P. v. Tautuaa

Filed 4/20/07 P. v. Tautuaa CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Defendant and appellant Falepapalangi Tautuaa pleaded no contest to carjacking (Pen. Code,  215, subd. (a)) and hit-and-run driving causing an injury (Veh. Code,  20001, subd. (a)). He was sentenced to five years imprisonment pursuant to the carjacking count and eight months pursuant to the hit-and-run count, to be served consecutively. On appeal defendant contends this sentence violates Penal Code section 654, but we dismiss the appeal because this challenge is not reviewable without a certificate of probable cause, and defendant has failed to obtain one.

Background

On June 1, 2005, defendant was driving a GMC Yukon at a high rate of speed eastbound on Woodside Road in Redwood City. Defendant failed to stop at a red light and collided with a Toyota turning left in front of the Yukon. Defendant exited the Yukon and approached another vehicle, opened the drivers door, ordered the driver out, and drove away. The driver of the Toyota, who was 19-weeks pregnant at the time, received cuts and bruises and her husband, the passenger, suffered nine broken ribs, a broken clavicle, and a lacerated liver. The next day defendant was arrested. Defendant was charged with carjacking (Pen. Code,  215, subd. (a)), with a further allegation that the offense was a serious felony within the meaning of Penal Code section 1192.7, subdivision (c),[1]and hit-and-run driving causing an injury (Veh. Code,  20001, subd. (a)).

On August 30, 2005, defendant filed a motion to change his plea to nolo contendere. The form specified the maximum penalty under the allegations, nine years eight months, but set a lid or maximum sentence of five years eight months and provided that the court would consider a lesser sentence in return for defendants plea. The form included a disclaimer that the court reserved its right to withdraw its consent to any sentence limitation agreement, and, in such event, defendant would be permitted to withdraw his plea. At the hearing on the change of plea, the court informed defendant of the maximum sentence of nine years eight months and acknowledged defendant was promised his sentence would not exceed five years eight months in prison if he entered the plea as discussed. The deputy district attorney present at the hearing added, [S]ince its a Prop 8 crime its an indicated five years eight months.[2] The court advised defendant of the constitutional rights he would be waiving by entering the plea of no contest. Defendant pleaded no contest to carjacking, admitted the allegation appended thereto, and pleaded no contest to hit-and-run driving causing an injury.

On October 12, 2005, defendant was sentenced to the middle term of five years for the carjacking count and eight months (one-third the midterm) for hit-and-run driving causing an injury. The court imposed a consecutive sentence based on the significant injuries suffered by the victims in the Toyota.

Defendant filed his notice of appeal on November 18, 2005. On the notice form, defendant checked the box stating his appeal challenged the validity of the plea, and also noted he challenged the length of his sentence. His notice of appeal included a handwritten request for a certificate of probable cause, but there is no indication the request was acted upon and a certificate of probable cause was not granted.

Discussion

On appeal, defendant argues the sentence imposed violated section 654[3] and contends this court should stay the eight-month consecutive term. However, defendant was required to obtain a certificate of probable cause in order to pursue his challenge to the courts legal authority to impose the agreed upon sentence, and his failure to do so bars consideration of his challenge and requires dismissal of his appeal.

I. Requirement of Certificate of Probable Cause

Section 1237.5 provides that a defendant may not appeal from a judgment of conviction upon a plea of guilty or nolo contendere unless the defendant has applied to the trial court for, and the trial court has executed and filed,  a certificate of probable cause for such appeal.  A certificate of probable cause is not required for  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, quoting People v. Buttram (2003) 30 Cal.4th 773, 780.)[4]

In Shelton, supra, 37 Cal.4th at page 763, the California Supreme Court held a challenge to the trial courts authority to impose a lid sentence is a challenge to the validity of the plea and requires a certificate of probable cause. Shelton was charged with five felony counts. (Id. at pp. 763-764.) The parties appeared in superior court and announced a plea agreement under which Shelton would plead no contest to two of those counts and Shelton would be sentenced to a prison term not to exceed three years eight months, although he could  argue for something less than three years and eight months.  (Id. at pp. 764, 767.) The trial court advised Shelton of the constitutional rights he would be waiving by entering the pleas of no contest, the prosecutor recited the factual basis for the pleas, and Shelton formally entered his no contest plea to the two counts. (Id. at p. 764.) The court later sentenced Shelton to the middle term of three years on count one and, on count three, imposed a consecutive sentence of eight months, for a total equaling the agreed upon lid of three years eight months. (Id. at pp. 764-765.)

On appeal, Shelton argued the eight-month sentence should have been stayed pursuant to section 654. (Shelton, supra, 37 Cal.4th at p. 765.) The Court of Appeal analyzed the case on its merits and agreed. (Ibid.) The California Supreme Court reversed with directions to dismiss Sheltons appeal due to his failure to obtain a certificate of probable cause. (Id. at p. 771.)

The Supreme Court concluded Sheltons challenge to his sentence was, in effect, a challenge to the validity of his no contest plea. (Shelton, supra, 37 Cal.4th at p. 766.) The court based its analysis on principles of contract interpretation and stated: A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.] The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. [Citation.] . . . . The mutual intention to which the courts give effect is determined 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 contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties.  (Id. at p. 767.)

The court analyzed the purpose of a plea agreement with a sentence lid from the perspective of both Shelton and the prosecutor and concluded, the specification of a maximum sentence or lid in a plea agreement normally implies a mutual understanding of [Shelton] 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. . . . [] 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, [Sheltons] contention that the lid sentence violated the multiple punishment prohibition of section 654 was in substance a challenge to the pleas validity and thus required a certificate of probable cause. (Shelton,supra, 37 Cal.4th at pp. 768-769.)

II. Applicability of Shelton to This Case

On appeal, defendant argues Shelton does not apply to his case, relying on a distinction we find illusory. Defendant contends his agreement was a conditional plea under section 1192.5, whereas the plea agreement in Shelton was a true plea bargain. He suggests under his conditional plea, the parties lacked the requisite mutual understanding that the specified maximum term was one the trial court might lawfully impose. Defendant does not cite, nor can we find, any indication in Shelton that the parties were not proceeding under a conditional plea agreement pursuant to section 1192.5. Certainly, the court did not find it material to its analysis. Regardless, nothing about the plea agreement in this case warrants a result different than the one reached in Shelton. Here, defendant changed his plea to nolo contendere after stating on his plea form he would not be sentenced to more than a stated term and after the trial court acknowledged this promise. A deputy district attorney noted on the change of plea form the Peoples request for that term. Based on these circumstances and the inclusion of the sentence lid provision, it would be unreasonable to infer a set of intentions on behalf of the parties different than those found in Shelton. That the plea was conditional under section 1192.5 and the court had the authority to withdraw its consent to the sentence limitation does not undermine the conclusion that, at the time of the plea agreement, there was a mutual understanding that the specified maximum term is one that the trial court may lawfully impose and . . . absent the agreement for the lid, the trial court might lawfully impose an even longer term. (Shelton, supra, 37 Cal.4that p. 768.) As in Shelton, defendants appeal challenges the validity of his plea and a certificate of probable cause was required.

Disposition

The appeal is dismissed.

SIMONS, Acting P. J.

We concur.

GEMELLO, J.

MILLER, J.*

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[1] All undesignated section references are to the Penal Code.

Section 1192.7, subdivision (c) provides, As used in this section, serious felony means any of the following: . . .  [] (27) carjacking.

[2] The prosecutors reference to Prop 8 presumably refers to section 1192.7, subdivision (a)(2) added by Proposition 8 in 1982. This statute provides in relevant part: Plea bargaining in any case in which the indictment or information charges any serious felony . . . is prohibited, unless there is insufficient evidence to prove the peoples case, or testimony of a material witness cannot be obtained, or a reduction or dismissal would not result in a substantial change in sentence. Carjacking is a serious felony under section 1192.7, subdivision (c).

[3] Section 654, subdivision (a) provides: 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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.

[4] These rules are also expressed in former California Rules of Court, rule 30(b) (now rule 8.304), which provided in relevant part: (1) [T]o appeal from a superior court judgment after a plea of guilty or nolo contendere . . . , the defendant must file in that superior court . . . the statement required by . . . section 1237.5 for issuance of a certificate of probable cause [] . . . [] (4) [unless] the notice of appeal states that the appeal is based on . . . [] (B) grounds that arose after entry of the plea and do not affect the pleas validity.

* Judge of the San Francisco County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.