Filed 11/6/18 P. v. Reid CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant Dontae Demitre Reid pled no contest in November 2017 to assault by means of force likely to produce great bodily injury and assault with a deadly weapon and admitted he personally inflicted great bodily injury. He received a sentence of seven years in state prison. He did not seek a certificate of probable cause.

Counsel for defendant filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.)

After reviewing the record, we asked the parties to address in supplemental briefing whether the trial court erred in sentencing. In response, defendant challenges his sentence by arguing he could not be convicted of violating both subdivision (a)(1) and (4) of Penal Code[1] section 245. The People argue this contention fails because defendant did not obtain a certificate of probable cause. We agree.

In the alternative, defendant argues the trial court exceeded the sentence lid in the plea, and the People concede this point. We will modify the sentence and otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On February 13, 2016, defendant punched the victim twice in the face and then hit him in the side of the head with a glass bottle of alcohol. As a result, the victim, who was not an accomplice, suffered a brain injury and became comatose. Defendant personally inflicted great bodily injury on the victim.

In August 2016, defendant was charged with assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count one) and assault with a deadly weapon (§ 245, subd. (a)(1); count two). With respect to both counts, it was further alleged defendant personally inflicted great bodily injury on the victim, causing the victim to become comatose due to brain injury and to suffer paralysis. (§ 12022.7, subd. (b).)

In November 2017, the trial court announced a court offer, where defendant would plead no contest to all counts and enhancements. In exchange, he would “not be sentenced to more than seven years [in] state prison.” The offer was made over the prosecution’s objection, although the prosecutor subsequently accepted the plea and conditions.

In January 2018, the trial court sentenced defendant to a term of seven years, as follows: the low term of two years for assault with a deadly weapon (count two) (§245, subd. (a)(1)) plus five years for the great bodily injury enhancement (§ 12022.7, subd. (b)) and the midterm of three years for assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)) plus five years for the great bodily injury enhancement (§ 12022.7, subd. (b)), stayed pursuant to section 654. The trial court imposed a $2,100 restitution fine, a corresponding $2,100 parole revocation fine, suspended unless parole is revoked. In addition, the trial court imposed an $80 court security fee and a $60 conviction assessment fee. The trial court awarded 698 days of custody credit.

Defendant filed a timely appeal.

DISCUSSION

I

The Absence Of A Certificate Of Probable Cause

Defendant contends the trial court erred in sentencing him for assault by means of force likely to produce great bodily injury because he cannot be convicted of violating both subdivision (a)(1) and (4) of section 245. Relying on People v. Brunton (2018) 23 Cal.App.5th 1097, defendant argues assault with a deadly weapon and assault by force likely to produce great bodily injury are not separate offenses but instead constitute different ways of committing the same offense. According to defendant, he committed a single assault and may be convicted of and sentenced to only one violation of section 245.

Absent the issuance of a certificate of probable cause, on appeal a defendant may only challenge the denial of a motion to suppress evidence or postplea issues not undermining the validity of the plea. (People v. Panizzon (1996) 13 Cal.4th 68, 74.) Section 1237.5 should be applied in a “strict manner” and a defendant “may not obtain review of certificate issues unless he has complied with section 1237.5.” (People v. Mendez (1999) 19 Cal.4th 1084, 1098, 1099.)

In substance defendant is challenging the validity of his convictions and therefore the validity his plea. (People v. Panizzon, supra, 13 Cal.4th at p. 76 [to determine whether § 1237.5 applies, “the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5”].) Because the record contains no certificate of probable cause, defendant’s convictions under both subdivision (a)(1) and (4) of section 245 cannot be raised on appeal.

II

The Sentence On Count One Was Excessive

As the parties agree in their supplemental briefing, the trial court erred in imposing an eight-year term on count one because the terms of the plea agreement specified a seven-year sentence lid. Although the sentence on count one was stayed pursuant to section 654, where a plea agreement is accepted and approved, “the defendant . . . cannot be sentenced on the plea to a punishment more severe than that specified in the plea.” (§ 1192.5; see also People v. Panizzon, supra, 13 Cal.4th at p. 80 [“ ‘When a guilty [or nolo contendere] plea is entered in exchange for specified benefits such as . . . an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement’ ”].) We will modify the judgment to comply with the plea agreement.

III

Examination Of Record

We have undertaken an examination of the entire record and find no other arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is modified to impose a seven-year sentence on count one, stayed pursuant to section 654, as follows: the low term of two years (§245, subd. (a)(4)) plus five years for the great bodily injury enhancement (§ 12022.7, subd. (b)). The trial court is directed to prepare an amended abstract of judgment in accordance with this opinion and to forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.

/s/

Robie, J.

We concur:

/s/

Blease, Acting P. J.

/s/

Butz, J.