P. v. Johnson

Filed 10/20/06 P. v. Johnson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

(Yuba)

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Defendant Royce Johnson pled no contest to conspiracy to commit first degree robbery and admitted personal use of a firearm within the meaning of Penal Code section 12022.53, subdivision (b). In exchange, the People agreed to a maximum sentencing exposure or “lid” of 16 years and to dismiss the remaining charges and enhancements. At the time of the plea, the trial court explained and defendant confirmed he understood that he was ineligible for probation as a result of his plea.

On appeal, defendant contends the trial court erred in determining he was absolutely ineligible for probation because no legal basis exists for such a proposition. We conclude, however, a determination on the merits of defendant’s claim would be improper because he failed to obtain a certificate of probable cause. Accordingly, we will dismiss the appeal.

PROCEDURAL BACKGROUND

On September 23, 2005, defendant pled no contest to conspiracy to commit first degree robbery, and admitted as true the associated firearm enhancement under Penal Code section 12022.53. In exchange, several other charges were dismissed and defendant would face no more than 16 years at sentencing, six for the underlying offense and 10 for the firearm enhancement. At the time of the plea, the trial court asked whether either offense to which he pled, or the admitted enhancement, limited or prohibited probation. In response, counsel for a codefendant declared that the enhancement statute -- Penal Code section 12022.53 -- prohibited probation.^[1] The trial court then addressed defendant: “[Y]ou understand that the Court could not grant you probation and, in fact, you will receive a prison term. Do you understand that?” Defendant replied, “Yes, sir.”

On November 23, 2005, defendant filed a “Sentencing Statement/Statement in Mitigation“ with the trial court. In his statement, defendant argued that he was eligible for probation if the court found that his case was “unusual.”^[2] He then urged the trial court to make such a finding and grant him probation.

On December 5, 2005, defendant appeared before the trial court for sentencing. Again, the court questioned the parties concerning probation. “Under [California Rules of Court,] Rule 413,^[[3]] [defendant] is statutorily not eligible for a probation grant for a number of reasons. You believe any such factors exist?” Defendant’s attorney responded, “Only those that I outlined in my [November 23] statement, Your Honor.” The trial court replied, “In, fact, I believe that 1203.06(a)(1) is a prohibitor, is it not, Mr. Sager?” Mr. Sager, the prosecuting attorney, replied, “It is, Your Honor. It’s an outright prohibitor, as is 12022.53(b).” The trial court then declared, “The Defendant being statutorily ineligible for a probation grant, probation is denied.”

The trial court sentenced defendant to six years for conspiracy to commit robbery and an additional 10 years for the firearm enhancement, for a total of 16 years. Defendant filed a timely notice of appeal and sought a certificate of probable cause on January 17, 2006. The trial court denied the request for certificate of probable cause on January 19, 2006.

DISCUSSION

Defendant contends the trial court erroneously determined him to be statutorily ineligible for probation and therefore improperly denied his request for probation. Defendant argues Penal Code section 1203, which prohibits probation for charges where a deadly weapon was used except in an “unusual” case, is the only applicable statute in determining whether probation is allowable in his case. Defendant contends Penal Code section 12022.53, the statute on which the trial court relied in determining he was ineligible for probation, does not apply here because it does not apply to conspiracy charges and therefore its absolute bar of probation is irrelevant. Based on these assertions, defendant maintains his case should be remanded for resentencing to enable the trial court to determine whether his case is “unusual.”

The People contend defendant’s case is not “unusual” and urge us to affirm the trial court’s determination that defendant was ineligible for probation.

We asked the parties to submit supplemental briefs on whether this appeal should be dismissed pursuant to People v. Shelton (2006) 37 Cal.4th 759 because defendant’s argument on appeal is, in effect, a challenge to the validity of the plea requiring a certificate of probable cause. After receiving and reviewing the parties’ briefs, we conclude that a determination of the merits in the case is beyond our reach because defendant’s argument challenges the plea’s validity, and he has failed to obtain a certificate of probable cause.

Generally, a defendant who has entered a plea of guilty or no contest must obtain a certificate of probable cause from the trial court to appeal. (Pen. Code, § 1237.5.) There is an exception, however, when the grounds for appeal “arose after entry of the plea and do not affect the plea’s validity.” (Cal. Rules of Court, rule 30(b)(4)(B).) “Hence, the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea.” (People v. Panizzon (1996) 13 Cal.4th 68, 76.)

Shelton explains that “[a] negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.] ‘The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. (Civ. Code, § 1636.) If contractual language is clear and explicit, it governs. (Civ. Code, § 1638.)’” (People v. Shelton, supra, 37 Cal.4th at p. 767.)

Here, there is no ambiguity in the terms of the plea agreement. In exchange for the dismissal of various charges, defendant pled no contest to conspiracy to commit robbery and admitted a firearm enhancement under Penal Code section 12022.53. As a result, defendant was to receive up to 16 years in prison and was not to be considered for probation. His argument that he was eligible for probation because subdivision (g) of section 12022.53 does not apply to him is a direct challenge to one of the terms of his plea agreement. Just as the defendant in Shelton “did not reserve, either expressly or impliedly, a right to challenge the trial court’s authority to impose the lid sentence,” (People v. Shelton, supra, 37 Cal.4th at p. 769) defendant here did not reserve, either expressly or impliedly, the right to argue for a grant of probation.

In Shelton, the result was this: “Because the plea agreement was based on a mutual understanding (as determined according to principles of contract interpretation) that the court had authority to impose the lid sentence, defendant’s contention that the lid sentence violated the multiple punishment prohibition of Penal Code section 654 was in substance a challenge to the plea's validity and thus required a certificate of probable cause, which defendant failed to secure. Absent a certificate of probable cause, the Court of Appeal could not entertain his sentence challenge, which was the only issue defendant raised on appeal, and it had no alternative but to dismiss the appeal.” (People v. Shelton, supra, 37 Cal.4th at p. 769.)

A similar result applies here. Because the plea agreement was based on a mutual understanding (as determined according to principles of contract interpretation) that defendant would be absolutely ineligible for probation, defendant’s contention that he was only presumptively ineligible for probation is in substance a challenge to the plea’s validity and thus required a certificate of probable cause, which defendant failed to secure. Absent a certificate of probable cause, we cannot entertain his sentence challenge, which is the only issue defendant raises on appeal.

DISPOSITION

The appeal is dismissed.

ROBIE , J.

We concur:

SCOTLAND , P.J.

BLEASE , J.

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^[1] Subdivision (g) of Penal Code section 12022.53 provides that “[n]otwithstanding any other provision of law, probation shall not be granted to . . . any person found to come within the provisions of this section.”

^[2] Per Penal Code section 1203, subdivision (e)(1), a person convicted of conspiracy to commit robbery, who was also armed with a weapon during the commission of that crime, shall not be granted probation except in unusual cases where the interest of justice would best be served.

^[3] California Rules of Court, rule 413, renumbered to rule 4.413 effective January 1, 2001, guides probation eligibility when a defendant is ineligible for probation except in an unusual case.