Benavides
Filed 9/19/13 P. v. Benavides 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NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
JULIA J. BENAVIDES,
Defendant and
Appellant.
F064114
(Super.
Ct. Nos. F10800160, F10903699,
F11500663, F11500827)
APPEAL from
a judgment of the Superior Court
of
County. Carlos A.
Cabrera, Judge.
Elaine
Forrester, under appointment by the Court of Appeal, for Defendant Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Deputy
Attorney General, for Plaintiff and Respondent.
-ooOoo-
After
defendant Julia J. Benavides pleaded no contest to a single count of
former Penal Code section 12020, subdivision (a),
equal-protection challenge to her sentence, claiming she should have been
sentenced to county jail pursuant to the 2011 Realignment Legislation
addressing public safety (Stats. 2011, ch. 15, § 1; Stats. 2011, 1st
Ex. Sess., ch. 12, § 1) (realignment). We dismiss the appeal because Benavides is
attacking the validity of her plea, but has not obtained a
FACTUAL AND
PROCEDURAL HISTORIES
In a
two-count complaint filed in June 2011, Benavides was charged with
(1) carrying a dirk or dagger concealed upon her person in violation of
former section 12020, subdivision (a), a felony, and (2) petty
theft of a Kmart in violation of section 484, subdivision (a), a
misdemeanor.
The parties
reached a plea agreement. At a hearing
on October 19, 2011, Benavides entered a plea of no contest to
count 1 (carrying a dirk or dagger), and count 2 was dismissed. The parties agreed to a 16-month sentence,
which was to run concurrently with the sentence to be imposed in three other
pending criminal matters, which also were resolved by plea agreement during the
hearing. The other criminal matters were
a criminal complaint alleging drug-related offenses and two violations of
probation.
Benavides
understood that she would serve the 16-month sentence in state prison. Describing the bargain the parties had
reached, her attorney told the court:
“[Benavides is] entering a plea of no contest to Count 1, which is
Penal Code Section 12020(a). There
is also a dismissal of Count 2, it’s Count 1 that makes this a non AB
109 case.â€
initialed the following statements:
“The maximum sentence I can receive as a result of my
plea includes: [¶] … 16 months in
state prison. I could be placed on
parole at the conclusion of said term for a maximum period of 3 yrs, with 1
year return to prison for every parole violation. I could also be released from prison at the
conclusion of said term on a term of postrelease community supervision for a maximum
period of 3 years, with up to 180 days in custody of the County Jail as the
[result] of each violation of postrelease community supervision.â€
The court
accepted Benavides’s plea and proceeded to sentencing. Benavides was sentenced to 16 months in state
prison. The court stated, “[T]his is not
an AB 109 case, so the time will be in state prison.†The court imposed three additional 16-month
terms for the other three pending criminal matters; pursuant to the parties’
agreement, these terms ran concurrently with the principal term of 16 months in
state prison.
Benavides
filed a notice of appeal. There is no certificate of probable cause in
the record.
DISCUSSION
“Realignment
‘shifted responsibility for housing and supervising certain felons from the
state to the individual counties.’†(
at p. 1156.) “[O]nce probation has
been denied, felons who are eligible to be sentenced under realignment …
serve their terms of imprisonment in local custody rather than state
prison. If the penal statute specifies
the defendant shall be punished by imprisonment pursuant to section 1170,
subdivision (h), without specifying a particular term of punishment, the
crime is ‘punishable by a term of imprisonment in a county jail for 16 months,
or two or three years.’ (
pursuant to section 1170, subdivision (h), and specifies a term, the
offense is ‘punishable by imprisonment in a county jail for the term described
in the underlying offense’ (id.,
subd. (h)(2)) .…†(
664, 671, fn. omitted.)
In this
case, Benavides was convicted of former section 12020,
subdivision (a), which did not specify that punishment was subject to
section 1170, subdivision (h), but rather provided that any term of
imprisonment exceeding one year was to be served in state prison. Likewise, the current (renumbered) statute
concerning dirks and daggers—section 21310—does not provide for punishment
pursuant to section 1170, subdivision (h).
As a
result, when the parties agreed that Benavides would plead no contest to
count 1 in exchange for a 16-month sentence and dismissal of count 2,
they all understood that Benavides would serve her term in state prison, as
provided in section 12020. Her
attorney stated this was a “non AB 109 case,†meaning realignment did not
apply, and the trial court agreed. This
was a correct reading of the statute.
(See People v. Guillen (2013)
212 Cal.App.4th 992, 996 [where statute did not expressly authorize punishment
pursuant to § 1170, subd. (h), defendant convicted under that statute
was not eligible for sentence to county jail under realignment].)
On appeal,
Benavides claims for the first time that her offense should have been treated
as a realignment crime based on equal-protection principles. She points out that, unlike her weapons
crime, offenses involving possession or concealment of a firearm are punishable
pursuant to section 1170, subdivision (h). For
example, she cites section 25300, which makes it a crime to carry a
firearm in public while masked, and section 25400, related to unlawfully
carrying a concealed firearm. These
crimes are “punishable by imprisonment pursuant to subdivision (h) of
Section 1170 .…†(See
§§ 25300, subd. (b), 25400, subd. (c)(5) & (6).)
Benavides
argues that requiring a defendant who possesses a knife to serve her time in
state prison while a defendant who possesses a firearm is sentenced to county
jail is unequal treatment without justification in violation of equal
protection. We agree with the Attorney
General, however, that Benavides’s claim is not cognizable on appeal because
she has not obtained a certificate of probable cause.
Under
section 1237.5, subdivision (b), a defendant who has entered a guilty
or no-contest plea may not appeal her judgment unless the trial court has
executed a certificate of probable cause.
Section 1237.5
provides: “No appeal shall be taken by
the defendant from a judgment of conviction upon a plea of guilty or nolo
contendere, … except where both of the following are met: [¶] … [¶] (b) The trial court has executed and
filed a certificate of probable cause for such appeal with the clerk of the
court.†Despite the broad
language of section 1237.5, courts have recognized that “issues regarding
proceedings held subsequent to the plea for the purpose of determining the
degree of the crime and the penalty to be imposed†may be raised on appeal
without a certificate. (
74.) However, when “a challenge to the
sentence is in substance a challenge
to the validity of the plea … the appeal [is] subject to the requirements
of section 1237.5.†(
Benavides
does not claim the trial court executed a certificate of probable cause in this
case. Instead, she argues that no
certificate is required because her claim on appeal is not an attack on the
validity of her plea bargain. We
disagree.
In
agreement, pursuant to which the defendant entered a plea of no contest to
certain charges and the People dismissed various other charges. The trial court imposed the sentence the
parties agreed to—life with the possibility of parole, plus 12 years. Later, without obtaining a certificate of
probable cause, the defendant filed a notice of appeal, claiming his sentence
was disproportionate to the sentences imposed upon his codefendants and therefore
violated the state and federal constitutional prohibitions against cruel and
unusual punishment. (
defendant’s claim, but our Supreme Court held the appeal should have been
dismissed because there was no certificate of probable cause. (Id.
at p. 73.) The Panizzon court reasoned, “[T]he sentence defendant received was
part and parcel of the plea agreement he negotiated with the People. Accordingly, the statutory certificate
requirement applies because defendant’s contention that the sentence violated
the constitutional prohibition against cruel and unusual punishment falls
squarely within the parameters of a challenge to the plea.†(Id.
at p. 78.)
In
377-378, the defendant agreed to enter a plea of no contest to various charges
in exchange for the People reducing two of the charges from aggravated to
simple kidnapping and dropping many enhancement allegations. The parties agreed to a maximum possible
sentence of 37 years 8 months, and the trial court sentenced the defendant to
35 years 8 months in prison. Without
obtaining a certificate of probable cause, the defendant appealed. (Id.
at p. 378.) The Court of Appeal
determined that the sentence imposed by the trial court was improper under
section 654. (Cuevas, supra, at p. 379.)
The Supreme Court reversed, holding the defendant could not raise a
section 654 claim on appeal without a certificate of probable cause
because it amounted to a challenge to the plea’s validity. (Cuevas,
supra, at p. 384.) The court
explained:
“By negotiating the reduction and dismissal of these
charges, defendant necessarily understood and agreed that he faced a
significantly reduced sentence of 37 years eight months. This maximum sentence was ‘part and parcel’
of the plea bargain the parties negotiated.
[Citations.] Thus, by challenging
the negotiated maximum sentence imposed as part of the plea bargain, defendant
is challenging the validity of his plea itself.†(People
v. Cuevas, supra, 44 Cal.4th at
pp. 383-384, quoting People v.
Panizzon, supra, 13 Cal.4th at
p. 78.)
Here,
Benavides negotiated a significant reduction in her possible
sentence—count 2 of the complaint was dismissed and the three other
pending criminal cases were to be sentenced concurrently, not
consecutively. In addition, in the other pending criminal complaint, the People agreed
to dismiss two of the counts. In
exchange, she agreed to a maximum possible sentence of 16 months in state
prison with the possibility of parole or postrelease community supervision for
up to three years after her release. As
the Attorney General argues, if Benavides’s equal-protection claim is
successful, the prison sentence agreed to by the parties could not be
imposed. This is a challenge to the
validity of the plea itself. In
accordance with Panizzon and
dismissed.
Benavides
argues in her reply brief that nothing in the record shows that serving the
sentence in state prison was an essential part of the bargain. She asserts, “[A]ppellant was sentenced to
state prison not because it was ‘part and parcel’ of the plea bargain the
parties negotiated but rather [because] the court and the parties believed it
was required.†We are not
convinced. The fact that the parties all
believed count 1 required a state prison sentence demonstrates that, under
the bargain struck, the People expected the sentence to be served in state
prison, and Benavides agreed to do so.
Perhaps Benavides first asked for dismissal of count 1 to avoid
state prison, but the People insisted she serve time in state prison, or it is
possible the People first offered a greater maximum term, and Benavides
countered by offering a 16-month sentence in state prison with the understanding
that she would be subject to community supervision after her release. The point is, we do not know how the
negotiations proceeded, and we will not presume that serving the sentence in
state prison was not “part and parcel†of the plea. Consequently, Benavides cannot proceed with
her appeal claim without a certificate of probable cause.
DISPOSITION
The appeal
is dismissed.
_____________________
Wiseman, Acting P.J.
WE CONCUR:
_____________________
Levy, J.
_____________________
Kane, J.
name="_ftn1" title=""> [1]Effective in 2012, Penal Code
section 12020, subdivision (a)(4) (related to carrying a concealed
dirk or dagger), was renumbered with no substantive change and is now Penal
Code section 21310. (Stats. 2010,
ch. 711, § 6; People v.
Mitchell (2012) 209 Cal.App.4th 1364, 1369, fn. 1.)
name="_ftn2" title=""> [2]Subsequent statutory references are to the
Penal Code.
