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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Jonathan Joseph SHELTON, Defendant and Appellant.

No. C044625.

Decided: March 26, 2004

George Bond, Sacramento, and Deborah Prucha, Woodland, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Senior Assistant Attorney General, and Carlos A. Martinez, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Jonathan Joseph Shelton appeals from a judgment following a plea agreement imposing a prison term of three years eight months on convictions of stalking (Pen.Code, § 646.9, subd. (b) [all further unspecified statutory references are to the Penal Code] ), and making criminal threats (§ 422).

Defendant contends the trial court erred in imposing consecutive sentences for the two offenses (§ 654).   We agree and will modify his sentence.


The Charges and The Plea Agreement

Defendant was charged in a six-count information with stalking (§ 646.9, subd. (b);  burglary (§ 459);  two counts of making criminal threats (§ 422);  and two counts of violating a restraining order (§ 273.6, subd. (d).))

Defendant and the district attorney reached a negotiated plea agreement whereby defendant would plead no contest to count one (stalking) and count three (criminal threat).   In exchange, the remaining counts would be dismissed and the maximum prison term which could be imposed would be three years eight months.

The factual basis for the stalking count as recited by the district attorney was, that between the dates of January 7, 2003, and February 2, 2003, defendant “maliciously and repeatedly followed and harassed [his ex-wife] [ (the victim) ] and made a credible threat with the intent she be placed in reasonable fear for her safety and the safety of her immediate family.”   The factual basis for the criminal threat count was that “on or about January 15th of 2003 ․ defendant willfully and unlawfully threatened to kill [the victim] with the specific intent that she take that as a threat ․ and further [the victim] was reasonably in sustained fear of her safety and the safety of her family based on that.”

Factual Basis of the Convictions

A presentence probation report was prepared.   We summarize the facts therein relating to the two charges to which defendant pleaded no contest.

In January 2003 (all further calendar references are to 2003), defendant was on formal probation for assault and was subject to a restraining order prohibiting contact with his former wife.

On January 14, defendant called the victim at her workplace and told her he was going to her home.   Upon returning from work, she found the kitchen window had been taken out of its frame.   Defendant called later that night and told her he was the person who pried the window and that he did it to show her he could get into her house at any time.   The next day, defendant telephoned the victim and told her “he was going to blow up her home and go to her work and shoot her.”   She became terrified, knowing that defendant had a violent temper and owned a handgun.

On January 31, the sheriff's department received a 911 call from the victim, who stated that defendant was at her front door.   Defendant fled before deputies could apprehend him.

On the evening of February 2, defendant was seen in front of the victim's home and arrested.


At the sentencing hearing, defense counsel argued that the criminal threat count should be stayed “pursuant to [section] 654 which prohibits him from being punished for the same conduct twice.”   The trial court, finding that the two crimes “were committed at different times or separate places rather than being committed so close in time and place as to indicate a single period of aberrant behavior,” impliedly rejected that argument by imposing a consecutive eight-month term for the criminal threat offense on top of defendant's three-year sentence for stalking.


IThe Effect of Rule 4.412

We first must determine whether defendant has waived the right to raise section 654 error under California Rules of Court, rule 4.412(b) (formerly rule 412(b)), which states:  “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.”

The California Supreme Court in People v. Hester (2000) 22 Cal.4th 290, 295, 92 Cal.Rptr.2d 641, 992 P.2d 569, declared that under this rule, a defendant who plea bargains for a specified sentence may be held to waive a claim that any component of the sentence violates section 654.   That rule does not obtain in this case, however, because under the express terms of the plea bargain, defendant reserved the right to argue for a term less than the “lid” or maximum.

In taking defendant's plea, the trial court described the bargain as follows:  “And the lid is three years eight months[ ][w]hich means that the agreement is that I cannot sentence you to more than three years and eight months and you can argue for something less than three years and eight months.   However, the sentence that I will impose will be a Penitentiary sentence.”   (Italics added.)   This was not an agreement for “a specified prison term” as defined by rule 4.412(b) and as construed in People v. Hester, supra, 22 Cal.4th 290, 92 Cal.Rptr.2d 641, 992 P.2d 569.   The italicized provision of the agreement left the door open for defendant to argue that the trial court was compelled to impose less than the maximum term by reason of applicable sentencing statutes and rules.   Defendant is therefore correct that his appeal is not barred by California Rules of Court, rule 4.412(b).

II **


The judgment is reversed and the cause is remanded to the trial court.   If within 30 days of the issuance of the remittitur the district attorney so requests, the trial court shall vacate defendant's guilty plea and reinstate the dismissed charges.   Otherwise the judgment shall be modified to impose a section 654 stay of the eight month sentence for violating section 422, and as so modified the judgment will be affirmed.

I respectfully dissent.

In return for dismissal of four counts of a six count information and the promise that his prison term would not exceed three years eight months, defendant pled no contest to the remaining two counts.   Having received a sentence of three years eight months, defendant now, in effect, cries “gotcha” and yelps that the court was without authority to impose the maximum term contemplated by the agreement.

Regrettably, the majority agrees;  I do not.

People v. Hester (2000) 22 Cal.4th 290, 92 Cal.Rptr.2d 641, 992 P.2d 569 (Hester ), the principal case cited by the majority, involved an application of California Rules of Court, rule 4.412(b) (former rule 412(b)), which expressly provides that a defendant who agrees to a “specified prison term” abandons any right to assert a violation of Penal Code section 654.   The majority reads “specified” to mean a “specific,” “explicit,” or “particular” prison term.   I will accept the majority's reading and, for purposes of argument, will agree the punishment here under review does not fall within rule 4.412(b).

However, rule 4.412(b) of the California Rules of Court “merely applied the long-standing rule that ‘defendants are estopped from complaining of sentences to which they agreed.’ ”  (People v. Buttram (2003) 30 Cal.4th 773, 783, 134 Cal.Rptr.2d 571, 69 P.3d 420 (Buttram ).)   As explained in Hester, “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, 92 Cal.Rptr.2d 641, 992 P.2d 569.)   The rule is “one application of a principle long recognized by California cases.”  (Buttram, supra, 30 Cal.4th at p. 783, 134 Cal.Rptr.2d 571, 69 P.3d 420.)   It is not, however, the exclusive expression of the policy which antedates the rule.

Defendant has received the benefit of this bargain.   His maximum punishment exposure was greatly reduced by his plea bargain.   In return, he agreed that the court was empowered to impose a prison sentence of up to three years eight months.   He presumably reserved the right to attempt to persuade the court to exercise its discretion and impose a lower sentence.   He did not reserve the right to assert the court was without authority, by virtue of Penal Code section 654, to impose the agreed-upon lid.  (See People v. Cole (2001) 88 Cal.App.4th 850, 872 873, 106 Cal.Rptr.2d 174.)   I would affirm the judgment.


FOOTNOTE.   See footnote *, ante.


I concur:  SIMS, Acting P.J.

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