P. v. Woods

Filed 3/1/07 P. v. Woods CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Kassandra Woods appeals from the judgment entered following her guilty pleas to four counts of child endangerment. (Pen. Code,  273a, subd. (a).)^[1] Appellant admitted two prior serious felony convictions within the meaning of California's "Three Strikes" law. ( 1170.12, subds. (a)-(d), 667, subds. (b)-(i).) The pleas were pursuant to a negotiated settlement whereby one of the prior convictions would be struck, three remaining counts in the information would be dismissed, and the maximum sentence would be 20 years in state prison.

The trial court sentenced appellant to prison for 16 years: the midterm of four years on one count of child endangerment, doubled to eight years because of the strike, plus consecutive terms of two years, eight months, on each of the three other counts of child endangerment (one-third the midterm doubled because of the strike). The trial court stated that consecutive sentences were appropriate because there were "different individual victims for each count."

Appellant contends that, pursuant to section 654, sentence on the three other counts of child endangerment should have been stayed.^[2] We dismiss the appeal because appellant failed to obtain a certificate of probable cause.

Discussion

"[S]ection 1237.5 provides that a defendant may not take an appeal from a judgment of conviction entered on a plea of guilty or nolo contendere unless he has filed in the superior court a statement of certificate grounds, which go to the legality of the proceedings, including the validity of his plea, and has obtained from the superior court a certificate of probable cause for the appeal. [Citation.]" (People v. Mendez (1999) 19 Cal.4th 1084, 1095.) "With that said, section 1237.5 admits of this exception: The defendant may take an appeal without a statement of certificate grounds or a certificate of probable cause if he does so solely on noncertificate grounds, which go to postplea matters not challenging his plea's validity and/or matters involving a search or seizure whose lawfulness was contested pursuant to section 1538.5. [Citations.]" (Id., at p. 1096.)

In People v. Shelton (2006) 37 Cal.4th 759 (Shelton), our Supreme Court held that, to raise a claim of sentencing error under section 654, a defendant who has pleaded guilty must obtain a certificate of probable cause if the plea agreement specifies a sentence lid.^[3] The Supreme Court reasoned: "[I]nclusion of a sentence lid implies a mutual understanding and agreement that the trial court has authority to impose the specified maximum sentence and preserves only the defendant's right to urge that the trial court should or must exercise its discretion in favor of a shorter term. Accordingly, a challenge to the trial court's authority to impose the lid sentence is a challenge to the validity of the plea requiring a certificate of probable cause." (Shelton, supra, 37 Cal.4th at p. 763.)

Our Supreme Court noted that "a prosecutor and a defendant may enter into a negotiated disposition that expressly recognizes a dispute or uncertainty about the trial court's authority to impose a specified maximum sentence - because of Penal Code section 654's multiple punishment prohibition or for some other reason - and preserves the defendant's right to raise that issue at sentencing and on appeal. [Citation.] In that situation, the plea agreement's validity and enforceability would be unaffected by the ultimate resolution of the disputed issue because each party could be understood to have expressly or impliedly accepted and assumed the risk that the issue would be resolved in the opposing party's favor." (Shelton, supra, 37 Cal.4th at p. 769.)

Before appellant pleaded guilty, her counsel mentioned section 654 in connection with her maximum sentence if the case were tried: "If all counts are found to be true, your Honor, no counts are found to be 654, she'd be looking at a . . . maximum term of 150 years to life." The trial court also indicated that section 654 would have an impact on the sentence if the case were tried: "Whatever the sentence will be at the end of the trial, . . . I don't know. A lot of it would depend on what [appellant's counsel] is talking about, section 654, on my analysis of the case and whether I think these

offenses . . . would merge together for sentencing purposes so they should be properly treated as one thing, rather than several distinct things. []  If they're treated as several distinct things, your sentence goes right through the roof. And the available roof goes very high, if it's a third-strike case. []  If they should be tried as a single thing, this sentence comes back down to a more normal range. . . . [] So it's complicated. . . . I am here to make sure that you're making a considered decision in taking your case to trial."

Although section 654 was mentioned in connection with the maximum sentence if appellant took the case to trial, the negotiated disposition "did not reserve, either expressly or impliedly, a right to challenge the trial court's authority to impose the lid sentence." (Shelton, supra, 37 Cal.4th at p. 769.) Appellant's intention not to reserve this right is supported by her failure to raise the section 654 issue at the sentencing hearing. Appellant's counsel merely stated: "I ask the Court to find the subordinate counts to be concurrent in light of the reasoning stated in the probation report, which I would ask the Court to . . . adopt. []  And with that I would submit." The probation report recommended that concurrent rather than consecutive sentences be imposed.

Appellant contends that Sheltonis inapplicable because she entered an open plea and "there was no sentencing lid." "An ' "open plea" [is one] under which [the defendant] was not made any promises.' [Citation.]" (Liang v. Superior Court (2002) 100 Cal.App.4th 1047, 1056.) When a defendant enters an open plea, he "plead[s] unconditionally, admitting all charges and exposing himself to the maximum possible sentence . . . ." (Ibid.) 

Appellant did not enter an open plea. Three counts were dismissed, the court agreed to dismiss one of the strikes, and appellant was promised that she would receive a maximum prison sentence of 20 years. Based on appellant's guilty pleas and admission of the two strikes, the felony disposition form stated that she "could be sentenced to the state prison for a maximum possible term of 120 years to life." Since the parties agreed to a 20-year sentencing lid, a certificate of probable cause was required. (Shelton, supra, 37 Cal.4th at p. 763.)

Disposition

The appeal is dismissed for failure to obtain a certificate of probable cause.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

James P. Cloninger, Judge

Superior Court County of Ventura

______________________________

Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Paul M. Roadarmel, Jr., Deputy Attorney General, for Plaintiff and Respondent.

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

^[2]Section 654, subdivision (a), provides in relevant part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."

^[3]Sheltonwas filed on January 5, 2006, approximately four months before appellant entered her guilty pleas.