P. v. Marshall
Filed 1/22/13 P. v. Marshall 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
FIFTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
CHAD MARSHALL,
Defendant and Appellant.
F063597
(Super. Ct. No. BF134279A)
THE COURT
APPEAL from a judgment of the
Superior Court of
Elizabeth M.
Campbell, 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, Carlos A.
Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
Appellant Chad Marshall appeals from
the judgment entered following his no contest plea to possession of heroin
(Health & Saf. Code, § 11350, subd. (a)) and admission of a prior
strike conviction. (Pen. Code,
§ 667, subd. (c)-(j)).
name="_ftnref2" title="">[1] In exchange for his plea,
the People agreed to dismiss additional charges and enhancements and the court
indicated it would impose a four-year term, the two-year midterm doubled.
requested a continuance to collect character reference letters. The court denied the request noting, “This is
low term two years doubled for four.
It’s not going to get any better than that.†On appeal, Marshall contends the court erred
in denying him the opportunity to argue for a lesser sentence because the
indicated term was the middle term. He
submits the court was unaware of its discretion to impose a lower term than the
indicated term. The People respond that
the “indicated term†in this case was part of the plea bargain and binding on
the court once it approved the plea agreement.
As such, there was no good cause for a continuance to further consider
the matter of sentencing. We affirm.
FACTS and PROCEDURAL HISTORY
The
police responded to an anonymous citizen complaint of an individual selling
drugs in an alley in Bakersfield.
Investigating officers found Marshall, who matched the description of
the seller, nearby. Officers searched
Marshall and found methamphetamine, lorazepam pills, heroin, marijuana, and
drug paraphernalia.
Marshall
was charged with seven felony and misdemeanor offenses, five prior prison term
enhancements (§ 667.5, subd. (b)), and a prior strike conviction. Eventually, he agreed to a prosecution offer
to plead no contest to possession of heroin and to admit his prior strike
conviction in exchange for “a Court-indicated four years,†“Mid term two
plus—or times two for four.â€
At
sentencing, the court denied Marshall’s request for a continuance so his family
could collect character reference letters.
The court noted, “This is low term two years doubled for four. It’s not going to get any better than that.â€
DISCUSSION
Marshall
contends the court failed to exercise its discretion at sentencing because it
erroneously believed that the indicated sentence was the low term when it was
actually the middle term. Thus, there is
a strong likelihood the court imposed the middle term due to a mistaken belief
that it lacked discretion to impose any lesser sentence. And, because Marshall had a constitutional
right to be sentenced by a court that was fully aware of its discretion, the
matter should be remanded for sentencing.
Marshall’s argument rests on the premise that the indicated sentence was
not a binding term of the plea agreement.
The People respond that despite the court’s and the parties’ use of the
term “indicated†sentence, the four-year term was part of the plea bargain and
binding on the court once it approved the plea agreement. We agree with the People’s position.
Plea
bargaining involves an agreement negotiated by the People and the defendant and
approved by the court. The defendant
agrees to plead guilty or no contest in order to obtain a reciprocal benefit,
usually a less severe punishment than could result if he were convicted of all
charges. The more lenient disposition is
secured by the prosecutor’s consent to the imposition of the lesser punishment
or, as happened in this case, the prosecutor’s dismissal of some counts in a
multicount information. Implicit in the
process is the bargaining between the adverse parties to the case—the People
and the defendant—which results in an agreement between them. (People
v. Woosley (2010) 184 Cal.App.4th 1136, 1146.) The trial court has no authority to alter the
terms of a lawfully negotiated plea bargain, including the penalty to be
imposed, once it has approved the agreement.
(People v. Ames (1989) 213
Cal.App.3d 1214, 1217-1218.)
In
contrast, while the trial court may not negotiate a plea bargain, it may
facilitate resolution of a case by providing the defendant an “indicated
sentence†if he or she pleads guilty or no contest to all charges and admits
all allegations. (People v. Feyrer (2010) 48 Cal.4th 426, 434, fn. 6.) No bargaining is involved because no charges
are reduced and the prosecutor’s consent is not required. (People
v. Woosley, supra, 184
Cal.App.4th at p. 1146.) When the
sentence is “indicated,†no guarantee is made.
The sentencing court may withdraw from the “indicated sentence†if its
factual predicate is disproved. And the
defendant retains the right to reject the proposed sentence and go to
trial. (People v. Labora (2010) 190 Cal.App.4th 907, 915.)
Here,
while the record is sparse, the only reasonable inference is that Marshall
entered into a bargained-for plea deal in which the prosecutor agreed to
dismiss six of seven charges and five prior prison term enhancements in
exchange for Marshall’s no contest plea to the remaining charges and the specified
term. The minutes memorializing the plea
agreement state that it was conditioned on Marshall receiving a four-year
sentence—the two-year midterm doubled because of the strike prior: “PLEA IS ENTERED ON CONDITION THAT M/T 4
YEARS. (THE ABOVE CONDITION(S) BEING AN
INDICATED SENTENCE.)†In addition, the
six counts and five allegations were dismissed on the condition the plea remain
in effect. Further, there is no indication
the prosecutor or the trial court agreed that Marshall could argue for a lesser
term. Thus, although the trial court
called the four-year term an “indicated†sentence, it was not as that term is
used in People v. Feyrer,
6; People v. Labora,
285, 296. Those cases distinguish
between an indicated sentence disposition offered and procured by the trial
court when the defendant pleads guilty to all charges, and a plea bargain
negotiated between the prosecution and the defendant. Marshall’s case disposition resulted from a
plea bargain with the prosecutor over the charges, not from an indicated
sentence when he pled no contest to all charges.
Marshall
asserts that the record does not establish the four-year term was bargained for
by the parties, because the parties and the court referred to it as
“indicated.†Had the sentence been a
binding part of the plea agreement, it would have been designated a
“stipulated†term or a “lid.†We
disagree. Under the circumstances
apparent in the record, the only reasonable conclusion is that the parties and
the court misspoke in referring to the agreed-upon sentence as “indicated.†Marshall’s case was disposed of by plea
bargain, not by indicated sentence.
Marshall’s argument, in effect, seeks to better his plea agreement. Defendants who agree to a plea deal and have
charges dismissed cannot seek to relieve themselves of the agreement’s
burden. (People v. Ames, supra,
213 Cal.App.3d at p. 1217.) And the
trial court lacked authority to change the plea agreement after approving
it. (Ibid.) As such, there was no good cause to continue
Marshall’s sentencing, and the trial court did not err in denying his request
to do so.
Further,
Marshall has not shown he was prejudiced by the trial judge’s misstatement at
sentencing that the two-year term was the low term. The court acknowledged the term was the
midterm when it took Marshall’s plea.
And, because the four-year sentence was part of the plea bargain, the
court had no authority to impose a lesser sentence.
DISPOSITION
The judgment is
affirmed.
name="_ftn1" title="">*Before Wiseman, Acting P.J., Gomes, J. and Poochigian, J.
name="_ftn2" title="">[1]All further statutory references are to the Penal Code unless noted
otherwise.
