Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF018920, Timothy F. Freer, Judge. Affirmed.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST Acting P. J.
Pursuant to a plea agreement, Defendant and Appellant James Walter Mings pled guilty to failure to register as a sex offender upon changing his address (Pen. Code, § 290, subd. (a)(1)(A), count 1), failure to register as a sex offender upon becoming a transient (§ 290, subd. (a)(1)(C)(ii), count 2), failure to register as a sex offender upon obtaining a new residence (§ 290, subd. (a)(1)(C)(ii), count 3), and failure to register as a sex offender as required, having been convicted of the crime of lewd act by force with a child (§ 290, subd. (g)(2), count 4). He also admitted as true the allegations that he had previously served one prison term (§ 667.5, subd. (b)), and that he had three prior strike convictions (§§ 1170.12, subd. (c)(2)(A), 667, subds. (c) & (e)(2)(A)). Defendant filed a motion to dismiss one or all of his prior strike convictions, but the motion was denied. The court sentenced defendant to 25 years to life on count 1, and 25 years to life on counts 2, 3, and 4, to run concurrently. The court also imposed one year on the prison prior allegation, to run consecutively to count 1. Thus, the total term imposed was 26 years to life.
All further statutory references will be to the Penal Code unless otherwise noted.
On appeal, defendant claims that the trial court erred under section 654 by imposing concurrent sentences on counts 2, 3, and 4. We affirm.
FACTS
Underlying Convictions
On November 6, 1991, defendant was convicted of three counts of committing a lewd act by force with a child (§ 288, subd. (b)). The victim was his daughter. The convictions required lifelong sexual offender registration, pursuant to section 290.
Instant Offenses
Riverside County Sheriff’s Department records indicate that defendant registered at least 10 times, and most recently on May 30, 2006, listing Set Free Ministries as his residence. On September 5, 2006, the director of Set Free Ministries called the sheriff’s department, stating that defendant left the program around September 2, 2006, and did not return. Several attempts were made to locate defendant over the next few weeks. Defendant failed to register with the sheriff’s department to advise of his whereabouts.
On November 1, 2006, defendant contacted Deputy Gregory Miller at the registration office. He told Deputy Miller that after he left Set Free Ministries, he “moved around.” Defendant admitted that he knew he should have registered after leaving Set Free Ministries but offered no excuse for his failure to do so.
ANALYSIS
Defendant’s Claim Is Barred by California Rules of Court, Rule 4.412(b)
Defendant argues that the trial court erred under section 654 by imposing concurrent sentences on counts 2, 3, and 4. His claim is barred by California Rules of Court, rule 4.412(b).
All further references to rule 4.412(b) are to the California Rules of Court.
A. Background
In a second amended information, defendant was charged with four different counts of failing to register as a sex offender. The information listed the same date of offense, September 3, 2006, for all four counts. Pursuant to a plea agreement, defendant pled guilty to all four counts and admitted having three prior strike convictions, as well as one prison prior. The plea agreement indicated that the maximum possible custody commitment for the admitted charges and enhancements was 26 years to life, and it stated that the custody term would be “up to the court.” Before taking defendant’s guilty plea, the court confirmed that defendant was pleading guilty to the entire second amended information, that there were no promises before the court, and that there had been no representations to the court or indications by the court as to what it was going to do as to sentencing. The court noted that defense counsel was going to file a Romero motion. The court further stated, “And the—the maximum exposure as calculated is—an indeterminate term as calculated on this plea form is—it’s 26 to life.” Defendant confirmed that he understood. Defendant then pled guilty to all charges and admitted all the allegations.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The court subsequently held a Romero hearing and denied defendant’s motion to strike a strike conviction. After denying the motion, the court proceeded to sentencing and asked if the parties wanted to be heard first. Defense counsel agreed that defendant should be punished, but stated, “I don’t think that imposing a 100[-]year[-]to[-]life sentence is indicated, necessary, or appropriate, nor do I feel that imposing a 25[-]year[-]to[-]life sentence is appropriate, necessary or indicated, but I will concede to you that that’s what the law says . . . .” Defense counsel then asked the court “to impose a single term of 25 years to life and run the other three concurrent.” (Italics added.) The prosecutor similarly asked the court to impose 25 years to life plus a one-year consecutive term for the prison prior enhancement, for a total of 26 years to life. The court did just that and imposed 25 years to life on count 1 under the “Three Strikes” law, followed by one year for the prison prior. The court then sentenced defendant to 25 years to life on each of the remaining counts, under the Three Strikes law, and ran those terms concurrently. Thus, defendant’s total term imposed was 26 years to life.
B. Defendant’s Claim Is Barred
Rule 4.412(b) provides: “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 section 654’s prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record.”
In People v. Cole (2001) 88 Cal.App.4th 850 (Cole), the defendant pled guilty to three counts: Felony evading (Veh. Code, § 2800.2, subd. (a)); unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)); and felony hit-and-run driving (Veh. Code, § 20001, subd. (a)). He also admitted several prior strikes (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and three prior prison terms (Pen. Code, § 667.5, subd. (b)). (Cole, supra,at pp. 854-856.) The defendant faced a maximum possible prison term of 75 years to life. (Id. at p. 856.) “[W]ith the implicit concurrence of the prosecutor, the trial court determined that the three charged crimes arose from the same set of operative facts.” (Id. at p. 858.) The court agreed to impose concurrent sentences, as opposed to consecutive, in exchange for the defendant’s plea, thus lowering the possible sentence to 25 years to life. (Id. at pp. 856-858.) The court represented 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.” (Cole, supra,at p. 859.) The court subsequently declined to exercise its discretion to strike any of the prior Three Strikes convictions and sentenced the defendant to 25 years to life on each count, to be served concurrently. It also struck the three prior prison terms. (Cole, supra, at p. 856.) The defendant appealed, claiming that the court’s imposition of concurrent sentences for two of the counts violated section 654’s prohibition against multiple punishments. (Cole, supra, at p. 872.) The court held that because the defendant failed to raise an argument that section 654 barred concurrent sentences in the trial court, rule 4.412(b) barred him from raising the issue on appeal. (Cole, supra, at p. 873.)
In the instant case, defendant did not face the maximum sentence permissible under the law for all charges and allegations. Rather, he entered his plea under a negotiated disposition, similar to that in Cole. The terms of this disposition, though not expressly spelled out in the plea agreement, were nonetheless understood by the parties, and are discernible by implication from the record. The parties contemplated that defendant’s maximum possible punishment for the four counts was four consecutive terms of 25 years to life. This understanding is reflected by defense counsel’s remarks at the sentencing hearing, as follows: “I believe that he should be punished, I agree with you on that, but I don’t think that imposing a 100[-]year [-]to[-]life sentence is indicated, necessary or appropriate, . . .” As in Cole, the court here apparently determined that the four charged crimes arose from the same set of operative facts, thus giving it the discretion to sentence concurrently. (See Cole, supra, 88 Cal.App.4th at p. 858.) Pursuant to the plea agreement, the parties and the court apparently agreed that defendant would be sentenced concurrently, with the maximum possible sentence of 26 years to life. Neither at the time the plea was entered, nor at the time the sentence was imposed, did defendant object to imposition of concurrent sentences. In fact, defendant asked to be sentenced concurrently. By pleading guilty and admitting his prior convictions, defendant reduced his potential exposure on the four charged counts from 100 to 25 years to life. Thus, defendant agreed to “a specified prison term personally and by counsel.” (Rule 4.412(b).) That specified prison term was the maximum possible sentence of 26 years to life on the four substantive counts. In compliance with the plea agreement, defendant was sentenced to “that term or a shorter one,” within the meaning of rule 4.412(b). The court sentenced defendant to 25 years to life on count 1, plus one year on the prison prior allegation, to run consecutively to count 1, and concurrent terms of 25 years to life on the three other charged counts “‘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 bargain.’ [Citation.]” (Cole, supra, 88 Cal.App.4th at pp. 872-873.) However, as in Cole, defendant failed to raise any argument that section 654 barred concurrent sentences. In fact, defendant asked for the court to sentence him concurrently on counts 2, 3, and 4, in accordance with the plea agreement. At the sentencing hearing, after the court denied the Romero motion, defense counsel stated: “I would ask the Court to impose a single term of 25 years to life and run the other three concurrent.” (Italics added.) Thus, rule 4.412(b) bars defendant from raising this issue on appeal. (Cole, supra, at p. 873.)
Furthermore, “‘[w]hen a defendant maintains that the trial court’s sentence violates rules which would have required the imposition of a more lenient sentence, yet the defendant avoided a potentially harsher sentence by entering into the plea bargain, it may be implied that the defendant waived any rights under such rules by choosing to accept the plea bargain.’ [Citations.]” (Cole, supra, 88 Cal.App.4th at p. 873.) Here, defendant avoided the potentially harsher sentence by entering his plea. Thus, “[h]e should not be heard to complain that concurrent sentences—a potential consequence which he understood and to which he did not object—were imposed.” (Ibid.)
In his reply brief, defendant questions the applicability of rule 4.412(b) and cites to the portion of the rule stating that one “abandons any claim that a component of the sentence violates section 654’s prohibition of double punishment . . . .” He argues that rule 4.412(b) does not apply here, since none of the concurrently imposed life terms on counts 2, 3, or 4 was “a necessary component or a component at all in reaching the maximum, agreed to sentence.” He then attempts to distinguish Cole by stating that the defendant there was pleading guilty as part of a bargain, in which the People gave up something in exchange for the plea by agreeing to reduce the sentence from 75 years to life to 25 years to life. In contrast, defendant claims “there was no plea or sentence bargain[,] but the maximum potential sentence was deemed to be 25 years to life.” (Emphasis in original.) He then suggests, “Unlike Cole, it is just as reasonable to conclude that everyone, including the prosecutor, contemplated that counts II, III, and IV should be stayed pursuant to . . . section 654 but between plea and sentence that expectation was forgotten.” He further claims that he did not receive a benefit from pleading guilty “other than the hope that by pleading guilty the court would look favorably on his [Romero] motion to dismiss.” Defendant’s argument is nonsense. There is no evidence in the record to support the claim that the parties agreed that counts 2, 3, and 4 should be stayed under section 654. As mentioned ante, defense counsel acknowledged at sentencing that defendant faced a potential 100-year-to-life sentence on all four counts. Defendant’s counsel never objected under section 654, and he asked the court to sentence defendant concurrently on counts 2, 3, and 4, in accordance with the plea agreement. The court did just that.
Ultimately, defendant received that sentence that he bargained for, and his claim is barred by rule 4.412(b).
DISPOSITION
The judgment is affirmed.
We concur: MCKINSTER J.MILLER J.