Filed 8/23/17 P. v. Sardina CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

ADAM LORENZO SARDINA,

Defendant and Appellant.

F070780

(Super. Ct. No. F13900807)


OPINION

APPEAL from a judgment of the Superior Court of Fresno County. James Kelly, Judge.
Nuttall & Coleman, Roger T. Nuttall, and Page & Page, Edgar Eugene Page and Kathleen C. Page, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Sarah J. Jacobs, and Amanda Cary, Deputy Attorneys General, for Plaintiff and Respondent.
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Adam Lorenzo Sardina appeals his sentence of 25 years, imposed pursuant to a plea bargain. He argues, based on a number of theories, that the trial court erroneously concluded it did not have the discretion to impose a shorter sentence. We reject his contentions and affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Sardina and two codefendants, Angel Avalos and Felipe Carillo, entered a residence and robbed a person within, at gunpoint, of his wallet, car keys, and 36-pack of beer. All three defendants were members of the Chankla Bulldog Gang of Sanger, with Sardina being a lower-level gang member than the other two defendants.
Sardina was charged with second-degree robbery, street terrorism, and possession of a firearm by a felon. (Pen. Code, §§ 211, 186.22, subd. (a), 29800.) The robbery charge was accompanied by enhancement allegations that (1) the offense was committed for the benefit of, or in association with, a criminal street gang (gang enhancement), and (2) that Sardina personally used a firearm in the commission of the offense (gun enhancement). (§§ 186.22, subd. (b)(1) [gang enhancement provides for additional 10-year term when underlying offense is robbery, a violent felony], 12022.53, subd. (b) [gun enhancement also provides for additional 10-year term when underlying offense is a robbery].) In addition, Sardina was alleged to have served a prior prison term. (§ 667.5.)
The parties resolved the charges by means of a plea agreement under California Rules of Court, rule 4.412 (rule 4.412). Pursuant to the plea agreement, Sardina pled guilty to the charges of second-degree robbery, street terrorism, and felon in possession of a firearm. He also admitted the gang and gun enhancements associated with the robbery charge. The prosecution dismissed the prison-prior enhancement allegation. The plea agreement called for a stipulated sentence of 25 years. Sardina was sentenced to the stipulated sentence specified in the plea agreement.
Sardina nonetheless filed a notice of appeal and obtained a certificate of probable cause for purposes of appeal.
DISCUSSION
I. Imposition of a 25-year aggregate term pursuant to the rule 4.412 agreement
Sardina challenges the trial court’s imposition of the stipulated 25-year sentence that was part of the plea agreement entered into by the parties. Sardina clarifies that he “does not appeal the validity of his change of plea,” only “the terms of his sentence along with issues associated with the interpretation and application of [rule 4.412].”
Sardina argues that the trial court misinterpreted and misapplied rule 4.412. Specifically, he contends the court incorrectly concluded that it had no discretion, under rule 4.412, to impose a shorter sentence. We reject this argument. Rule 4.412 effectuates the parties’ stipulation or agreement regarding the sentence to be imposed, by permitting the court to sentence the defendant in accordance with the agreement without providing reasons for doing so. Here, as discussed in more detail below, the record shows that the plea agreement included a stipulated sentence of 25 years. The terms of the agreement, including the stipulated sentence of 25 years, were placed on the record and accepted by Sardina, his counsel, the prosecutor, and the court. The court thus properly imposed the stipulated 25-year sentence, under both the plea agreement and rule 4.412. Indeed, in approving the plea agreement, the court was bound by its terms and required to impose the 25-year stipulated sentence. Sardina’s claim that the court misinterpreted and misapplied rule 4.412 has no merit.
Sardina also contends that the trial court erred in sentencing him to 25 years because the plea agreement only specified that 25 years was a “lid” or upper limit, and, in turn, a reasonable sentence, and, further, that such an interpretation of the plea agreement is mandated by rule 4.412. As explained above, the plea agreement, as reflected in the record, contemplated the imposition of a stipulated 25-year sentence. Sardina’s claim that the plea agreement must be interpreted differently under rule 4.412 has no merit.
A. Background
(i) The initial charges
Sardina and his codefendants were charged by information on July 15, 2013. The information charged all three defendants with home invasion robbery committed in concert with two or more other persons. (§ 213, subd. (a)(1)(A).) The information alleged that this offense was committed for the benefit of, or in association with, a criminal street gang, thereby triggering application of an indeterminate term of life imprisonment for the gang enhancement. (§ 186.22, subd. (b)(1) & (b)(4)(B) [gang enhancement carries indeterminate term of life imprisonment when underlying offense is home invasion robbery, in violation of § 213, subd. (a)(1)(A)].) The information further alleged that Sardina and Avalos each personally used a firearm in committing the home invasion robbery offense. (§ 12022.53, subd. (b).) In addition, the information charged all three defendants with committing the offenses of street terrorism and possession of a firearm by a felon. (§§ 186.22, subd. (a), 29800, subd. (a)(1).)
On February 13, 2014, a first-amended information was filed. The first-amended information was identical to the original information but added, inter alia, prison-prior enhancement allegations as to Sardina and Avalos.
(ii) The plea agreement and change of plea
A second-amended information was filed on March 27, 2014. The second-amended information differed from the first-amended information in one aspect: it dropped the charge of home invasion robbery against all defendants. Instead, the second-amended information charged Carillo with residential burglary (with an associated gang enhancement), and Sardina and Avalos with second-degree robbery (with associated gang and gun enhancements). (§§ 459/460, subd. (a), 211, 186.22, subd. (b)(1), (b)(1)(B) [gang enhancement carries a five-year term when underlying offense is residential burglary, a serious felony] & (b)(1)(C) [gang enhancement carries 10-year term when underlying offense is robbery, a violent felony].) The parties told the court they had resolved the case and that the second amended information would form the basis of the defendants’ pleas. That same day, all three defendants were arraigned on the second-amended information and pleaded guilty/no contest to the charges (and admitted the gang and gun enhancements) included therein. The prosecutor dismissed the prior-prison enhancement allegation as to Sardina.
At the beginning of the arraignment/change of plea hearing, the court observed: “I understand we have a resolution and that the prosecutor is going to lay out for the record what the agreement is.” The prosecutor responded: “There is a second-amended information that the People are filing.… That is going to form the foundation of the plea in this case.” The prosecutor also clarified: “Restitution as to all these matters, the People would be seeking a Harvey waiver, reserving restitution on all three defendants.” (Italics added.) The prosecutor then laid out, on the record, the particular agreement with each defendant. As to Sardina, the prosecutor stated:
“Lastly, as to Mr. Sardina, the offer of the People is the same charge [as for Avalos], Count One, Penal Code [section] 211, with the same two admissions of the two enhancements [i.e., a gang enhancement and a gun enhancement]. As to him, it will be a stipulated aggravated term of five years with ten years each for those enhancements, for a total term of twenty-five years as to Count One [robbery]. He will also be entering a plea as to Count Three [street terrorism] and, as to him, Count Five [felon in possession of firearm] .… The prison prior will be dismissed with right to comment. Again, it is a stipulated twenty-five years as to him.” (Italics added.)
The prosecutor further explained: “As to both Mr. Avalos and Mr. Sardina, based on the [Penal Code section] 211, they are looking at 85 percent time. And as to Mr. Sardina, that is the only case. I believe that’s everything.”
After the prosecutor had made the record described above, Sardina’s counsel asked the court: “Can we arraign them so you can then take the plea?” (Italics added.) With the court’s assent, Sardina’s counsel proceeded with the arraignment, noting: “Enter a not guilty plea until the plea is taken. This is a second-amended information. We’re ready to proceed along the lines just stated by [the prosecutor].” (Italics added.) Counsel provided the court with a completed “Felony Advisement, Waiver of Rights, and Plea Form” (change of plea form or form) for Sardina. The form indicates that Sardina wished to withdraw his plea of not guilty as to counts 1 (robbery), 3 (street terrorism), and 5 (felon in possession) and plead guilty/no contest “as alleged in the Second Amended Information.” The form further states that Sardina “admit[s] enhancements per [Penal Code section] 186.22[, subdivision] (b)(1) [and] [Penal Code section] 12022.53[, subdivision] (b)” in connection with count 1. Finally, the form states that the “DA offers 25 years CDC stipulated per Rule 4.412,” with “[r]estitution reserved per Harvey Waiver.” (Italics added.) Sardina initialed the box next to this condition for his change of plea, signifying his agreement with the condition. The form further clarifies that the maximum punishment resulting from the change of plea would be 25 years; Sardina also initialed the box next to this advisement. The form was signed by Sardina, his counsel, and the court. Counsel for the other defendants also submitted completed change of plea forms to the court.
The court went through the applicable forms with each defendant to ascertain that each one understood the terms governing his change of plea and the waiver of rights that accompanies a change of plea. The court confirmed that each defendant had sufficient time to review his respective form, had read and understood the form, had initialed the boxes and signed the form, and did not have any outstanding questions or concerns regarding the substance of the form. The court further advised the defendants of their constitutional rights and asked, “Do you agree then to give up each of those rights in order to enter into this plea agreement?” (Italics added). Sardina and the other defendants responded in the affirmative.
The court next focused on the specific terms of the plea agreement as to each defendant, as stated on the record by the prosecutor, noting: “Each of you heard the plea agreement that was stated by [the prosecutor].” In order to ascertain that each defendant understood the terms of his plea agreement, the court asked: “And are you thinking clearly so that you understand what we’re doing here today? Mr. Sardina?” Sardina and the other defendants each responded: “Yes.” In order to ascertain that each defendant had entered into his plea agreement freely and voluntarily, the court asked: “Other than what was stated on the record, has anyone promised you anything or threatened you to get you to enter into this plea agreement? Mr Sardina?” (Italics added.) Sardina and the other defendants each answered: “No.”
After the plea colloquy, Sardina pleaded no contest to the robbery charge and admitted the gang and gun enhancements associated with that charge. Sardina also pleaded no contest to the charges of street terrorism and felon in possession of a firearm. The prosecutor then moved to dismiss the prison-prior enhancement allegation, and the court granted the motion.
(iii) Subsequent proceedings and sentencing
Sometime after the change of plea proceedings, new counsel substituted in to represent Sardina. New counsel filed a motion disputing the notion that Sardina had agreed to a stipulated sentence of 25 years as part of the plea agreement. At the motion hearing, new counsel asked the court to “entertain a lesser sentence than the People are offering.” New counsel argued: “[A]ll I’m saying is that this was the DA’s offer. There was no agreement or understanding that [Sardina] was accepting a 25-year stipulated sentence and, as such, he’s at liberty to justifiably seek a [shorter] sentence.”
The prosecutor’s position was that the parties had clearly negotiated a “Rule 4.412 plea [agreement],” which resulted from the “acceptance of a defense counteroffer by the People where the defendant was subjected to a life term.” At the motion hearing, the prosecutor argued that Sardina’s argument was unfounded, noting that Sardina’s new counsel had not submitted a declaration from previous defense counsel regarding the agreed-upon terms, a declaration that would be pivotal given that it was the previous counsel who had negotiated and approved the plea agreement and explained it to Sardina.
After reviewing the change of plea form and the transcript of the change of plea hearing, the court concluded:
“[I]t just seems abundantly clear that the term stipulated was used more than once. And although counsel for the defense believes there is an argument that Mr. Sardina never specifically agreed to the term, I’m going to make a finding that there is enough on the transcript to show that he was made aware of the term [and] that it was a stipulated 25 years. And it’s my finding that that was the agreement and that I’m not going to upset that. [¶] … [¶]
“I’m hoping I’m making a clear enough record for you … but based on basically [the prosecutor’s] reciting of the agreement and specifically saying again it is a stipulated 25-year term as to Mr. Sardina, the Court did ask [Sardina] other than what was stated by [the prosecutor], was anything promised to you, and then [defense counsel] signing on that he had explained fully, and then Mr. Sardina signing on that he was agreeing to that term and so those are the bases for my ruling.”
The court then imposed a sentence of 25 years’ imprisonment.
B. Analysis
In light of the applicable record, we reject Sardina’s argument that the trial court misinterpreted and misapplied rule 4.412. As stated above, rule 4.412 provides, in pertinent part: “It is an adequate reason for a sentence or other disposition that the defendant, personally and by counsel, has expressed agreement that it be imposed and the prosecuting attorney has not expressed an objection to it. The agreement and lack of objection must be recited on the record.” The specific application of rule 4.412 necessarily depends on the terms of the underlying agreement between the parties, as stated on the record. In other words, rule 4.412 effectuates the parties’ stipulation or agreement regarding the sentence to be imposed, by permitting the court to sentence the defendant in accordance with the agreement without providing reasons for doing so. (See People v. Villanueva (1991) 230 Cal.App.3d 1157, 1162.) Here the plea agreement came about through the “acceptance of a defense counteroffer by the People,” in a scenario “where the defendant was subjected to a life term.”
At the change of plea hearing, the parties informed the court that they had agreed to resolve the case and, as part of the agreed-upon resolution, the prosecutor filed the second-amended information. Next, the prosecutor recited the terms of the parties agreement—including the provision that a stipulated sentence of 25 years would be imposed as part of the agreement—on the record. Sardina’s counsel stated in response, “We’re ready to proceed along the lines just stated by [the prosecutor],” and submitted to the court a completed change of plea form. The form specified that, as a condition of the change of plea, “DA offers 25 years CDC stipulated per Rule 4.412.” Sardina initialed the box next to this condition and Sardina, his counsel, and the court signed the form, signifying approval of the stipulated sentence and other terms of the plea agreement, and, in Sardina’s case, reliance on these terms in pleading to the charges. (See People v. Stewart (2001) 89 Cal.App.4th 1209, 1215, overruled on other grounds in People v. Buttram (2003) 30 Cal.4th 773, 791 [the defendant’s signed declaration satisfies the record recitation requirement of rule 4.412].) The court further verbally advised Sardina of his constitutional rights and specifically asked him, “Do you agree then to give up each of those rights in order to enter into this plea agreement?” (Italics added). Sardina answered, “Yes.”
In light of this background, we have no difficulty concluding that the parties’ agreement, including the provision that a stipulated sentence of 25 years would be imposed as part of the agreement, was delineated and approved (by Sardina, his counsel, the prosecutor, and the court) on the record. Based on the plea agreement, the prosecutor filed a second-amended information with a reduced charge that foreclosed the possibility of a life term for Sardina, and, further, agreed to dismiss the prison-prior allegation. In exchange, Sardina pleaded no contest to the reduced charge, admitted the associated enhancement allegations, and agreed to a stipulated sentence of 25 years.
In sum, the trial court properly imposed a sentence of 25 years under rule 4.412. Furthermore, since the court had approved Sardina’s change of plea under the specified conditions and indicated it was sentencing Sardina pursuant to the plea agreement, it was required to impose the stipulated term and lacked the discretion to sentence Sardina to a shorter term. (See People v. Segura (2008) 44 Cal.4th 921, 929-930 [a plea agreement is negotiated by the parties and approved by the court, whereupon it “binds the court and parties” to the agreed-upon terms].) We conclude the court neither misinterpreted nor misapplied rule 4.412 in sentencing Sardina.
Sardina further contends that the court erred in sentencing him to 25 years because the plea agreement only specified that 25 years was a “lid” or upper limit, and, in turn, a reasonable sentence, and, further, that such an interpretation of the plea agreement is mandated by rule 4.412. As explained above, the plea agreement, as reflected in the record, contemplated the imposition of a stipulated 25-year sentence. Therefore, Sardina’s claim that the plea agreement must be interpreted differently under rule 4.412 also fails.
II. The gang and gun enhancements associated with the robbery conviction
Sardina next contends the trial court erred in imposing both the gang and gun enhancements in connection with his robbery conviction. Relying on People v. Brookfield (2009) 47 Cal.4th 583, 596 (Brookfield), Sardina argues the court erroneously “double-enhanced” his sentence by imposing both the gang and gun enhancements. We reject this contention.
Sardina’s reliance on Brookfield is inapposite because, in that case, the defendant did not personally use a firearm. Sardina, in contrast, admitted to personally using a firearm in the commission of a gang-related robbery. Indeed, Brookfield itself clarified that when, as here, a defendant has personally used a firearm, section 12022.53, subdivision (e)(2) expressly authorizes the imposition of both gang and gun enhancements. (People v. Brookfield, supra, 47 Cal.4th at p. 590 [“A defendant who personally uses or discharges a firearm in the commission of a gang-related offense is subject to both the increased punishment provided by section 186.22 [gang enhancement] and the increased punishment provided in section 12022.53 [firearm enhancement]”] (italics in original); People v. Robinson (2012) 208 Cal.App.4th 232, 257-258.) Accordingly, the court did not err in imposing both the gang and gun enhancements, as specified in the plea agreement.
DISPOSITION
The judgment is affirmed.




SMITH, J.
WE CONCUR:



LEVY, Acting P.J.



POOCHIGIAN, J.