P. v. Turner
Filed 1/22/14 P. v. Turner CA5
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prohibits courts and parties from citing or relying on opinions not certified
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
VERNON LEE TURNER,
JR.,
Defendant and Appellant.
F065239
(Super. Ct. Nos. 10CM3957 & 11CM3471)
APPEAL from a judgment of the
Deborah
Prucha, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney
General, Louis M. Vasquez, Leanne LeMon, and Lewis A. Martinez, Deputy
Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant
Vernon Lee Turner, Jr., contends that, as a result of the Criminal Justice
Realignment Act of 2011, the trial court erred in requiring he serve three
years four months in state prison. More
particularly, defendant contends his underlying offense allows for its 16-month
term to be served in local custody, and although he admitted an enhancement
pursuant to Penal Code
a two-year term in state prison, the underlying felony determines the location
where the sentence is to be served. He
also contends his position is supported by the Legislature’s subsequent
amendment of former section 12022.1, omitting the requirement the two-year term
be served expressly in state prison. We
will affirm.
PROCEDURAL BACKGROUND
Case No. 10CM3957
In
case No. 10CM3957, the Kings County District Attorney filed a complaint
alleging the following crimes: count 1—unlawful
transportation of methamphetamine (Health & Saf. Code, § 11379, subd.
(a)); count 2—possession of methamphetamine for sale (id., § 11378); count 3—unlawful possession of methamphetamine
(id., § 11377, subd. (a)); count
4—unlawful transportation of marijuana (id.,
§ 11360, subd. (a)); count 5—possession of marijuana for sale (
use and being under the influence
of a controlled substance (id., § 11550).
Pursuant to section 667.5, subdivision (b),
it was further alleged as to counts 1 through 4 that defendant had served prior
prison terms for burglary (§ 459) in 1996, unlawful possession of a
controlled substance (Health
& Saf. Code, § 11377) in 1998, and possession of a concealed dirk or
dagger (former § 12020, subd. (a)(4)) in 2007.
On
May 12. 2011, defendant pled no contest to possession of methamphetamine
for sale (Health & Saf. Code, § 11378; count 2). The remaining counts and allegations were to
be dismissed at the time of sentencing.
Case No. 11CM3471
In
an information filed March 1, 2012, it was
alleged defendant had committed the following: counts 1 and 2—assault with a
deadly weapon (§ 245, subd. (a)(1)); count 3—unlawful possession of a
controlled substance, to wit: Oxycodone
(Health & Saf. Code, § 11350, subd. (a)); and count 4—unlawful
possession of not more than 28.5 grams of marijuana (id., § 11357, subd. (b)).
Further, as to counts 1 through 3 it was alleged defendant had been
released from custody on bail or his own recognizance (OR) at the time of the
commission of the offenses within the meaning of former section 12022.1, and
that defendant had served a prior prison term within the meaning of section
667.5, subdivision (b) in 2007 for possession of a concealed dirk or dagger (former
§ 12020, subd. (a)(4)). On March 2, 2012, defendant pled not guilty and denied all allegations.
The Subsequent Proceedings
On
May 31, 2012, in case No. 11CM3471, defendant and the People entered a
stipulated plea agreement. Defendant pled
guilty to count 3, unlawful possession of Oxycodone (Health & Saf. Code, § 11350),
and admitted the on-bail enhancement allegation (former § 12022.1). The parties stipulated to the lower term of
16 months in prison on count 3, plus an enhancement of two years for the section
12022.1 violation. All remaining counts
and allegations were dismissed.
During
the proceedings of May 31, 2012, the following
exchange occurred:
“[The Court:] We’re here on several cases, and it’s my
understanding that the parties have reached an agreement as to both a plea and
sentencing.
“And
correct me if I’m wrong, but as I understand it, in case number 11CM3471,
[defendant] is going to be pleading to Count 3, the felony violation of Health
and Safety Code Section 11350 subdivision (a) for possession of Oxycodone, and
that he will admit that that will violate—or that that also constitutes a
violation of Penal Code Section 12022.1 as he was released on bail in case
10CM3957, and that the remaining counts and charges on that case and
allegations would be dismissed.
“And
that case 10CM2384—or excuse me, 11CM2384 would be dismissed in its entirety.
“And
that case number 11CM2172 would be dismissed in its entirety.
“And
that case 10CM3957, on that case the defendant will be placed on probation for
a period of three years with standard drug terms and conditions. It would not be a Prop 36 because of the
underlying charge, as well as on 11CM3471, the agreement was to the low term in
state prison of 16 months plus the two years on the out-on-bail
enhancement. So it would be probation on
one case while serving a prison term on the other. [¶] Did I state that correctly,
Mr. [prosecutor]?
“[Prosecutor]: Yes.
“The Court: Mr. [defense counsel]?
“[Defense counsel]: Yes, sir.
“The Court: All right, was that your understanding of the
agreement, Mr. [defendant]?
“The Defendant: Yes.
“The Court: And you want to take advantage of that plea
agreement and enter a guilty plea today?
“The Defendant: Yes.
“The Court: All right.
Before you can do that I have to go over certain rights and consequences
from entering those pleas.
“First,
you understand that a violation of Health and Safety Code Section 11350 is
punishable by a low term of 16 months, a middle term of two years, and an
aggravated term of three years? And that
the out-on-bail enhancement under Penal Code Section 12022.1 adds a two year
enhancement to that. The parties have
stipulated or agreed to the term of a low term plus the two which I’m inclined
to follow.â€
After
further advising defendant of his rights and the consequences of his plea, the
court accepted defendant’s plea and stated, in significant part: “All right, … you have a right to be
sentenced in 20 court days and have a full-blown sentencing report prepared for
that hearing. Do you want to waive that
right since it’s a stipulated sentence and be sentenced immediately?†Defendant responded affirmatively.
That
same date, the trial court sentenced defendant in both matters. As to case No. 10CM3957, defendant was
to serve 128 days in custody, with credit for 128 days, and three years’ formal
probation. As to case No. 11CM3471,
probation was denied and defendant was to serve the lower term of 16 months on
count 3 and a consecutive two-year term for the on-bail enhancement. Various fines and fees were imposed and
defendant received credit for a total of 441 days. He was remanded to the custody of the
Department of Corrections and Rehabilitation.
Defendant
subsequently filed a notice of appeal. He
filed a request for certificate of probable cause on June 15, 2012, and the court denied the request on July 3, 2012.
DISCUSSION
The Applicable Statutes
As
a result of the Criminal Justice Realignment Act of 2011 (Realignment Act), numerous
offenses previously punishable by 16 months, two years, or three years in state
prison are now punishable by serving that same term in local custody at the
county jail. (Stats. 2011, ch. 15, §§ 2–633;
Legis. Counsel’s Dig., Assem. Bill No. 109 (2011–2012 Reg. Sess.) Stats.
2011, 1st Ex. Sess. 2011–2012, ch. 12, §§ 4–11; Legis. Counsel’s Dig., Assem.
Bill No. 17 (2011–2012 1st Ex. Sess.); see § 1170, subd. (h).) The legislation altered the housing
arrangements for individuals convicted of certain felonies. It “shifted responsibility for housing and
supervising certain felons from the state to the individual counties.†(People
v. Cruz (2012) 207 Cal.App.4th 664, 671.) It also provided the new sentencing provisions
are to be applied prospectively to persons sentenced on or after October 1, 2011. (§ 1170, subd. (h)(6);
Stats. 2011, 1st Ex. Sess. 2011, ch. 12, § 12.)
Section
1170, subdivision (h) provides, in relevant part:
“(1)
Except as provided in paragraph (3), a felony punishable pursuant to this
subdivision where the term is not specified in the underlying offense shall be
punishable by a term of imprisonment in a county jail for 16 months, or two or
three years.
“(2)
Except as provided in paragraph (3), a felony punishable pursuant to this
subdivision shall be punishable by imprisonment in a county jail for the term
described in the underlying offense.
“(3)
Notwithstanding paragraphs (1) and (2), where the defendant (A) has a prior or
current felony conviction for a serious felony described in subdivision (c) of
Section 1192.7 or a prior or current conviction for a violent felony described
in subdivision (c) of Section 667.5, (B) has a prior felony conviction in
another jurisdiction for an offense that has all the elements of a serious
felony described in subdivision (c) of Section 1192.7 or a violent felony
described in subdivision (c) of Section 667.5, (C) is required to register as a
sex offender pursuant to Chapter 5.5 (commencing with Section 290) of Title 9
of Part 1, or (D) is convicted of a crime and as part of the sentence an
enhancement pursuant to Section 186.11 is imposed, an executed sentence for a
felony punishable pursuant to this subdivision shall be served in state prison.â€
Health
and Safety Code section 11350, subdivision (a) provides, in relevant part:
“Except as otherwise provided in this
division, every person who possesses … any controlled substance classified in
Schedule III, IV, or V which is a narcotic drug, unless upon the written
prescription of a physician … licensed to practice in this state, shall be
punished by imprisonment pursuant to subdivision (h) of Section 1170 ….â€
Former
section 12022.1, subdivision (b), effective from January 1, 2012, to June 26, 2012, including
the date upon which sentence was pronounced here, provided as follows:
“Any person arrested for a secondary
offense which was alleged to have been committed while that person was released
from custody on a primary offense shall be subject to a penalty enhancement of
an additional two years in state prison
which shall be served consecutive to any other term imposed by the court.†(Italics added.)
The Trial Court’s Imposition of Sentences
On
May 31, 2012, after defendant entered a plea of not guilty to count 3 and
admitted the on-bail enhancement allegation (in case No. 11CM3471), the
trial court imposed its sentences with regard to both cases then pending
against defendant. It granted probation
in case 10CM3957. As to 11CM3471 the court
stated:
“[The Court:] In CM3471, the Court’s going to deny probation
based upon the stipulation of the parties. I’m going to order that you do the
lower term of 16 months, on Count 3, that there will be a term of two years
under … Section 12022.1 consecutive to that 16 months, and that on that you
will be given credit for time served ….
[¶] … [¶]
“All
right, with that … you will be remanded to the custody of the California
Department of Corrections ….â€
At
the time of the plea and sentencing, the parties agreed former section 12022.1
required a commitment to state prison. In fact, they stipulated to a prison
commitment. Defendant never asserted the
underlying offense (Health & Saf. Code, § 11350, subd. (a)) permitted
defendant to serve the entire sentence in the county jail.
Our Analysis
On
appeal, defendant contends Health and Safety Code section 11350 requires a
convicted defendant to serve the term imposed in a county jail facility. He argues the trial court should have
sentenced him to serve his 16-month term in the Kings County jail. Furthermore, defendant asserts the underlying
offense dictates the location or place a sentence is to be served, and hence, the
two-year, consecutive term imposed for the on-bail enhancement must also be
served in local custody. Because
defendant has received the benefit of his bargain, we reject his contentions.
“When
a guilty plea is entered in exchange for specified benefits such as the
dismissal of other counts or an agreed maximum punishment, both parties, including
the state, must abide by the terms of the agreement. The punishment may not significantly exceed
that which the parties agreed upon.†(People
v. Walker (1991) 54 Cal.3d 1013, 1024, overruled on other grounds in
177, 183.)
When a plea rests in any significant degree
on a prosecutor’s promise or agreement, so that it is part of the inducement or
consideration, the promise must be fulfilled. (Santobello v. New York (1971) 404 U.S. 257,
262; People v. Walker, supra,
at p. 1024.) The requirements of
due process attach to the plea bargain itself. (Walker, at p. 1024.) A
negotiated plea agreement is in the nature of a contract and is interpreted
according to general contract principles. The trial court’s approval of the agreement
binds the court to the terms of the bargain, and the defendant’s sentence must
be within the negotiated terms of the agreement. (People v. Martin (2010) 51 Cal.4th 75,
79.)
As
explained in People v. Segura (2008)
44 Cal.4th 921, 931:
“For
its part, of course, the trial court may decide not to approve the terms of a
plea agreement negotiated by the parties.
(See [People v.]
If the court does not believe the agreed-upon disposition is fair, the
court ‘need not approve a bargain reached between the prosecution and the
defendant, [but] it cannot change that bargain or agreement without the consent
of both parties.’ (People v. Godfrey (1978) 81 Cal.App.3d 896, 903; cf.
(1997) 53 Cal.App.4th 1333, 1338-1339 (Gifford)
[by statute the trial court may withdraw its approval prior to sentencing,
permitting withdrawal of the negotiated plea].)
“Although
a plea agreement does not divest the court of its inherent sentencing
discretion, ‘a judge who has accepted a plea bargain is bound to impose a
sentence within the limits of that bargain. [Citation.] “A plea agreement is, in essence, a contract
between the defendant and the prosecutor to which the court consents to be
bound.†[Citation.] Should the court consider the plea bargain to
be unacceptable, its remedy is to reject it, not to violate it, directly or
indirectly. [Citation.] Once the court has accepted the terms of the
negotiated plea, “[it] lacks jurisdiction to alter the terms of a plea bargain
so that it becomes more favorable to a defendant unless, of course, the parties
agree.†[Citation.]’ (People
v. Ames (1989) 213 Cal.App.3d 1214, 1217 (Ames); see People v. Tang
(1997) 54 Cal.App.4th 669, 681-682; Gifford,
supra, 53 Cal.App.4th at pp. 1337-1338;
People v. Armendariz [(1993)] 16
Cal.App.4th 906, 910-911; People v.
Godfrey, supra, 81 Cal.App.3d at
p. 904.)â€
Plaintiff
here opposes defendant’s appellate contentions and thereby does not agree to
alteration of the plea bargain to allow defendant to serve his sentence in
county jail.
In support of
our conclusion, we note and consider the applicability of an October 22, 2013, decision of Division Eight of the Second District Court of Appeal
to this case.
In
People v. Wilson (2013) 220 Cal.App.4th
962, the defendant entered a plea of no contest to commercial burglary; in
exchange for his plea, a misdemeanor petty theft charge would be dismissed and
the court would impose and suspend execution of a two-year prison sentence, and
impose three years’ probation. Probation
was subsequently revoked following an assault charge, but the court ultimately
reinstated probation. (
moved to revoke the defendant’s probation in light of new charges. The defendant admitted the violation and pled
no contest to two new misdemeanor counts.
The court then executed the previously imposed two-year state prison
term, as well as an additional 180-day concurrent term for the new misdemeanor
counts. Although the prosecutor and
defense counsel believed the defendant’s sentence could be served in county
jail, the trial court held otherwise and imposed the state prison sentence, finding
the defendant ineligible “‘due to the nature of the charges and/or his prior
criminal history.’†(
On
appeal, the defendant argued the trial court improperly sentenced him to state
prison because when it revoked his probation and executed his suspended
sentence in August 2012, he was subject to the Realignment Act and should have
been sent to county jail. (
General’s alternative argument that applying the Realignment Act to send
defendant to county jail would impermissibly alter a material term of the
parties’ plea agreement. (
jail under the Realignment Act would alter a material term in the parties’ plea
agreement that he serve his executed sentence in state prison.†(Wilson,
at p. 973.) In so holding, the court reasoned,
in part:
“The prosecutor may not have agreed to
probation at all for appellant’s most recent offenses if the only sentence
hanging over appellant’s head was a term in county jail without parole, part of
which could be suspended in favor of mandatory supervision. [Citation.]
Indeed, the probation report recommended probation be denied and
appellant be sentenced to state prison because appellant had a significant
criminal history and he was on several grants of probation at the time he
committed the offenses that led to the plea agreement. Given appellant’s background and the fact
that the Realignment Act was to become operative shortly, the suspended state
prison sentence may have assured the prosecutor that appellant would comply
with the terms of his probation, while a county jail sentence may not
have. By the same token, if the
prosecutor was unwilling to agree to probation if the suspended sentence would
have been served in county jail, appellant may have been deprived of the
benefit of probation, i.e., the opportunity to avoid actual custody. … Applying the Realignment Act to appellant’s
sentence now would therefore deprive the parties of an expressly agreed-upon
benefit of their bargain. (See [
Realignment Act in this circumstance ‘would also alter the terms of the plea
agreement where the suspended term was part of a stipulated sentence under the
plea agreement.’].)†(
In
this case, when defendant pled no contest to unlawful possession of Oxycodone
and admitted the on-bail enhancement in May 2012, after the operative date of
the Realignment Act, he also agreed to serve a term of 16 months in state
prison on the underlying term and an additional two years in state prison for
the on-bail enhancement. Thus, following
the reasoning of Wilson, to permit defendant to be sentenced in accordance with the
Realignment Act and to serve his entire term in local custody would materially
alter the terms of the parties’ bargain.
We
note defendant does not seek to withdraw his plea to allow for a restructuring
of a plea agreement with sentencing in county jail. Instead he wants both the benefit of his plea
agreement and a favorable change of custodial placement based on his new
assessment on appeal that county jail was the only lawful placement. This was not his legal position in the trial
court, and he now faults the trial judge for an alleged sentencing error
defendant expressly invited. The
doctrines of estoppel and waiver preclude acceptance of defendant’s new stance
on appeal.
Generally,
where a party by its conduct induces the commission of error, the party is estopped
from asserting it as a ground for reversal.
(9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 389, p. 447.) The waiver may be express where, for example,
it results from a stipulation by the parties.
(Id., § 395, at p. 453.) “Under the doctrine of waiver, a party loses
the right to appeal an issue caused by affirmative conduct or by failing to
take the proper steps at trial to avoid or correct the error. [Citation.]
Similarly, under the doctrine of invited error, a party is estopped from
asserting prejudicial error where his own conduct caused or induced the
commission of the wrong. (
383, 403, citing 9 Witkin, Cal. Procedure (1999 supp.) Appeal, § 383, p. 62.)†(Telles
Transport, Inc. v. Workers’ Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159,
1167.) “Succinctly put, the invited
error doctrine prevents a party to a legal action from profiting where he
causes or invites the error.†(
Cal.App.2d 341, 346.)
Here,
whether we apply waiver or estoppel principles, the result is the same. Defendant has received the benefit of his
bargain, and the trial court’s acceptance of the plea deal is binding on the
parties and the court. By stipulating to
serving his sentence in state prison as part of the plea bargain, defendant may
not be heard to complain on appeal that the court should have sentenced him
under the Realignment Act.
Although
defendant has not argued he received an “unauthorized sentence,†this argument
would also fail. At the time of
sentencing, former section 12022.1 provided for a state prison term. The plain meaning of the language of this
enhancement called for a prison commitment, not county jail. At best for defendant, at the time of his
plea agreement it was an unsettled question of law whether the Realignment Act
would apply. Because defendant failed to
preserve the sentencing issue for appeal, we decline to resolve it. We note, however, in similar circumstances we
have resolved the issue against defendant’s position. (See People
v. Torres (2013) 213 Cal.App.4th 1151, 1160-1161; People v. Vega (Jan. 2014, F065909) __ Cal.App.4th ___.)
DISPOSITION
The
judgment is affirmed.
PEÑA,
J.
WE CONCUR:
_______________________________
GOMES, Acting P.J.
_______________________________
OAKLEY, J.
name="_ftn1" title="">[1]All further statutory references are to the Penal Code unless
otherwise indicated.
name="_ftn2" title="">[2]Because the facts of defendant’s crimes are not pertinent to the
issues on appeal, we forgo a recitation of those facts.
