plea agreement, and must be dismissed under section 1237.5 (Section 1237.5) because Ray failed to obtain a certificate of probable cause.

Under Section 1237.5, subdivision (b), "[n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty" unless "[t]he trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court."^[6] An exception to this requirement exists for challenges to " 'issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.' " (People v. Shelton (2006) 37 Cal.4th 759, 766 (Shelton).) However, this exception will only apply if the challenge on appeal is not "in substance a challenge to the validity of the plea." (Panizzon, supra, 13 Cal.4th at p. 76; Shelton, at p. 766 [certificate of probable cause required if challenge on appeal "is a challenge that affects the validity" of the plea].)

To determine whether an appeal is in substance a challenge to a negotiated plea, the reviewing court must look at the terms of the plea and interpret those terms "according to general contract principles" to discern the parties' intent at the time of the plea. (Shelton, supra, 37 Cal.4th at p. 767.) The " 'mutual intention' " of the parties in entering into the plea agreement is demonstrated " 'by objective manifestations of the parties' intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the [agreement]; the object, nature and subject matter of the [agreement]; and the subsequent conduct of the parties. [Citations.]' " (Ibid.) Of particular significance to this case, where the parties include "a sentence lid" in a plea agreement, the Supreme Court in Shelton held that the inclusion of the lid "implies a mutual understanding and agreement that the trial court has authority to impose the specified maximum sentence." (Id. at p. 763.) "Accordingly, a challenge to the trial court's authority to impose the lid sentence is a challenge to the validity of the plea requiring a certificate of probable cause." (Ibid.; People v. Bobbit (2006) 138 Cal.App.4th 445, 447-448.)

Ray contends that his appeal is not prohibited under Shelton because he "is not making the argument of the defendant in People v. Shelton that the court lacked sentencing authority to impose the lid sentence, i.e., that there is no authorized manner in which the court could have configured the terms for the component parts of the sentence to arrive at the maximum sentence" of 19 years. Instead, Ray states, he "is arguing that the actual sentence the court arrived at was not computed by an acceptable method."

We agree with Ray that his contention is distinguishable from the defendant's contention in Shelton, but we nevertheless conclude that the analytical framework announced in Shelton requires dismissal of Ray's appeal. The application of "general contract principles" to Ray's negotiated plea reveals that his plea agreement embodies a mutual understanding that both the serious felony enhancement and the prior arson enhancement could lawfully be applied. (Shelton, supra, 37 Cal.4th at pp. 767-768.) Consequently, Ray's contrary contention on appeal is in substance a challenge to his negotiated plea and requires a certificate of probable cause.

In light of the potential sentencing options available to the trial court, i.e., " 'the surrounding circumstances under which the parties negotiated or entered into the' " plea agreement (Shelton, supra, 37 Cal.4th at p. 767), it is clear that Ray's acknowledgement in his plea colloquy that the prosecutor was agreeing to a "mid term lid" sentence of 19 years, presupposes that both the prior arson enhancement and the serious felony enhancement could lawfully be imposed.^[7] In context, a "mid[dle] term" sentence of 19 years could only mean the middle term for arson of five years (§ 451, subd. (b)), doubled (§ 667, subd. (e)(1)), plus a middle term prior arson enhancement of four years (§ 451.1), plus the five-year serious felony enhancement (§ 667, subd. (a)(1)) -- for a total of 19 years.^[8] In addition, Ray acknowledged during the plea colloquy and on his plea form that the maximum sentence he could receive under the plea agreement was 26 years in prison. A 26‑year sentence could only be imposed based on Ray's plea by imposing both the prior arson enhancement and the serious felony enhancement.^[9] Finally, the fact that Ray was required by the terms of the plea agreement to acknowledge that he was subject to both the prior arson enhancement and the serious felony enhancement further supports our conclusion that the parties, at the time of the plea agreement, had a mutual understanding that both enhancements could potentially apply at sentencing. (Cf. Panizzon, supra, 13 Cal.4th at p. 79 ["when a defendant pleads guilty to a particular degree of the crime, thus obviating the need for an adversary hearing to determine the degree of the crime," a certificate of probable cause will be required to later challenge that determination].)^[10]

Given these " 'objective manifestations of the parties' intent,' " we must conclude that the "plea agreement was based on a mutual understanding (as determined according to principles of contract interpretation) that the court had authority to impose" both the prior arson enhancement and the serious felony enhancement. (Shelton, supra, 37 Cal.4th at pp. 767, 769.) Consequently, Ray's challenge to the court's legal authority to do so on appeal, is "in substance a challenge to the plea's validity and thus required a certificate of probable cause, which defendant failed to secure." (Id. at p. 769; Panizzon, supra, 13 Cal.4th at p. 78 [certificate of probable cause required because "the sentence defendant received was part and parcel of the plea agreement he negotiated"].)^[11]

DISPOSITION

The appeal is dismissed.

IRION, J.

WE CONCUR:

NARES, Acting P. J.

AARON, J.

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

^[2] At the time of his plea, Ray was also charged with two additional counts of arson, a count of recklessly causing fire to an inhabited structure (§ 452, subd. (b)), and a count of vandalism (§ 594, subds. (a), (b)(2)(B)). These charges were dismissed after entry of the plea.

^[3] Section 451.1, subdivision (a)(1) states: "[A]ny person who is convicted of a felony violation of Section 451 shall be punished by a three-, four-, or five-year enhancement" if the person "has been previously convicted of a felony violation of Section 451 [arson] or 452 [unlawfully causing a fire]."

^[4] Section 667, subdivision (a)(1) states: "[A]ny person convicted of a serious felony who previously has been convicted of a serious felony . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately." Arson is a " 'serious felony.' " (§ 1192.7, subd. (c)(14).)

^[5] The Attorney General does not contend that Ray forfeited his appellate contentions by failing to object in the trial court. (See People v. Hester (2000) 22 Cal.4th 290, 295.)

^[6] We are required to strictly apply the certificate requirements of section 1237.5. (People v. Mendez (1999) 19 Cal.4th 1084, 1097 [holding that "section 1237.5 . . . should be applied in a strict manner," and condemning relaxed application of section 1237.5's requirements despite argument that defendant denied relief on direct appeal will seek same relief by petitioning for a writ of habeas corpus]; People v. Panizzon (1996) 13 Cal.4th 68, 89, fn. 15 (Panizzon) ["condemn[ing]" the practice of addressing the merits of contentions despite failure to comply with Section 1237.5, because "the purposes behind [S]ection 1237.5 will remain vital only if appellate courts insist on compliance with its procedures"].) As noted in People v. Cole (2001) 88 Cal.App.4th 850, 860, "strict application of [S]ection 1237.5 works no undue hardship on defendants with potentially meritorious appeals. The showing required to obtain a certificate is not stringent. Rather, the test applied by the trial court is simply 'whether the appeal is clearly frivolous and vexatious or whether it involves an honest difference of opinion.' "

^[7] The possible sentence for Ray's arson offense is three, five or eight years in prison. (§ 451, subd. (b).) This base sentence must then be doubled by virtue of section 667, subdivision (e)(1), which applies "in addition to any other enhancement . . . which may apply," and enhanced by either three, four, or five years under section 451.1, subdivision (a) and/or (depending on the validity of Ray's contentions which we do not reach) a five-year enhancement for his conviction of a prior serious felony under section 667, subdivision (a)(1).

^[8] In fact, the only other way the trial court could impose a 19‑year sentence, would be to impose eight years (the high term) for arson, doubled, plus three years (the low term) for the prior arson enhancement. As this sentence would not involve any middle terms, it cannot be what was intended by the parties when they agreed to a "mid term lid."

^[9] A 26‑year enhancement would consist of the high term for arson of eight years, doubled, plus the high term prior arson enhancement of five years, plus the five-year serious felony enhancement.

^[10] People v. Buttram (2003) 30 Cal.4th 773, 777, cited by Ray, is distinguishable. As explained in Shelton, Buttram holds that a certificate of probable cause is not required " 'when the claim on appeal is merely that the trial court abused the discretion the parties intended it to exercise' " within an agreed-upon maximum at sentencing. (Shelton, supra, 37 Cal.4th at p. 770.) Here, however, it is clear that the parties did not intend that the issue of whether the trial court could lawfully impose both the prior arson and serious felony enhancements would be left open for resolution at a later sentencing proceeding. (See Buttram, at p. 783.) Rather, an agreement that the trial court could impose both enhancements is implicit in the plea agreement itself.

We note that there is broad language in Buttram that could be read to be inconsistent with the later language and analysis of Shelton. This arguable tension between the two opinions as well as the imperfect fit between the contract analysis required in Shelton and the realities of plea bargaining may lead to recurring questions about whether a certificate of probable cause is required to appeal post-plea sentences. If so, the lack of a bright line rule in this context, combined with the availability of collateral proceedings to attack the very same error that would not be reviewable on direct appeal absent a certificate of probable cause, will detract from rather than " 'promote judicial economy' " -- undermining the principal purpose of Section 1237.5. (Buttram, supra, 30 Cal.4th at p. 794.)

^[11] Ray's request for judicial notice of certain portions of the legislative history of section 451.1 is denied. As we are required to dismiss the appeal without reaching the merits of Ray's claims, the legislative history of section 451.1 is irrelevant. (Hayward Area Planning Assn. v. City of Hayward (2005) 128 Cal.App.4th 176, 182 ["Only relevant material is a proper subject of judicial notice"].)