Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F00531
SCOTLAND, P.J.
Defendant Jacob Kesterson’s six-month-old daughter suffered a skull fracture, caused by a high impact trauma, with a fresh subdural hematoma over the right frontal lobe of her brain; and it was determined that she also had a previous subdural hematoma over her entire brain. Defendant eventually admitted he had placed the baby face down on the couch to muffle her crying and “punched her in the back of the head, out of pure anger.” When questioned about his daughter’s prior injury, defendant admitted that during an earlier incident, he violently shook the baby and dropped her on the floor after she would not stop crying.
Defendant was charged with two counts of inflicting corporal injury on a minor, with great bodily injury enhancements for each count (Pen. Code, §§ 273d, subd. (a), 12022.7, subd. (d); further section references are to the Penal Code unless otherwise specified).
Over the objection of the prosecutor on the day of trial, defendant and the judge entered into a plea agreement whereby defendant would admit all the charges and be sentenced to 11 years in state prison (rather than the 15 years to which he would be exposed by virtue of the charges), but that if defendant failed to appear at the sentencing hearing, the judge would impose the maximum term of 15 years. The judge said that to achieve the term of 11 years, the great bodily injury enhancement alleged as to count two would “be stricken by the Court at the time of judgment and sentencing,” but that defendant would be sentenced on that enhancement if he failed to appear at the hearing.
The judge stated the specific terms of the plea agreement as follows: “[T]hrough discussions with counsel this morning over a lengthy period, the Court has elected to make a court offer of 11 years, should the Defendant enter a plea to all of the charges. The maximum of which would be 11 years in state prison on [c]ount [o]ne [the upper term of six years for corporal injury on a minor (§ 273d, subd. (a)) plus a term of five years for inflicting great bodily injury on a child under the age of five years (§ 12022.7, subd. (d))]. [¶] Count [t]wo is to run concurrent[ly] with the enhancement under [section] 12022.7[, subdivision](d). That is great bodily injury on [c]ount two only to be stricken by the Court at the time of judgment and sentencing. [¶] The Defendant understands that he would be subject to the Three Strikes Law as to [c]ount [o]ne. Count [t]wo would not be a strike [because I will] strike the [section] 12022.7[, subdivision](d) [great bodily injury allegation as to count two], which is my promise to the Defendant . . . . [¶] . . . [¶] [T]he offer . . . has been made by the Court and not the district attorney[, who] has urged the Court to give the Defendant a much longer sentence. My calculation shows the Defendant’s facing as long as 15 years in state prison should the district attorney prove up all the charges . . . .” The final term of the offer was that if defendant, who would remain out of custody until the sentencing hearing, “commits new crimes or takes off and doesn’t show up at the time of judgment and sentencing, that the Court . . . would impose the maximum sentence including the stricken divisions of Penal Code Section 12022.7[, subdivision](d). That is, the Defendant would be sentenced to 15 years in state prison including two strikes . . . if he doesn’t show up.”
Defendant acknowledged that he understood the terms of the proposed plea agreement, was advised of other consequences of the agreement, waived his rights, pleaded guilty to count one, admitted the great bodily injury (GBI) enhancement alleged as to that count, and pleaded no contest to count two. Even though the judge had said that defendant would be admitting all the charges, and that the GBI enhancement alleged as to count two would be dismissed at the time of sentencing, the judge did not elicit from defendant an admission of that enhancement; instead, the judge “dismissed” that enhancement pursuant to section 1385, which allows a court, on its own motion, to dismiss a charge “in furtherance of justice . . . .” The judge emphasized that this GBI allegation was “conditionally dismissed . . . to make sure” defendant--who was out of custody--would return for sentencing, and that if he failed to do so, he was “going to get the max [maximum punishment contemplated by the plea agreement, including a term for the GBI enhancement alleged as to count two].” Defendant explicitly stated that he understood this consequence and agreed to it.
Defendant then failed to show up at the sentencing hearing. Thus, when defendant was ultimately returned to court, the judge “vacat[ed] [the court’s] prior order which struck under [section] 1385 . . . the [GBI] allegation as to [c]ount [t]wo,” and sentenced him to an aggregate term of 15 years in prison, namely, the upper term of six years on count one, a consecutive upper term of six years on the GBI enhancement as to count one, a consecutive term of one year and four months on count two, and a consecutive term of one year and eight months on the GBI enhancement as to count two.
Defendant appealed and obtained a certificate of probable cause. He raises three challenges to the judgment, only one of which has merit. We shall reverse and remand the matter for further proceedings.
DISCUSSION
I
We begin our analysis of defendant’s contentions by rejecting his claim that his “purported Cruz waiver [People v. Cruz (1988) 44 Cal.3d 1247] was invalid because the superior court failed to advise him beforehand of his statutory right to withdraw his plea [§ 1192.5] if the court disapproves it and forbade him opportunity so to move.”
Section 1192.5 states that if the trial court approves a plea agreement, the court “shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the [sentencing] hearing . . ., withdraw its approval in light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so.”
Ordinarily, a defendant who fails to appear at sentencing after entering a plea agreement must nonetheless receive the benefit of the agreement, i.e., the court cannot sentence the defendant to greater punishment, unless the defendant is allowed, but declines, to withdraw his plea. (People v. Cruz, supra, 44 Cal.3d at pp. 1250-1254; § 1192.5.) However, at the time of entering a plea, a defendant may waive this right and authorize the court to impose greater punishment if the defendant fails to appear for sentencing. (People v. Masloski (2001) 25 Cal.4th 1212, 1222-1224.) This is known as a Cruz waiver. (Id. at p. 1222.)
Here, the terms of the plea agreement explicitly provided that defendant would receive an 11-year term, but that the court would impose the maximum term of 15 years if defendant failed to appear at sentencing. (People v. Masloski, supra, 25 Cal.4th at p. 1223 [“The provision for an increased sentence upon defendant’s nonappearance was part of the plea agreement and not ‘a judicially imposed afterthought’”].)
Accordingly, whether the court advised defendant as required by section 1192.5 “was of no consequence, because the superior court did not disapprove the plea agreement. . . . The provisions of section 1192.5 that permit a defendant to withdraw his or her plea if the court withdraws its approval of the plea agreement were not implicated, because the court adhered to the terms of the plea agreement by sentencing defendant to . . . the maximum sentence authorized by the plea agreement in the event that defendant failed to appear on the date set for sentencing.” (People v. Masloski, supra, 25 Cal.4th at pp. 1223-1224.)
II
We also reject the claim that the plea did “not necessarily entail waiver of the right to a jury trial on aggravating sentence factors” and, thus, the court erred in imposing the upper terms. (Citing Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (hereafter Cunningham); Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (hereafter Blakely).
The trial court did not impose the upper terms based on aggravating circumstances that were not admitted by defendant and not submitted to a jury. Rather, the upper terms were part of the explicit plea provisions to which defendant agreed. By stipulating that he would receive the maximum terms if he failed to appear at sentencing, defendant consented to imposition of the upper terms without need for fact finding. (See Blakely v. Washington, supra, 542 U.S. at p. 310 [159 L.Ed.2d at pp. 417-418].)
III
This brings us to defendant’s contention that his sentence was unauthorized because he never admitted the GBI enhancement alleged as to count two.
At sentencing, defense counsel argued the trial court could not impose a term of punishment for the GBI enhancement charged as to count two because defendant did not enter a plea admitting that allegation. Thus, counsel asserted, the maximum sentence that the judge could impose was 13 years and four months, not the 15 years contemplated by the judge.
The judge conceded defendant never admitted the allegation. But the judge stated “the transcript [of the entry of defendant’s pleas] makes it perfectly clear that there was an implied admission on the record should the defendant fail to appear [at sentencing].” Accordingly, the judge “vacat[ed] [the] prior order which struck [the GBI allegation charged as to count two]” and imposed a consecutive sentence of one year and eight months for that enhancement, for an aggregate term of 15 years.
On appeal, as he did in the trial court, defendant challenges the term imposed for the count two GBI enhancement. It was, he says, “unauthorized” because he did not admit that charge, which was dismissed by the court.
The People disagree, asserting--as did the trial court--that defendant “impliedly admitted [the allegation] was true as part of his Cruz waiver.” However, neither the People nor the trial court have cited any legal authority for the proposition that a defendant who did not explicitly admit a charge in a criminal proceeding can be deemed to have impliedly done so. The lack of authority is not surprising because the statutes governing pleas in criminal cases require that, unless otherwise provided in the statutory scheme, “every plea shall be entered . . . by the defendant himself or herself in open court” (§ 1018) and “shall be oral or in writing,” “entered upon the minutes of the court,” and “taken down in shorthand by the official reporter if one is present” (§ 1017). (See also § 1192.5.) No statute allows a court to imply that the defendant has admitted a charge.
In any event, it cannot otherwise be said that defendant impliedly admitted the count two GBI allegation. This is so because defense counsel’s understanding of the agreement was that the allegation would “be stricken now with the option to reinstate” so count two would not be “deemable to be a strike,” i.e., defendant would not admit that allegation. Hence, when the prosecutor stated the factual basis for the plea, defense counsel objected to the statement that the shaking of the victim that formed the factual basis for count two “caus[ed] subdural hematoma on both sides of her brain.” Accordingly, the trial court found only that the shaking resulted in a traumatic condition and that “the other facts related by [the prosecutor] . . . are not forming the factual basis for the Court in accepting the Defendant’s plea.”
In sum, there was no plea by defendant, either expressed or implied, to the GBI enhancement alleged as to count two.
The question, then, is whether the lack of a plea admitting the count two GBI enhancement meant the trial court could not impose a term of punishment for that charge when defendant failed to appear at sentencing, even though that consequence was contemplated by the plea agreement.
The answer to this question turns on whether the absence of a plea to the enhancement, under circumstances where defendant agreed that punishment could be imposed for the enhancement if he failed to appear at sentencing, meant that the court lacked fundamental jurisdiction to impose a sentence for the enhancement, or simply exceeded its jurisdiction by doing so. (Compare People v. Hester (2000) 22 Cal.4th 290, 295 (hereafter Hester); People v. Beebe (1989) 216 Cal.App.3d 927, 932-935 (hereafter Beebe); People v. Ellis (1987) 195 Cal.App.3d 334, 343-345 (hereafter Ellis).)
“Where . . . defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process.” (Hester, supra, 22 Cal.4th at p. 295; Beebe, supra, 216 Cal.App.3d at pp. 932-935); Ellis, supra, 195 Cal.App.3d at pp. 343-345.)
Thus, the doctrine of estoppel articulated in Hester, Beebe, and Ellis applies to the sentence that a defendant received for a crime to which he pled guilty or no contest--or for an enhancement that he admitted--as part of a negotiated plea agreement in which he participated to his benefit. (Hester, supra, 22 Cal.4th at pp. 293-294; Beebe, supra, 216 Cal.App.3d at p. 929; Ellis, supra, 195 Cal.App.3d at p. 337.) Under such a circumstance, a defendant “is estopped from avoiding the plea agreement which he voluntarily accepted on the day of trial” (Beebe, supra, 216 Cal.App.3d at p. 935), even if the sentence imposed for the crime or the enhancement is unauthorized by the statutory scheme (id. at p. 932) or it is later revealed that, as a matter of law, the charge did not satisfy all of the elements of California law (Ellis, supra, 195 Cal.App.3d at pp. 339-342). In such situations, the trial court simply would have exceeded its jurisdiction in imposing the sentence, but would not have lacked fundamental jurisdiction to do so. (Beebe, supra, 216 Cal.App.3d at p. 932; Ellis, supra, 195 Cal.App.3d at p. 343.)
In contrast, here the trial court imposed punishment for a charge that defendant never admitted. Absent a plea admitting the count two GBI enhancement, there was no lawful conviction of that charge. (§ 681 [“No person can be punished for a public offense, except upon a legal conviction in a court having jurisdiction thereof”].) Consequently, the trial court lacked the jurisdiction to sentence defendant on that enhancement.
“If a court is without jurisdiction, no amount of consent or estoppel can bestow it.” (People v. Dethloff (1992) 9 Cal.App.4th 620, 625.) Therefore, the principle of estoppel applied in Hester, Beebe, and Ellis is inapplicable to the count two GBI enhancement in this case, and the sentence imposed for that enhancement must be reversed as void.
However, this does not necessarily mean that defendant cannot be punished for the crimes and the enhancement he admitted as part of his plea agreement, and that he must be permitted to withdraw his pleas. As we will explain, the remainder of the pleas and stipulated sentence can stand, and defendant can be sentenced to an aggregate term of 13 years and four months, provided that the trial court and the prosecutor have no objection to this result.
Defendant admitted the charges that support the imposition of sentences for count one, count two, and the count one GBI enhancement, and he agreed that the maximum terms could be imposed on those charges if defendant failed to appear at sentencing. The maximum aggregate term for those charges is 13 years and four months in state prison.
The only obstacle to a sentence of 13 years and four months is that a trial court cannot negotiate a plea agreement, over the prosecutor’s objection, if it does not require the defendant to admit all the charges. (People v. Turner (2004) 34 Cal.4th 406, 419.) Because a sentence of 13 years and four months means that defendant will benefit from an agreement which does not include all of the charges, the prosecutor will have to acquiesce in the result. (Id. at pp. 418-419.)
Therefore, we will reverse the judgment and remand the matter for further proceedings to (1) allow the trial court to exercise its discretion whether it will or will not withdraw its approval of the plea agreement, given that the agreement cannot include an adjudication and sentence on the count two GBI enhancement, and (2) let the prosecutor decide whether to withdraw the People’s objection to the agreement that will result in a term of 13 years and four months, rather than the maximum term of 15 years.
If the trial court withdraws its approval of the plea agreement, or if the People continue to object to the plea agreement, then the court shall permit defendant to withdraw his plea, if he so desires, and proceed to trial on all of the original charges.
DISPOSITION
The judgment is reversed, and the matter is remanded to the trial court with the following directions:
If the trial court chooses not to withdraw its approval of the plea agreement on the ground that a sentence cannot be imposed for a GBI enhancement with respect to count two because defendant never admitted the allegation, and if the People withdraw their objection to the plea agreement with the understanding that it will result in an aggregate sentence of 13 years and four months, the court shall reinstate the conviction and sentence on count one, reinstate the conviction and sentence on count two, reinstate the true finding and sentence on the count one GBI enhancement (for an aggregate term of 13 years and four months in state prison), and dismiss the GBI enhancement as to count two.
Otherwise, defendant must be allowed to withdraw his pleas and proceed to trial on all of the charges.
We concur: SIMS, J., MORRISON, J.