Opinion
G054857
08-14-2018
THE PEOPLE, Plaintiff and Respondent, v. KENNETH PANES, Defendant and Appellant.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 03CF0026) OPINION Appeal from an order of the Superior Court of Orange County, Sheila F. Hanson, Judge. Order reversed and remanded with directions for resentencing. Motion to dismiss appeal denied. Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
By this appeal, Kenneth Panes challenges an order denying his motion to correct sentence and raises ineffective assistance of counsel claims related to his initial sentencing. We reverse the order denying Panes's motion to correct sentence and remand the matter with directions for resentencing as set forth in the disposition.
In October 2003, Panes was sentenced pursuant to a plea agreement to a determinate term of 17 years 8 months in prison. At that time, he was serving a four-year sentence imposed earlier that year in San Bernardino County. Because the Orange County court ordered Panes's sentence to run consecutive to the San Bernardino County sentence, Penal Code section 1170.1, subdivision (a) (section 1170.1(a)) required the Orange County court to designate the San Bernardino County sentence the subordinate term, reduce it to two years, and pronounce an aggregate term of 19 years 8 months. In sentencing Panes, the Orange County court did not comply with section 1170.1(a).
Code citations are to the Penal Code.
The Attorney General does not disagree with the mechanics of section 1170.1(a) or its applicability to Panes's sentence. Instead, the Attorney General has filed a motion to dismiss the appeal on the ground Panes did not obtain a certificate of probable cause under section 1237.5. In addition, the Attorney General argues Panes is estopped from challenging the Orange County sentence. We disagree with both arguments and deny the motion to dismiss the appeal because Panes is not challenging the validity of his plea or the validity of the negotiated sentence.
Panes also asserts his trial counsel was ineffective for failing to raise section 1170.1(a) at sentencing and to incorporate it into the Orange County plea agreement, or bring to the trial court's attention the directive by the San Bernardino County court that its sentence was to run concurrent to any other sentence. Our directions to modify the sentence in accordance with section 1170.1(a) moots the first claim of ineffective assistance. Reversal on direct appeal for the second claim of ineffective assistance is unwarranted because the record does not demonstrate there could be no rational tactical purpose for trial counsel's asserted conduct.
BACKGROUND
In January 2003, Panes was convicted in the Superior Court of San Bernardino County of two counts of second degree robbery. He was sentenced to three years in prison on one count and one year in prison on the other, for a total term of four years. The abstract of judgment recites the sentence is "to run concurrent to any other sentence."
In July 2003, while Panes was serving the sentence imposed in San Bernardino County, he was charged by information in Orange County with 17 counts of second degree robbery (counts 1 through 14, 18, 19, 20) and three counts of false imprisonment by violence (counts 15, 16, 17). The information alleged use of firearm and use of dangerous and deadly weapon enhancements under sections 1192.7, 12022, subdivisions (a)(1) and (b)(1), and 12022.53, subdivision (b).
In October 2003, while still serving the sentence imposed in San Bernardino County, Panes entered into a plea agreement in Orange County by which he pleaded guilty to all counts and admitted all enhancements alleged in the information in exchange for a stipulated sentence of 17 years 8 months in prison. He faced a maximum total punishment of 38 years 8 months. The plea agreement does not mention the San Bernardino County case and does not set forth a single aggregate term for the Orange County and San Bernardino convictions. Panes thereupon withdrew his plea of not guilty, pleaded guilty to all counts, and admitted all the enhancements alleged.
The Orange County court sentenced Panes to 17 years 8 months in prison, calculated as follows: (1) upper term of five years for count 12; (2) consecutive 10 years for the enhancement alleged under section 12022.53, subdivision (b) on count 12; (3) consecutive one year (one-third the middle term) for count 1; (4) consecutive four months for the enhancement alleged under section 12022, subdivision (a)(1) on count 1; (5) consecutive one year (one-third the middle term) for count 2; and (6) consecutive four months for the enhancement alleged under section 12022, subdivision (b)(1) on count 2. Sentence was imposed and stayed on the remaining counts and enhancements.
The court minutes and the abstract of judgment reflect the sentence imposed was to be consecutive to the sentence imposed in San Bernardino County.
In December 2004, 14 months after sentencing, Panes's trial counsel sent a letter to the Centinela State Prison records office, the Orange County District Attorney, and the Orange County Superior Court, requesting Panes's sentence be corrected by reducing the San Bernardino sentence to 16 months (one-third of four years). No action was taken on the request until, in December 2009, the California Department of Corrections and Rehabilitation sent a letter to the Orange County sentencing judge asking for a determination whether correction of sentence was required. The letter stated the abstract of judgment "may be in error, or incomplete" and cited section 1170.1(a). The sentencing judge reviewed the letter and took no action.
Over six years later, in October 2016, Panes, representing himself, filed a motion to correct his sentence by reducing the San Bernardino sentence pursuant to section 1170.1(a). After several months without a response, Panes filed a request for a ruling on his motion.
On March 17, 2017, the Orange County court denied Panes's motion to correct his sentence. The court minutes include this ruling: "Pursuant to . . . [s]ection 669, the decision whether to impose consecutive or concurrent sentences was for the court sentencing defendant in the present matter. To the extent defendant complains he has not been sentenced in the San Bernardino case to one-third the middle term pursuant to . . . section 1170[.1](a), the court notes that defendant's sentence in the present case was the result of an indicated sentence in which he received a sentence of 17 years, 8 months, but could have received up to 38 years, 8 months. As a general matter, a defendant may not challenge the validity of a sentence to which he expressly agreed. . . . [¶] . . . Defendant has therefore waived an[y] right to complain that the sentence in the San Bernardino matter should be reduced pursuant to . . . [s]ection 1170[.1](a)."
Panes, still self-represented, timely filed a notice of appeal from the order denying his motion to correct sentence. He did not request or obtain a certificate of probable cause under section 1237.5.
DISCUSSION
I.
Section 1170.1(a).
Panes contends the Orange County court erred by denying his motion to correct sentence and erred at the initial sentencing hearing by not reducing the San Bernardino County sentence and pronouncing a single aggregate sentence in accordance with section 1170.1(a). Under section 1170.1(a), if a defendant is convicted in separate judgments, the judge in the last case must indicate a principal term and a subordinate term, reduce the subordinate term to one-third the middle term, and pronounce a single aggregate term of imprisonment. "[I]f a defendant is convicted of more than one offense carrying a determinate term, and the trial court imposes consecutive sentences, the term with the longest sentence is the 'principal term'; any term consecutive to the principal term is a 'subordinate term.' [Citation.] The court imposes the full term, either lower, middle, or upper, for the principal term. However, in general (there are exceptions), the court imposes only 'one-third of the middle term' for subordinate terms. [Citation.] A determinate term for a given offense might also be lengthened by sentence enhancements." (People v. Felix (2000) 22 Cal.4th 651, 655.)
Section 1170.1(a) states, in relevant part: "Except as otherwise provided by law, and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under [s]ections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and [s]ection 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses." The applicable part of section 1170.1(a) is unchanged from the version in effect when Panes was sentenced in Orange County. --------
Section 1170.1(a) applies when a defendant has been convicted and faces sentencing in two different courts. "As long as the defendant has been in continuous custody, the lapse of time does not change the applicability of this rule. All the sentences must be combined as if they were all counts in one judgment. If the last judge intends to impose any terms consecutive to any of the previous terms, the judge must then make a new determination of which count represents the principal term." (Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 2018) § 37.37, p. 1114.)
California Rules of Court, rule 4.452, which implements section 1170.1(a), instructs: "If a determinate sentence is imposed under section 1170.1(a) consecutive to one or more determinate sentences imposed previously in the same court or in other courts, the court in the current case must pronounce a single aggregate term, as defined in section 1170.1(a), stating the result of combining the previous and current sentences. In those situations: [¶] (1) The sentences on all determinately sentenced counts in all of the cases on which a sentence was or is being imposed must be combined as though they were all counts in the current case. [¶] (2) The judge in the current case must make a new determination of which count, in the combined cases, represents the principal term, as defined in section 1170.1(a). The principal term is the term with the greatest punishment imposed including conduct enhancements. If two terms of imprisonment have the same punishment, either term may be selected as the principal term. [¶] (3) Discretionary decisions of the judges in the previous cases may not be changed by the judge in the current case. Such decisions include the decision to impose one of the three authorized terms of imprisonment referred to in section 1170(b), making counts in prior cases concurrent with or consecutive to each other, or the decision that circumstances in mitigation or in the furtherance of justice justified striking the punishment for an enhancement. However, if a previously designated principal term becomes a subordinate term after the resentencing, the subordinate term will be limited to one-third the middle base term as provided in section 1170.1(a)."
Compliance with section 1170.1(a) is mandatory. (People v. Williams (2007) 156 Cal.App.4th 898, 907; People v. Bozeman (1984) 152 Cal.App.3d 504, 507.) Failure to comply with section 1170.1(a) results in an unauthorized sentence, which may be corrected at any time. (People v. Cunningham (2001) 25 Cal.4th 926, 1044-1045; People v. Williams, supra, 156 Cal.App.4th at p. 907; People v. Bozeman, supra, 152 Cal.App.3d at p. 507.)
II.
Panes Was Not Required to Obtain a Certificate of
Probable Cause Under Section 1237.5.
The Attorney General moves to dismiss the appeal on the ground Panes failed to obtain a certificate of probable cause under section 1237.5 (section 1237.5). Panes argues he was not required to obtain a certificate of probable cause because he is not challenging the validity of the plea itself.
"[S]ection 1237.5 provides that a defendant may not take an appeal from a judgment of conviction entered on a plea of guilty or nolo contendere unless he has filed in the superior court a statement of certificate grounds, which go to the legality of the proceedings, including the validity of his plea, and has obtained from the superior court a certificate of probable cause for the appeal." (People v. Mendez (1999) 19 Cal.4th 1084, 1095.) Section 1237.5 should be applied "in a strict manner." (People v. Mendez, supra, 19 Cal.4th at p. 1098.)
Two exceptions to the certificate of probable cause requirement of section 1237.5 have been recognized. A defendant may take an appeal from a judgment of conviction entered on a plea of guilty or nolo contendere without a certificate of probable cause if the defendant seeks appellate review of (1) the validity of a search or seizure the lawfulness of which was contested under section 1538.5 or (2) errors occurring in adversary proceedings conducted after entry of the plea for purposes of determining the degree of the crime and the penalty to be imposed, and the defendant does not challenge the validity of the plea itself. (People v. Lloyd (1998) 17 Cal.4th 658, 663-664.)
California Rules of Court, rule 8.304(b)(4) implements the exceptions to section 1237.5 by providing that a defendant need not obtain a certificate of probable cause to appeal from "[t]he denial of a motion to suppress evidence" or "[g]rounds that arose after entry of the plea and do not affect the plea's validity."
"In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, courts must look to the substance of the appeal: 'the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.' [Citation.] Hence, the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5." (People v. Panizzon (1996) 13 Cal.4th 68, 76 (Panizzon).)
Panes is not challenging the validity of his plea or the validity of the negotiated sentence of 17 years 8 months in prison. He accepts the validity of both. Panes is appealing from the order denying his motion to correct sentence, which asserted the trial court imposed an unauthorized sentence by not implementing section 1170.1(a). Application of section 1170.1(a) would have the effect of reducing Panes's aggregate term, but have no effect on the determinate term that was the subject of the negotiated plea, and would have no effect on the validity of Panes's guilty plea.
The Attorney General likens this case to Panizzon, in which the California Supreme Court held a certificate of probable cause was required to challenge a negotiated sentence on the ground it violated the state constitutional ban on cruel or unusual punishment. The defendant in Panizzon pleaded no contest but challenged the negotiated sentence on the ground it was constitutionally disproportionate to the sentences imposed on his codefendants. (Panizzon, supra, 13 Cal.4th at pp. 73-74.) The Supreme Court reasoned that a challenge, even a constitutional one, to a negotiated sentence imposed as part of a plea bargain is a challenge to the validity of the plea itself. (Id. at p. 79.)
Panes is not, however, challenging the sentence negotiated as part of his plea bargain in Orange County. He is arguing the trial court erred by not applying section 1170.1(a), which would not affect his negotiated Orange County sentence.
III.
Panes Is Not Estopped From Raising Section 1170.1(a).
Citing People v. Couch (1996) 48 Cal.App.4th 1053 (Couch) and People v. Nguyen (1993) 13 Cal.App.4th 114 (Nguyen), the Attorney General argues Panes is estopped from asserting sentencing error under section 1170.1(a) because he agreed to a specified sentence in exchange for pleading guilty. In those cases, however, the defendant pleaded guilty in exchange for a specified sentence and then challenged the agreed-upon sentence on appeal on the ground the sentence was unauthorized. (Couch, supra, at pp. 1056-1057; Nguyen, supra, at pp. 122-123.)
The estoppel principle of Couch and Nguyen is inapplicable here. In People v. Hester (2000) 22 Cal.4th 290, 295, the California Supreme Court explained that principle: "The rule that defendants may challenge an unauthorized sentence on appeal even if they failed to object below is itself subject to an exception: Where the 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."
Panes is not arguing his agreed-upon, specified sentence of 17 years 8 months is unauthorized. He does not challenge that sentence. Instead, he contends the trial court's failure to apply section 1170.1(a) to his San Bernardino County sentence resulted in an unauthorized sentence. His plea agreement in Orange County did not mention section 1170.1(a) and did not address a single aggregate term. Panes is not trying to "better the bargain" through an appeal because section 1170.1(a) is mandatory.
IV.
Panes's Sentence Must Be Corrected to Comply With
Section 1170.1(a).
Here, section 1170.1(a) was triggered when the Orange County court decided to run the determinate sentence of 17 years 8 months consecutive to the sentence imposed in San Bernardino County. The Orange County court was required to designate the sentence for count 12 as the principal term because it was the "term with the greatest punishment imposed." (Cal. Rules of Court, rule 4.452(2).) The subordinate term for each consecutive term was required to be one-third of the middle term of imprisonment (including one-third the term for any applicable enhancements). The Orange County court correctly calculated the subordinate terms for counts 1 through 11 and 13 through 20.
However, under section 1170.1(a), the sentences imposed in San Bernardino County also became subordinate terms. The Orange County court was required to recalculate the sentences imposed in San Bernardino County and to pronounce a single aggregate term. (Cal. Rules of Court, rule 4.452(1).) Panes was convicted in San Bernardino of two counts of second degree robbery. The middle term for second degree robbery is three years. (§ 213, subd. (a)(2).) One-third of three years is one year. Because compliance with section 1170.1(a) is mandatory, the Orange County court was required to resentence Panes to one year imprisonment for each of the two counts of second degree robbery for which he had been convicted in San Bernardino County (two years total) and to pronounce a single aggregate term of 19 years 8 months.
The Attorney General agrees section 1170.1(a) is mandatory and the proper remedy is to remand for resentencing if we deny the motion to dismiss the appeal and conclude Panes is not estopped from challenging his sentence. The Attorney General asserts that in resentencing Panes the trial court "may revisit the entire sentencing scheme" and "may then consider imposing sentence on any of the 17 counts for which sentencing was stayed in order to reach the agreed[-]upon sentence of 17 years 8 months." Resentencing in accordance with section 1170.1(a) will have no effect on the determinate sentence of 17 years 8 months imposed pursuant to the Orange County plea agreement on counts 1, 2, and 12. That sentence stays the same. The effect of section 1170.1(a) is to require to trial court to make the San Bernardino County sentence the subordinate term, reduce it to two years, and pronounce a single aggregate term of 19 years 8 months. We shall direct trial court to resentence Panes accordingly.
V.
Panes's Ineffective Assistance of Counsel Claims Are
Moot or Cannot Be Resolved on Direct Appeal.
Panes argues his trial counsel was ineffective in two respects: (1) counsel failed to raise or incorporate into the Orange County plea agreement the directive by the San Bernardino County court that its sentence is "to run concurrent to any other sentence" and (2) counsel failed to take the steps necessary to ensure the Orange County court reduced the San Bernardino County sentence in accordance with section 1170.1(a). We only address the first claim because we are directing that Panes's sentence be corrected to comply with section 1170.1(a).
To prevail on a claim of ineffective assistance of counsel, a defendant must prove both (1) his attorney's representation was deficient in that it fell below an objective standard of reasonableness under prevailing professional standards and (2) his attorney's deficient representation subjected him to prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Cain (1995) 10 Cal.4th 1, 28.) Prejudice means a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington, supra, 466 U.S. at p. 694.)
Panes argues: "Knowing the prior trial court's favorable directive regarding appellant's sentence, and the ability of the Orange County trial court to modify this directive, trial counsel should have incorporated the San Bernardino County trial court's directive into the plea agreement which had been negotiated between him and the Orange County District Attorney. On the contrary, there was no reference whatsoever to the San Bernardino County sentence in the Orange County plea agreement. . . . [¶] As the plea agreement contained no restrictions on the Orange County trial court, that court, acting pursuant to its powers under section 669, subdivision (a), directed that its sentence and the San Bernardino County sentence be run consecutively." Panes asserts he would not have pleaded guilty if he had known of counsel's error but would have required the plea agreement to include a provision making the Orange County sentence run concurrent with the San Bernardino sentence.
The proper way to raise a claim of ineffective assistance of appellate counsel is by petition for writ of habeas corpus, not by appeal. (People v. Lucas (2014) 60 Cal.4th 153, 307, disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53-54, fn. 19.) "If the record 'sheds no light on why counsel acted or failed to act in the manner challenged,' an appellate claim of ineffective assistance of counsel must be rejected 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.'" (People v. Ledesma (2006) 39 Cal.4th 641, 746.) We reverse on direct appeal for ineffective assistance of counsel only when "the record on appeal demonstrates there could be no rational tactical purpose for counsel's omissions." (People v. Lucas (1995) 12 Cal.4th 415, 442.)
The record here sheds no light on the reason for the omission from the Orange County plea agreement, or any mention of, the San Bernardino County court's directive that its sentence would run concurrent to any other sentence. Panes was represented by the same trial counsel in both San Bernardino County and Orange County. The record does not foreclose a rational tactical purpose for the omission: It is entirely possible the prosecutor would not have agreed to a concurrent sentence and/or Panes's trial counsel believed the deal offered—17 years 8 months consecutive to the San Bernardino sentence—was the best he could get.
DISPOSITION
The order denying Panes's motion to correct sentence is reversed. The matter is remanded with directions to resentence Panes in accordance with section 1170.1(a) as follows: (1) designate as subordinate terms the sentences imposed in San Bernardino County for two counts of second degree robbery; (2) resentence Panes to one year in prison (representing one-third of the middle term) on each of the two counts of second degree robbery for which he had been convicted in San Bernardino County; and (3) pronounce a single aggregate term of 19 years 8 months.
In all other respects, the sentence remains the same. The trial court is directed to prepare an amended abstract of judgment reflecting the modifications and to forward a certified copy to the Department of Corrections and Rehabilitation.
FYBEL, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.