P. v. Daniel
Filed 5/28/13 P. v. Daniel CA1/4
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
JOHNATHAN
PHILLIP DANIEL,
Defendant and Appellant.
A136611
(Sonoma
County
Super. Ct.
No. SCR597295)
Appellant
Johnathan Phillip Daniel pled no contest to two counts of first degree robbery
and admitted the truth of two firearm use enhancements. A negotiated plea indicated a potential
sentence of 16 years and 4 months. (Pen.
Code,
§§ 211, 459; former § 12022.53, subd. (b).) The trial court rejected a request to
withdraw his plea. Daniel was sentenced
to 16 years, 4 months in state prison for these two robberies and a probation
violation matter. He appeals, asking us
to strike a term that he challenges as an unauthorized sentence and contending
that the trial court erred by refusing to allow him to withdraw his plea. We affirm the conviction, including the
sentence.
FACTS
On
January 31, 2011, two men
entered a Rohnert Park apartment
occupied by Nicholas Mason, Matthew Mason, and Matthew Vollers. The intruders—one of them pointing a pistol—bound
each of the victims’ hands and advised them that they were being robbed. Nicholas Mason saw the suspects drive away in
a tan Ford Expedition or Explorer. The
Masons reported to police that two pounds of processed marijuana worth $4000,
two laptop computers, an external hard drive, a camera, headphones, and $1100
in cash were missing from the apartment.
Vollers told police that his cell phone and items from his wallet were
also taken.
The
Masons told police that they suspected that Christopher Leschinger—a person who
had been at the apartment several hours before the robbery—was one of the
perpetrators. They had hoped that
Leschinger would help them sell their marijuana.
The
day after the robbery, two of Leschinger’s associates—Charles Davenport and
appellant Johnathan Phillip Daniel—were arrested at a Santa
Rosa motel on narcotics charges. In their motel room, police found Nicholas
Mason’s laptop computer, some marijuana, and $879 in cash. Three days later, Daniel’s grant of probation
stemming from a 2007 burglary was summarily revoked. He was also charged in a separate matter with
possession of a controlled substance for sale.
Apparently, he had several hundred Ecstasy pills in his possession at
the time of his arrest.
Nicholas
Mason and Matthew Vollers both identified Daniel in photographic lineups as the
armed man who pushed his way into the apartment. A March 3, 2011, parole search of
Leschinger’s residence turned up a camera bag and digital camera. Photographs of the Masons were on the camera,
which Leschinger said that he had purchased from Daniel. When questioned about the January 2011
robbery, Leschinger admitted going to the Masons’ apartment before the robbery
to look at their marijuana. After
Leschinger told Daniel and Davenport about the marijuana, the two men borrowed
a Ford Explorer and went out for a while.
Daniel and Davenport returned later with a duffel bag containing
computers, a digital camera, and about two pounds of marijuana. One of them also had a black semi-automatic
pistol. It was clear to Leschinger that
Daniel and Davenport had just robbed the Masons. Except for the camera he bought from Daniel,
Leschinger said that the other two took the stolen property with them.
Leschinger’s
roommate was also interviewed. He
admitted that he loaned his Explorer to Daniel and Davenport at Leschinger’s
request. Daniel and Davenport showed off
the contents of the duffel bag when they returned his vehicle. He confirmed that computers, and more than a
pound of marijuana were inside the duffel.
One of the men also had a camera and a weapon.
In
jail, Leschinger called Davenport and told him that his roommate had told the
police “ ‘everything.’ †He
advised Davenport to “get out of town†because the police “ ‘know
everything.’ †The police overheard
this call.
Later
that month, a felony complaint charged Daniel with three counts of robbery,
each allegedly committed in concert with others. He was alleged to have personally used a
firearm in the commission of two of these serious, violent offenses. In a fourth charge, he was alleged to have
been an ex-felon in possession of a firearm at the time of the robberies, based
on a 2007 burglary. (§ 211, 213,
subd. (a)(1)(A), 459; former §§ 667.5, subd. (c)(8) [Initiative Measure (Prop.
83, § 9)], 1192.7, subd. (c)(8) [Stats. 2006, ch. 337, § 37, pp.
2643-2645], 12021, subd. (a)(1), 12022.5, subd. (a) [Stats. 2004, ch. 494,
§ 4, pp. 4043-4044], 12022.53, subd. (b).)
A public defender was appointed to represent him.
In
March 2011, a first amended complaint
was filed, adding Leschinger as a defendant.
With regard to Daniel, it added a firearm use allegation in the
commission of the third robbery and an allegation of a 2010 prior conviction
for possession for sale. (See former
§§ 667.5, 12022.5, subd. (a), 12022.53, subd. (b); see Health & Saf.
Code, § 11378.) A second amended
complaint was soon filed, adding Davenport as a defendant. In Daniel’s case, this latest complaint added
an allegation that he was armed with a firearm during the commission of each
A receiving stolen property charge was also added. (Former §§ 496, subd. (a) [Stats.
2009-2010, 3rd Ex. Sess., ch. 28, § 23], 12022, subd. (a)(1) [Stats.
2004, ch. 494, § 3, pp. 4042-4043].)
Daniel pled not guilty to these charges and denied all enhancement
allegations.
Before
the preliminary hearing, the
prosecution offered to settle the case if Daniel pled to two counts of robbery,
admitted a weapons enhancement and stipulated to a sentence of 12 years, 8
months. Daniel rejected the offer. The preliminary hearing was conducted over
two days in April 2011. Nicholas and
Matthew Mason each identified Daniel in court as the armed perpetrator. At the close of the preliminary hearing,
Daniel was held to answer for all charges.
By
the end of April 2011, an information was filed charging Daniel with three
counts of robbery, allegedly committed in concert. These three charges were each enhanced by
allegations that Daniel personally used a firearm in the commission of these
serious and violent offenses and that he was armed with a firearm. The information also alleged single counts of
being an ex-felon in possession of a firearm and receiving stolen
property. (§§ 211, 213, subd.
(a)(1)(A); former §§ 496, subd. (a), 12021, subd. (a)(1), 12022.5, subd.
(a), 12022.53, subd. (b).)
In
May 2011, Leschinger gave police a statement further implicating Daniel in the
robberies, and linking him to a weapon allegedly used in the commission of the
robberies. On June 3, 2011, a first
amended information was filed that no longer charged Daniel with receiving stolen
property. He entered a plea of not guilty
to the charges. In July 2011, the People
offered to settle Daniel’s case if he stipulated to a prison term of 16 years,
4 months.
In
August 2011, Leschinger pled to two charges in exchange for a seven-year
suspended prison sentence and probation.
In early October 2011, Davenport was convicted of the offenses charged
against him. He was given an eight-year,
four-month prison sentence which was suspended.
He also received probation.
On
October 7, 2011, Daniel had not decided whether to accept the People’s offer of
a maximum sentence of 16 years, 4 months.
The minutes of that day’s proceedings indicated that, considering all
pending charges, he faced the possibility of 26 years in prison.
On
October 14, 2011, the case was on for trial.
As pretrial motions were being determined and jury selection was in
progress, a negotiated plea was still being discussed. The public defender indicated that the case
before the court—not including the probation violation and the other pending
case—exposed Daniel to a maximum prison term of 25 years, 4 months. Daniel asked for a lower sentence but the
prosecution was not willing to offer less than 16 years, 4 months. He discussed that offer with his family, but
rejected it later that day. The
prosecution withdrew its offer and the case proceeded for jury selection.
Three
days later, on October 17, 2011, the public defender was still trying to settle
the case for 12 years, 8 months, but the prosecution rejected that offer. The public defender indicated that the
maximum prison term Daniel faced, considering all the trailing cases, was 26
years, 4 months. The trial court advised
Daniel that it would be in his best interest to accept an offer of 16 years, 4
months if the prosecution would offer this agreement again. Daniel was still hoping for the 12 year, 8
month term, believing that it gave him a better chance to have a life after he
served that time, but the trial court made it clear that the prosecution would
not offer that again.
During
the course of two recesses, Daniel consulted with the public defender about the
offer. At the conclusion of this
discussion, Daniel entered into a negotiated agreement with the
prosecution. He pled no contest to two
counts of robbery and admitted the two related firearm use enhancement
allegations were true. The negotiated
agreement stipulated that he would be sentenced to 16 years, 4 months in state
prison. (§ 211; former
§ 12022.53, subd. (b).)
Daniel
signed a written waiver of rights form as part of his
plea exposed him to a maximum sentence of 20 years, 8 months. He stipulated to a sentence of 16 years, 4
months. This form indicated that he also
expected that his pending possession for sale case would be dismissed, along
with the remainder of the charges and enhancements he faced in the robbery
case, as part of the plea. He also
anticipated receiving a concurrent term for his probation violation. (See former Health & Saf. Code,
§ 11378.)
Based
upon Daniel’s no contest plea, the trial court found him guilty of two
robberies and the related firearm use enhancements. The prosecution’s motion to dismiss the
remaining robbery charge, the count of being an ex-felon in possession of a
firearm, and all remaining enhancements at the time of sentencing was
granted. The matter was set for a
December 2011 sentencing.
In
November 2011, the matter was put back on calendar at Daniel’s request, to
enable him to seek to withdraw his plea.
After hearing, his Marsden motion
to remove the public defender was denied.
In December 2011, Daniel’s public defender filed a written motion to
withdraw his plea, complaining that the defendant had not had an opportunity to
review Leschinger’s statement before entering his plea. Daniel also complained that he was to be
sentenced to prison, while his co-defendants were granted probation. The motion hearing was continued several
times. The trial court obtained a
transcript of the change of plea hearing, and the prosecution filed its
opposition to the motion to withdraw.
By
May 2012, Daniel had obtained new counsel who filed a new motion to withdraw
his plea.
the plea under the mistaken belief that he was exposed to 30 years. He asserted that the “deal†that the
defendant accepted was nearly the same as his actual exposure. In a May 2012 declaration supporting the motion,
Daniel stated that the public defender had told him that he faced 25 or 30
years in prison if tried and convicted.
He declared that if he had not believed that his plea would cut 14 years
off his sentence, he would not have entered into the plea agreement. He stated that he accepted the offer of 16
years, as a better option than spending “25 or 30†years in prison. The new motion also argued that section 654
should have applied to limit Daniel’s exposure to a single sentence for
robbery, because all three robberies were committed in the same
transaction. The prosecution also
opposed the new motion.
In
June 2012, the trial court denied Daniel’s motion to withdraw his plea. It found that the exposure was stated in open
court as 26 years, 4 months, was correct, and that Daniel’s declaration made it
clear that he considered the negotiated sentence of 16 years, 4 months to be
acceptable if his actual exposure was between 25 and 30 years.
The
probation report recommended a prison term of 20 years, 8 months, with a
consecutive term of 8 months for the probation violation. The trial court noted that this differed from
the negotiated disposition, which it followed.
In August 2012, Daniel was sentenced to 16 years, 4 months in state
prison for the two enhanced robberies and a second degree burglary for which he
had been on probation at the time of robberies.
The total term was composed of a lower term of three years for the first
robbery with a ten-year enhancement for firearm use; a concurrent lower term of
three years for the second robbery, with a one-third consecutive enhancement
term of three years and four months for firearm use; and a concurrent two-year
term for the violation of probation. The
remaining counts were dismissed pursuant to the plea agreement, as was the
possession for sale charge.
ESTOPPEL
First,
Daniel challenges the sentence imposed for a firearm enhancement as an
unauthorized sentence—that is, one that the trial court imposed in excess of
its jurisdiction. He objects that the
trial court imposed a one-third firearm enhancement term as a consecutive term,
even though the underlying robbery was imposed as a concurrent term. Citing this as an act in excess of the trial
court’s jurisdiction, Daniel asks that we strike this three year, four month
enhancement. The Attorney General
counters that Daniel stipulated to any act in excess of jurisdiction and is
thus estopped from raising this claim of error on appeal. We agree.
Ordinarily,
a criminal defendant may challenge an unauthorized sentence as one imposed in
excess of jurisdiction. However, a defendant
may not raise such a challenge if he or she pled guilty in return for a
specified sentence—even if the trial court acted in excess of jurisdiction in
reaching that sentence—as long as the defendant was properly before that court
for sentencing. A defendant who received
the benefit of a plea agreement may not challenge that sentence—even if it was
in excess of jurisdiction—in an attempt to obtain a greater benefit on
appeal. (People v. Hester (2000) 22 Cal.4th 290, 295; In re Griffin (1967) 67 Cal.2d 343, 347-348.) Daniel entered his plea stipulating to the
sentence that he now challenges as in excess of jurisdiction. He is estopped from raising this claim of
error on appeal. (See
p. 295; In re Griffin, supra, 67
Cal.2d at pp. 347-348.)
MOTION TO WITHDRAW
A.
Calculation of Maximum Exposure
Daniel
also argues that the trial court abused its discretion by denying his motion to
withdraw his no contest plea. He argues
that confusion about his maximum exposure—the sentence that he could have
received if convicted of all charges and sentenced to the greatest sentence for
them—should have entitled him to withdraw his plea.
As
some of Daniel’s argument is based on two miscalculations about his maximum
exposure, we clarify these misunderstandings before turning to the merits of
the claim of error. First, he assumes
that the sentence he received was only four months shorter than what he would
have received if he had been convicted of
the two crimes he admitted. This
calculation ignores the additional sentences that his plea agreement avoided or
mitigated. Daniel enjoyed a two year
reduction as a result of the imposition of a concurrent term for his violation
of probation in the burglary case. He
was not sentenced on several charges—the third robbery, being an ex-felon in
possession of a firearm, and the outstanding possession for sale case—dismissed
as part of the agreement. His erroneous
calculation fails to take into account these benefits that he received as a
result of his negotiated plea in the robbery case.
Second,
Daniel suggests that his maximum exposure was overstated because the ban on
multiple punishment codified in section 654 precluded more than one sentence
for robbery. He is incorrect. An act made punishable in different ways by
different statutes must be punished only under the statute that provides the
longest potential prison term, but may not be punished under more than one
statute. (§ 654, subd. (a).) The ban on multiple punishment applies when
there is one act in the ordinary sense, but also when the crimes arise as the
result of an indivisible course of conduct.
In those circumstances, the general rule is that the defendant may be
punished for any of these offense, but not for more than one of them. (People
v. Latimer (1993) 5 Cal.4th 1203, 1208; People
v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
However,
violent crimes committed against multiple victims can be separately punished
without violating the statutory ban on multiple punishment. (People
v. Latimer, supra, 5 Cal.4th at p. 1212.)
The three robberies were charged against Daniel as violent
offenses. (See former § 667.5,
subd. (c)(8).) His maximum exposure for
the three robberies properly included three terms for robbery.
B.
Abuse of Discretion
Daniel contends that the trial
court erred by denying his motion to withdraw his plea. For good cause, a criminal defendant who was
represented by counsel at the time of the plea may—at any time before
judgment—seek trial court permission to withdraw a guilty plea. (§ 1018; People v. Gontiz (1997) 58 Cal.App.4th 1309, 1314, fn. 3,
disapproved on another ground in People
v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 200, fn. 8.) The motion is addressed to the discretion of
the trial court. (People v. Weaver (2004) 118 Cal.App.4th 131, 146.) On appeal, we review its decision for an
abuse of discretion. (
442-443; People v. Weaver, supra, 118
Cal.App.4th at p. 146.) We will uphold
the trial court’s ruling unless there is a clear showing of an abuse of
discretion. (People v. Wharton (1991) 53 Cal.3d 522, 585.)
To
prevail, Daniel must produce clear and
convincing evidence of good cause to withdraw his plea. (People
v. Wharton, supra, 53 Cal.3d at p. 585; People
v. Cruz (1974) 12 Cal.3d 562, 566.)
Mistake constitutes good cause to withdraw a guilty plea if the
defendant entered the plea under a “ ‘serious misapprehension’ †of
the consequences of a negotiated plea. (
1351, 1357; People v. Cruz, supra, 12
Cal.3d at p. 566.) Daniel claims that
his public defender misadvised him of his maximum exposure, telling him that he
faced 30 years in prison.
name="_ftnref3" title="">[3] In open court, she advised him that he faced
a possible term of 26 years, 4 months in prison.
Daniel’s
own declaration stated that he accepted a 16 year, 4 month term because he
thought that was better than 25 or 30 years.
The trial court cited this evidence when it found that Daniel did not
demonstrate good cause to withdraw his plea.
This evidence also satisfies us that the trial court did not abuse its
discretion in denying the motion to withdraw.
Even if we assume arguendo that Daniel was misadvised as he asserts that
he was, his plea agreement accepted a sentence that avoided the range of prison
time that was unacceptable to him.
The
judgment—including the sentence—is affirmed.
_________________________
REARDON,
J.
We concur:
_________________________
RUVOLO, P. J.
_________________________
RIVERA, J.
name="_ftn1" title=""> [1]
All statutory references are to the Penal Code unless otherwise indicated. Although several of the relevant statutes
defining crimes, specifying enhancements or setting punishments have been
amended since the dates of the 2011 charged offenses, we apply the version of
those provisions in effect as of the date of the specific crime, to avoid
imposition of an ex post facto law. Our
comparison of these provisions with the current versions of them satisfies us
that current law is—for our purposes—substantially the same as it was at the
time that the offenses were committed.
(See former §§ 12021, subd. (a)(1) [Stats. 2008, ch. 599, § 4,
pp. 4281-4287; now § 29800, subd. (a)(1)], 12022.53, subd. (b) [Stats.
2006, ch. 901, § 11.1, pp. 7075-7077]; Health & Saf. Code,
§ 11378 [Stats. 2001, ch. 841, § 6, p. 6870].)
name="_ftn2" title=""> [2]
In so doing, Daniel abandoned his earlier motion to withdraw that had been
filed by the public defender, with whom he claimed to have a conflict of
interest.
