Filed 5/22/18 P. v. Vega 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 PEOPLE,

Plaintiff and Respondent,

v.

JOHNNY ALBERTO VEGA,

Defendant and Appellant.

F075037

(Super. Ct. No. F16900558)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Jonathan M. Skiles, Judge.
Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Johnny Alberto Vega contends on appeal that the trial court erred in failing to stay concurrent terms pursuant to Penal Code section 654. We affirm.
PROCEDURAL SUMMARY
On September 30, 2016, defendant pled no contest to three counts of assault with a deadly weapon (§ 245, subd. (a)(1); counts 2, 3 & 9), three counts of infliction of corporal injury to a domestic partner (§ 273.5, subd. (a); counts 4, 5 & 10), dissuading a witness (§ 136.1; count 6), mayhem (§ 203; count 7), kidnapping (§ 207, subd. (a); count 8), criminal threats (§ 422; count 11), and misdemeanor contempt of court (§ 166, subd. (c)(1); count 12). Defendant also admitted special allegations. The plea was in exchange for dismissal of count 1 and a 25-year-eight-month prison term.
At the plea hearing, the court explained the specific terms, as follows:
“My understanding is with the exception of the dismissal of Count 1, the defendant will be pleading to the remainder of the sheet for a stipulated term of 25 years 8 months, and that calculation would be based on the following: As to Counts 1 through 4, which all relate to allegations from December 3rd, 2015, the Court would be finding those are all transactionally related and therefore eligible for concurrent sentences as to those four counts.
“So as to Count 4, the Court would be imposing the aggravated term of four years, doubled to eight due to the strike prior, the aggravated five years for the great bodily injury enhancement, and one year for the arming enhancement, for a total of 14 years. All other Counts 1, 2, and 3 would run concurrent. Those would be the aggravated term concurrent.
“As to Count 5, which is an allegation from January 4th, 2016, that is a separate offense. That will be a consecutive term, one-third the midterm, which is one doubled to two, so it would be two years consecutive.
“As to Count 6, that is also a sole count, alleging an offense on January 8th, 2016. So the Court would be imposing a consecutive one-third the midterm—so Count 6 would be one-third the midterm of eight months, doubled due to the strike, for a total of one year four months consecutive.
“Count 7 through 11 all relate to allegations from January 15th, 2016. Court will be finding those are all transactionally related, and as to those counts, will be running the terms concurrently. The aggravated term, as to count—well as to Count 8, it would be one-third the midterm, which is one year eight months, doubled, for a total of three years four months. The other counts will run consecutive to that. So all four of those imposed terms would add up to 20 years 8 months.
“There is the mandatory five year enhancement under [section] 667[, subdivision ](a)(1) for a total term of 25[ years] 8 [months]. So that would be the way that number is reached.”
On December 16, 2016, at the sentencing hearing, the following occurred:
“THE COURT: I will note that in looking through the RPO [(report of the probation officer)], at least the way the calculations are done in the RPO, that somewhat at odds in the Court’s statement of how it would be calculating the time for the 25 years 8 months.
“This was an agreement at the time of sentencing. I believe even if there are technically errors in the way it’s calculated, that the parties are still able to proceed with that, given the fact that any error would be harmless since it is agreed upon to get to the timeframe that was indicated.
“Anybody wish to be heard as to that issue?
“[DEFENSE COUNSEL]: No, Your Honor. I mean, I’ll have some remarks and Mr. Vega, I guess, will want to address the Court. I don’t know if his family will, but as far as this particular issue, I have nothing to add.
“THE COURT: I think to—if the Court was to go along with the reasoning of probation in the RPO, I can get to 25 [years]. I cannot get to 25[ years] 8 [months]. So I guess what I’m looking for is the People and defense’s position on whether the Court should stay with the calculations that are placed on the record at the time of the plea which resulted in 25[ years] 8 [months], or go with the probation method of calculation which would allow the Court to get to 25 [years]?
“[PROSECUTOR]: It would be the People’s request that the Court follow the calculations that we had when we initially entered into the agreement for the 25[ years] 8 [months].
“THE COURT: And that is what the Court was intending to do since that is the terms that we went into the plea agreement with.
“[DEFENSE COUNSEL]: It is the terms we went into the plea agreement with. I have some concern with the record on appeal, but the plea agreement is what it is, so I’ll submit.
“THE COURT: To put a little finer point on it, the plea agreement was reached in order to avoid the mandatory sentence that Count 1 would have resulted in. So the defendant was receiving a benefit by entering the plea on the terms and conditions that were stated on the record at the time the plea was entered into. So the Court’s position is that that calculation is being done for his benefit. Do you disagree?
“[DEFENSE COUNSEL]: No. I might be putting myself at risk, but no.
“THE COURT: You mentioned you had comments you wish to place on the record?
“[DEFENSE COUNSEL]: I think Mr. Vega—that would be—as far as the sentencing itself is concerned, separate and apart from the issue of how we arrive at the figure that was arrived at at the time of the change of plea, Mr. Vega wants to read a letter. His family may or may not want to address the Court. I’ll probably have a few remarks, but, yes, so I guess the short answer is yes, [once] the Court has reached that point.”
Later in the hearing, the court imposed the agreed-upon terms and total sentence, but stayed two of the terms pursuant to section 654, as follows:
“[THE COURT:] So, again, consistent with what was said at the time of the plea, as to Count 4, Court is imposing the aggravated term of four years. Because of the strike prior, that four year term is doubled to eight. There is an additional five year aggravated term for the great bodily injury enhancement pursuant to [section] 12022.7, and the one year arming enhancement for a total as to Count 4 of 14 years in custody. The aggravated terms are being selected because of the significant level of violence and injury that was inflicted in this particular case.
“As to Counts 2 and 3, again, the Court is finding that those are transactionally related and the Court is imposing concurrent terms as to those. As to Count 3, the Court is selecting, again, the aggravated term, which will be four years doubled to eight for the strike prior, with the five year aggravated term for great bodily injury, for a total of 13 years. However, that is to run concurrent with the sentence just imposed as to Count 4.
“Count 1 was dismissed.
“As to Count 2, that is actually [a section] 654 count. The Court is imposing the aggravated term of four years, again doubled due to the strike prior, to eight. However, that is stayed pursuant to [section] 654, which now gets us to Count 5. That is a separate offense. So the Court is required to impose a consecutive term for Count 5, and that will be one-third the midterm, which is one year doubled to two, so that—as to Count 5 will be a two year consecutive term. [Italics added.]
“As to Count 6, that is also being completely separate event. So the Court is going to impose a consecutive term as mandated by statute. That will be one-third the midterm, doubled. So as to Count 6, that will be one year four months consecutive to all other counts.
“As to Count 7 through 11, the Court is finding that those are all transactionally related. Count 7 through 11 will all be running concurrently.
“As to Count 8, it would be one-third the midterm of eight months, doubled—I’m sorry. One-third the midterm for one year eight months, doubled, for a total of three years, four months. That will run consecutive to all other counts.
“As to Count 9, Court is imposing the aggravated term of four years doubled, due to the strike prior, as well as the five year aggravated term for the great bodily injury enhancement; however, that is being stayed pursuant to [section] 654 of the Penal Code. [Italics added.]
“As to Count 10, Court is imposing one-third the midterm which will be two years, as well as one-third the mitigated term for the [great bodily injury] enhancement, which will add an additional year, and one-third the arming enhancement, which will be four months, for a total term of three years, four months, to run concurrent with all other counts.
“And then as to Count 11, the Court is imposing the aggravated term of two years in custody doubled to six. However, the Court, again, is finding that that is transactionally related and running that concurrent with all other counts.
“That should result in a total term of 20 years, eight months. The additional remaining five years for the indicated came from the [section] 667[, subdivision ](a)(1) prior, which is a mandatory five year consecutive term. So that is also being imposed consistent with the plea agreement for a term of 25 years, 8 months. Anyone wish to be heard as to that math?
“[PROSECUTOR]: No, Your Honor.
“[DEFENSE COUNSEL]: No.
“THE COURT: If I did not address Count 7, I don’t believe I did. Count 7 would be one-third the midterm doubled, which is two years, eight months, which is one year, four months, doubled. That is to run concurrent with all other counts. That does not change the total since that is a concurrent term that is being imposed.”

On January 19, 2017, defendant filed a notice of appeal.
DISCUSSION
Under section 654, subdivision (a), “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” “ ‘Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.’ [Citation.] This is an exception to the general rule that only those claims properly raised and preserved by the parties are reviewable on appeal.” (People v. Hester (2000) 22 Cal.4th 290, 295 (Hester).) It applies because “a court acts in excess of its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of a sentence under section 654.” (Ibid.)
However, the exception “is itself subject to an exception: Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process. [Citations.] While failure to object is not an implicit waiver of section 654 rights, acceptance of the plea bargain here was.” (Hester, supra, 22 Cal.4th at p. 295.)
Consistent with these principles, California Rules of Court, rule 4.412(b) sets out the extent to which a defendant who has agreed to a specified term is estopped from complaining about such a sentence. Rule 4.412(b) provides: “By agreeing to a specified term in prison or county jail … a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654’s prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record.” “In adopting [this] rule, the Judicial Council merely codified one of the applications of the case law rule that defendants are estopped from complaining of sentences to which they agreed.” (Hester, supra, 22 Cal.4th at p. 295.)
Defendant argues that, at sentencing, the trial court erred by failing to stay the terms on counts 3, 7, 10, and 11 pursuant to section 654, because it had done so for the terms on counts 2 and 9.
The People counter that defendant forfeited this claim by failing to raise a section 654 objection at sentencing and that his claim is barred by rule 4.412(b).
In reply, defendant maintains he did not forfeit the claim by failing to object because the parties informed the court at sentencing that they desired to keep the original terms of the plea agreement, rather than new terms as recommended by the probation report. According to defendant, any further objection would have been futile. The court then imposed a different sentence, staying two of the terms, but otherwise imposing the agreed-upon terms and total sentence.
Defendant’s argument fails. First, further objection would not have been futile. If defendant disagreed with the trial court’s staying of two of the terms or its failure to stay more of the terms, he should have objected when the court stayed the terms and/or he should have requested to withdraw his plea. As in Hester, defendant was sentenced to the agreed-upon sentence, raised no objection, and on appeal, argues the court should have stayed terms under section 654. “Had defendant been truly surprised at the time of sentencing to find that concurrent terms were being imposed, his remedy would have been to attempt to withdraw his plea on the grounds of violation of the plea bargain.” (Hester, supra, 22 Cal.4th at p. 296.) The section 654 claim is forfeited because defendant stipulated to the sentence in his plea agreement. (Hester, at p. 295; rule 4.412(b).) “[H]e abandoned ‘any claim that a component of the sentence violates section 654’s prohibition of double punishment.’ ” (Hester, at p. 296.)
Furthermore, defendant received the benefit of his bargain. (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. The punishment may not significantly exceed that which the parties agreed upon.”].) Indeed, he received a greater benefit than he bargained for when the court stayed two of his terms pursuant to section 654. Now he seeks to benefit even further through the appellate process.
DISPOSITION
The judgment is affirmed.