People v. Cole

Opinion

Defendant Ervin Eugene Cole seeks to appeal from a judgment of conviction entered after a no contest plea to three felony counts. He also admitted two prior serious or violent felony convictions under the

Defendant initially pled not guilty to all counts and denied the prior convictions. Following various pretrial proceedings, the case was sent out for trial. In the trial court, after recess on the first day of jury selection, the trial court stated outside the presence of the jurors that a trial management conference had been held in chambers. The court asked defense counsel if defendant was contemplating changing his plea. Defense counsel replied: “We had a rather extensive conversation about that during the break. And I think that he wanted to speak with his new wife and think about it overnight.” The court stated that it would like an answer at 10:30 the next morning, and recessed the proceedings.

The next morning, the trial court asked defense counsel if there was a disposition. The following proceedings then occurred:

“[Defense counsel]: Well, in a way. [¶] Mr. Cole has decided to plead open to all charges and admit all special allegations to the court, and we’re asking that sentencing on this matter be put over for a certain period of time.

“The Court: Mr. Cole, I am satisfied from my discussions with the two attorneys that the . . . crimes charged against you all arise from the same side [sic] of the operative facts. So the maximum punishment the court would otherwise be prepared to impose would be a sentence of 25 years to life, plus an additional term for the . . . priors alleged pursuant to section 667.5(b) unless the People are willing to strike those, [¶] Other than that, I made no promises whatsoever, representations to your lawyer as to what the sentence will be. [¶] Do you understand that?

“The Defendant: Yes.

“The Court: Do you still wish to change your plea at this time?

“The Defendant: No.

“Defense Counsel: No? [¶] You want to go to trial?

“The Defendant: No. [¶] Was I supposed to say ‘yes’?

“The Court: This isn’t a script here, Mr. Cole.

“The Defendant: I thought I was answering you right.

“The Court: I want you to understand I haven’t told your lawyer what the sentence is going to be. It’s entirely up to me, and I’m going to wait until I have some more information about you. [¶] I may decide to strike one or more of these strikes. I may decide not to. I don’t have complete discretion. My discretion is pretty limited. It’s based upon an evaluation of what is called your background, character, and prospects. [¶] So your lawyer is going to have to convince me that I [should] strike one or more of these strikes; but if he does, then I will. But otherwise, it’s going to be 25 to life. [¶] Do you understand that?

“The Defendant: Yes.

“The Court: Do you still want to change your plea? Do you still want to change your plea of not guilty to guilty or no contest?

“The Defendant: Yes. Yes. Yes.”

The prosecutor then advised defendant of his rights and the consequences of the proposed disposition. The prosecutor stated that this was an “open” plea, meaning that defendant would admit all charges and allegations, and that the maximum possible sentence was 25 years to life. Defendant affirmed that he understood. Defendant pled no contest to all charges, and admitted the priors allegations. Defendant also initialed, signed, and filed with the court a written plea form. It reflected that the maximum possible punishment for the three charged counts was 75 years to life, and described the disposition as an “open plea to court—no promises made.”

At defendant’s request, the court continued the sentencing hearing for approximately three months. In the interim, defendant filed a written motion, with supporting points and authorities and exhibits, requesting that one or more prior serious felony convictions be stricken. At the sentencing hearing, the court stated that it had read and considered defendant’s written motion, and the probation report. The court heard argument from both counsel. Also, on defendant’s behalf, the court heard from the victim of defendant’s prior conviction of assault with a deadly weapon, and reviewed the probation report from that prior crime. Defendant and his mother also addressed the court. Ultimately, the court declined to exercise its discretion to strike any of the prior Three Strikes convictions. The court sentenced defendant to 25 years to life on each count, to be served concurrently. It struck the three prior prison terms.

Statement of Facts

Because we reach the merits of defendant’s contention that the trial court abused its discretion in not striking one of his prior Three Strikes convictions, we briefly summarize the evidence underlying the current charges. Our summary is based on the preliminary hearing transcript, and is stated in the light most favorable to the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199 , 1204 [ 26 Cal.Rptr.2d 23 , 864 P.2d 103 ].)

On February 21, 1999, Hawthorne Police Officer Michael Shimkus observed defendant driving an Infiniti automobile. The car belonged to two persons, Dolores Nunley and her mother, who did not know defendant and did not give him permission to drive their vehicle. Officer Shimkus followed the Infiniti and activated his lights and siren. Defendant accelerated rapidly on Hawthorne Boulevard, swerving in and out of traffic. He ran a red light, and turned onto 120th Street, then onto Birch Avenue, a residential street. Defendant’s speed reached more than 85 miles per hour. Defendant ran three stop signs on Birch, and turned onto Imperial Highway. At a speed of about 45 miles per hour, he swerved into opposing lanes of traffic. At the intersection of Imperial Highway and Freeman, he ran another red light, nearly colliding with several cars. Attempting to turn onto Prairie, defendant collided with another car. The Infiniti spun out of control and rolled over. Defendant fled on foot. He left his passenger, Darlene Wallace, in the vehicle. She had suffered injuries to her back and leg. The driver of the vehicle with which defendant collided was also injured, and later received medical treatment for cervical and lumbar strain. Officer Shimkus pursued defendant, and took him into custody by tackling him.

Discussion

A. The Terms of Defendant’s Plea

Although the prosecutor loosely referred to the disposition as an open plea, as did the written waiver form, in reality the plea was not truly “open.” That is, defendant did not face the maximum sentence permissible under the

First, with the implicit concurrence of the prosecutor, the trial court determined that the three charged crimes arose from the same set of operative facts. The significance of this determination was that it gave the trial court discretion to sentence concurrently. When a three strikes defendant is convicted of more than one current felony, the trial court must sentence consecutively for each crime “not committed on the same occasion, and not arising from the same set of operative facts.” (Pen. Code, §§ 667, subd. (c)(6), 1170, subd. (a)(6).) However, when the current felonies were not committed on the same occasion or do not arise from the same set of operative facts, the court has discretion to sentence either consecutively or concurrently. (People v. Lawrence (2000) 24 Cal.4th 219 , 223 [ 99 Cal.Rptr.2d 570 , 6 P.3d 228 ]; People v. Deloza (1998) 18 Cal.4th 585 , 591 [ 76 Cal.Rptr.2d 255 , 957 P.2d 945 ]; People v. Danowski (1999) 74 Cal.App.4th 815 , 821 [ 88 Cal.Rptr.2d 471 ].) Here, the trial court was extending a promise to sentence defendant concurrently on the three charged counts, rather than consecutively. As reflected in the plea and waiver form executed by defendant, the parties and the court believed that defendant’s maximum possible punishment for the three counts was three consecutive terms of 25 years to life. Thus, by pleading no contest and admitting his prior convictions, defendant reduced his potential exposure on the three charged counts from 75 to 25 years to life.

Second, the parties and the court did not mention any concern that Penal Code section 654 might require staying the sentence on any particular count as opposed to sentencing concurrently. Neither at the time the plea was entered nor at the time the sentence was imposed did defendant object to imposition of concurrent sentences.

Third, also by implication, the People agreed to have the court strike the three prior prison term allegations under Penal Code section 667.5, subdivision (b) should defendant be sentenced to 25 years to life. Each prior prison term carried a potential consecutive sentence of one year. The court initially stated that it would not impose more than 25 years to life “plus an additional term for the . . . priors alleged pursuant to [Penal Code] section 667.5(b)[,] unless the People are willing to strike those.” Later, in advising defendant of the consequences of the plea, the prosecutor stated that the maximum sentence that could be imposed was 25 years to life. The prosecutor voiced

Finally, essential to defendant’s no contest plea was the trial court’s representation that within the permissible bounds of its discretion, it would consider striking one or more of defendant’s prior convictions under the Three Strikes law at a subsequent hearing. The court made no promise concerning what sentence would be imposed, except that defendant would receive no more than a total sentence of 25 years to life.

Thus, by clear implication from the record, defendant pled no contest with the assurance of concurrent rather than consecutive sentences on the three charged counts; the assurance that if sentenced to 25 years to life, the three prior prison term allegations would be stricken; and the further assurance that his motion to strike his prior serious or violent felony convictions, and obtain a sentence less than 25 years to life, would be given fair consideration under the law at a later hearing.

Having spelled out the plea agreement, we consider the procedural requirements of perfecting this appeal.

B. The Requirement of a Certificate of Probable Cause

Generally, under section 1237.5, a defendant may not appeal from a judgment of conviction following a guilty or no contest plea, unless he files with the trial court a written, sworn statement “showing reasonable, constitutional, jurisdictional, or other grounds going to the legality of the proceedings,” (§ 1237.5, subd. (a)), and the trial court executes and files “a certificate of probable cause for such appeal with the county clerk” (§ 1237.5, subd. (b)). (See People v. Mendez (1999) 19 Cal.4th 1084 , 1094-1095 [ 81 Cal.Rptr.2d 301 , 969 P.2d 146 ]; People v. Lloyd (1998) 17 Cal.4th 658 , 663 [ 72 Cal.Rptr.2d 224 , 951 P.2d 1191 ].) In compliance with section 1237.5, the first paragraph of rule 31(d) requires that for the appeal to be perfected, the defendant must “file as an intended notice of appeal the statement required by section 1237.5 of the Penal Code.” It further provides that “the appeal shall not be operative unless the trial court executes and files the certificate of probable cause required by that section.” (Ibid; see People v. Lloyd, supra, 17 Cal.4th at p. 663; People v. Panizzon (1996) 13 Cal.4th 68 , 75 [ 51 Cal.Rptr.2d 851 , 913 P.2d 1061 ]; People v. Jones (1995) 10 Cal.4th 1102 , 1106 [ 43 Cal.Rptr.2d 464 , 898 P.2d 910 ].)

In the instant case, defendant’s claims, on their face, purport to challenge his sentence. His appeal presents the question: When is a challenge to the sentence actually a challenge to the validity of the plea, requiring a certificate of probable cause under section 1237.5 and rule 31(d), first paragraph? We are certainly not the first court to consider this question. Indeed, on this precise issue the Supreme Court has recently sought to delineate the boundaries of section 1237.5. (See People v. Lloyd, supra, 17 Cal.4th at p. 665; People v. Panizzon, supra, 13 Cal.4th at pp. 78-79.) Yet, we find that the extant authorities do not fully address a case such as this, where the plea agreement specifies not a particular sentence to be imposed, but a particular sentence not to be exceeded. Our analysis requires a review of the relevant case law, attempting to distill the principles necessary to resolve the application of section 1237.5 to this appeal.

C. An Attack on the Sentence as an Attack on the Plea

Considerable appellate discussion has been devoted to whether a challenge to the sentence is, in fact, an attack on the plea requiring a probable cause certificate, or whether it is a challenge to postpleas events under rule 31(d), second paragraph. We begin our review with People v. Ward, supra, 66 Cal.2d 571 , a seminal decision in the interpretation of section 1237.5. Decided before the adoption of the second paragraph of rule 31(d), Ward involved a defendant who pled guilty to murder, with no specification of the degree of the crime or the sentence to be imposed. Rather, he waived his right to a jury trial, and the trial court held a six-day nonjury trial, after which it fixed the murder at first degree. (66 Cal.2d at pp. 572-573.) The defendant then waived his right to a jury trial on the penalty, and stipulated to the evidence the court could consider. The court imposed life imprisonment. (Id. at p. 573.) The defendant filed a notice of appeal, but did not

The Court of Appeal rejected his claim that he was not attacking the validity of his plea, and that he therefore did not need a probable cause certificate. The court applied the “substance-of-the-appeal” test: “In determining the applicability of section 1237.5 to a challenge of a sentence imposed after a guilty plea, ‘. . . the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.’ [Citation.] Therefore, the threshold question here is whether appellant’s challenge to the sentence imposed pursuant to a plea agreement is in substance a challenge to his guilty plea, and thus subject to the requirements of section 1237.5. The ‘substance-of-the-appeal’ test requires us to determine if the facts support a challenge to the sentence imposed rather than to [the] validity of the guilty plea, without determining the merits of the appeal itself. [Citation.]” (People v. McNight, supra, 171 Cal.App.3d at p. 624.)

The court in McNight found that the appeal attacked the validity of the plea: “[A]ppellant received exactly the sentence promised in the agreement. His contention that consideration of mitigating circumstances should have resulted in imposition of a sentence less than the agreed-upon 21 years goes to the heart of the plea agreement itself.” (People v. McNight, supra, 171 Cal.App.3d at p. 624.) The court distinguished Ward as a decision in which “the sentencing procedures were ‘altogether distinct’ from the defendant’s guilty plea . . . .” (Id. at p. 625.)

The court also found “[i]t. . . significant that appellant’s plea agreement included a specific recommended sentence .... If appellant had pled guilty on the sole condition that the other charges against him would be dropped, the trial court could have selected any appropriate sentence without violating the plea agreement. In that situation, the sentencing proceedings probably would not be part of the plea itself, and section 1237.5 requirements might not apply.” (People v. McNight, supra, 171 Cal.App.3d at p. 625, fn. 4.) Thus, McNight suggested that absent a specific negotiated

The analysis of McNight assumes considerable significance because the Supreme Court, in one of its recent efforts to clarify the scope of section 1237.5, People v. Panizzon, supra, 13 Cal.4th 68 , adopted McNight’s “substance-of-the-appeal” test. Like McNight, Panizzon involved the appeal of a defendant who pled guilty in exchange for a specific, negotiated sentence. Without obtaining a certificate of probable cause, he appealed, contending that his sentence violated the federal and state constitutional prohibitions against cruel and unusual punishment. Relying largely on McNight, the Supreme Court held that the certificate requirement of section 1237.5 applied. “In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, courts must look to the substance of the appeal: ‘the critical issue is what the defendant is challenging, not the time or manner in which the challenge is made.’ [Citation.] Hence, the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5.” (People v. Panizzon, supra, 13 Cal.4th at p. 76, original italics.) Under this test, in Panizzon the appeal attacked the validity of the plea: “Here, by contesting the constitutionality of the very sentence he negotiated as part of the plea bargain, defendant is, in substance, attacking the validity of the plea. For that reason, and consistent with McNight, supra, 171 Cal.App.3d 620 , we hold that the certificate requirement of section 1237.5 applies.” (People v. Panizzon, supra, 13 Cal.4th at p. 78.)

The court made clear, however, that its adoption of the substance-of-the-appeal test did not wholly supplant the analysis of Ward. Indeed, the court affirmed Ward’s continued viability: “We recognize, of course, that Ward was decided in the context of the former indeterminate sentencing laws. Under the present determinate sentencing scheme, a plea of guilty to a particular degree of a crime, entered without an agreement as to the specific penalty to be imposed, may require a separate adversary hearing to determine the appropriate sentence. Nonetheless, the broad principle recognized in Ward, i.e., that the right of appeal may properly be confined where a plea eliminates the need for further adversary hearings, remains persuasive in the context of determínate sentencing and is fully applicable here.” (People v. Panizzon, supra, 13 Cal.4th at p. 79, fn. 9.)

After Panizzon, the Supreme Court decided People v. Lloyd, further refining the scope of section 1237.5. In Lloyd, the defendant pled guilty and admitted, inter alia, four prior felony convictions under the Three Strikes

In Lloyd, the Supreme Court held that no probable cause certificate was required to perfect the appeal, because the sentence being challenged was not imposed under a plea bargain. Construing Panizzon, the court stated, “In Panizzon, we recognized that even if it purportedly challenges the sentence only, a defendant’s appeal from a judgment of conviction entered on a plea of guilty or nolo contendere must be dismissed in the absence of a statement of grounds by the defendant and a certificate of probable cause by the trial court if, in substance, it challenges the validity of the plea. [Citation.] It does so if the sentence was part of a plea bargain. [Citation.] It does not if it was not [citation]—especially so if the claim or claims in question were ‘reserved as part of the plea agreement’ [citation].” (People v. Lloyd, supra, 17 Cal.4th at p. 665.) There being no plea bargain in Lloyd, the reasoning of Panizzon did not apply. (Id. at pp. 665-666.)

Without approving or disapproving them, Lloyd distinguished those Court of Appeal decisions—Zamora, Hunt, and Sabados—which had applied section 1237.5 to appeals in which the sentence was challenged on the ground that it violated constitutional proscriptions on cruel or unusual punishment. In those decisions, Lloyd stated, the resolution of the appeal depended on the evidence which might have been presented at trial, evidence that was foreclosed by the defendant’s guilty plea. By contrast, in Lloyd the issue was purely one of law. (People v. Lloyd, supra, 17 Cal.4th at p. 666.)

After Lloyd, stating the substance-of-the-appeal test is simple. If the sentence challenged on appeal was part of a plea bargain, then the appeal in substance challenges the validity of the plea. On the other hand, if the sentence challenged on appeal was not part of a plea bargain, then the appeal does not challenge the validity of the plea, especially if the defendant reserved the right to raise the claim in question.

This formula, so simply expressed, is not so simply applied. What of the plea agreement in which there is not a specific negotiated sentence to be imposed (unlike Panizzon), but a specific negotiated sentence not to be

We discuss one final decision, People v. Young, supra, 77 Cal.App.4th 827 , for whatever assistance it can provide. In Young, the Court of Appeal addressed this issue in the context of a cruel or unusual punishment claim. In Young, the defendant pled no contest to three felony counts, and admitted three prior convictions under the Three Strikes law, with no specific negotiated sentence. Although the defendant’s sentencing exposure if convicted at trial would have been 52 years to life, the trial court agreed that following his plea the court would not sentence him to more than 25 years to life. Further, he would have the opportunity to ask the court to strike one or more of his prior convictions. (People v. Young, supra, 77 Cal.App.4th at p. 830.) At sentencing , the court declined to strike any prior conviction, and imposed the maximum term of 25 years to life. On appeal, the defendant argued that his sentence constituted cruel and unusual punishment under the state and federal Constitutions. Relying on Panizzon, the Court of Appeal dismissed the appeal.

The court held that although the defendant was not attacking a specifically negotiated sentence as did the defendant in Panizzon, his appeal was still a challenge in substance to the validity of the plea, because it attacked the maximum term possible under the agreement. (People v. Young, supra, 77 Cal.App.4th at p. 832.) The court distinguished Lloyd as a case in which the defendant challenged a sentence that was imposed in the absence of a plea bargain. (Id. at p. 833.) The court held “that [a] defendant may not challenge the constitutionality of the maximum sentence that was agreed as part of his plea bargain in the absence of a certificate of probable cause.” (Id. at p. 834.)

The court specifically declined to decide whether, without a probable cause certificate, the defendant could challenge the trial court’s exercise of discretion not to strike any of his prior convictions. Having said that, the court observed nonetheless that “a challenge to the maximum sentence to which defendant agreed as part of his plea bargain does challenge the validity of the plea because it challenges one of its material terms.” (People v. Young, supra, 77 Cal.App.4th at p. 834.)

D. The Requirements of Section 1237.5 as Applied to Defendant’s Appeal

Under this somewhat confusing legal patchwork, we consider defendant’s appeal. As instructed by the Supreme Court in Mendez, we strictly apply the

3. Contention That the Trial Court Abused Its Discretion

Besides his constitutional challenge to the sentence, defendant argues that the trial court abused its discretion in failing to strike one of his prior convictions under the Three Strikes law. The court in Young expressly declined to decide whether section 1237.5 applies to such a claim. Considering it here, we conclude that when, as part of the plea agreement, the question of whether to impose the negotiated maximum sentence is left to

Third, our holding on this issue is not inconsistent with the holding of Young. On this point Young is distinguishable, not because that appeal involved a constitutional challenge to the maximum sentence and here we are discussing a nonconstitutional challenge, but because in Young the defendant’s plea agreement “did not reserve [defendant’s] right to challenge the constitutionality of the maximum sentence.” (People v. Young, supra, 77 Cal.App.4th at p. 834.) Thus, no separate adversary hearing was held on that question. In that context, a constitutional attack on the maximum permissible sentence attacks the validity of the plea, since no provision existed in the plea agreement for considering the constitutionality of the sentence. The result is not the same when the plea agreement contemplates an adversary hearing on the discretionary question of whether to impose the maximum permissible sentence, or whether to strike a prior conviction, thus resulting in a lesser sentence. In these circumstances, while the maximum permissible sentence under the agreement is being challenged, the question of the court’s exercise of discretion in imposing that sentence was reserved as a term of the negotiated agreement. (See People v. Lloyd, supra, 17 Cal.4th at p. 665; People v. Panizzon, supra, 13 Cal.4th at p. 78, fn. 8.)

Finally, the decisions in Zamora, Hunt, and Sabados—decisions of the Court of Appeal that applied section 1237.5 to claims that the sentence is cruel and unusual—are likewise distinguishable. In these cases, the courts refused to consider the claims, because the records presented were inadequate. The full facts of the case were not presented because the defendant pled guilty, and the prosecution was not put to its proof. (People v. Zamora, supra, 230 Cal.App.3d at p. 1635; People v. Hunt, supra, 174 Cal.App.4th at

For the forgoing reasons, we conclude that section 1237.5 does not apply to defendant’s challenge to the trial court’s exercise of discretion in failing to strike one of his prior Three Strikes convictions. However, before considering the merits of this claim, we must determine whether defendant’s remaining contention may be raised on appeal.

E. Rule 4.412(b) as Applied to Defendant’s Claim Under Penal Code Section 654

Defendant’s final contention is that the trial court erred under Penal Code section 654 by imposing concurrent sentences on counts 2 and 3. Disposing of this contention requires reference not to the certificate requirements of section 1237.5, but to the principle of waiver embodied in rule 4.412(b).

Rule 4.412(b) states: “By agreeing to a specified prison term personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates [Penal Code] section 654’s prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record.” In the instant case, defendant agreed to “a specified prison term by and through counsel.” That specified prison term was the maximum possible sentence of 25 years to life on the three substantive counts, with a dismissal of the prior prison terms. The agreement clearly contemplated that this specific sentence was within the range of permissible sentences. In compliance with the agreement, defendant was sentenced to “that term or a shorter one,” within the meaning of rule 4.412(b). The court sentenced defendant to concurrent terms of 25 years to life on the three charged counts, and struck the prior prison terms. “Had defendant been truly surprised at the time of sentencing to find that concurrent terms were being imposed, his remedy would have been to attempt to withdraw his plea on the grounds of a violation of the plea

The judgment is affirmed.

Grignon, Acting P. J., and Armstrong, J., concurred.

On May 4, 2001, the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied July 25, 2001, Brown, J., did not participate therein. Kennard, J., was of the opinion that the petition should be granted.