Filed 7/10/17 P. v. Analla 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

ANDREW MICHAEL ANALLA,

Defendant and Appellant.

F073460

(Super. Ct. No. VCF314167A )


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Brett R. Alldredge, Judge.
Benjamin Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Andrew Michael Analla appeals from a judgment of conviction entered upon a negotiated plea of nolo contendre. Analla submits that, although accurately reflected in the clerk’s minutes and abstract of judgment, the terms of his plea agreement were not fully encompassed within the trial court’s oral pronouncement of judgment. We modify the oral pronouncement of judgment to conform to the terms of the plea agreement and affirm the judgment as modified.
STATEMENT OF THE CASE
On July 6, 2015, the Tulare County District Attorney filed a second amended complaint charging Analla with one count of assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) and one count of active participation in a criminal street gang (§ 186.22, subd. (a)). The assault charge included a gang enhancement allegation (§ 186.22, subd. (b)). It was further alleged that Analla had suffered a prior strike and serious felony conviction (§§ 667, subds. (a), (b)-(i), 1170.12, subds. (a)-(d)) and had served a prior prison term (§ 667.5, subd. (b)).
On July 16, 2015, Analla pleaded nolo contendre to the assault charge and admitted all strike and sentencing enhancement allegations. In exchange for his plea and a waiver of appellate rights, Analla was to receive a nine-year prison sentence based on the mitigated term of two years, doubled because of the prior strike and further enhanced by five years for the prior serious felony, with punishment for the section 186.22, subdivision (b) enhancement stayed. Application of the prior serious felony enhancement would preclude further punishment for the prior prison term. (See People v. Jones (1993) 5 Cal.4th 1142, 1152-1153.) The remaining charge was to be dismissed at the time of sentencing.
In December 2015, Analla filed a motion to withdraw his plea. The motion was based on allegations of ineffective assistance of counsel. Analla claimed that his court-appointed lawyer had advised him to take the plea deal without adequately investigating potential grounds for a defense to the charges. The motion was heard and denied on March 17, 2016, and Analla was sentenced on the same date. The trial court imposed the following prison sentence in accordance with the parties’ agreement: “[T]he mitigated term of two years[,] doubled pursuant to Section 1170.12(c)(1), plus an additional and consecutive five years pursuant to Section 667(a)(1), for a total of nine years …” Analla was thereafter informed of his appeal rights and reminded that the waiver he had given as part of the plea agreement operated to limit the potential grounds for appellate review.
On March 22, 2016, Analla, acting through counsel, filed a notice of appeal and request for certificate of probable cause. The latter document identified the following basis for relief: “Under the 6th and 14th Amendments of the United States Constitution, and applicable corresponding California State Constitution, the defendant submits that he was not represented effectively by his previous attorney when he entered a plea and the plea was not knowing and voluntary based upon the reasons outlined in the defendant’s motion to withdraw his plea pursuant to California Penal Code section 1018, which was denied by the court on March 17, 2016. The defendant submits the motion to withdraw his plea was wrongly denied on March 17, 2016, based upon California Penal Code section 1018, the 6th and 14th Amendments to the United States Constitution and corresponding California State Constitution Amendments.” The trial court granted the request for a certificate of probable cause on the day it was filed.
On appeal, Analla does not challenge the denial of the motion to withdraw his plea. The only issue raised in his briefing concerns the imposition of sentence. He submits that, although accurately stated in the clerk’s minutes and abstract of judgment, certain terms of the plea agreement were not recited by the trial court during its oral pronouncement of judgment. Specifically, he complains the trial court did not address the stay of punishment on the section 186.22, subdivision (b) enhancement and did not expressly dismiss the substantive gang charge. Analla further contends that the court would not have been authorized to stay the enhancement, and, therefore, despite the parties’ agreement to such a disposition, the enhancement should have been stricken.
DISCUSSION
Preliminarily, we question the propriety of Analla’s abandonment of the only issue certified for appellate review and his attempt to litigate matters not identified in the notice of appeal. A defendant seeking to appeal from a plea of guilty or nolo contendre is generally required to obtain a certificate of probable cause. (§ 1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1088 (Mendez).) “[A] defendant may obtain review solely of so-called ‘noncertificate’ issues, that is, postplea questions not challenging his plea’s validity … if he has complied with [the California Rules of Court] – which require[] him to file in the superior court a notice of appeal stating noncertificate grounds within 60 days after rendition of judgment.” (Mendez, supra, 19 Cal.4th at p. 1088, italics added.)
Analla’s appeal is exclusively based on his sentence – a noncertificate issue – and technically, “the notice of appeal must state it is based upon such a ground in order to render the appeal operative.” (In re Chavez (2003) 30 Cal.4th 643, 650, fn. 3; see Cal. Rules of Court, rule 8.304(a)(4), (b)(4)(B).) However, the California Supreme Court’s opinion in People v. Johnson (2009) 47 Cal.4th 668 (Johnson) instructs that “if the trial court issues the certificate [of probable cause] based on even a single nonfrivolous claim, the defendant may raise all of his or her claims on appeal—those that require a certificate as well as those that do not—even if they were not identified in the statement filed with the trial court.” (Id. at p. 676.) Based on this language from Johnson, we will address Analla’s claim on the merits.
It is undisputed that Analla fulfilled his end of the plea agreement and is thus entitled to the benefit of his bargain. (See People v. Quartermain (1997) 16 Cal.4th 600, 618 [“when a prosecutor makes a promise that induces a defendant to waive a constitutional protection and act to his or her detriment in reliance on that promise, the promise must be enforced”].) To determine whether he received what was promised, we look to the trial court’s oral pronouncement. “ ‘ “Rendition of judgment is an oral pronouncement.” ’ ” (People v. Morales (2014) 224 Cal.App.4th 1587, 1594.) The record of the oral pronouncement controls over the clerk’s minutes and the abstract of judgment. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mesa (1975) 14 Cal.3d 466, 471.)
A reviewing court has the inherent power to correct an erroneous oral pronouncement that is clearly contrary to the trial court’s intent. (See People v. Menius (1994) 25 Cal.App.4th 1290, 1294-1295; People v. Jack (1989) 213 Cal.App.3d 913, 915-916 (Jack).) The record reflects that the trial court intended to effectuate the terms of the parties’ plea agreement, but inadvertently failed to mention the stipulated imposition and stay of the gang enhancement and dismissal of the charge under section 186.22, subdivision (a). This amounts to a clerical error, which we may rectify through modification of the oral pronouncement. (Jack, supra, 213 Cal.App.3d at p. 915 [“Generally, a clerical error is one inadvertently made, while a judicial error is one made advertently in the exercise of judgment or discretion. … Clerical error can be made by a clerk, by counsel, or by the court itself.”].)
The Attorney General is amenable to modification of the oral pronouncement to conform to the parties’ plea agreement, but argues Analla’s prior waiver of appeal rights precludes further relief insofar as he contends the imposition and stay of the gang enhancement would constitute an unauthorized sentence. We agree. “The rule that defendants may challenge an unauthorized sentence on appeal even if they failed to object below 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.” (People v. Hester (2000) 22 Cal.4th 290, 295 [defendant’s acceptance of a plea agreement that included a specified sentence constituted an implicit waiver of his right to claim the sentence violated section 654], citing People v. Couch (1996) 48 Cal.App.4th 1053, 1056-1057 [acceptance of specified sentence barred appellate claim of error in imposing it]; People v. Nguyen (1993) 13 Cal.App.4th 114, 122-123 [same].)
DISPOSITION
The oral pronouncement of judgment is modified to include all terms of the parties’ plea agreement as stated on the record at the July 16, 2015 hearing. Said terms are accurately reflected in the clerk’s minutes and abstract of judgment, which require no changes. As modified, the judgment is affirmed.