P. v. Juniel

Filed 12/17/09 P. v. Juniel 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Placer)

----

Sentenced to five years in state prison, defendant Zebediah Joe Juniel appeals, contending he was entitled to specific performance of a plea bargain which included a sentencing lid of four years and four months.[1] The plea bargain was agreed to by one judge but rejected by another. The case returned to the first judge and, after a hearing, he too rejected the plea bargain. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

As the facts of defendants offenses are irrelevant to the sole issue raised on appeal, we omit them.

By a consolidated information filed in mid-October 2007, defendant was accused of three felonies and four misdemeanors as follows: resisting an executive officer, a felony (counts one & two; Pen. Code,  69);[2] battery upon an officer and emergency personnel, a misdemeanor (counts three & four;  243, subd. (b)); driving under the influence of alcohol and/or drugs, a misdemeanor (count five; Veh. Code,  23152, subd. (a); driving while having a blood-alcohol level of 0.08 percent or higher, a misdemeanor (count six; Veh. Code,  23152, subd. (b)); and failure to appear while on bail, a felony (count seven;  1320.5).[3] The information also alleged: at the time of the commission of count seven, defendant was released on bail or own recognizance; as to counts one, two, and seven, defendant had a serious or violent felony conviction in 1994 ( 211/212.5, 667, subds. (b)-(i), 1170.12, subds. (a)-(d)); as to counts one and two, defendant had served a prior prison term ( 667.5, subd. (b)); and as to count seven, defendant had served a prior prison term ( 667.5, subd. (b)).[4]

In late October 2007, defendant entered into the following agreement with Judge John Cosgrove on the record before Judge Cosgrove: (1) Defendant pled no contest to counts six (misdemeanor DUI) and seven (felony failure to appear); the other misdemeanor DUI charge (count five) was dismissed. (2) Defendant admitted the prior strike, prior prison term, and on-bail allegations. (3) The prior prison term allegations would run concurrently, adding one year to defendants sentence. (4) Defendant waived jury trial on counts one through four and would receive a court trial on those counts. (5) Defendant entered an Arbuckle[5] waiver. (6) Per the agreement, defendants maximum sentence, if found guilty on counts one through four, would be four years and four months, computed as follows (as stated by the prosecutor and confirmed by Judge Cosgrove): the low term of 16 months for failure to appear, doubled under Three Strikes to 32 months; 12 months consecutive for the prior prison term enhancements (concurrent to each other); and eight months consecutive for resisting an executive officer (counts one & two, also felonies).[6]

In December 2007, Judge Charles Wachob conducted a court trial of counts one through four. Judge Wachob found defendant guilty on all counts.

In January 2008, defendant filed a motion to dismiss his strike or to reduce his convictions on counts one and two to misdemeanors, either of which would yield a sentence under the four-year four-month lid.

In early February 2008, the probation officer submitted a presentencing report to the trial court. The report recommended a total sentence of six years and four months, which included doubling the terms on all three felony convictions under the Three Strikes law.

At a sentencing hearing in February 2008, Judge Wachob stated that he intended to follow the probation reports recommendation rather than impose the four-year four-month sentence promised by Judge Cosgrove, which was legally incorrect because it failed to double the terms on all of defendants felonies under Three Strikes. Judge Wachob also denied defendants motion to dismiss his strike. Defendant moved to continue sentencing so that he could file a motion to withdraw his plea; Judge Wachob granted the continuance.

In March 2008, defendant filed a motion for specific performance of the plea bargain, or in the alternative to withdraw his plea. He claimed he was entitled to specific performance because he had detrimentally relied on the plea bargain by waiving his right to jury trial on counts one through four; he also claimed the People were estopped to object to the four-year four-month lid because they had not objected to it when defendant entered his plea.

The People opposed defendants motion for specific performance on the ground that the lid agreed to under the plea bargain, if computed as Judge Cosgrove had indicated, would be an unauthorized sentence.[7] (According to the People, the same sentence could have been imposed lawfully by striking defendants strike as to counts one and two, but Judge Cosgrove had not said he intended to strike the strike or given reasons for doing so as required by section 1385, subdivision (a).) The People stated that they did not object to defendant withdrawing his plea.

Defendant replied, inter alia, that a four-year four-month sentence could be imposed lawfully without striking the strike, by instead striking the one-year prior prison term enhancement, then imposing 16 months on the resisting an executive officer counts, 32 months on the failure to appear count, and four months consecutive on one misdemeanor count.

In May 2008, Judge Cosgrove conducted the sentencing hearing. At the start, he said: I believe the Court indicated a five-year term; counsel agreed. After defendant submitted on his motion for specific performance, Judge Cosgrove denied it. Defendant then dismissed his alternative request to withdraw his plea, with prejudice.[8]

Judge Cosgrove proceeded to impose a five-year sentence, computed as follows: 16 months on count seven (failure to appear), doubled to 32 months; eight months on count one (resisting executive officer), doubled to 16 months; eight months on count two (resisting executive officer), also doubled to 16 months but run concurrent to count one; and one year consecutive for the prior prison term enhancement. In addition, Judge Cosgrove imposed six-month concurrent sentences on the three remaining misdemeanors (counts three, four, & six).[9]

Finally, at the prosecutors request, Judge Cosgrove asked defendant if he recognized and accepted that this sentence was above the original four-year four-month agreement. Defendant said: Yes, your Honor.

DISCUSSION

Defendant contends the trial court abused its discretion by denying his request for specific performance of the plea bargain because he detrimentally relied on the bargain by waiving jury trial on four counts and by paying legal fees, investigative fees, and expert fees to prepare for and proceed with court trial on those counts; moreover, there was a way to sentence him lawfully to the agreed lid. We disagree.

Specific performance of a plea bargain is not a favored remedy for violation of the bargain, nor is it required by the federal Constitution. (In re Alvernaz (1992) 2 Cal.4th 924, 942 (Alvernaz); People v. Renfro (2004) 125 Cal.App.4th 223, 233 (Renfro).) It is the appropriate remedy only when it will implement the reasonable expectations of the parties without binding the trial judge to a disposition that he or she considers unsuitable under all the circumstances. (People v. Mancheno (1982) 32 Cal.3d 855, 861 (Mancheno); accord, Alvernaz, supra, at p. 942.) And it is not available if the negotiated sentence was invalid or unauthorized. (People v. Brown (2007) 147 Cal.App.4th 1213, 1224-1225 (Brown) [disregard of mandatory sentencing provisions invalidates agreed sentence].)

As Judge Wachob pointed out, the four-year four-month sentencing lid on which defendant and Judge Cosgrove had agreed was invalid: as calculated and summarized on the record, it disregarded the Three Strikes sentencing provision which requires the doubling of all felony terms on conviction of a second strike. ( 667, subd. (e)(1).) Since Judge Cosgroves actual sentence applied this provision, we infer that by the time of the sentencing hearing Judge Cosgrove recognized the invalidity of the agreed lid, which made specific performance of the plea bargain unavailable. (Brown, supra, 147 Cal.App.4th at p. 1224.) To put it another way, Judge Cosgrove had obtained additional information . . . that, if not considered, would [have] constrain[ed] the court to a disposition that it determine[d] to be inappropriate. (Mancheno, supra, 32 Cal.3d at p. 860.)

Furthermore, although defendant proposed what he said was an alternative way of reaching the four-year four-month agreed sentence while doubling the terms of all of his felony convictions, Judge Cosgrove did not even mention that alternative as an option. Thus, we infer that even if Judge Cosgrove believed it legally possible to sentence defendant to the agreed lid by following defendants calculation, he considered that disposition unsuitable under all the circumstances. (Mancheno, supra, 32 Cal.3d at p. 861.) Therefore we could not properly bind the trial court to that disposition even if it were authorized. (Ibid.)

Defendant appears to assert that specific performance of a plea bargain must be awarded when a defendant has detrimentally relied on the bargain. But defendant does not cite any authority holding that a defendant may claim detrimental reliance on an unlawful agreement. Nor could there be any such authority, since unlawful bargains are unenforceable. (Civ. Code,  1595, 1598.)

Ordinarily, a person in defendants position would be entitled to withdraw his plea on request. Here, however, defendant dismissed his request to that effect with prejudice in the trial court and has not attempted to renew it on appeal. Therefore, that remedy is unavailable.

DISPOSITION

The judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

BLEASE , Acting P. J.

NICHOLSON , J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

[1] He does not request in the alternative that he be allowed to withdraw his plea.

[2] Hereafter, undesignated statutory references are to the Penal Code.

[3] Except for count seven, which was alleged to have occurred on or about September 10, 2001, all counts grew out of a single incident alleged to have occurred on or about June 2, 2000.

A prior information, filed in its final form in May 2001 (before defendant absconded), charged only the first six counts (in a different order), along with a single prior prison term allegation. It also charged two counts against a codefendant, not part of the present case.

[4] The prior prison term cited in the last two allegations was the same prison term. The prosecutor apparently alleged it in connection with the new count of felony failure to appear, then realleged it separately as to that count and the other felony counts when joining old and new counts in the consolidated information.

[5]People v. Arbuckle (1978) 22 Cal.3d 749.

[6] No one stated on the record how the two remaining misdemeanor counts (counts three & four) would be disposed of if defendant were convicted on one or both.

[7] The prosecutor denied that he had been party to the plea agreement, asserting that he had simply stated for the record his understanding of how Judge Cosgrove calculated the lid. The prosecutor also asserted that before defendant agreed to that bargain, he had rejected the prosecutors offer of the same sentence calculated differently.

Defendant disputed this contention in his reply. In light of our disposition, we need not resolve this dispute.

[8] The minute order incorrectly states that the motion to withdraw plea is denied without prejudice. Before accepting defendants withdrawal of the motion, Judge Cosgrove asked: And I believe is that to be dropped with prejudice? and defense counsel did not disagree.

[9] The minute order adds the following: one year stayed on the second (facially redundant) prior prison term allegation, and two years stayed on the on-bail enhancement allegation.