P. v. Arriaga

Filed 6/19/07 P. v. Arriaga 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Kern County. Michael G. Bush, Judge.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Mary Jo Graves and Michael P. Farrell, Assistant Attorneys General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.

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INTRODUCTION

On March 22, 2005, defendant Robert Arriaga pled no contest in case No. BF109713A to assault with a firearm (Pen. Code, 245, subd. (a)(2))^[1]and attempting to dissuade the victim from reporting the crime ( 136.1, subd. (b)(2)) in exchange for a maximum sentence of six years. The same day, Arriaga pled no contest in case No. BF109714B to voluntary manslaughter ( 192, subd. (a)) in exchange for a maximum sentence of 11 years. Both cases involved separate criminal acts taking place on different occasions.

The cases came on jointly before the trial court for sentencing on April 20, 2005. The trial court sentenced Arriaga in case No. BF109714B to the upper term of 11 years. The trial court sentenced Arriaga to a total term of three years in case No. BF109713A, and ordered that term to be served consecutively with the term imposed in case No. BF109714B, for a total prison term of 14 years. The trial court also imposed, among other things, a $20 court security fee under section 1465.8 for each case, for a total of $40.

Arriaga challenges the security fees on appeal, claiming section 1465.8 authorizes their imposition only when a defendant has been convicted of a traffic offense. Alternatively, Arriaga contends one of the two court security fees imposed should be stricken. Arriaga also contends the trial courts imposition of the upper term violated Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). We disagree with Arriagas contentions and will affirm the judgment with one modification, an increase in the amount of court security fees imposed.

DISCUSSION

I. Court security fees

Section 1465.8, in relevant part, states as follows:

(a)(1) To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. (Italics added.)

Arriaga contends the italicized portion of the statute quoted above modifies the words on every conviction for a criminal offense, . . . ( 1465.8, subd. (a).) Thus, he would construe this provision to mean that the court security fee applies to every conviction for a criminal offense . . . involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. (Ibid.)

The People counter that the italicized phrase modifies the words a traffic offense . ( 1465.8, subd. (a).) Under this interpretation, the court security fee applies on every conviction for a criminal offense, including a traffic offense involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code, with the exception of certain parking offenses. (Ibid.)

The Peoples interpretation is correct. Arriagas interpretation effectively renders the including a traffic offense part of the statute superfluous. If he were correct, there would have been no need to specifically include traffic offenses in the statute because they are already part of the broader category of criminal offense[s] involving a violation of the Vehicle Code . [A] construction making some words surplusage should be avoided. [Citation.] (People v. Woodhead (1987) 43 Cal.3d 1002, 1010.)

Arriagas interpretation also is inconsistent with the purpose of the statute. Fees collected by the counties pursuant to section 1465.8, subdivision (a) are to be sent to the state for deposit in the Trial Court Trust Fund. ( 1465.8, subd. (d).) This fund was created for the purpose or funding trial court operations (Gov. Code, 68085, subd. (a)(1)), which are defined to include salaries of court personnel, services and supplies related to court operations and, subject to some limitations, the actual indirect costs for county general services attributable to court operations (Gov. Code, 77003). It makes little sense to suppose the Legislature intended to limit funding for general trial court operations to fees collected only from those criminal defendants who violated a provision of the Vehicle Code or local ordinances adopted pursuant to the Vehicle Code. The courts must give statutes a reasonable construction which conforms to the apparent purpose and intention of the lawmakers. [Citation.] (Clean Air Constituency v. California State Air Resources Bd. (1974) 11 Cal.3d 801, 813.)

We therefore conclude that section 1465.8, subdivision (a) mandates a $20 court security fee shall be imposed on every conviction for a criminal offense, including a traffic offense involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code, with the exception of certain parking offenses. (Ibid.) Accordingly, the trial court did not err in imposing the $20 court security fees.

In the alternative, Arriaga contends that, because the two cases involved complaints filed and plea agreements entered on the same day, and ended with a single sentencing hearing, the trial court erred by imposing two separate court security fees and we should order one of the fees stricken. His argument is based on People v. Ferris (2000) 82 Cal.App.4th 1272, 1276-1278 (Ferris), which held that when cases are consolidated or joined, courts should impose a single restitution fine under section 1202.4.^[2] The Ferris decision was based on People v. McNeely (1994) 28 Cal.App.4th 739, 742-744 (McNeely). In McNeely, the defendant entered guilty pleas to several charged offenses with separate case numbers. In McNeely, the cases were all informally consolidated and the parties treated them as one action. (Ibid.)

The holding of Ferris is inapplicable here because it is based on the language of section 1202.4, which expressly limits its application to every case. Ferris construed the words every case in the statutes to mean a jointly tried case, even where the charges initially were filed under separate case numbers and even if the cases never were formally consolidated. (Ferris, supra, 82 Cal.App.4th at p. 1277; see also McNeely, supra, 28 Cal.App.4th at pp. 742-743.) In contrast, section 1465.8 provides that a $20 security fee shall be imposed on every conviction for a criminal offense . (Id., subd. (a)(1), italics added.) Given the different language of the two statutes, the analysis of section 1202.4 presented by Ferris, does not inform our analysis of section 1465.8. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865 (Schoeb).

The court in Schoeb expressly rejected the argument Arriaga raises here in a case involving a defendant who was convicted, under a plea agreement, of nine criminal offenses scattered across five different cases, and who was ordered to pay a $20 court security fee under section 1465.8 for each of the five cases. (Schoeb, supra, 132 Cal.App.4th at pp. 863, 865-866.) Schoeb concluded that section 1465.8 unambiguously requires a fee to be imposed for each of defendants convictions and therefore modified the judgment to include a $20 fee for each of the defendants nine convictions. (Id. at pp. 865, 866.) We agree with Schoeb and find that defendants argument that only a single fee may be imposed in these [two] cases cannot be squared with the plain language of section 1465.8. (Id. at p. 866.) Because Arriaga was convicted of three criminal offenses, he was subject to three $20 court security fees under section 1465.8. Accordingly, we will modify the judgment to include a $20 fee for each of Arriagas three convictions.

II. Upper Term

Arriaga contends the court violated Blakely and Cunningham by imposing the upper term of 11 years for the count of voluntary manslaughter based on facts not found by the jury or admitted by him. He is incorrect.

Under the terms of the plea agreements in both trial court cases, Arriaga could have been sentenced to a total maximum term of imprisonment of 17 years. The trial court imposed a total sentence of 14 years, well within the maximum under the plea agreement. Arriaga agreed to imposition of a maximum 11-year prison sentence for the voluntary manslaughter count as a condition of the plea agreement; he was sentenced to an 11-year term for that conviction.

Arriagas challenge to the 11-year sentence for voluntary manslaughter amounts to a collateral attack on the validity of the plea bargain. This is foreclosed absent compliance with section 1237.5. (People v. Panizzon (1996) 13 Cal.4th 68, 78-79; People v. Stewart (2001) 89 Cal.App.4th 1209, 1220 (Stewart).) Arriaga must obtain a certificate of probable cause before challenging the plea, even though the plea did not specify a particular sentence. (Stewart, at pp. 1216-1218.) Stewart reasoned that a challenge to a negotiated sentence, even where the negotiation is only for a maximum possible sentence, as in Arriagas case, is an effort to unilaterally improve the terms of the plea bargain. Thus, it is an attack on the validity of the plea bargain and a certificate of probable cause is required. (Ibid.) No certificate of probable cause appears in the record, and Arriaga is precluded from challenging the sentence on appeal.

Furthermore, by entering into the plea agreement, Arriaga effectively stipulated that there was a factual basis for the imposition of the maximum term that could be imposed within the terms of the plea agreement and that imposition of the lid was lawful. (People v. Shelton(2006) 37 Cal.4th 759, 768.) Under Blakely, the statutory maximum includes the maximum sentence a judge may impose based on facts admitted by the defendant. (Blakely, supra, 542 U.S. at p. 303.) Cunningham held that in accord with Blakely, the upper term could be imposed if the factual basis was found by the jury or stipulated to by the defendant. (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 868].)

In People v. Bobbit (2006) 138 Cal.App.4th 445, the defendant entered into a plea agreement with a sentencing lid. The trial court imposed the maximum term that could be imposed under the plea agreement. (Id. at p. 447.) After first noting that the issue was not cognizable on appeal because the defendant failed to obtain a certificate of probable cause, the appellate court noted that imposition of the upper term pursuant to a plea agreement was not precluded, citing People v. Shelton, supra, 37 Cal.4th 759. As the California Supreme Court stated in Shelton:

[T]he 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. (Id. at p. 768.)

In conclusion, Arriaga is precluded from challenging his sentence on appeal because he failed to obtain a certificate of probable cause. Alternatively, the sentence imposed is within the maximum specified under the plea agreement and was stipulated to by Arriaga. The sentence does not violate Blakely or Cunningham.

DISPOSITION

We direct the trial court to modify the abstract of judgment to impose a total of three $20 fees (for a total of $60) under section 1465.8 upon Arriaga. As so modified, the judgment is affirmed.

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

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

^[2] Section 1202.4 provides, in pertinent part: (b) In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. (Italics added.)