P. v. Galdon
Filed 12/12/08 P. v. Galdon CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, Plaintiff and Respondent, v. SHANTE GALDON, Defendant and Appellant. | C058433 (Super. Ct. Nos. SF102429B, SF098858A & SF098672A) |
In exchange for a stipulated sentence of 10 years, defendant Shante Galdon pleaded guilty to charges of carjacking, robbery, driving a vehicle without consent, and receiving stolen property, and admitted multiple sentencing enhancements and violating the terms of her probation. Defendant now appeals, challenging the sentence imposed as unauthorized. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In December of 2005 and then again in November of 2006, defendant was involved in a series of robberies, carjackings, and assaults, sometimes involving deadly weapons. Because the details of the underlying crimes are not relevant to this appeal, we will not discuss them further.
On February 7, 2006, an information numbered SF098672A was filed against defendant including charges of taking a motor vehicle without the owners consent (Veh. Code, 10851, subd. (a)) and receiving stolen property (Pen. Code, 496d, subd. (a)).[1] On February 21, 2006, a second information, SF098858A, was filed against defendant and included charges of kidnapping for the purpose of robbery (id., 209, subd. (b)(1)), two counts of robbery (id., 211), and assault with a deadly weapon (id., 245, subd. (a)(1)).
After previously entering not guilty pleas to all charges, on May 30, 2006, defendant entered a negotiated guilty plea to the Vehicle Code section 10851 charge from information SF098672A, and a Penal Code section 211 and lesser related grand theft person (id., 487, subd. (c)) charges from information SF098858A. As part of this plea, all other counts against defendant were dismissed. Defendant received a stipulated sentence of five years eight months for the robbery and grand theft charges and a concurrent sentence of 16 months for the taking a motor vehicle charge. As agreed to by all parties, the trial court suspended the sentence and placed defendant on probation, subject to certain conditions.
On January 31, 2007, a new information (case No. SF102429B) was filed against defendant and included charges of carjacking (Pen. Code, 215, subd. (a)), taking a motor vehicle without the owners consent (Veh. Code, 10851, subd. (a)), and receiving stolen property (Pen. Code, 496d, subd. (a)). The information also alleged that defendant used a knife in the commission of the carjacking (id., 12022, subd. (b)(2)), that she had been previously convicted of auto theft (id., 666.5), and that she had a prior serious felony conviction (a strike, case No. SF098858A). On April 25, 2007, this information was amended to add a robbery charge (id., 211).
On July 2, 2007, defendant entered a negotiated plea wherein she admitted violating her probation from case Nos. SF098672A and SF098858A, pleaded guilty to all charges in case No. SF102429B, and admitted the strike, prior auto theft, and use of knife allegations in exchange for an offered sentence of 10 years in state prison.
The trial court sentenced defendant to 10 years in prison according to the stipulated terms of the negotiated plea agreement. The terms of the sentence were as follows: five years for carjacking, doubled to 10 years because of a prior strike, and a concurrent two-year deadly weapon enhancement; a concurrent three-year term, doubled to six years for robbery; four years concurrent for driving a vehicle without consent; a concurrent two years for possession of a stolen vehicle; and imposition of a concurrent term for the previously suspended sentence.[2]
Defendant appealed and her request for a certificate of probable cause ( 1237.5) was granted.
DISCUSSION
Defendant argues on appeal that (1) the two-year concurrent term for the deadly weapon enhancement is unauthorized because section 12022[3]requires the enhancement term to be consecutive; and (2) the concurrent prison term for receiving stolen property is an unauthorized sentence because section 654[4]prohibits double punishment and it and the car theft conviction arose from the same conduct. Because defendant knowingly and voluntarily entered a negotiated plea in exchange for the 10-year sentence, she is estopped from challenging the same sentence on appeal.
A defendant who fails to object at trial does not generally forfeit the ability to challenge an unauthorized sentence on appeal. However, one who negotiates a plea in exchange for a specified sentence does. The rule that defendants may challenge an unauthorized sentence on appeal even if they failed to object below is itself subject to an exception: Where the 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. 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. [Citations.] While failure to object is not an implicit waiver of section 654 rights, acceptance of the plea bargain here was. When a defendant maintains that the trial courts sentence violates rules which would have required the imposition of a more lenient sentence, yet the defendant avoided a potentially harsher sentence by entering into the plea bargain, it may be implied that the defendant waived any rights under such rules by choosing to accept the plea bargain. (People v. Hester (2000) 22 Cal.4th 290, 295 (Hester).)[5]
Here, defendant gained the benefit of a lesser sentence of only 10 years when, absent the negotiated plea, she faced a possible sentence which, by her own accounting, could have been as long as 32 years four months. When asked if she agreed to the terms of the sentence, she stated that she did so knowingly and voluntarily. Accordingly, her claim of an unauthorized sentence in violation of section 654 is squarely governed under the holding in Hester, and must be rejected.
Defendants claim that the concurrent sentence for the violation of section 12022, subdivision (b)(1) was unauthorized, is governed by the rationale of Hester. In Hester, the sentencing court was not obliged to render the portion of the sentence that was unauthorized under section 654 in order to achieve the stipulated term of imprisonment. (Hester, supra, 22 Cal.4th at pp. 293-294.) Nonetheless, the Supreme Court majority held that the defendant was estopped from complaining of [the] sentence[] to which [he] agreed. (Id. at p. 295.) We see no principled basis to distinguish an unauthorized sentence under section 654 from an unauthorized sentence under section 12022, subdivision (b) with regard to the estoppel principle announced in Hester.
DISPOSITION
The judgment is affirmed.
BUTZ , J.
We concur:
SCOTLAND , P. J.
SIMS , J.
Publication courtesy of San Diego free legal advice.
Analysis and review provided by Santee Property line attorney.
San Diego Case Information provided by www.fearnotlaw.com
[1] Undesignated statutory references are to the Penal Code.
[2] While there are discrepancies between the minute order and the judgment as recited at trial, this account is based on what was agreed to by defendant in court.
[3] Section 12022 provides in relevant part: Any person who personally uses a deadly or dangerous weapon in the commission of a felony . . . shall be punished by an additional and consecutive term of imprisonment in the state prison for one year . . . [but if defendant] has been convicted of carjacking or attempted carjacking, the additional term shall be one, two, or three years. ( 12022, subd. (b)(1)-(2), italics added.)
[4] Section 654 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. ( 654, subd. (a).)
[5] Defendant does not argue that the trial court lacked fundamental jurisdiction, which is the inability to hear or determine a case due to a lack of jurisdiction over the subject matter or parties. (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1426.)
