P. v. Becker

Filed 10/20/06 P. v. Becker CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

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Defendant Damon Edward Becker pleaded no contest to making a criminal threat (Pen. Code, § 422)^[1] and being a felon in possession of a firearm (§ 12021.1, subd. (a)) and admitted a prior serious felony allegation (§§ 667, subds. (c), (e)(1)) and a prior prison term allegation (§ 667.5, subd. (b)) in exchange for a stipulated five-year state prison sentence and dismissal of the remaining counts.

The trial court sentenced defendant to five years in state prison, consisting of four years (twice the middle term) for making a criminal threat, plus one year for the prison term prior. The court did not impose sentence on the felon in possession of a firearm offense.

Having obtained a certificate of probable cause, defendant appeals, contending the trial court (1) abused its discretion in accepting his no contest plea to making a criminal threat and (2) erred in failing to impose a sentence on the felon in possession of a firearm offense. We shall dismiss that portion of the appeal challenging the court’s acceptance of defendant’s plea, remand the matter for sentencing on the felon in possession of a firearm offense and otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Prior to entering his no contest pleas, defendant received and read a three-page document entitled “Declaration and Order Regarding Plea of NO CONTEST to a Felony“ (plea form). The declaration signed and initialed by defendant provides in pertinent part:

“I am the defendant in the above-entitled criminal action. In support of my motion to change my plea(s) to be made in open court personally and by my attorney, I declare that: . . .

“6. I waive all right to appeal on both the judgment of the Court and any decisions on motions which precede this plea or judgment. Appeal is not waived as to sentencing errors. . . .

“8. No one has threatened or promised to reward me, my family or anyone else to get me to enter this plea. No one has told me, or promised or suggested to me, that I will receive a lighter sentence, or probation, or any other favors to get me to enter this plea, except that I have entered into the following PLEA AGREEMENT: I will plea [sic] no contest to count 1, [section] 422 felony, for mid term and admit an enhancement of [sections] 667(c)/667(e)(1) and 667.5(b) for an additional year for an aggregate term of 5 years state prison. I will also plea [sic] no contest to count 2, [section] 12021.1(a) and be sentenced under [section] 654 of the Penal Code. . . .

“13. I am freely and voluntarily pleading no contest because in truth and in fact I am guilty or I believe the evidence is sufficient to prove my guilt.

“14. My lawyer explained this form and its entire contents to me and I understand what I have said in this Declaration and the consequences thereof.”

Defendant’s lawyer signed a declaration at the end of the plea form which states: “I have gone over this form with my client and have explained the foregoing rights to the defendant and answered all the defendant’s questions with regard to this plea. I have discussed the facts of this case with the defendant and explained the consequences of the plea(s), the elements of the offense(s), and the possible defenses. To the best of my knowledge and belief, defendant understands the matters set forth in this declaration and each of the statements herein is accurate and true, and is voluntarily and understandingly made. . . . I CONCUR . . . in this plea and the defendant’s decision to waive constitutional rights.”

The deputy district attorney also signed the plea form, indicating he concurred “with this Plea Agreement.”

At the change of plea hearing, the trial court asked defendant whether he had any questions about “anything in the form,” and defendant replied in the negative. The court then asked, “do you feel you understand it?” And defendant answered, “Yes, sir.”

Defendant entered pleas of no contest to making a criminal threat and being a felon in possession of a firearm and admitted “the prior strike conviction” and “the prison prior.” The trial court asked defendant’s lawyer for a factual basis for defendant’s pleas, and she referred the court to the police report and other documents. The court found “there is a factual basis to support the charges to which [defendant is] pleading, that he understands his constitutional rights, the nature of the crimes charged, the consequence of his pleas, that he’s understandingly and voluntarily pleading, waiving such rights, and his right to have the charges read” and accepted defendant’s pleas.

At the sentencing hearing, the court indicated it had read the probation report and concurred with its recommendation. The probation report recommended, consistent with defendant’s plea agreement, that defendant be sentenced to an aggregate term of five years, consisting of “the middle base term of two years for the criminal threat doubled for the prior strike with the additional year for the prior prison term. The term for the possession of a firearm by convicted felon is sentenced pursuant to [section] 654 . . . .”

The court sentenced defendant in accordance with his plea agreement, except that it did not impose a sentence on the felon in possession of a firearm offense.

DISCUSSION

I

Defendant claims the trial court abused its discretion in accepting his no contest plea to making a criminal threat because “[t]here is absolutely no indication in this case that the alleged threat . . . was a written statement or was communicated electronically” and “very little, if any, information . . . corroborating that [defendant] made any verbal statement that would qualify as a criminal threat under section 422 . . . .” (Italics in original.) The People contend defendant is precluded from raising this claim of error because he waived his appeal rights when entering his plea. We agree with the People.

In People v. Panizzon (1996) 13 Cal.4th 68, our Supreme Court reiterated principles relating to negotiated pleas. “‘When a guilty [or no contest] 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.’ [Citations.] Of course, before taking the plea, the trial court must admonish the defendant of the constitutional rights that are being waived, as well as the direct consequences of the plea. [Citation.] Just as a defendant may affirmatively waive constitutional rights to a jury trial, to confront and cross-examine witnesses, to the privilege against self-incrimination, and to counsel as a consequence of a negotiated plea agreement, so also may a defendant waive the right to appeal as part of the agreement.” (Id. at p. 80.)

The court continued: “To be enforceable, a defendant’s waiver of the right to appeal must be knowing, intelligent, and voluntary. [Citations.] Waivers may be manifested either orally or in writing. [Citation.] The voluntariness of a waiver is a question of law which appellate courts review de novo. [Citation.]” (People v. Panizzon, supra, 13 Cal.4th at p. 80.)

The court expressly found that “a court may rely upon a defendant’s validly executed waiver form as a proper substitute for a personal admonishment.” (People v. Panizzon, supra, 13 Cal.4th at p. 83.) “‘Only if in questioning the defendant and his attorney the trial court has reason to believe the defendant does not fully comprehend his rights, must the trial court conduct further canvassing of the defendant to ensure a knowing and intelligent waiver of rights.’” (Ibid.)

Here, the declaration signed by defendant specifically and unequivocally states he waived his right to appeal “the judgment” and “any decisions on motions which precede . . . judgment,” except sentencing errors. Defendant acknowledged that his attorney had explained the plea form “and its entire contents” to him and that he understood what he had said in his declaration and the consequences thereof. Defense counsel likewise indicated in his declaration that he had explained the plea form and its contents to defendant, as well as defendant’s constitutional rights and the consequences of a no contest plea, and believed that defendant understood the matters set forth in his declaration. The court specifically asked defendant whether he had any questions about the plea form (he did not), and whether he understood it (he did).

As in People v. Panizzon, the plea form here and the in-court questioning “raise[] no doubts as to defendant’s understanding of his rights and the consequences of his no contest plea.” (13 Cal.4th at p. 84.)

Defendant attempts to avoid this result by arguing that his challenge to the court’s acceptance of his no contest plea to making a criminal threat is “based upon a fact occurring after the entry of the plea . . . .” The “fact” relied on by defendant is a series of statements made by one of the witnesses after the trial court found there was a factual basis for the plea and accepted it. The waiver, however, was not limited to events preceding the plea. Rather, it specifically included “all right to appeal on both the judgment of the Court and any decisions on motions which precede this plea or judgment.” (Italics in original) Only sentencing errors were excepted. The trial court’s finding that there was a factual basis for his plea preceded the entry of judgment; accordingly, his assertion that the trial court abused its discretion in accepting his plea is within the scope of the waiver. (See People v. Panizzon, supra, 13 Cal.4th at p. 85.) Moreover, insofar as the statements cited by defendant had not been made at the time the trial court found there was a factual basis for defendant’s plea, they could not form the basis for any finding that the trial court abused its discretion in accepting defendant’s plea.

Defendant also contends his waiver of his right to appeal is invalid because it “was not an express term or condition of [the] plea agreement.” (Italics in original.) He is mistaken. Contrary to defendant’s assertion, the terms of his plea agreement are not limited to those set forth in the portion of paragraph number 8 that is entitled “PLEA AGREEMENT.” (See, e.g., People v. Panizzon, supra, 13 Cal.4th 80-83 [defendant held to have waived his right to appeal even though the waiver was not set forth in the “Agreement” portion of the plea document].)

The evidence demonstrates that defendant’s waiver of his right to appeal, except for sentencing errors, was knowing, voluntary, and intelligent. This waiver precludes defendant from challenging the trial court’s acceptance of his plea. Consequently, we dismiss this portion of the appeal.

II

Defendant contends the trial court erred in failing to impose a sentence on the felon in possession of a firearm offense, and thus the matter must be remanded for sentencing on that count. We agree.

Defendant entered his no contest pleas in exchange for a stipulated five-year sentence. According to the plea agreement, the five years was to consist of two years for making a criminal threat, doubled for the strike prior, plus one year for the prison prior. The sentence for being a felon in possession of a firearm was to be stayed pursuant to section 654.

The trial court sentenced defendant consistent with his plea agreement, except that it failed to impose a sentence on the felon in possession of a firearm offense. While the minutes and abstract of judgment reflect that the sentence on that offense was stayed pursuant to section 654, no term of imprisonment was actually imposed, and thus, there was nothing to stay.

Section 654 does not permit suspending imposition of sentence on a term without a grant of probation. The proper procedure under section 654 is to impose the sentence and then stay execution of sentence. (People v. Monarrez (1998) 66 Cal.App.4th 710, 713; People v. Jenkins (1965) 231 Cal.App.2d 928, 934-935.)

The People do not address the trial court’s failure to impose a sentence. Instead, they argue that defendant’s sentence (whatever it may be) should run concurrent with his sentence for making a criminal threat, as opposed to being stayed under section 654, because “section 654 does not apply . . . .”^[2]

“Where [] 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.” (People v. Hester (2000) 22 Cal.4th 290, 295, italics in original.) “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.” (Ibid.) This rationale applies equally to the People; the People should not be allowed to use the appellate process to better the bargain.

This matter must be remanded for imposition of sentence on the firearm offense, and the sentence stayed pursuant to section 654.

DISPOSITION

Defendant’s appeal as it relates to the trial court’s acceptance of his plea is dismissed. The matter is remanded to the trial court for sentencing on the felon in possession of a firearm offense. Upon imposition of sentence, the trial court is directed to stay the sentence in accordance with the plea agreement. The trial court is further directed to prepare an amended abstract of judgment and to forward a certified copy of the abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NICHOLSON , J.

We concur:

BLEASE , Acting P.J.

CANTIL-SAKAUYE , J.

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^[1] All further undesignated statutory references are to the Penal Code.

^[2] At the change of plea hearing, the trial court stated that “we’re going to run [the sentence for the firearm offense] concurrent; is that correct?” And defense counsel responded: “That’s correct.” There is nothing in the record, however, to suggest the parties agreed to change the terms of the plea agreement. To the contrary, the probation report recommended the sentence for the firearm offense be stayed pursuant to section 654, and at sentencing, the trial court indicated it intended to follow the probation report’s recommendation. Accordingly, we construe the reference to a concurrent sentence as a misstatement.