Opinion
A118672
9-3-2008
THE PEOPLE, Plaintiff and Respondent, v. REYNALDO PEDRO CUENCA, Defendant and Appellant.
Not to be Published
Following a jury trial, defendant Reynaldo Pedro Cuenca (defendant) was convicted of possession of methamphetamine for sale (count one) (Health & Saf. Code, § 11378), child abuse (count two) (Pen. Code, § 273a, subd. (b)), as well as special allegations that he had a prior narcotics conviction (§1203.07, subd. (a)(11); Health & Saf. Code, § 11370.2, subd. (c)). On appeal, defendant raises the following claims of error: (1) the trial court, by declining to approve a plea agreement that the parties proposed on the morning of trial, violated defendants constitutional rights to due process and equal protection and his statutory rights under section 1192.5, and (2) the trial court should have stayed the sentence it imposed for the conviction on count two. We affirm the conviction but impose a stay of the sentence on count two.
All further statutory references are to the Penal Code unless otherwise specified.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Charges Against Defendant
On April 10, 2007, defendant and codefendant Nichole Wolf (Wolf) were charged by information with: (1) possession of methamphetamine for sale in violation of Health and Safety Code section 11378, and (2) child abuse likely to cause great bodily harm or death in violation of section 273a, subdivision (a). The child abuse charge was based on the prosecutions allegation that defendant endangered his four minor children by possessing methamphetamine for sale in the apartment he shared with them. The information also alleged, pursuant to section 1203.07, subdivision (a)(11), and Health and Safety Code section 11370.2, subdivision (c), that defendant had a prior conviction for possession for sale of a controlled substance.
On April 13, 2007, defendant pled not guilty to the charges and denied the prior conviction allegation. Prior to defendants trial, Wolf pled guilty to the charge of possession of methamphetamine for sale, and she testified at trial.
B. The Evidence Presented At Trial
On March 21, 2007, law enforcement officers executed a search warrant at defendants apartment in Calistoga, California. Defendant lived in the apartment with his four daughters, who were then ages 12, 10, 8, and 6. Wolf sometimes stayed at the apartment and babysat defendants children while defendant was at work.
When the officers arrived, defendant was at the apartment, along with Wolf, one of defendants daughters, and some other men. One of the officers, Napa County Deputy Sheriff Rick Greenberg, testified that when he entered the apartment, defendant was standing next to a coffee table and threw a white object under it. The object was a rolled up white sock that held a small bag containing suspected methamphetamine. During the search of the apartment, officers also found suspected methamphetamine on the nightstand in defendants bedroom. The police also found two digital scales, a police scanner, plastic baggies, $ 618 in cash, and indicia showing that defendant lived in the apartment.
Based on the items found during the search, Deputy Greenberg opined that the methamphetamine found in the apartment was possessed for sale. Deputy Greenberg also testified that, if a child ingested methamphetamine, it could be fatal, and that methamphetamine is more dangerous to a child than to an adult.
At trial, Wolf testified that while she was working for defendant as a daycare provider, she used methamphetamine with him approximately one to three times per week and that defendant supplied the methamphetamine they used on these occasions. Wolf stated that she did not use methamphetamine in front of defendants children. Wolf also testified that she had not seen defendant sell methamphetamine but had heard rumors that he had done so. Deputy Greenberg testified, however, that Wolf had told him that she had seen defendant sell methamphetamine up to 15 times per day from the apartment. Deputy Greenberg also testified that Wolf told him that defendant had asked her to sell methamphetamine and that she had done so.
Defendant testified that he used methamphetamine on occasion but denied selling it and denied that the methamphetamine found in the apartment belonged to him. Defendant also testified that he did not use methamphetamine in his apartment or in front of his children.
C. The Jurys Verdict and the Trial Courts Findings
On June 1, 2007, the jury found defendant guilty as charged on count one, possession of methamphetamine for sale. As to count two, the jury acquitted defendant of child abuse likely to cause great bodily harm or death, but convicted him of the lesser included offense of child abuse under section 273a, subdivision (b). On June 25, 2007, the trial court found true the special allegation that defendant had a prior conviction for possession for sale of a controlled substance.
D. Sentencing
On July 23, 2007, the trial court sentenced defendant to a term of two years imprisonment for the conviction on count one, and a consecutive term of three years imprisonment on the prior conviction allegation, for a total term of five years, with credit for 187 days served. On count two, the trial judge stated that he would not sentence defendant to any additional time. However, the trial courts minute order states that defendant was sentenced to 187 days in jail on count two, with credit for time served. The abstract of judgment does not reflect the conviction on count two.
Defendant filed a timely notice of appeal.
II. DISCUSSION
A. The Proposed Plea Agreement: Due Process And Statutory Issues
1. Background
On May 29, 2007, the date set for trial, defendants trial counsel and the prosecutor presented a proposed plea agreement to the trial judge. The parties initially presented the proposed agreement in a discussion off the record, in which the trial judge stated that he would not approve the agreement because it was untimely.
The record of the parties pretrial discussions of the proposed plea agreement with the trial judge does not disclose the precise terms of the proposed agreement. According to statements made to the trial judge by defendants trial counsel after the trial, the proposed agreement would have permitted defendant to plead guilty to count one in exchange for a two-year prison sentence.
The trial judge and the parties later continued this discussion on the record. In that colloquy, the prosecutor stated that he and defendants counsel both understood that the court had a "general rule" that plea bargains would not be approved on the day of trial. The prosecutor, however, asked the trial judge to make an exception to the courts policy based on considerations of fairness and judicial economy. In support of this request, the prosecutor stated that he was aware of "multiple" instances in which trial judges had not followed the policy and had approved plea bargains that were presented on the day of trial. The prosecutor also stated that the parties had not delayed in trying to resolve the case. He stated that the reason the parties had not presented the proposed agreement earlier was that the case originally had been assigned to a different judge and that the prosecutor and defendants trial counsel had both been out of town and unable to meet with the newly-assigned trial judge on the Friday before the trial date. Finally, the prosecutor argued that approval of the plea agreement would not unduly inconvenience the potential jurors who had appeared that morning.
Defendants trial counsel joined in the prosecutors request that the trial court accept the plea agreement and stated that she had been out of town the previous Friday to try to serve a subpoena on one of the witnesses in defendants case. Defendants counsel also stated that it was her understanding that the trial courts decision not to accept the plea agreement was based on the inconvenience to the potential jurors, and she argued that the court had not stated any "legal ground" for its decision.
After hearing the parties arguments, the trial judge explained his decision not to approve the plea agreement. Initially, the court noted that Napa County had a policy that had been in place for many years, of which both counsel were "well aware," that "there are no plea bargains on the morning of trial." The court then explained the reasons for this policy, including the need to know in advance of the trial date which cases are resolved so that potential jurors will not waste their time appearing for jury service and so that the court can plan effectively for the trials that actually will go forward. The court noted that 42 potential jurors had come to court that morning for defendants trial, which was the only one set for that day.
The Napa County Superior Court policy applied by the trial judge is an unwritten policy that, as noted by the Attorney General, "is not memorialized in the local rules."
The trial judge then declined to approve the proposed agreement or to make an exception to the courts policy about the timing of plea agreements. The judge stated that "if the court has a policy we all ought to abide by it even though it works a hardship once in awhile because the ultimate good that comes from this rule way outweighs any inconvenience to people and on individual cases." The court acknowledged that exceptions to the rule could be appropriate if something "new and dramatic" occurred on the trial date, such as the prosecutor learning that he or she could not prove the case against the defendant. The court concluded, however, that nothing unexpected or dramatic had occurred in this case, noting that the courts rulings that morning on the parties in limine motions were "pretty predictable." Finally, the court noted that a defendant can always plead guilty "without any promises" and stated, "I dont think that works an injustice to anybody because presumably the sentencing judge will do the just thing in deciding what [the] punishment is."
2. Analysis
Defendant contends that the trial court, by applying the Napa County policy against accepting plea agreements on the morning of trial, improperly refused to exercise its discretion to approve the agreement and thus violated defendants due process rights and his statutory rights under section 1192.5. We disagree.
Section 1192.5 permits the submission of proposed plea agreements that specify the punishment the defendant will receive. (§ 1192.5.) The trial court has "exclusive discretion" as to whether to approve such a proposed agreement. (People v. Morris (1979) 97 Cal.App.3d 358, 363.) Accordingly, this court reviews a trial courts decision to accept or reject a proposed plea agreement under section 1192.5 only for abuse of discretion. (See People v. Holmes (2004) 32 Cal.4th 432, 442-443 [trial courts determination under section 1192.5 as to whether a guilty plea has a sufficient factual basis will be reversed only for abuse of discretion]; People v. Cobb (1983) 139 Cal.App.3d 578, 586 (Cobb) [trial court acted within its discretion under section 1192.5 in rejecting proposed agreement].) However, a trial court may not "arbitrarily refuse to consider" a proposed agreement; such an arbitrary refusal is an improper failure to exercise discretion. (People v. Smith (1971) 22 Cal.App.3d 25, 30-31 (Smith), italics added.) As defendant notes, courts have held that an improper refusal to exercise discretion as required by law can violate due process or other procedural rights. (See People v. Penoli (1996) 46 Cal.App.4th 298, 306 (Penoli); Jensen v. U. S. (D.N.J. 1990) 743 F.Supp. 1091, 1111, fn. 11, citing Accardi v. Shaughnessy (1954) 347 U.S. 260 [executive branch officials refusal to exercise discretion].)
In exercising its discretion under section 1192.5, a trial court properly may impose reasonable time limitations on the presentation of proposed plea agreements and may decline to approve proposed agreements that are untimely. (Cobb, supra, 139 Cal.App.3d at pp. 584-587.) In Cobb, the Fifth District upheld the trial courts application of a Fresno County Superior Court rule that plea agreements would not be approved after the trial readiness conference. (Id. at pp. 581, 584-587.) The defendant and his counsel in Cobb were "well aware" at the time of the readiness conference that any plea after the readiness conference would have to be " `straight up to the charges as alleged without any conditions. " (Id. at p. 581.) The parties nevertheless submitted a proposed plea agreement after the trial readiness conference. (Id. at p. 582.) The trial court rejected the proposed agreement, apparently basing its decision on the "Fresno time rule." (Id. at p. 582.) On appeal, the defendant argued that, under section 1192.5, the trial court was obligated to consider a plea bargain on the merits at any time. (Id. at p. 580.)
The Fifth District rejected this argument. The appellate court first noted that Government Code section 68070 permits courts to adopt local court rules that are " `not inconsistent with law or with the rules adopted and prescribed by the Judicial Council. " (Id. at p. 582, quoting Gov. Code, § 68070, subd. (a).) The court held that there is "no inconsistent constitutional or statutory law or rule which would nullify the standard and local [Fresno time] rule to which appellant objects." (Cobb, supra, 139 Cal.App.3d at p. 582.) The Fifth District then discussed the reasons trial courts have for setting deadlines for plea agreements, including reducing the confusion and inconvenience involved in setting trial calendars and ensuring that the appropriate number of courtrooms, judges, and potential jurors are available to try the cases that are not resolved prior to trial. (Id. at pp. 581, 585.) The appellate court concluded that the Fresno rule prohibiting plea agreements after the trial readiness conference represented a reasonable balance of these concerns with the general policy favoring plea agreements. (Id. at pp. 584-585.) The court stated: "It appears that the competing interests of accurately scheduling court calendars and judiciously taking pleas to avoid trial can be accommodated while reasonably restricting pleas to certain time periods. The purpose of improving calendar management justifies the setting of deadlines beyond which no conditional plea may be taken." (Id. at p. 585.) Based on these conclusions, the Cobb court held that the trial courts rejection of the proposed plea agreement was a proper exercise of discretion under section 1192.5, whether the trial courts decision was based on "timeliness alone" or on consideration of other factors. (Id. at p. 586.)
The court in Cobb stated that it would not be permissible for a local court rule to set a deadline for submitting plea agreements that was earlier than the trial readiness conference. (Cobb, supra, 139 Cal.App.3d at p. 585.)
We agree with the reasoning and decision in Cobb, and we hold that the trial court here did not abuse its discretion by applying the Napa County policy prohibiting plea bargains on the morning of trial. Defendant, however, attempts to distinguish Cobb on two grounds. First, defendant notes that the Fresno County rule at issue in Cobb apparently was a written local rule while the Napa County policy in this case is not memorialized in the written local rules. Assuming defendant is correct that the Fresno rule in Cobb was a written rule, that distinction does not alter the result in this case. The parties here, like the parties in Cobb, were aware of the courts policy on plea bargains. In announcing its decision not to accept the plea agreement, the trial court noted that the policy had been in place for "many years" and that both the prosecutor and defendants trial counsel were "well aware" of it. Neither party disputed this statement. In fact, the prosecutor stated that both he and defendants trial counsel understood "the general rule about no plea bargaining on the day of trial." When defendants trial counsel addressed the trial court about the proposed plea, she did not argue that she was unaware of the courts policy. Because the parties had notice of the trial courts policy, defendant cannot claim he was unfairly surprised when the court applied it to his case.
We note that the Napa County policy at issue in this case is more permissive than the Fresno County rule that was upheld in Cobb. The Fresno County rule in Cobb prohibited the submission of plea agreements after the trial readiness conference (see Cobb, supra, 139 Cal.App.3d at p. 581), while the Napa County policy permits the submission of plea bargains after the readiness conference as long as they are submitted prior to the trial date.
We note that the courts opinion in Cobb does not expressly state that the "Fresno time rule" at issue in that case was a "written" rule. (See Cobb, supra, 139 Cal.App.3d at pp. 580-587.)
On appeal, defendant suggests that there was insufficient notice to parties in general of the trial courts policy, stating that, unless there is a written rule "or some other form of notice," a trial court should not reject a plea bargain on grounds of untimeliness. However, defendant does not dispute that the Napa County policy had been in place for many years, nor does he contend that the parties in this case were unaware of the policy.
Second, defendant argues that Cobb is distinguishable because the Napa County policy here allegedly was not applied as consistently as the Fresno County policy in that case. However, the opinion in Cobb does not reflect the degree to which judges in Fresno County made exceptions to the "Fresno time rule." Nor does the record in this case show how often Napa County Superior Court judges make exceptions to the Napa County policy, other than the prosecutors statement that he was aware of "multiple" instances in which judges had permitted plea agreements on the morning of trial. In any event, the fact that some Napa County judges have made exceptions to the policy and permitted late plea agreements in individual cases does not undercut the validity of the policy itself or establish that the trial courts application of the policy in this case was unfair. To the contrary, the ability of judges to show flexibility when warranted by unusual circumstances shows that the policy is not unduly rigid and allows for appropriate judicial discretion, as the trial court explained in this case.
Defendant also notes that California case law generally regards plea bargaining as necessary and beneficial. (See People v. West (1970) 3 Cal.3d 595, 604, 607-608.) However, a reasonable time limitation on the submission of plea bargains is not inconsistent with this policy. (See Cobb, supra, 139 Cal.App.3d at p. 584-585 [noting that California decisions emphasize that "successful judicial administration depends upon a positive attitude toward plea bargaining," but concluding that a reasonable time limitation on the submission of plea agreements is appropriate because of "the competing interests of accurately scheduling court calendars"].)
Defendant also relies on Smith, supra, 22 Cal.App.3d 25, and Penoli, supra, 46 Cal.App.4th 298, to argue that the trial court, by applying the deadline for plea bargains, impermissibly failed to exercise the discretion conferred on it by section 1192.5. These cases are readily distinguishable, as they involved trial judges who the reviewing courts concluded had refused to exercise statutorily conferred discretion based on the trial judges own disagreements with legislative policy. In Smith, the trial court "arbitrarily" refused to consider a proposed plea bargain and to exercise its discretion, apparently because the trial court did not approve of the provision in section 1192.5 that the parties may specify, subject to court approval, the sentence a defendant will receive. (Smith, supra, 22 Cal.App.3d at pp. 29-31.) Similarly, in Penoli, the trial judge had a "standard practice" of requiring defendants, as a condition of probation, to waive custody credits for time spent in a residential drug treatment program and stated that his reasons for applying this "standard practice" were " `better than the [L]egislatures reasons " for generally granting such credits. (Penoli, supra, 46 Cal.App.4th at pp. 302-303.)
The trial court here did not "arbitrarily" refuse to consider the proposed plea agreement, either because of hostility to the statute governing plea bargains or for any other improper reason. Instead, the trial court properly based its decision on the Napa County Superior Court policy against the submission of plea bargains on the morning of trial. Moreover, the record shows that the trial court considered the issue and made a thoughtful decision. The court heard and considered the parties arguments, both off and on the record, and then explained the reasons for the Napa County policy.
Indeed, the trial court emphasized that it encouraged the resolution of cases through plea bargains and would have been willing to consider one in this case "without any advance notice at all" any time before the close of business on the Friday before the trial date.
Finally, defendant contends that the trial court should have made an exception to the Napa County policy in his case because the trial judge was assigned late, the prosecutor and defendants trial counsel were out of town on the Friday before the trial, and certain in limine motions were resolved on the morning of trial. The trial court addressed this issue as well, explaining that nothing unexpected or dramatic had occurred on the trial date that would justify a departure from the policy and noting specifically that the courts rulings on the in limine motions had been predictable. The court also noted that the parties could have presented a plea agreement at the trial readiness conference on the previous Wednesday, or on Thursday, or Friday. Although the judge expressed sympathy and stated that it was "kind of sad" that he could not accept the parties agreement, he explained that the benefits of the policy outweigh the hardship or inconvenience to the parties in individual cases. Under these circumstances, the trial courts decision to apply the Napa County policy and to reject the proposed agreement was not an abuse of discretion under section 1192.5 and did not violate defendants rights under that statute or his due process rights.
B. The Proposed Plea Agreement: Equal Protection Issues
Defendant contends that the trial court violated his equal protection rights by applying the Napa County plea agreement policy and thus treating defendant differently from (1) defendants in other counties who are not subject to the Napa County policy, and (2) other defendants in Napa County who have been permitted to submit plea agreements on the morning of trial because trial judges made exceptions to the policy. We disagree.
The Fourteenth Amendment to the United States Constitution "commands that no State shall `deny to any person within its jurisdiction the equal protection of the laws, which is essentially a direction that all persons similarly situated should be treated alike." (Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432, 439.) Similarly, the California Constitution provides that "[a] person may not be . . . denied equal protection of the laws . . . ." (Cal. Const., art. I, § 7, subd. (a).) These two provisions provide " ` "substantially equivalent" " protections. (See People v. Wilkinson (2004) 33 Cal.4th 821, 836-837 (Wilkinson ), quoting Manduley v. Superior Court (2002) 27 Cal.4th 537, 571.)
To prevail on an equal protection claim, a defendant first must show " `that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. " (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199, quoting In re Eric J. (1979) 25 Cal.3d 522, 530.) To determine whether such a classification violates the equal protection provisions of the federal and California Constitutions, courts apply different levels of scrutiny to different types of classifications. Distinctions that involve suspect classifications (such as race) or affect fundamental rights are subject to "strict scrutiny," and will be upheld "only if they are necessary to achieve a compelling state interest." (People v. Hofsheier, supra, 37 Cal.4th at p. 1200.) Most legislation, however, is "tested only to determine if the challenged classification bears a rational relationship to a legitimate state purpose." (Ibid.)
Defendant contends that strict scrutiny applies here because his "loss of the possibility of being sentenced to two years rather than five years involves a fundamental right of liberty[.]" In support of this argument, defendant cites People v. Olivas (1976) 17 Cal.3d 236, 251 (Olivas), and People v. Saffell (1979) 25 Cal.3d 223, 228. In Olivas, the Supreme Court considered an equal protection challenge to a statute that permitted a trial court to commit a defendant who was convicted in an adult criminal prosecution and who was between the ages of 16 and 21, to the California Youth Authority for a period longer than he or she would have received had the defendant been sentenced as an adult. (Olivas, supra, 17 Cal.3d at pp. 239-243.) The Supreme Court concluded that "personal liberty" is a fundamental right that triggers application of strict scrutiny. (Id. at pp. 250-251; see also People v. Saffell, supra, 25 Cal.3d at p. 228 [following Olivas and applying strict scrutiny to an equal protection challenge to a statute governing the commitment of certain sex offenders].)
However, as subsequent decisions have made clear, Olivas does not require that all criminal laws must be subjected to strict scrutiny simply because they may result in a defendants incarceration. (Wilkinson, supra, 33 Cal.4th at pp. 836-837.) In Wilkinson, the Supreme Court explained that Olivas " `requires only that the boundaries between the adult and juvenile criminal justice systems be rigorously maintained " and does not require " `the courts to subject all criminal classifications to strict scrutiny requiring the showing of a compelling state interest therefor. " (Wilkinson, supra, 33 Cal.4th at pp. 837-838, quoting People v. Davis (1979) 92 Cal.App.3d 250, 258; accord People v. Ward (2005) 36 Cal.4th 186, 218.) The Wilkinson court applied the rational basis test to a defendants claim that a statutory sentencing scheme violated equal protection, stressing that a defendant " `does not have a fundamental interest in a specific term of imprisonment or in the designation a particular crime receives. " (Wilkinson, supra, 33 Cal.4th at p. 838, quoting People v. Flores (1986) 178 Cal.App.3d 74, 88.)
Under Wilkinson, we conclude that the rational basis test applies here. Defendant asserts that when the trial court rejected the proposed plea agreement, defendant lost "the possibility" of receiving the two-year sentence specified in that agreement. But defendant had no fundamental right to receive a two-year sentence. (Wilkinson, supra, 33 Cal.4th at p. 838.) Defendant also did not have a fundamental right to have the plea agreement approved, a decision that lies in the "exclusive discretion" of the trial court (see People v. Morris, supra, 97 Cal.App.3d at p. 363), nor did he have a fundamental right to have the court accept the agreement after the deadline set by the Napa County policy. (See Cobb, supra, 139 Cal.App.3d. at pp. 585-586.) Defendant makes no claim that the alleged classifications in this case involve suspect classes. Finally, there is, of course, no issue here implicating the differential treatment of juvenile offenders, as in Olivas. Accordingly, the rational basis test applies.
Applying the rational basis test, both of defendants equal protection arguments are unpersuasive. First, defendant contends that the Napa County Superior Court policy violates equal protection by treating defendants in Napa County differently from defendants in other counties. In making this argument, defendant relies in part on a similar position stated by the dissenting justice in Cobb (see 139 Cal.App.3d at pp. 591-593 (dis. opn. of Franson, Acting P.J.)), which was rejected by the Cobb majority. (See id. at pp. 586-587.) There is no evidence in the record as to the rules and practices in other counties on the timing of plea bargaining. In any event, assuming there are variations among counties plea bargaining practices, we disagree with defendants argument and hold that equal protection does not require that all California counties implement uniform plea bargaining practices.
As an initial matter, we note that it would not be possible for the Napa County Superior Court to apply its policy to defendants presenting plea agreements to other courts in other counties. A governmental unit that applies a general rule to persons within its jurisdiction does not violate equal protection by failing to apply the rule to persons outside the jurisdiction. For example, equal protection does not require a state to ensure "uniformity of laws in all states[,]" but instead requires "the fair and equal application of th[e] states laws to persons in th[e] state." (See In re Title U.S.A. Ins. Corp. (1995) 36 Cal.App.4th 363, 374, fn. 7.) Similarly, a local governmental unit may adopt general rules "that apply evenhandedly to all persons within the jurisdiction," and no question of an equal protection violation arises unless "a governmental unit adopts a rule that has a special impact on less than all the persons subject to its jurisdiction . . . ." (New York Transit Authority v. Beazer (1979) 440 U.S. 568, 587-588.) The Napa County Superior Court has not violated equal protection by having a policy that applies only to defendants in that court.
Defendant, however, relying on the Cobb dissent, appears to argue that the State of California has violated equal protection because a local policy such as the one in Napa County has "the same effect as would a state statute prohibiting or restricting the right to plea bargain in particular counties." (See Cobb, supra, 139 Cal.App.3d at p. 592 (dis. opn. of Franson, Acting P.J.).) We are not presented in this case with a state statute of the type hypothesized by defendant and by the dissenting justice in Cobb, and we need not address whether such a statute would run afoul of constitutional principles. Instead, in this case the reason for local variations as to the timing of plea bargaining is simply that the state has not prohibited local courts from adopting local rules and practices relating to this issue. Under the applicable rational basis test, the absence of statewide uniformity relating to the timing of plea bargaining does not violate equal protection principles. " `Legislative classification as to treatment and procedure within a state judicial system according to factors such as geographical area, population, or other relevant considerations, does not deny equal protection of the laws unless such classification is shown to be palpably arbitrary and without a sound basis in reason. " (People v. Superior Court (Skoblov) (1987) 195 Cal.App.3d 1209, 1215 (Skoblov), quoting Whittaker v. Superior Court (1968) 68 Cal.2d 357, 370.) Accordingly, under the California Constitution, when suspect classifications and fundamental rights that would trigger strict scrutiny are not involved, local variations in criminal procedures do not violate equal protection. (Skoblov, supra, 195 Cal.App.3d at p. 1216 [because there is no fundamental right to pretrial diversion, the unavailability of diversion programs in some counties does not violate equal protection].)
Similarly, the federal equal protection clause does not prohibit local variation in criminal procedures. (See Salsburg v. Maryland (1954) 346 U.S. 545, 551-552 ["Territorial uniformity is not a constitutional requisite."]; Skoblov, supra, 195 Cal.App.3d at p. 1216.)
As discussed above, this case does not implicate any suspect classifications or fundamental rights that would trigger strict scrutiny or call into question the validity of variations in local plea bargaining practices. In addition, local variations as to plea bargaining practices are understandable and appropriate in light of the nature of the plea bargaining process. As noted by the court in Cobb, both prosecutorial and judicial discretion play important roles in the plea bargaining process, and it is therefore inevitable that there will be variations in the treatment of individual defendants in that process. (Cobb, supra, 139 Cal.App.3d at pp. 586-587.) In this context, permitting local courts and judges to implement reasonable local practices and procedures, including reasonable time limitations, is a "legitimate state purpose," and the states apparent decision not to impose uniformity in plea bargaining practice "bears a rational relationship" to that purpose. (See People v. Hofsheier, supra, 37 Cal.4th at p. 1200 [rational basis test].) For these reasons, we conclude that the Napa County policy at issue here does not violate equal protection in the first respect that defendant argues, that is, the alleged unequal treatment of defendants in different counties.
Second, defendant argues in passing that he was treated differently from other defendants within Napa County, because some trial judges apparently made exceptions to the court policy and permitted individual defendants to submit plea agreements on the morning of trial. As noted above, there is no evidence in the record as to how often trial judges in Napa County have made such exceptions and under what circumstances. In any event, the fact that trial judges on some occasions may have exercised their discretion to permit plea agreements on the morning of trial does not establish an equal protection violation. As noted above, the benefit of having judges exercise discretion in the fact-specific context of plea bargaining is a legitimate state purpose, and Napa Countys apparent practice of allowing individual trial judges to make exceptions to the courts general rule on plea bargains bears a rational relationship to that purpose. In some instances, as the trial judge in this case noted, exceptions may be appropriate, especially if "new and dramatic" developments occur on the trial date. We decline to hold that equal protection principles prohibit trial judges from exercising their discretion and making exceptions to the general rule based on the circumstances of individual cases.
C. Stay of the Sentence on Count Two
Defendant contends that the sentence for the conviction of child abuse in count two should be stayed pursuant to section 654, because that conviction was based on the same course of conduct as defendants conviction in count one of possession of methamphetamine for sale. The Attorney General concedes that the sentence on count two should be stayed. We will direct the superior court to modify the judgment accordingly.
Section 654 "precludes multiple punishment for a single act or omission, or an indivisible course of conduct." (People v. Deloza (1998) 18 Cal.4th 585, 591.) When a defendant is convicted under two statutes for one indivisible course of conduct, section 654 requires that the sentence for one conviction be imposed, and the other imposed and then stayed. (Id. at pp. 591-592.) Section 654 "does not allow any multiple punishment, including either concurrent or consecutive sentences." (Id. at p. 592.) Sentencing errors under section 654 cannot be waived and are corrected on appeal regardless of whether the defendant raised the point in the trial court. (People v. Lopez (2004) 119 Cal.App.4th 132, 138.)
In his sentencing memorandum, the prosecutor asked the trial court to sentence defendant to one year in county jail on count two, and to stay that sentence pursuant to section 654. At sentencing, the trial judge stated that he agreed section 654 applied. The judge stated that he would not impose any additional punishment on count two except a $25 security fee, and he concluded that therefore it was not necessary to impose and then stay punishment under section 654. However, the trial courts minute order reflects that defendant was sentenced to 187 days in jail on count two, with credit for 187 days already served. The abstract of judgment does not mention the conviction on count two.
In light of the trial courts apparent finding below and the Attorney Generals concession here, we direct the superior court to amend the judgment to reflect the imposition and stay of the sentence on count two.
III. DISPOSITION
The sentence for count two, child abuse, is stayed pending finality of the judgment and service of sentence on count one, such stay to become permanent upon completion of the sentence as to count one. The superior court is directed to prepare an amended abstract of judgment reflecting the imposition and stay of the sentence on count two, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
We concur:
JONES, P. J.
NEEDHAM, J.