Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. CM027177, CM026791
BUTZ, J.
Defendant Corey James Brown entered a negotiated plea of no contest to domestic violence in case No. CM026791 and to first degree robbery in concert, kidnapping, and criminal threats in case No. CM027177, in exchange for dismissal of the remaining counts. The court sentenced defendant to an aggregate term of 11 years eight months in state prison.
Defendant appeals. The court granted his request for a certificate of probable cause. (Pen. Code, § 1237.5.) Defendant contends that the trial court imposed a term for an in-concert “enhancement,” related to first degree robbery, which he did not admit in entering his plea and for which there is no factual basis. He claims the sentence must be modified. We shall reverse the robbery conviction, vacate the sentence, and remand with directions.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the probation report.
Case No. CM026791
On May 5, 2007, defendant forced his way into the home of his former girlfriend (Y.V.) and struck her in the face, fracturing her nose, bit her on the hand and arms, and kicked her in the stomach. The victim tried to leave the home twice but each time defendant pulled her back inside by her hair. When she tried to call 911, he pulled the telephone cord out of the wall. An officer observed bruises, bite marks, abrasions and scratch marks, and missing hair on the victim. When the officer contacted defendant, he denied committing any offense against the victim.
An information filed July 17, 2007, charged defendant with domestic violence (§ 273.5, subd. (a)--count 1), threatening a witness by force or threat (§ 136.1, subd. (c)(1)--count 2), and false imprisonment by violence (§ 236--count 3).
Case No. CM027177
On May 22, 2007, defendant and codefendant Logan Calhoun broke into the apartment belonging to R.V. Placing his hand on a gun in his waistband, Calhoun guarded C.A., a house guest who was on the couch in the living room. Defendant entered the bedroom where he encountered Y.V., his former girlfriend, and R.V. engaging in sexual intercourse. Informing R.V. that Y.V. was his girlfriend, defendant hit R.V., causing a laceration over his right eye which required 20 stitches. Grabbing Y.V. by the hair, defendant forced her out of the apartment, taking R.V.’s cell phone and Y.V.’s purse with him. Defendant threatened C.A. and R.V. as he and Calhoun left. After forcing Y.V. into her car, defendant drove for miles, all the while arguing and threatening her. Defendant finally got out of Y.V.’s car and she drove home.
An information filed July 19, 2007, charged defendant with “home invasion” robbery (§ 211--count 1) while acting in concert (§ 213, subd. (a)(1)(A)), first degree burglary (§ 459--count 2), battery with serious bodily injury to R.V. (§ 243, subd. (d)--count 3), kidnapping of Y.V. (§ 207, subd. (a)--count 4), threatening witnesses C.A. and R.V. by force or threat (§ 136.1, subd. (c)(1)--count 5), criminal threats to Y.V. (§ 422--count 6), battery on Y.V., a person with whom defendant had a dating relationship, a misdemeanor (§ 243, subd. (e)(1)--count 7), and carjacking (§ 215, subd. (a)--count 9). It was further alleged that defendant committed counts 1 through 6 and 9 while on bail or his own recognizance in case No. CM026826. (§ 12022.1.)
Codefendant Calhoun was charged with the same offenses in counts 1, 2, 3, and 5. Calhoun was also charged with misdemeanor battery upon C.A. (§ 242) in count 8. This appeal does not involve Calhoun.
With respect to the “home invasion” robbery while acting in concert, the triad was listed as three, six or nine years. The offense was alleged, in relevant part, as follows:
“On or about May 22, 2007,..., the crime of home invasion robbery, in violation of Penal Code section 211, a felony, was committed by [defendant] and Logan Charles Calhoun, who did unlawfully and by means of force and fear take personal property from the person, possession and immediate presence of R[.]V[.] and said offense was perpetrated in an inhabited dwelling house, trailer coach and inhabited portion of a building. [¶]... [¶]
“It is further alleged, pursuant to Penal Code section 213(a)(1)(A), that the above offense was committed by the defendant(s) who voluntarily acted in concert and entered a structure described in that section.”
Plea form
The plea form dated and signed by defendant on November 27, 2007, reflects that he pleaded no contest to sections 211 (count 1), 207 (count 4), and 422 (count 6) in case No. CM027177 and to section 273.5 (count 1) in case No. CM026791 in exchange for the dismissal of all remaining counts. The box for defendant’s initials next to admission of enhancements “if applicable” was crossed out. Defendant initialed the box that the maximum exposure was 12 years four months.
Entry of plea
On November 27, 2007, defendant and codefendant Calhoun entered their pleas but the record does not reflect that either was dependent on the other. Besides the current cases, defendant also faced charges in two other cases (case Nos. CM026789, CM026826) and probation violation allegations in three more cases (case Nos. SCR58846, SCR50131, CM022912). The plea agreement provided for defendant to plead no contest to “home invasion” robbery (count 1), kidnapping (count 4), and criminal threats (count 6) in case No. CM027177, and to domestic violence (count 1) in case No. CM026791, in exchange for dismissal of “all remaining counts and files as well as enhancements.” The court informed defendant that all three counts in case No. CM027177 were strikes. Defense counsel and the prosecutor agreed that defendant faced a total exposure of 29 to 30 years in prison at 85 percent in the pending matters but defendant’s maximum exposure with the plea was 12 years four months at 85 percent. Defendant stated that he would accept the plea deal. The court then took defendant’s plea as follows:
Calhoun entered a plea of no contest to an added count (count 10) of felony assault with force likely to cause great bodily injury upon R.V. (§ 245, subd. (a)(1)) and to first degree burglary with a person present (§ 459--count 2) in exchange for dismissal of the remaining counts and special allegations with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754.
“... Turning to [defendant], [defendant], you are charged in Count 1 in [case No. CM027177] with a home invasion robbery, violation of [section] 211 of the Penal Code, nine-year top. May 22nd is the date. Count 4 is kidnap[p]ing, May 22nd. Victim is Y[.]V[.], Penal Code section 207[, subdivision ](a). That’s an eight-year top. And making criminal threats, a violation of [section] 422 of the Penal Code, May 22nd, 2007, a three-year felony. [¶] In addition, in [case No. CM026791] you are charged with corporal injury to your former cohabitant Ms. V[.] on May 5, 2007. That’s a felony. [¶] How do you plead to the four felonies?
“[DEFENDANT]: No contest.
“THE COURT: All right. When you plead no contest, Sir, you will be also violating your probation in [case Nos.] SCR58846, SCR50131, CM22912. Do you understand that?
“[DEFENDANT]: Yes.”
The court obtained defendant’s waiver of his constitutional rights and defendant confirmed that he had initialed and signed the plea form after having reviewed it with his attorney and understanding it. With respect to a factual basis for the plea, the court stated that it had heard the preliminary hearing and “expect[ed] the factual basis to be developed in the probation report.” The court then dismissed the remaining counts and allegations as follows: “Now, as to [defendant] in [case No. CM027177], Count 2, Count 3, Count 5, Counts 7, 8 and 9 are dismissed. The special allegation pursuant to... [section] 12022.1 is stricken. In case number [CM026791,] Counts 2 and 3 are dismissed. The entire cases CM26789, CM26826 are dismissed. [¶] The Court finds [] defendant in violation of his probation in [case Nos.] SCR58846, SCR50131, and CM22912. In each of those three matters probation is revoked. All dismissals are with a Harvey waiver.” The court referred the matter to probation for a report.
Probation report
The probation officer set forth the factual basis for the two cases based on information obtained from law enforcement reports. The probation officer recommended an aggregate sentence of 12 years four months, the maximum exposure defendant faced based on his plea. The probation officer listed the offenses in case Nos. CM027177 and CM026791 to which defendant had entered a plea, as well as the offenses in three other cases (case Nos. SCR58846, SCR50131, CM022912) in which probation had been revoked, the appropriate terms for the offenses, and the recommended term. In setting forth the foregoing information for home invasion robbery (count 1) in case No. CM027177, the probation officer noted that there was no enhancement attached to the same and recommended the upper term of nine years.
Sentencing
The prosecutor requested that the court impose the maximum term. Defense counsel responded: “I’ll begin by pointing out that I’m mindful, as was the [L]egislature when they enhanced the penalties in the range of sentencing considerations available to the Court in this type of case. That’s my way of saying that it’s not necessarily cast in stone that because of the nature of this case the defendant automatically ought to get the upper term, which is the recommendation the DA wants.” Defense counsel sought the midterm commitment. The prosecutor replied that defendant had an excessive record, nine separate cases as an adult, requiring the upper term.
The court denied probation and imposed the upper term on all four felonies. The court designated the section “211 charge, Count 1 in [case No. CM027177]” as the principal term and imposed “[nine] years.” For kidnapping and the domestic violence charge, the court imposed one-third the midterm to run consecutively to the robbery count. For criminal threats, the court imposed a concurrent eight-month term, finding that “the crime and its objective [were] not predominantly independent of the kidnapping.” For the misdemeanors in the three probation violation cases, the court imposed one-year terms in the county jail to run concurrently to the state prison sentence.
DISCUSSION
The sentencing triad for first degree robbery that is committed by a “defendant, voluntarily acting in concert with two or more other persons” is three, six, or nine years. (§ 213, subd. (a)(1)(A).) The sentencing triad for first degree robbery that is not committed in concert is three, four, or six years. (§ 213, subd. (a)(1)(B).)
Section 213 provides in relevant part:
Citing In re Jonathan T. (2008) 166 Cal.App.4th 474 (Jonathan T.), defendant argues that the robbery in-concert allegation (§ 213, subd. (a)(1)(A)) is a sentence “enhancement,” which must be separately pleaded and proven. Although the in-concert allegation was pleaded here, defendant claims the “enhancement” was not proven or admitted. He notes that the enhancement box on the plea form was crossed out and that at the entry of plea hearing, defendant’s attorney stated that defendant would plead no contest to robbery, never mentioning the in-concert allegation. Defendant claims the nine-year sentence for the robbery was an unauthorized sentence. Since there is no factual basis for an in-concert allegation in that there were only two persons involved in the home invasion robbery (defendant and Calhoun), defendant claims the “enhancement” must be vacated and the sentence modified to an upper term of six years.
The People “submit[] that mistakes were made” but argue the court sentenced defendant in accordance with the intended bargain and defendant should be estopped from complaining, citing People v. Ellis (1987) 195 Cal.App.3d 334 (Ellis) and People v. Collins (1978) 21 Cal.3d 208 (Collins). The People claim any modification of the upper term for the robbery offense would “deprive the People of their bargain and grant [defendant] a windfall.” In the event defendant’s plea is vacated, the People request permission to reinstate all dismissed charges in order to return the parties to their original positions.
Defendant replies that Ellis is distinguishable because there is nothing in the record which reflects that he admitted the in-concert enhancement knowing it did not apply. Defendant does not discuss Collins.
In Jonathan T., the petition filed against the minor did not allege that he acted in concert and did not cite section 213, subdivision (a)(1)(A), but the facts supported an in-concert allegation and the juvenile court determined that the minor’s confinement time was nine years. (Jonathan T., supra, 166 Cal.App.4th at pp. 477-479, 483.) Jonathan T. held that acting in concert is a sentencing “enhancement,” rejecting the People’s argument that whether the minor acted in concert is a sentencing factor. Jonathan T. found that section 213, subdivision (a)(1)(A) did not create a new offense. (Id. at pp. 480-482.) Jonathan T. made no distinction between “sentence enhancement” and “penalty provision.” (Id. at pp. 480, 482.)
While we agree that the in-concert allegation did not create a new substantive offense, we do not necessarily agree with Jonathan T.’s conclusion that the allegation is a sentence “enhancement.” An “‘[e]nhancement’” is defined as “an additional term of imprisonment added to the base term.” (Cal. Rules of Court, rule 4.405(3).) And the word “enhancement” is not used in section 213, subdivision (a)(1)(A). Section 213, subdivision (a)(1)(A) appears to be more akin to a penalty provision which “sets forth an alternate penalty for the underlying felony itself, when the jury has determined that the defendant has satisfied the conditions specified in the statute.” (People v. Jefferson (1999) 21 Cal.4th 86, 101; see People v. Brookfield (2009) 47 Cal.4th 583, 592-593; People v. Jones (2009) 47 Cal.4th 566, 576; People v. Seel (2004) 34 Cal.4th 535, 546, fn. 4; Robert L. v. Superior Court (2003) 30 Cal.4th 894, 899; People v. Wallace (2003) 109 Cal.App.4th 1699, 1702.) In any event, as in Seel, “[f]or purposes of the issue presented here, the precise distinction between a sentence enhancement and penalty provision is not important. [Citation.] The critical feature is that section [213, subdivision (a)(1)(A)] is ‘an allegation of a circumstance that justifies an increased sentence....’” (Seel, supra,34 Cal.4th at p. 546, fn. 4, 3d par.) As such, there must be a factual basis to support the finding that defendant voluntarily acted in concert with two or more other persons to increase the penalty for first degree robbery.
When a trial court approves a negotiated plea agreement, “[t]he court shall also cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea.” (§ 1192.5, 3d par.) “While there is no federal constitutional requirement for this factual basis inquiry, the statutory mandate of section 1192.5 helps ensure that the ‘constitutional standards of voluntariness and intelligence are met.’” (People v. Holmes (2004) 32 Cal.4th 432, 438, fn. omitted.) After satisfying itself that there is a factual basis for the plea, the trial court’s approval of a negotiated plea agreement “will be reversed only for abuse of discretion.” (Id. at p. 443.) An error will be deemed harmless “where the contents of the record support a finding of a factual basis for the conditional plea.” (Ibid.)
The accusatory pleading did not specifically allege that defendant acted in concert with two or more other persons; instead, it was alleged that he acted in concert within the meaning of section 213, subdivision (a)(1)(A). There is no dispute that defendant acted in concert but did so with only one other person, not two or more other persons. The factual basis for the plea does not support the in-concert allegation but does support first degree robbery. The court abused its discretion in accepting defendant’s plea because of the lack of a factual basis for the in-concert allegation.
Defendant complains that he never separately admitted the “enhancement” allegation. Jonathan T. was decided on August 29, 2008, three months after defendant was sentenced. (Jonathan T., supra, 166 Cal.App.4th 474.) Other than Jonathan T., defendant cites no authority supporting his argument that the in-concert allegation is an enhancement. Defendant entered a plea to “home invasion robbery” with Calhoun for a maximum sentence of nine years, the upper term for a robbery in concert. His plea to the robbery necessarily included the fact that he acted in concert, which was alleged in the accusatory pleading both by language and statutory authority, unlike the petition in Jonathan T.
The question is whether estoppel applies to preclude defendant from complaining about the error. “‘Whether [a defendant] shall be estopped depends on the importance of the irregularity not only to the parties but to the functioning of the courts and in some instances on other considerations of public policy. A litigant who has stipulated to a procedure in excess of jurisdiction may be estopped to question it when “[t]o hold otherwise would permit the parties to trifle with the courts.”’” (Ellis, supra,195 Cal.App.3d at p. 343.)
In Ellis, the defendant entered a negotiated plea agreement which included her admission of a prior serious felony conviction, that is, a prior conviction for federal bank robbery, for a five-year enhancement pursuant to section 667, subdivision (a). (Ellis, supra, 195 Cal.App.3d at p. 337.) On appeal, she claimed the enhancement did not apply and must be stricken because the elements of the federal bank robbery did not satisfy the elements of a serious felony in California. (Id. at pp. 337-339.) Ellis “agree[d] with the diagnosis but not with the cure.” (Id. at p. 339.) Ellis concluded that the defendant obtained the benefit of the negotiated plea agreement and was estopped from challenging the enhancement because (1) there was no dispute that she was convicted of the federal bank robbery, which involved “serious, dangerous conduct,” and treating her federal bank robbery as a serious felony under section 667 would not “result in an unconscionable divergence between the conduct proscribed by section 667 and [her] conduct” (id. at p. 346); (2) the record showed “plausible, tactical reasons supporting [her] admission” that the federal bank robbery was a serious felony since her exposure was reduced by three years (id. at pp. 346-347); and (3) “the record support[ed] the inference [she] deliberately persevered in [her] plea with knowledge of its irregularity in order to secure an imagined appellate advantage’” (id. at p. 347).
Here, it was undisputed that defendant acted in concert with one other person in committing the home invasion robbery. Since the in-concert allegation required only one additional person to meet the “two or more” requirement, defendant’s plea to the offense cannot be said to have resulted in an unconscionable divergence between the conduct proscribed by section 213, subdivision (a)(1)(A) and defendant’s conduct.
It is plausible defendant had a tactical reason to enter a plea to the robbery as charged for nine years as part of a negotiated plea. The plea agreement resulted in the dismissal of threatening a witness by force or threat and false imprisonment by violence in case No. CM026791; first degree burglary, battery with serious bodily injury to R.V., threatening witnesses by force or threat, battery on Y.V., a person with whom defendant had a dating relationship, a misdemeanor, and carjacking, as well as on-bail enhancements attached to seven counts in case No. CM027177; and charges in two other cases. On this record, however, it is more plausible that the parties and the court were simply mistaken. The record does not reflect that anyone, that is, the court, defendant, defense counsel, or the prosecutor, was aware that for the in-concert allegation to apply to first degree robbery, a defendant must voluntarily act in concert with two or more other persons, rather than just one other person. Because of a mistake, they all believed that defendant’s home invasion robbery while acting in concert with Calhoun qualified for the increased punishment provided by section 213, subdivision (a)(1)(A). It is more plausible defendant did not have a tactical reason. Further, the record does not support an inference that he entered his no contest plea with knowledge of its irregularity to obtain an advantage on appeal.
This is understandable. Other offenses provide for increased punishment when a defendant acts in concert with only one other person. (§ 264.1 [increased punishment for a defendant, “voluntarily acting in concert with another person,” who commits rape (§ 261), spousal rape (§ 262), or sexual penetration with a foreign or unknown object (§ 289)]). Notably, unlike section 264.1, section 213 does not expressly require that the accusatory pleading include an in-concert allegation, that defendant admit it, or that a jury or the court find it true at trial. Unlike section 213, section 264.1 establishes a separate substantive crime of rape in concert. (People v. Keovilayphone (2005) 132 Cal.App.4th 491, 495; People v. Best (1983) 143 Cal.App.3d 232, 236-237.) The Legislature expressly stated that there is but one crime of robbery defined by section 211 and that certain circumstances make the robbery more aggravated and deserving of an increased term of imprisonment, disapproving People v. Beller (1985) 172 Cal.App.3d 904, 909-912, to the extent it found that robbery and residential robbery were separate offenses. (Stats. 1986, ch. 1428, § 6, p. 5124; People v. Colbert (1988) 198 Cal.App.3d 924, 927-928.)
Thus, defendant should not be estopped from challenging the application of section 213, subdivision (a)(1)(A). We cannot conclude that defendant is merely trifling with the court.
Defendant is not entitled to withdraw his plea in its entirety, nor is he entitled to an unconditional reduction of his sentence to the upper term of six years for first degree robbery, which is supported by the factual basis for the plea and which is the maximum that he could have received pursuant to section 213, subdivision (a)(1)(B). The People claim any modification of the upper term for the robbery offense would “deprive the People of their bargain and grant [defendant] a windfall” and in the event defendant’s plea is vacated, the People request permission to reinstate all dismissed charges in order to return the parties to their original positions. We agree. (Collins, supra,21 Cal.3d at pp. 214-217.) The People should be given the option of either agreeing to the reduction in sentence or having the plea agreement set aside so the People can prosecute defendant on all the charges and cases filed against him.
DISPOSITION
Defendant’s conviction for first degree robbery in concert is reversed and the sentence is vacated. The matter is remanded to the trial court for further proceedings. The People may choose to have the plea agreement set aside and to prosecute defendant on all charges and cases against him. If the People choose not to do so, the trial court shall modify defendant’s conviction to first degree robbery and impose the upper term of six years for an aggregate term of eight years eight months for all the offenses.
We concur: HULL, Acting P. J. ROBIE, J.
“(a) Robbery is punishable as follows:
“(1) Robbery of the first degree is punishable as follows:
“(A) If the defendant, voluntarily acting in concert with two or more other persons, commits the robbery within an inhabited dwelling house,... or the inhabited portion of any other building, by imprisonment in the state prison for three, six, or nine years.
“(B) In all cases other than that specified in subparagraph (A), by imprisonment in the state prison for three, four, or six years.
“(2) Robbery of the second degree is punishable by imprisonment in the state prison for two, three, or five years.”