Reset A A Font size: Print

Court of Appeal, First District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Kevin Lawrence SMITH, Defendant and Appellant.

No. A065170.

Decided: March 30, 1995

Michael Satris, Bolinas, for appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Catherine A. Rivlin, Margo J. Yu, Deputy Attys. Gen., San Francisco, for respondent.

Appellant, Kevin Lawrence Smith (Smith) appeals from a judgment of conviction following his guilty plea to one count of robbery (Pen.Code, § 211) 1 and his admission that he personally used a firearm in the commission of the offense (§ 12022.5).   The sentencing judge imposed the aggravated term for both the robbery (five years) and the enhancement (five years).   Smith complains that the reasons used by the judge to aggravate the enhancement were insufficient and asks that we modify the judgment or remand to the trial court for resentencing.   Because we find that the defendant was sentenced in accordance with his plea bargain, we reject his contentions and affirm the judgment.

A. Factual Background.

On October 27, 1993, the appellant and two confederates, Tillis and Robinson, robbed a First Interstate Bank.   All three were wearing hoods and carrying firearms.   While Tillis and Robinson approached different tellers and forced each to give them money, Smith stood by the doorway with his firearm.   Each of the defendants was captured soon thereafter.   Smith was subsequently charged by information with two counts of second degree robbery (§ 211);  one count of assault with a firearm (§ 245, subd. (a)(2));  and one count of ex-felon in possession of a firearm (§ 12021, subd. (a)).  As to the robbery counts, the district attorney alleged that appellant personally used a firearm within the meaning of sections 1203.06, subdivision (a)(1) and 12022.5, subdivision (a), and that the offenses were serious felonies within the meaning of section 1192.7.   Three prior felony convictions were also alleged against Smith, rendering him presumptively ineligible for probation pursuant to section 1203, subdivision (e)(4).   A third robbery count was substituted for the assault offense on January 12, 1994, and, on that same day, the defendant entered a negotiated plea.   Pursuant to that plea the defendant pleaded guilty to one count of robbery and admitted the personal use of a firearm allegation (§ 12022.5).   The defendant acknowledged both orally and in writing that he understood that the court had the power to send him to state prison for two, three or five years on the robbery charge and for three, four or five years on the section 12022.5 enhancement for personal use of a firearm.   All of the other charges and enhancements against Smith were then dismissed, on motion of the district attorney.

Following receipt of the probation report, the court imposed the aggravated term for both the robbery charge and the enhancement, a total of ten years.   At that time the court provided certain reasons for its sentencing choices.2

B. Discussion.

1. No sentencing reasons were necessary.

 As we discuss, the courts of this state have held that no reasons need be provided by the judge when imposing a sentence consistent with a plea bargain in which the defendant has agreed he can receive up to a maximum term.   We decide this same rule should apply when the defendant pleads guilty to certain charges and, in the course of that plea, states that he understands that he could receive a sentence at least as large as the one imposed.   (Emphasis added.)

In the Determinate Sentencing Act the Legislature adopted a complex sentencing scheme which sets forth three possible terms of imprisonment for each felony offense.  (§ 1170, subd. (a)(2).)   Some sentence enhancements, including the one involved in this case, also carry three possible terms.   In determining the appropriate sentence the trial court is directed to impose the middle term, unless circumstances in aggravation or mitigation exist.  (§ 1170, subd. (b).)  If the court imposes any sentence other than the middle term it must state the reasons for its action on the record.  (§ 1170, subd. (c).)  Reasons must also be provided by the court in certain other circumstances, for example when it imposes consecutive, rather than concurrent sentences.  (§ 1170.1, subd. (d).)  The Legislature instructed the Judicial Council to adopt “rules providing criteria for the consideration of the trial judge at the time of sentencing․”  (§ 1170.3, subd. (a).)  Pursuant to this rule-making authority the Judicial Council enacted rule 412, entitled “Reasons.   Agreement to punishment as reason and as abandonment of certain claims.”   The rule, in pertinent part, provides as follows:  “(a) [Defendant's agreement as reason] It is an adequate reason for a sentence or other disposition that the defendant, personally and by counsel, has expressed agreement that it be imposed and the prosecuting attorney has not expressed an objection to it.   The agreement and lack of objection shall be recited on the record.”

The Advisory Committee Comment to California Rules of Court, rule 412, notes “Subdivision (a) is intended to relieve the court of an obligation to give reasons if the sentence or other disposition is one that the defendant has accepted and to which the prosecutor expresses no objection.   The judge may choose to give reasons for the sentence even though not obligated to do so.”

Courts have not limited reliance on rule 412 to those situations where a defendant has agreed to a specific sentence of a certain number of years.   In People v. Tucker (1986) 187 Cal.App.3d 295, 231 Cal.Rptr. 671 the defendant entered into a plea disposition in which it was agreed that he would receive a prison sentence of not more than ten years.   Sometime thereafter he received a term of eight years.   He appealed, in part, on the basis that the trial judge had erred by failing to state reasons for imposing consecutive sentences.   The court's rationale for rejecting this contention is instructive:  “The manifest purpose of a statement of reasons in sentencing is to assure that terms of imprisonment are reasonable.   We find it impossible, intellectually, to conclude that such an agreed reasonable term is nevertheless unreasonable for failure of the trial court to state its reasons․  [¶] Moreover, we find rule 440 [now 412], California Rules of Court, reasonably applicable where, as here, the defendant has agreed to a sentence of ‘not more’ than a certain term of imprisonment.”  (People v. Tucker, supra, at p. 297, 231 Cal.Rptr. 671.)  (See also People v. Torrez (1987) 195 Cal.App.3d 751, 756, 241 Cal.Rptr. 7 [“Appellant's remaining contention, that the court abused its discretion in denying probation and imposing a six-year state prison term, is equally meritless.   Appellant's agreement to a prison sentence not to exceed six years ‘ “constitutes an adequate reason for the imposition of the punishment specified.” ’  [Citation.]”].)

In addition, in People v. Villanueva (1991) 230 Cal.App.3d 1157, 281 Cal.Rptr. 688, the defendant entered a guilty plea to one count of sale of a controlled substance in violation of Health and Safety Code section 11352 and was promised that he would either be placed on probation or sentenced to the mitigated term, three years.   Without providing any reasons, the court denied probation and imposed the three year sentence.   The court rejected the defendant's argument that the trial judge should have provided reasons.  “Rule 440(a) [now 412(a) ] is, therefore, applicable and dispositive.   It provides that under such circumstances, a defendant's specification of punishment and the prosecutor's acceptance of it is an adequate reason for imposition of the punishment specified.   Consequently, the trial court was not required to state any reasons for imposing the mitigated prison term of three years.   [Citation.]”  (People v. Villanueva, supra, 230 Cal.App.3d at p. 1162, 281 Cal.Rptr. 688, fn. omitted.)

It is worthy of note that at the time Tucker, Torrez and Villanueva were decided rule 440(a) provided that “the defendant's specification of the punishment ․ constitutes an adequate reason for the imposition of the punishment specified.”  (Emphasis added.)   The current rule, rule 412, however, provides “It is an adequate reason for a sentence or other disposition that the defendant ․ has expressed agreement that it be imposed․”  The change to the more general language of rule 412 provides additional support for dispensing with reasons when the defendant has agreed to a maximum term.

Appellant cites only two cases for the proposition that a court may not dispense with reasons when the defendant pleads to a maximum sentence, People v. Jones (1980) 111 Cal.App.3d 597, 169 Cal.Rptr. 28 and People v. Lutes (1981) 117 Cal.App.3d 830, 173 Cal.Rptr. 300.  (Both cases disapproved on another point in People v. Scott (1994) 9 Cal.4th 331, 353, fn. 16, 36 Cal.Rptr.2d 627, 885 P.2d 1040.)   Neither of these cases is helpful to our analysis because rule 440, as it was then written, required that the court set forth its reasons for imposing any sentence, other than the middle term, even if it resulted from a negotiated plea.

Appellant correctly notes that he engaged in charge bargaining, not sentence bargaining.   That is, Smith agreed to plead guilty to one robbery count with a use enhancement in return for dismissal of the other charges and enhancements.   Unlike the defendants in Tucker, Torrez or Villanueva, appellant did not expressly bargain for a sentencing limit.   We are unpersuaded that this distinction should make a difference in our ruling, however.   As with the defendants in the three cited cases, appellant knew exactly what his maximum exposure was at the conclusion of the negotiations.   It strains credulity to believe that appellant's plea was not motivated primarily by his desire to reduce his maximum possible term from over twenty-two to ten years.   No good reason exists to distinguish appellant's situation and we decline to do so.

2. The sentencing reasons provided were sufficient.

 Rule 412 does not preclude the sentencing court from providing reasons and the judge in this case did so.   Had we found rule 412 inapplicable and required reasons, we would find the ones provided to justify aggravating the enhancement sufficient.   Smith's primary challenge to the reasons provided is based on rule 428(b), California Rules of Court, which provides:  “When the defendant is subject to an enhancement that was charged and found true for which three possible terms are specified by statute, the middle term shall be imposed unless there are circumstances in aggravation or mitigation․  [¶] The upper term may be imposed for an enhancement only when there are circumstances in aggravation that relate directly to the fact giving rise to the enhancement.”   Smith's argument that the court did not comply with this rule fails for several reasons.   First, the reasons specifically adverted to by the trial court relate to the dangerous situation created by appellant's (and his partners') use of a firearm.   Thus, even were rule 428(b) still good law, the court would adequately have complied with it.   Moreover, as Smith notes in his reply brief, the rule has been invalidated by the Supreme Court to the extent that it limited the trial court's ability to rely on factors relating to both the crime and the defendant in deciding to aggravate an enhancement.  (People v. Hall (1994) 8 Cal.4th 950, 35 Cal.Rptr.2d 432, 883 P.2d 974.)   The court in Hall saw no difficulty in applying its decision retroactively to the defendant in that case, and, so, we apply it here.

 At the time that this offense occurred, Smith was on probation.   This is a factor in aggravation which the court could consider in determining the appropriate term to impose on the enhancement.  (People v. Hall, supra, 8 Cal.4th at pp. 963–964, 35 Cal.Rptr.2d 432, 883 P.2d 974.)   Appellant correctly notes that the court did not rely on this factor in discussing the enhancement.   However, any error resulting from this would be harmless;  it is not reasonably probable that a more favorable result would occur if the case was remanded for sentencing.  (People v. Jackson (1987) 196 Cal.App.3d 380, 392, 242 Cal.Rptr. 1.)

 Finally, Smith contends that the trial judge improperly made dual use of the same facts to impose the upper term on both the main offense and the enhancement.   The Attorney General does not dispute that the prohibition against dual use of facts applies in this situation.  (See California Rules of Court, former rule 441(c).)   In aggravating the robbery sentence, the court relied on four different factors:  (1) the offense had tremendous potential for serious injury and death (rule 421(a)(1) and (b)(1));  (2) Smith's poor prior performance on probation (rule 421(b)(5));  (3) Smith's criminal acts are of increasing seriousness (rule 421(b)(2));  and (4) appellant was on probation when he committed the offense (rule 421(b)(4)).

The one factor relied on to aggravate the enhancement was that the offense could have precipitated a “fire storm” (rule 421(a)(1) and (b)(1)).   This seems to duplicate the first factor relied on to aggravate the robbery.   Even if this does constitute an impermissible dual use, any resultant error is harmless because there are other applicable factors sufficient to support the court's decision.  (People v. Jackson, supra, 196 Cal.App.3d at p. 392, 242 Cal.Rptr. 1;  People v. Dunnahoo (1984) 152 Cal.App.3d 561, 579, 199 Cal.Rptr. 796.)

In sum, we conclude that a judge is not required to provide reasons for sentencing choices made when the defendant, as part of a negotiated plea, pleads guilty to an offense and states on the record his understanding of the court's power to sentence him to a term of at least the length imposed.   Further we conclude that the reasons provided were adequate.

C. Disposition.

The judgment is affirmed.



1.   All further statutory references are to the Penal Code unless otherwise noted.

2.   The court provided the following reasons.  “This is not an appropriate case for probation.   He has been on probation;  at the time of the offense was on three grants of probation.  [¶] As far as pursuing a treatment mode, that was the whole object of the three existing probations and treatment for addiction is nothing that can be accomplished without not minimal, but tremendous cooperation from the addict.   And that just wasn't forthcoming from Mr. Smith and doesn't seem to be a possibility at this point, disappointing though it is and as much effort as the County and the Probation Department have invested in Mr. Smith in that regard.  [¶] As far as the term that should be involved as to the principal offense here and the enhancement, the Court has considered all of the factors offered by the Probation Office and by the DA and the defendant, and finds that this is an aggravated offense.  [¶] The offense itself was extremely dangerous to all of those involved, had a tremendous potential for serious injury and death for all of the people involved, including those who were involved voluntarily as well as those who were innocent bystanders.  [¶] In Mr. Smith's case, it was committed by a person who had repeatedly been put on probation in hopes that his cooperation could be obtained in turning him around so that he was no longer a liability to the community.  [¶] Instead, he participated in this much worse event than any of his prior criminal history that we are aware.  [¶] Clearly, I think the aggravated term is the only fair and rational choice.   We get to the point where the community is entitled to be protected and is entitled to have the message conveyed that very dangerous and anti-social conduct like this is not going to be tolerated.  [¶] So, as for the principal charge, the robbery, the Court finds that it is an aggravated term offense and will order the defendant serve five years in state prison with credit for time served.  [¶] As for the enhancement, again the defendant by all credible evidence was carrying a firearm, did participate in this very dangerous event where not only one, but three firearms were involved.  [¶] There were from at least one of the participants very angry and violent threats to use a firearm which could have resulted in—even if there was no particular intent—I am not finding that there wasn't, but no particular intent to use a firearm—could have precipitated a fire storm resulting in deaths of the bank robbers and the many other people who were there simply conducting their daily business.   [¶] So, it appears to me that the enhancement is also only properly read as an aggravated term situation and I will impose the five years allowable on the enhancement consecutive to the five-year base term, for a total of ten years in state prison.”

SIMONS, Associate Justice.* FN* Judge of the Contra Costa Superior Court sitting under assignment by the Judicial Council.

CHIN, P.J., and CORRIGAN, J., concur.