P. v. Newell

Filed 2/25/09 P. v. Newell CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Appellant Keith Richard Newell pled no contest to failing to register as a sex offender and admitted having suffered a prior strike. (Former Pen. Code,[1]  290, subd. (a)(1)(D) [as amended by Stats. 2005, ch. 722,  3.5];  1170.12, subd. (c)(1).)[2] Consistent with a plea agreement, Newell was sentenced to four years in state prison. He appeals his sentence on equal protection grounds. As we find that his plea agreement precludes him from challenging a sentence imposed consistent with its terms, we affirm the judgment.

I. FACTS

In August 1990, appellant Keith Richard Newell was convicted of committing a lewd act on a child. (Former  288, subd. (a) [as amended by Stats. 1988, ch. 1398,  1, pp. 4730-4731].) He was placed on probation, but he did not successfully complete probation. Conviction of this offense required him to register as a sex offender. (See former  290, subd. (d)(1) [as amended by Stats. 1989, ch. 1407,  4, pp. 6191-6195].) In 1997 and again in 2000, he was convicted of failure to register as a sex offender. (Former  290, subds. (a)(1), (g)(2) [as amended by Stats. 1996, ch. 909,  2, pp. 5137-5146 (Feb. 1997 version)]; former  290, subds. (a)(1)(A), (g)(2) [as amended by Stats. 1999, ch. 901,  1.5 (June 2000 version)].) He was imprisoned and paroled five times. He violated the terms of his parole each time.

In July 2006, Newell stated an outdated address when he registered as a sex offender. (Former  290,[3] subd. (g)(9).) As a transient, he was required to update this registration every 30 days, but he did not do so. (Former  290, subd. (a)(1)(C)(i).) Within five days of his September 2006 birthday, he was also required to file an annual registration. (Former  290, subd. (a)(1)(D).)

In July 2007, he was charged by information with the 2006 failure to update his annual sex offender registration. (Former  290, subd. (a)(1)(D).) The information also alleged his 1990 prior conviction as a strike. ( 1170.12, subd. (c)(1).) It alleged his 1990, 1997 and 2000 prior convictions as the basis for sentence enhancement. (Former  667.5, subd. (b) [as amended by Stats. 2002, ch. 606,  2].)

Newell entered a no contest plea, admitting the new charge and admitting that his 1990 lewd conduct conviction constituted a strike. (Former  290, subd. (a)(1)(D), 1192.7, subd. (c)(6) [as amended by Stats. 2002, ch. 606,  3];  1170.12, subd. (b)(1).) He acknowledged that he could be sentenced to six years[4] in state prison for the new offense, that a prison term was mandatory, and that the trial court had indicated that it would likely sentence him to four years in state prison. (See former  290, subd. (g)(2);  1170.12, subds. (a)(2), (c)(1).) He did not raise any equal protection issues at the time of the plea hearing, when the trial court accepted his guilty plea.

In October 2007, Newell asked the trial court to exercise its discretion to strike his 1987 prior strike, seeking residential drug treatment rather than a prison sentence. ( 1385, subd. (a); People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 (Romero).) He did not raise an equal protection challenge to the sentence. The People opposed the motion. In November 2007, after a hearing, the trial court denied the motion. Again, the trial court indicated that it would impose a four-year prison term. In December 2007, Newells motion to reconsider the denial of his motion to dismissagain, not challenging the proposed sentence on equal protection groundswas also denied. He was sentenced to four years in state prisontwice the midterm of two yearsaccording to the terms of the plea agreement and the three strikes law.[5] (Former  290, subds. (a)(1)(D), (g)(2);  1170.12, subd. (c)(1).)

II. ESTOPPEL

The People raise several procedural objections to Newells equal protection claim. We need only address one of themwhether his plea agreement precludes him from challenging his sentence. We conclude that Newell is estopped by his plea agreement from raising an equal protection challenge to the sentence imposed, as that sentence was precisely what the trial court had indicated it would be at the time that Newell entered his guilty plea.

As a general rule, a defendant may raise on appeal only those claims properly preserved in the trial court. (People v. Hester (2000) 22 Cal.4th 290, 295 (Hester).) Despite a lack of objection, a defendant may nevertheless challenge an unauthorized sentence because the trial court acted in excess of its jurisdiction to impose that sentence. (Ibid.) However, even this exception to the general rule is subject to its own exceptionthat when a defendant pleads guilty in exchange for a specified sentence, even an act in excess of jurisdiction in reaching that sentence cannot be challenged on appeal, as long as the trial court did not lack fundamental jurisdiction.[6] Courts reason that a defendant who has entered into a plea agreement and has received the benefit of that agreement should not be permitted to attempt to better the bargain on appeal. (Ibid.; People v. Chatmon (2005) 129 Cal.App.4th 771, 773; People v. Flood (2003) 108 Cal.App.4th 504, 508; People v.Couch (1996) 48 Cal.App.4th 1053, 1056.)

By entering into the plea agreement for a specified sentence and accepting the benefits of its termsavoiding the imposition of a potentially harsher sentencethe defendant is deemed to have waived any challenge that would have required the imposition of a more lenient sentence than the one imposed. (Hester, supra, 22 Cal.4th at p. 295; People v. Chatmon, supra, 129 Cal.App.4th at p. 773.) If estoppel is justified, the importance of the defendants claim on appeal is irrelevant. (People v.Couch, supra, 48 Cal.App.4th at p. 1057.)

On appeal, Newell contends that the three strikes prison sentence for failure to annually update his registration was drastically greater than the offenseof which he was equally guiltyof failing to update his transient registration every 30 days. He reasons that the disparity between the two sentences renders the sentence imposed a violation of his right to equal protection. (U.S. Const., 14th Amend.) He did not raise this equal protection challenge in the trial court, either at the time of plea or sentence. He did not seek to withdraw his plea at the Romero motion hearing, nor at sentencing.[7] He pled guilty, knowing that the trial court was going to sentence him to prison and knowing that his sentence would likely be a four-year term.[8] In exchange for his plea, the prosecution did not pursue three prior conviction enhancement allegations and the trial court chose to double the midterm for the underlying offense, rather than doubling the aggravated term. Newell was sentenced according to the terms of the plea agreement. He is now estopped from challenging that sentence on appeal. (Hester, supra, 22 Cal.4th at p. 295;People v.Couch, supra, 48 Cal.App.4th at pp. 1056-1057.)

The judgment is affirmed.

_________________________

Reardon, Acting P.J.

We concur:

_________________________

Sepulveda, J.

_________________________

Rivera, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

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

[2] Although section 290 has been amended several times since the 2006 date of the charged offense, we consider the version of that provision in effect as of the date of the failure to register charge, to avoid any ex post facto issues. (See Stats. 2007, ch. 579,  8, eff. Oct. 13, 2007 [adding new Sex Offender Registration Act]; Stats. 2006, ch. 337,  11, eff. Sept. 20, 2006 [amending prior version of  290].)

[3] All subsequent references to section 290 refer to the version in effect on July 31, 2006. (See former  290 [as amended by Stats. 2005, ch. 722,  3.5].)

[4] The written waiver form indicates a maximum sentence of six years. Before Newells preliminary hearing, the trial court indicated a maximum term of six years. At the plea hearing, the trial court indicated that the maximum sentence could be nine years. (See former  290, subd. (g)(2) [failure to register punishable by term of 16 months, two or three years];  1170.12, subd. (c)(1) [requiring sentence to be doubled].)

[5] The trial court indicated that it would dismiss all three prior conviction enhancement allegations.

[6] There is no suggestion in the record on appeal that the trial court lacked fundamental jurisdiction over Newell or the subject matter of the proceeding. (See In re Harris (1993) 5 Cal.4th 813, 836.)

[7] Neither did Newell obtain a certificate of probable cause from the trial court authorizing this appeal. (See  1237.5; Cal. Rules of Court, rule 8.304(b).) We need not address the related issue of whether his failure to obtain a certificate of probable cause also bars this appeal.

[8] The Hester case is based on the same factual situationan indicated sentence and later, an imposed sentence that was precisely what was indicated by the trial court. (See Hester,supra, 22 Cal.4th at p. 296.)