P. v. Ochoa

Filed 3/9/06 P. v. Ochoa CA4/1

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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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

CONSOLIDATED APPEALS from judgments of the Superior Court of Imperial County, Matias R. Contreras, Judge. Affirmed.

Prisoner Jimmy Ochoa committed two crimes during the term of his incarceration, specifically possession of a weapon in February 2003 and battery on a prison guard in November of that same year. He now appeals the sentence imposed in the judgments arising out of his pleas of no contest to those offenses, contending that the trial court lacked jurisdiction to recall the sentence on the weapon offense and improperly designated the battery offense as the principal offense pursuant to Penal Code section 1170.1, subdivision (c). (All further statutory references are to the Penal Code.) He also contends that, in resentencing him to a four-year sentence rather than the three-year term he would have received if the weapon offense had remained the principal offense, the court violated section 1192.5, and the terms of his earlier plea agreement. We find his arguments unavailing and affirm the judgments.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2002, Ochoa was convicted of second degree armed robbery and false imprisonment with violence. He was sentenced to 15 years in prison and incarcerated at the Calipatria State Prison. In February 2003, two correctional officers found a manufactured weapon in the waistband of Ochoa's boxer shorts, for which Ochoa was thereafter charged with violating section 4502, a felony. Ochoa pleaded no contest to the weapon charge and, in accordance with the plea agreement, was sentenced in July 2004 to the lower term of two years in prison, to run consecutively to his existing prison term.

In November 2003, Ochoa and other inmates assaulted a correctional officer who was performing unclothed body searches, by striking the officer in the upper torso, the face and the back of the head. Ochoa was charged with felony battery in violation of section 4501.5 and in May 2005, he pleaded no contest to that charge in exchange for the prosecutor's agreement to seek a mid-term sentence of three years.

At the sentencing hearing on the battery charge, the court essentially recalled the sentence on the weapon count, designated the battery charge as the principal offense, imposed a prison term of three years on the battery charge and reduced the sentence on the weapon count to one-third the mid-term sentence for that offense (one year), to be served consecutively to the sentence for the battery offense. Ochoa appeals.

DISCUSSION

1. General Principles

Section 1170.1 provides in pertinent part,

"(a) Except as otherwise provided by law . . . , when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts . . . and a consecutive term of imprisonment is imposed . . . , the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principle term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed . . . .

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

"(c) In the case of any person convicted of one or more felonies committed while the person is confined in a state prison . . . and the law either requires the terms to be served consecutively or the court imposes consecutive terms, the term of imprisonment for all the convictions that the person is required to serve consecutively shall commence from the time the person would otherwise have been released from prison. If the new offenses are consecutive with each other, the principal and subordinate terms shall be calculated as provided in subdivision (a). . . ." (Italics added.)

Pursuant to this statute, a sentencing court generally must characterize a subsequent conviction that carries the longest term as the new principal offense and subordinate any previous convictions to it, even if the defendant has already been sentenced on those convictions. (People v. Bozeman (1984) 152 Cal.App.3d 504, 507.)

2. The Court's Jurisdiction to Recall the Sentence

Notwithstanding the language of these subdivisions of section 1170.1, Ochoa asserts that the sentencing court lacked jurisdiction to recall the sentence because section 1170, subdivision (d) specifically permits a court to recall a sentence only within 120 days of the date of commitment. He contends that the court violated this statute because it recalled his sentence on the weapon charge almost a year after he was committed for that offense. However, although as a general rule a court may not modify a sentence that was lawfully imposed once the defendant has been committed, it is well established that section 1170.1 creates an exception to that rule. (People v. Bozeman, supra, 152 Cal.App.3d at p. 507; People v. McCart (1982) 32 Cal.3d 338, 344, fn. 7; see People v. Venegas (1994) 25 Cal.App.4th 1731, 1743-1744; People v. Washington (1994) 27 Cal.App.4th 940, 944-945.)

Ochoa posits that section 1170, subdivision (d) applies in tandem with section 1170.1, subdivisions (a) and (c) and precludes the recall of his weapon sentence here. However, he cannot point to any authority for this position, which we reject in any event. Section 1170, subdivision (d) applies only in situations where the defendant is "subject to this section or subdivision (b) of Section 1168," that is, a person who commits an offense that gives rise to a determinate sentence. Ochoa was not subject to, or sentenced under, section 1170, but was instead subject to section 1170.1, subdivision (c), which governs sentencing for a prisoner who is convicted of committing one or more felonies while in prison. Sections 1170, subdivision (d) and 1170.1, subdivision (c) create separate exceptions to the general rule that a sentence may not be recalled; that the former statute includes a jurisdictional time limit on the court's authority to recall a sentence simply has no effect on sentencing under section 1170.1, subdivision (c), which does not contain such a time limitation.

3. Designation of the Principal Offense

Ochoa contends that the sentencing court erred in specifying the battery charge as the principal offense because the mid-term sentence for that crime was three years, thus making one-third the mid-term a one-year sentence, which was less than the two-year sentence that was imposed on the weapon offense. Ochoa's argument, however, essentially compares apples to oranges rather than apples to apples. The original sentence imposed on the weapon count was two years, while the sentence imposed on the battery count was three years. Applying section 1170.1, subdivisions (a) and (c), the sentencing court was required to choose the battery count, for which the greatest term of imprisonment had been imposed, as the principal offense.

4. Resentencing as Violative of Section 1192.5

Section 1192.5 provides that once a plea is formally accepted by the prosecutor and approved by the court, the defendant cannot be sentenced to a more severe punishment than is specified in the plea. Ochoa argues that the court violated this statute by resentencing him to one-third the mid-term on the weapon conviction, notwithstanding that that sentence (one year) was less than the two-year term that he agreed to in his plea, because the net effect of the court's actions increased his sentence. However, Ochoa's argument disregards that section 1192.5 simply precludes a court from imposing a sentence for the offenses covered by the plea agreement that is more severe than the sentence specified in the agreement. Here, the court imposed a less severe sentence for the weapon count than that specified in the plea agreement and thus it did not violate section 1192.5.

5. Resentencing as Violative of Ochoa's Plea Bargain Relating to the Weapon Offense

Finally, Ochoa contends that the court violated his plea agreement by resentencing him on the weapon count. "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." (People v. Walker (1991) 54 Cal.3d 1013, 1024; see Santobello v. New York (1971) 404 U.S. 257, 262 [once his plea agreement is accepted by the court, the defendant has a due process right to be sentenced in accordance with the agreement].) A court may not impose punishment that significantly exceeds that to which the parties agreed and a defendant is entitled to relief from a variance that is significant in light of the plea bargain as a whole. (People v. Walker, supra, 54 Cal.3d at p. 1024.)

Here, the court did not violate Ochoa's earlier plea agreement on the weapon count by imposing a lesser sentence on that count. Further, we reject Ochoa's argument that the specification of a two-year term in the plea agreement relating to the weapon count somehow required the sentencing court to designate that count as the principal offense after Ochoa committed another offense in prison. The plea agreement did not include a provision that the agreed-upon term would constitute the principal term relating to any future offenses that Ochoa might commit, nor would have any such a provision been valid. (§ 1170.1, subd. (c).) The court's imposition of a one-year term on the weapon count did not violate Ochoa's plea agreement.

DISPOSITION

The judgments are affirmed.

McINTYRE, J.

WE CONCUR:

HUFFMAN, Acting P.J.

HALLER, J.

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