P. v. Sorce

Filed 3/10/06 P. v. Sorce CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Browder A. Willis, Judge. Affirmed.

Joseph Cecil Sorce (Sorce) entered a guilty plea to a violation of Penal Code section 386, subdivision (d)^[1][1] (theft from an elder person). The trial court revoked Sorce's probation on two other felony convictions and sentenced Sorce to the middle term of three years in prison for the current offense. Terms of two years each were imposed in the probation revocation cases and the sentences were ordered to be served concurrently with the sentence for the current conviction.

The trial court denied Sorce's request for a certificate of probable cause. (§ 1237.5.) Sorce appeals, challenging the sentence imposed. He contends, for the first time on appeal that he was promised an "indicated sentence" of two years and requests this court to order his sentence modified to conform to the allegedly promised term. We find the record does not support the claim that Sorce was promised a specific sentence and therefore affirm the judgment.

DISCUSSION[2][2]

At the outset of our analysis, it is important to note Sorce does not challenge the underlying guilty plea. Since he did not obtain a certificate of probable cause from the trial court he cannot challenge the validity of his conviction. (§ 1237.5.) Accordingly, Sorce has limited his challenge to the trial court's decision to impose the middle term of three years for the current offense instead of the lower term. Sorce did not object to the sentence imposed by the trial court, nor did he at any time advise the trial court that he believed he had been promised a different sentence. Sorce likewise never claimed the trial court had stated an "indicated sentence" at the time of his guilty plea. Although it would be tempting to find the issue waived (People v. Scott (1994) 9 Cal.4th 331, 354-356), the Attorney General has conceded the issue is not waived because it involves a claimed loss of the benefit of the plea bargain. Accordingly, we will examine Sorce's claim on the merits. After reviewing the issue on the merits, we are satisfied the trial court did not give an "indicated sentence" at the time of Sorce's guilty plea.

As Sorce uses the term "indicated sentence," he apparently means a sentence which the court commits itself to impose, or in the alternative, allow the defendant to withdraw his or her plea and proceed to trial. (People v. Superior Court (Felmann) (1976) 59 Cal.App.3d 270, 276; People v. Vergara (1991) 230 Cal.App.3d 1564, 1567-1568.) Assuming his major premise, that the court gave an indicated sentence as part of a plea bargain, Sorce next argues he is entitled to the benefit of that bargain. His latter argument is somewhat procedurally hampered due to the lack of a certificate of probable cause or a timely objection because he cannot argue to set aside the conviction for non-compliance with the alleged bargain. Accordingly, Sorce argues he is effectively entitled to a form of specific performance of the alleged agreement which would require this court to modify the sentence to the "promised" two-year term. Unfortunately, the record does not support the major premise that there was an indicated sentence as part of a judicial plea bargain.

The change of plea form contains a written version of the promise made to Sorce in return for his guilty plea. "Cop to count 1, 3-year mid-lid concurrent and a wrap with probation violations in case SCD 156985 and in case SCD 165387. J. Willis indicates probation to be considered, read and consider probation report, but 2-year prison sentence is most likely." The trial court's comments at the change of plea largely matched the statements in the change of plea form. The court did, however add the comment: "I have indicated to you it is a read and consider regarding the issue of probation, and a two-year prison sentence is likely based on the facts and circumstances of this case, as I understand this. But I will listen to your attorney and read the probation report and make up my mind at the time."

At the time of sentencing the probation officer recommended an upper term sentence of four years for the current offense, concurrent with prison terms for the revocations of probation in two felony cases. The trial judge, after reviewing the probation report, the comments of counsel and after expressing his concerns about the defendant said: "I indicated earlier that it looks like a two-year case to me. I don't know what Riverside is going to do. People have asked me for three years in this case, which would be the presumptive middle term. [¶] The law requires that in order to deviate from the middle term, I have to find mitigating circumstances. And I cannot find mitigating circumstances. . . ."

The record clearly demonstrates the trial court did not commit to any particular sentence at the time of the guilty plea, other than the three-year "lid" and that the sentences in the probation revocations would run concurrently with the current offense. The court fully complied with that portion of any "agreement." The comments by the court at the time of plea and the totality of the change of plea form demonstrate the parties agreed to "wrap up" all of Sorce's cases into one sentence with a three-year maximum. The prosecutor was free to argue for three years, the presumptive middle term. The colloquy between the court and Sorce at the time of the plea indicates only that the trial judge would consider Sorce's plea for probation. The court would read and consider the probation report and listen to counsel before making up its mind, but that a prison sentence of two years seemed most likely at that time based on the court's knowledge of the facts. The two-year term appears directly responsive to the question of whether probation was likely. It was clear, however that three years was the "lid" or maximum sentence which could be imposed by the court under this plea agreement. The prosecutor was free to argue for such term and Sorce was informed he might have to serve three years in addition to a parole term upon release. Although the trial judge could have been more precise in his comments, there does not appear to be anything in the totality of the record which could have misled Sorce into believing he had been promised a two-year term. Indeed, at the risk of being redundant, the absence of any objection by Sorce or his counsel to the court's decision to select three years as opposed to two speaks volumes about the understanding of the parties at the time.

Since the court did not commit itself to a specific sentence at the time of his guilty plea, Sorce cannot now claim he is entitled to a lesser term.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

McDONALD, J.

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

[2][2] Since this case arises from a guilty plea and does not raise any issues regarding the facts of the offense, we will omit the traditional statement of facts. As the crime described in the count to which Sorce pled guilty indicates, appellant unlawfully took money from an elder person.