PEOPLE v. In re George R. Hester, On Habeas Corpus.

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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. George R. HESTER, Defendant and Appellant. IN RE: George R. Hester, On Habeas Corpus.

Nos. H017911, H018357.

Decided: January 29, 1999

Dallas Sacher, Sixth District Appellate Program, Santa Clara, for Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Moona Nandi, Deputy Attorney General, Frances Marie Dogan, Deputy Attorney General, for Respondent.

Defendant entered into a plea agreement under which he pleaded no contest to all of the charged counts in exchange for a specified sentence of four years in state prison.   The plea agreement did not specify the components of the four-year sentence.   A four-year state prison sentence was imposed.   On appeal, defendant claims that Penal Code section 654 precluded imposition of an unstayed concurrent term for one of the counts.   The Attorney General asserts that this claim is precluded by California Rules of Court, rule 412(b).   In a petition for a writ of habeas corpus, defendant alleges that his trial counsel was ineffective in failing to preserve this issue for appeal.   We conclude that defendant may raise this issue on appeal, and we modify the judgment to stay the concurrent term and dismiss the petition as moot.

FACTS

Defendant forced entry into his former girlfriend's residence, stabbed her new boyfriend with a knife and battered her.   He was charged by information with felony assault (Pen.Code, § 245, subd. (a)(1)), burglary (Pen.Code, §§ 459, 460, subd. (a)), misdemeanor battery (Pen.Code, §§ 242, 243, subd. (e)) and vandalism (Pen.Code, § 594, subd. (b)(4)).   It was specially alleged that defendant had personally used a dangerous or deadly weapon (Pen.Code, §§ 667, 1192.7, subd. (c)) in the commission of the felony assault.   The burglary count alleged an entry with the intent to commit the felony assault.   Defendant thereafter wrote threatening letters to his former girlfriend and her new boyfriend.   In a subsequent felony complaint, defendant was charged with dissuading or attempting to dissuade a witness (Pen.Code, § 136.1, subd. (c)(1)).

Defendant entered no contest pleas to the five substantive counts and admitted the personal use allegation in exchange for an agreed term of four years in state prison.   Defendant's appointed trial counsel appeared at the change of plea hearing and concurred in defendant's decision to accept the plea bargain, but he did not appear at the sentencing hearing.   Another attorney made a special appearance on his behalf at the sentencing hearing.   This attorney made no objections at the sentencing hearing to the sentence imposed by the trial court.   The court imposed a four-year prison term for the burglary count, concurrent three-year terms for the felony assault count and the dissuading count and concurrent jail terms for the misdemeanor counts.   Defendant filed an amended notice of appeal under California Rules of Court, rule 31(d) which this court deemed timely.

DISCUSSION

Defendant claims that the trial court's failure to stay the three-year concurrent term it imposed for the assault count violated Penal Code section 654 because the burglary and the assault were indisputably committed pursuant to a single intent and objective.   We agree with defendant that the record indisputably establishes that the two offenses were committed with a single intent and objective.   The admitted charging allegations stated that the burglarious entry was perpetrated with the intent to commit the felony assault.   The Attorney General asserts that defendant is precluded by rule 412(b) from challenging his sentence on this ground.

Rule 412(b) is one of the sentencing rules adopted by the Judicial Council.  “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.”  (Rule 412(b).)   The Judicial Council's Advisory Committee Comment to this rule states:  “Subdivision (b) is based on the fact that a defendant who, with the advice of counsel, expresses agreement to a specified prison term normally is acknowledging that the term is appropriate for his or her total course of conduct.   This subdivision applies both to determinate and indeterminate terms.”

 Defendant asserts that rule 412(b) is invalid because the Judicial Council lacks the authority to make a rule which is inconsistent with a statute.   He maintains that rule 412(b) exceeds the Judicial Council's power because it is inconsistent with Penal Code section 654.   The Judicial Council's authority to promulgate sentencing rules emanates from Penal Code section 1170.3.  “The Judicial Council shall seek to promote uniformity in sentencing under Section 1170, by:  [¶] (a) The adoption of rules providing criteria for the consideration of the trial judge at the time of sentencing regarding the court's decision to:  [¶] (1) Grant or deny probation.  [¶] (2) Impose the lower or upper prison term.  [¶] (3) Impose concurrent or consecutive sentences.  [¶] (4) Determine whether or not to impose an enhancement where that determination is permitted by law. [¶] (b) The adoption of rules standardizing the minimum content and the sequential presentation of material in probation officer reports submitted to the court.”  (Pen.Code, § 1170.3, emphasis added.)  “The Judicial Council's authority under section 1170.3 is not unlimited, of course, and the council may not adopt rules that are inconsistent with the governing statutes.”  (People v. Hall (1994) 8 Cal.4th 950, 960, 35 Cal.Rptr.2d 432, 883 P.2d 974.)

Penal Code section 1170.3, subdivision (a)'s grant of authority to the Judicial Council to adopt rules to guide the trial court's discretionary decisions so as to promote uniformity in sentencing did not purport to give the Judicial Council the power to enact a rule permitting a trial court to disregard its mandatory duty under Penal Code section 654.   A rule which permits a trial court to disregard a mandatory statute in certain cases cannot be said to promote uniformity in sentencing since the violation of an otherwise globally mandatory statute would result in sentencing disparity rather than uniformity.

The power to adopt such a rule also cannot be found in the only other source of authority under which the Judicial Council is empowered.  “To improve the administration of justice the council shall survey judicial business and make recommendations to the courts, make recommendations annually to the Governor and Legislature, adopt rules for court administration, practice and procedure, not inconsistent with statute, and perform other functions prescribed by statute.”  (Former Cal. Const., art.   VI, § 6, emphasis added.1 )  Again, the Judicial Council's power has been restricted to adopting procedural rules which are “not inconsistent with statute.”

 The Attorney General contends that rule 412(b) is not inconsistent with Penal Code section 654.   We disagree.   On its face, rule 412(b) purports to permit a trial court to impose a sentence which “violates section 654's prohibition of double punishment.”   Yet the Attorney General argues that the rule is consistent with the “legislative purpose” underlying Penal Code section 654 which, he asserts, is to ensure that punishment is commensurate with culpability.   He maintains that a sentence to which a defendant has agreed is necessarily commensurate with his culpability and therefore Penal Code section 654 is not applicable.

 Ordinarily, a Penal Code section 654 claim is not waived by failing to object below.  “[T]he waiver doctrine does not apply to questions involving the applicability of section 654.   Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.”  (People v. Perez (1979) 23 Cal.3d 545, 549-550, fn. 3, 153 Cal.Rptr. 40, 591 P.2d 63.) However, it is equally well established that a defendant who enters into a plea agreement whereby he pleads guilty or no contest in exchange for a specified term thereby gives up any claims of sentencing error which would have the effect, if successful, of altering the specified term.  (People v. Couch (1996) 48 Cal.App.4th 1053, 1058, 56 Cal.Rptr.2d 220.)   It follows that a defendant who enters into a plea agreement which requires the imposition of a sentence which would otherwise violate Penal Code section 654 implicitly waives a contention that the sentence to which he explicitly agreed violates Penal Code section 654.   The same holds true where a defendant expressly waives any or all Penal Code section 654 violations as a term of the plea agreement.

Here, however, defendant's claim of sentencing error, if successful, would not alter the specified term to which he agreed.   At the time of the plea, defendant was not informed nor did he agree that the court could impose punishment for both the burglary and assault counts.   The specified term did not require imposition of punishment for both counts, and the specified term agreed to by defendant would not have been altered by the trial court's obedience to the requirements of Penal Code section 654.   Nor is there any evidence in the record that defendant expressly waived his right to challenge the sentence as violative of Penal Code section 654.

Undoubtedly, the Legislature could enact a statute which provided that Penal Code section 654 was inapplicable where a defendant entered into a plea agreement in exchange for a specified term.   At this point, the Legislature has not yet chosen to enact such a statute.   Since the Judicial Council lacked the authority to permit trial courts to violate a statute, its attempt to adopt such a policy by means of rule 412(b) is invalid to the extent that it permits trial courts to violate Penal Code section 654 in the absence of an implicit or explicit waiver by the defendant.   There was no waiver in this case, and therefore defendant is entitled to a stay of the concurrent term imposed for the assault count.

CONCLUSION

The judgment is hereby modified to reflect that the concurrent term imposed for the felony assault count is stayed pursuant to Penal Code section 654.   The trial court is ordered to file an amended abstract of judgment reflecting this modification and forward a certified copy of the amended abstract to the Department of Corrections.   The modified judgment is affirmed.   The petition for a writ of habeas corpus is dismissed as moot.

I respectfully dissent.   I believe that California Rules of Court, rule 412(b) validly precludes defendant's claim that his sentence violates Penal Code section 654.1  I would therefore decline to stay the term for the felony assault and instead affirm the judgment without modification.

Defendant broke into the home of his former girlfriend, walked past her into her bedroom, stabbed her new boyfriend and then battered her when she tried to stop him.   As a result of this incident, defendant was charged by information as follows:  count 1, assault with a deadly weapon (§ 245, subd. (a)(1));  count 2, residential burglary (§§ 459, 460, subd. (a));  count 3, misdemeanor battery (§§ 242, 243, subd. (e));  and count 4, misdemeanor vandalism (§ 594, subd. (b)(4)).   The information alleged that defendant used a knife in committing the assault (§§ 667, 1192.7) and that defendant entered the residence with the intent to commit a felony assault.   After these charges were filed, defendant wrote threatening letters to both victims, and he was charged, in a separate case, with dissuading or attempting to dissuade a witness.  (§ 136.1, subd. (c)(1).)

Pursuant to a plea agreement, defendant entered no contest pleas to each of the charged offenses (in both cases), admitted the use allegation, and agreed to a four-year prison term for the first case and a concurrent three-year prison term for the second case.   At the change of plea hearing, defendant was advised that his maximum state prison exposure time was 13 years.

The trial court thereafter imposed the middle term of four years for the burglary, with concurrent three-year middle terms for the assault and dissuading charges and concurrent jail terms for the misdemeanor charges.   Despite the fact that the sentence imposed comports with the terms of the plea bargain, defendant now contends that the trial court violated section 654 by imposing separate terms for both the burglary and the assault.2  Respondent argues that rule 412(b) precludes defendant from raising this claim on appeal, but the majority conclude that rule 412(b) is invalid to the extent that it precludes such a claim.3

Section 654 “insure[s] that the defendant's punishment will be commensurate with his [or her] criminal liability” by prohibiting multiple punishment for multiple offenses which are incident to one objective.  (Neal v. State of California (1960) 55 Cal.2d 11, 20, 9 Cal.Rptr. 607, 357 P.2d 839;  see also People v. Latimer (1993) 5 Cal.4th 1203, 1216, 23 Cal.Rptr.2d 144, 858 P.2d 611.)   If a trial court imposes multiple punishment in contravention of section 654, it “acts in ‘excess of its jurisdiction’ and imposes an ‘unauthorized’ sentence.”  (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17, 36 Cal.Rptr.2d 627, 885 P.2d 1040.)   In general, the defendant may challenge an unauthorized sentence-including a sentence imposed in contravention of section 654-on appeal even if he or she fails to object below.  (People v. Scott, supra, 9 Cal.4th at p. 354, fn. 17, 36 Cal.Rptr.2d 627, 885 P.2d 1040.)   However, courts have recognized an exception to this general rule:  “ ‘Where defendants have pleaded guilty in return for a specified sentence, appellate courts are not inclined to find error even though the trial court acts in excess of jurisdiction in reaching that figure․   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.’  [Citation.]”  (People v. Couch (1996) 48 Cal.App.4th 1053, 1056-1057, 56 Cal.Rptr.2d 220, quoting People v. Nguyen (1993) 13 Cal.App.4th 114, 122-123, 16 Cal.Rptr.2d 490, italics omitted.)

The above principle-that appellate courts may not correct an unauthorized sentence which is imposed in accordance with a plea bargain-has never been limited to cases where the defendant's claim, if successful, would alter the agreed-upon prison term.   Indeed, in In re Troglin (1975) 51 Cal.App.3d 434, 437-439, 124 Cal.Rptr. 234, a case decided prior to the adoption of rule 412(b), the court applied this principle to the defendant's claim that the trial court imposed concurrent terms in violation of section 654.   Although in Troglin the defendant had explicitly agreed that the trial court could impose concurrent or consecutive terms, at least one other case decided prior to the adoption of rule 412(b) held the defendant waived a section 654 claim when he was sentenced in accordance with a plea bargain even though his agreement did not specify that the trial court could impose multiple terms.  (People v. Masten (1982) 137 Cal.App.3d 579, 586, 187 Cal.Rptr. 515, disapproved on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8, 250 Cal.Rptr. 635, 758 P.2d 1165.)

Rule 412(b) formally adopts the principle that appellate courts may not correct an unauthorized sentence which is imposed in accordance with a plea bargain, whether or not the defendant's claim, if successful, would alter the agreed-upon prison term, and even without an explicit agreement allowing the trial court to impose multiple terms.   Thus, in People v. Valenzuela (1993) 14 Cal.App.4th 837, 17 Cal.Rptr.2d 755, the court concluded that rule 412(b) precluded the defendant from claiming that the trial court violated section 654 by imposing concurrent terms for second degree robbery and grand theft-a claim which, if successful, would not have altered the agreed-upon prison term-“because that question was not raised at the time the trial court set forth the plea agreement.”  (Id. at p. 841, 17 Cal.Rptr.2d 755.)

The Valenzuela court applied rule 412(b) without considering its validity.  Rule 412(b) was adopted by the Judicial Council pursuant to its authority to adopt “rules for court administration, practice and procedure, not inconsistent with statute.”  (Cal. Const., art.   VI, § 6;  see also § 1170.3.)   The question presented here is whether rule 412(b) is “inconsistent” with section 654 because it prohibits not only section 654 claims which, if successful, would alter the agreed-upon prison term but also section 654 claims which, if successful, would not alter the agreed-upon prison term.

The majority conclude that rule 412(b) is inconsistent with section 654 in that it precludes section 654 claims which, “if successful, would not alter the specified term to which [the defendant] agreed.”  (Maj.opn., p. 794.) In my opinion, where a defendant pleads guilty to multiple counts in exchange for a specified prison term without an explicit agreement that permits the trial court to impose multiple terms in violation of section 654 and without asserting a section 654 claim “at the time the agreement is recited on the record” (rule 412(b)), the defendant has implicitly given the trial court discretion to determine how to calculate the agreed-upon prison term.   To allow a defendant to complain, on appeal, that the trial court's calculation of the agreed-upon prison term violated section 654, would be to allow the defendant to “trifle with the courts,” no matter whether the section 654 claim relates to the imposition of consecutive terms or concurrent terms.4  Section 654 prohibits the imposition of multiple terms for offenses committed pursuant to the same objective;  its application does not depend on whether those terms are imposed consecutively or concurrently.   Likewise, the rule prohibiting a defendant from claiming section 654 error on appeal where he or she has been sentenced in accordance with a plea bargain should not depend on whether the trial court violated section 654 by imposing consecutive terms or by imposing concurrent terms.

I believe that by requiring that a defendant raise a section 654 claim at the time the plea agreement is recited on the record, rule 412(b) promotes uniformity in sentencing and promotes the purpose of section 654.  Rule 412(b) ensures that the trial court is alerted to any potential section 654 issues at a time when it can gather all evidence necessary to make a proper determination-for instance, by holding an evidentiary hearing-thereby creating a record sufficient for appellate review of the issue.  (See People v. Rosenberg (1963) 212 Cal.App.2d 773, 776, 28 Cal.Rptr. 214.)   Without a trial or a sufficient record, it would be difficult for an appellate court to make a proper section 654 determination.   Rule 412(b) therefore guarantees that, in plea bargain cases, the section 654 determination will be made in light of all available relevant evidence rather than on a potentially bare appellate record, thus promoting uniformity in sentencing and ensuring the defendant's punishment is commensurate with his or her culpability.

Here, in exchange for his no contest plea to burglary, assault with a deadly weapon, battery, vandalism, and dissuading or attempting to dissuade a witness, defendant agreed to and received a prison term of four years instead of a prison term of 13 years.   He has “abandon[ed] any claim that a component [-that is, a consecutive term or a concurrent term-] of [his] sentence violates section 654's prohibition of double punishment” by failing to assert it at the time that the agreement was recited on the record.  (Rule 412(b).)   Accordingly, I would affirm the judgment without modification.

FOOTNOTES

1.   Rule 412(b) took effect in 1991.   California Constitution, article VI, section 6 was amended in 1996, but the amendment made no substantive change to the provision relevant here.

1.   All further section references are to the Penal Code;  all further rule references are to the California Rules of Court.

2.   Section 654 provides, in pertinent part:  “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision․”

3.   Rule 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.”

4.   The staying of a concurrent term could result in a “better” sentence for the defendant even though it would not reduce his or her total term, because a stayed term may have lesser future penal consequences than an unstayed term.  (See People v. Pearson (1986) 42 Cal.3d 351, 361, 228 Cal.Rptr. 509, 721 P.2d 595 [stayed term for prior conviction may not be used to enhance sentence unless specifically provided for by Legislature];  compare People v. Benson (1998) 18 Cal.4th 24, 36, 74 Cal.Rptr.2d 294, 954 P.2d 557 [Three Strikes law permits stayed term for prior conviction to be used to enhance sentence].)

MIHARA, J.

WUNDERLICH, J., concurs.