People v. Cooley CA3 ( 2015 )

Filed 8/21/15 P. v. Cooley CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, C077161
Plaintiff and Respondent, (Super. Ct. No. 13F6691,
12F4632, 12F7716)
v.
MODIFICATION OF
GREGORY MICHAEL COOLEY, OPINION UPON DENIAL
OF PETITION FOR
Defendant and Appellant. REHEARING
[NO CHANGE IN
JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on July 31, 2015, be modified as follows:
1. On page 8, on line 1 of footnote 6, a period is inserted after the word
“agreement,” and the words “and does not contend the trial court’s obviously
incorrect oral pronouncement of judgment should control over the abstract of
judgment” are deleted so that the first sentence of the footnote reads:
Defendant does not contend the trial court breached the
parties’ plea agreement.
1
2. On page 8, at the end of footnote 6, after the sentence now ending with
“plea agreement,” add the following sentences:
Defendant makes passing reference to the principle that the
oral pronouncement of judgment controls over the abstract of
judgment in a footnote, but does not argue that the abstract
should be modified to reflect all of the errors in the oral
pronouncement. To the extent defendant intended to make
that unusual argument, it is waived. (Cal. Rules of Court, rule
8.204(a)(1)(B) [issues should be set forth under separate
headings and supported by argument and citation to
authority]; Opdyk v. California Horse Racing Bd. (1995) 34
Cal. App. 4th 1826, 1830-1831, fn. 4 [“The failure to head an
argument as required by California Rules of Court constitutes
a waiver”].)
As modified, the petition for rehearing is denied. This modification does not
change the judgment.
FOR THE COURT:
BLEASE , Acting P.J.
MAURO , J.
RENNER , J.
2
Filed 7/31/15 P. v. Cooley CA3 (unmodified version)
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, C077161
Plaintiff and Respondent, (Super. Ct. No. 13F6691,
12F4632, 12F7716)
v.
GREGORY MICHAEL COOLEY,
Defendant and Appellant.
Defendant Gregory Michael Cooley pleaded guilty or no contest to criminal
offenses in three separate cases, and admitted various special allegations and
enhancements, in exchange for a stipulated aggregate sentence of 18 years eight months.
On appeal, defendant contends his sentence is unauthorized, and must be reduced to 16
years eight months, because the trial court omitted an on-bail enhancement during the
oral pronouncement of judgment, and applied the wrong sentencing triad to reach the
stipulated sentence.
1
Defendant’s claim challenges the trial court’s authority to impose the agreed-upon
sentence. Such claims cannot be raised on appeal without a certificate of probable cause.
(Pen. Code, § 1237.5;1 see also People v. Cuevas (2008) 44 Cal. 4th 374, 376-377
(Cuevas); People v. Shelton (2006) 37 Cal. 4th 759, 763, 769 (Shelton).) Because
defendant did not obtain a certificate of probable cause, we decline to consider
defendant’s attack on the legality of his sentence.
We do, however, consider defendant’s challenge to the restitution and parole
revocation fines ordered in two of his cases. Because the trial court did not impose the
fines during the oral pronouncement of judgment, and because the prosecutor forfeited
any objection in the trial court, we shall delete the restitution fines in the relevant cases
from the abstract of judgment and strike the corresponding parole revocation fines. In all
other respects, we shall affirm the judgment.
BACKGROUND
This appeal involves plea agreements in three separate cases, which are briefly
described post.2
Case No. 12F4632
On September 26, 2012, defendant was charged by complaint with 11 counts as
follows: possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)—
count 1); possession of methamphetamine for sale (Health & Saf. Code, § 11378—
count 2); transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)—
count 3); possession of methamphetamine while armed with a loaded firearm (Health &
Saf. Code, § 11370.1, subd. (a)—count 4); carrying a concealed firearm (§ 25400, subd.
(a)(2)—count 5); felon in possession of a firearm (§ 29800, subd. (a)—counts 6 and 9);
1 Undesignated statutory references are to the Penal Code.
2 We dispense with a recitation of the facts underlying defendant’s crimes as they are not
relevant to the issues raised on appeal.
2
felon in possession of live ammunition (§ 30305, subd. (a)(1)—counts 7, 8, and 10); and
resisting an officer (§ 148, subd. (a)(1)—count 11). The complaint also alleged that
defendant had a prior strike conviction for first degree burglary within the meaning of
section 1170.12, and, as to counts 2 and 3, that he was personally armed with a firearm
within the meaning of section 12022, subdivision (c).
Case No. 12F7716
On February 5, 2013, defendant was charged by information with three counts as
follows: possession of methamphetamine for sale (Health & Saf. Code, § 11378—
count 1); transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a)—
count 2); and driving with a suspended license (Veh. Code, § 14601.2, subd. (a)—
count 3). The information also alleged defendant’s prior strike conviction for first degree
burglary (§ 1170.12), a prior prison term (§ 667.5, subd. (b)), and an on-bail enhancement
(§ 12022.1, subd. (b)).
First Plea Agreement
Defendant entered no contest pleas in case Nos. 12F4632 and 12F7716 on July 22,
2013. In case No. 12F4632, defendant pleaded no contest to count 4, possession of
methamphetamine while armed with a loaded firearm (Health & Saf. Code, § 11370.1),
and admitted the prior strike conviction. In case No. 12F7716, defendant pleaded no
contest to count 1, possession of methamphetamine for sale (Health & Saf. Code,
§ 11378), and admitted the prior strike conviction and the on-bail enhancement. In
exchange for defendant’s pleas, the parties agreed that defendant would receive a term of
seven years four months in state prison, with a dismissal of the on-bail enhancement so
long as defendant appeared for sentencing. The parties further agreed that defendant
would receive an aggregate sentence of 11 years four months, if he failed to appear for
sentencing. Sentencing was set for October 1, 2013. Defendant failed to appear.
3
Case No. 13F6691
On February 13, 2014, defendant was charged by information in a new case with
four counts as follows: first degree burglary with a person present (§§ 459, 667.5, subd.
(c)(21)—count 1); attempted first degree burglary (§§ 664, 212.5, subd. (a)—count 2);
assault with a firearm (§ 245, subd. (a)(2)—count 3); and elder or dependent abuse
(§ 368, subd. (b)(1)—count 4). The information alleged that defendant personally used a
firearm (§ 12022.53, subd. (b)) and personally discharged a firearm (§ 12022.53, subd.
(c)) in the commission of the offenses charged in counts 1 through 3. The information
further alleged that a principal was armed with a firearm during the commission of all
charged offenses. (§ 12022, subd. (a)(1).) The information further alleged that defendant
had a prior strike conviction (§ 1170.12), a prior prison term (§ 667.5, subd. (b)), a prior
serious felony conviction (§ 667, subd. (a)(1)), and committed all of the charged offenses
while released on bail in case Nos. 12F4632 and 12F7716.
Second Plea Agreement
Defendant appeared for a change of plea hearing in case No. 13F6691 on May 19,
2014. In anticipation of the hearing, defendant executed a plea form indicating that he
would be pleading guilty to count 1, first degree burglary (§ 459), and admitting the prior
strike conviction (§ 1170.12), in exchange for dismissal of the other charges and
enhancements in case No. 13F6691, and a stipulated aggregate sentence of 18 years eight
months in all three cases (case Nos. 13F6691, 12F4632, and 12F7716), plus a fourth case
from Los Angeles County Superior Court (case No. KA10317801). A handwritten
notation on the preprinted plea form indicates that defendant’s aggregate sentence would
be calculated as follows: “In 13F6691—6 yrs x 2; in 12F7716—3 yrs 4 months; in
4
12F4632—2 yrs; in KA10317801—16 months.”3 The plea form was signed by
defendant, defendant’s two attorneys, the prosecutor, and the trial court.
Prior to accepting defendant’s plea, the trial court asked defendant to confirm his
understanding of the stipulated sentence, stating: “A total sentence here would be 18
years, 8 months. Is that your understanding? Is [that] the agreement, [defendant]?
Bottom line, 18 years, 8 months?” Defendant answered in the affirmative.
Defendant then pleaded guilty to count 1, first degree burglary (§ 459), without the
serious and violent felony allegation, and admitted the prior strike conviction. The trial
court accepted defendant’s plea and admission.
A short time later, the trial court confirmed the parties’ understanding of the
stipulated aggregate sentence again, as set forth on the plea form. The following
colloquy took place:
“[The Court]: And while [the prosecutor] is here, the way it’s written on [the plea
form], is 13 F 6691, it’s going to be the aggravated six years, doubled for the strike. And
then from 12 F 7716, three years, four months. 12 F 4632, two years. And then 16
months from the LA case? That’s the way it’s written up on the plea form.
“[Prosecutor]: That’s the math, right. I’m not sure that—I misheard or if I
misheard or the plea form is wrong on the case number, of the last Shasta county case?
“[The Court]: 12 F 4632? I have that file here. That is written up as a two-year
sentence.
“[Prosecutor]: Correct.
“[The Court]: On the other 12 F case, 7716, which I also have here, 3 years, 4
months.
“[Prosecutor]: I’m good. Thanks.
3 As we shall discuss, the plea form contains additional handwritten notations by the trial
court made after defendant’s change of plea hearing but before the sentencing hearing.
5
“[The Court]: Is that what defense counsel have [sic] also?
“[Defense Counsel No. 2]: Yes.
“[Defense Counsel No. 1]: Yes.
“[The Court]: Okay.”
Sentencing was set for June 19, 2014.
Sentencing
Defendant appeared for sentencing on June 19, 2014. During the sentencing
hearing, the trial court sentenced defendant as follows: “Okay . . . per [the plea]
agreement, what I’m going to do is impose—deny probation across the board, impose an
18-year, eight-month sentence, and that number is . . . arrived at by imposing in 13F6691,
that’s the more recent of the cases, for Count 1, 459, a six-year sentence. That six-year
sentence is doubled, as a result of the strike, through 12 years. [¶] And then, in 12F771
[sic], Count 4, which is an 1170.1 Health and Safety Code violation, would need—one-
third the midterm, which I believe is 20 months, and that’s doubled to 40 months, three
years, four months. [¶] And the 12F4632 for Count 1, 11377 and 11378, it is a one-year
mid-term sentence doubled to two years because of the strike. [¶] Then there’s a Los
Angeles County case, KA10317801, and that’s a 16 month sentence there.”
Although the trial court imposed the stipulated aggregate sentence of 18 years
eight months, the court sentenced defendant to offenses to which he did not plead.
Specifically, the trial court sentenced defendant to three years four months in case No.
12F7716 for “an 1170.1 Health and Safety Code violation,” which was not the basis for
defendant’s conviction in case No. 12F7716, and is not a penal statute in any case.4
Similarly, the trial court sentenced defendant to two years for violations of Health and
Safety Code sections 11377 and 11378 in case No. 12F4632, when defendant only
4Health and Safety Code section 1170.1 establishes the short title for the Monterey
County Special Health Care Authority Act. (Health & Saf. Code, § 1170 et seq.)
6
pleaded no contest to a violation of Health and Safety Code section 11370.1 in that case.
Thus, the trial court sentenced defendant to the wrong offenses in case Nos. 12F4632 and
12F7716. The trial court also omitted the on-bail enhancement in case No. 12F7716.
Neither defendant nor anyone else objected or attempted to correct the trial court.
The trial court then ordered defendant to pay a $280 restitution fine pursuant to
section 1202.4 and a $280 parole revocation fine pursuant to section 1202.45 (which was
stayed pending successful completion of parole) in case No. 13F6691 only. The trial
court did not order defendant to pay restitution or parole revocation fines in case Nos.
12F7716 and 12F4632. Neither party objected in the trial court.
Following the sentencing hearing, the trial court entered a minute order indicating
that defendant had been sentenced as follows: in case No. 13F6691, the upper term of six
years for count 1, first degree burglary (§ 459), doubled for the prior strike conviction, for
a term of 12 years; in case No. 12F7716, eight months (one-third the midterm) for count
1, possession of methamphetamine for sale (Health & Saf. Code, § 11378), doubled for
the prior strike conviction, plus two years for the on-bail enhancement, for a term of three
years four months; in case No. 12F4632, one year (one-third the midterm) for count 4,
possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1,
subd. (a)), doubled for the strike conviction, for a term of two years; and in case No.
KA10317801, 16 months (one-third the midterm) for possession of a controlled substance
(Health & Saf. Code, § 11377, subd. (a)), doubled for the strike conviction, for a term of
one year four months. The abstract of judgment reflects the same sentence in all four
cases. The minute order and abstract of judgment also reflect the imposition of
restitution and parole revocation fines in the amount of $280 each, in all four cases.
Defendant filed a timely notice of appeal, but did not obtain a certificate of
probable cause. (§ 1237.5.)
7
DISCUSSION
I.
Unauthorized Sentence
On appeal, defendant contends “[t]he sentence as agreed to by the parties, set out
in the plea agreement, and ordered by the court, is incorrect as to Health and Safety Code
sections 11378 and 11370.1.” Specifically, defendant contends the trial court (1)
erroneously imposed a consecutive term of two years for the on-bail enhancement in case
No. 12F7716; and (2) applied the wrong sentencing triads in case Nos. 12F4632 and
12F7716.5,6 The People respond that defendant may not challenge the stipulated
sentence because he failed to obtain a certificate of probable cause. We agree with the
People.
“Penal Code section 1237.5 provides that a defendant may not appeal ‘from a
judgment of conviction upon a plea of guilty or nolo contendere’ unless the defendant has
applied to the trial court for, and the trial court has executed and filed, ‘a certificate of
probable cause for such appeal.’ [Citation.]” (Shelton, supra, 37 Cal.4th at p. 766;
§ 1237.5, subd. (b); see also People v. Buttram (2003) 30 Cal. 4th 773, 790 [the purpose
of section 1237.5 is “to weed out frivolous and vexatious appeals from pleas of guilty or
no contest, before clerical and judicial resources are wasted”].) “Exempt from this
certificate requirement are postplea claims, including sentencing issues, that do not
5 The sentencing triad for a violation of Health and Safety Code section 11378 is 16
months, 2 years, or 3 years. (Health & Saf. Code, § 11378; Pen. Code, § 18.) The
sentencing triad for a violation of Health and Safety Code section 11370.1, subdivision
(a) is two, three, or four years. (Health & Saf. Code, § 11370.1, subd. (a).)
6 Defendant does not contend the trial court breached the parties’ plea agreement and
does not contend the trial court’s obviously incorrect oral pronouncement of judgment
should control over the abstract of judgment.
8
challenge the validity of the plea.” (Cuevas, supra, 44 Cal.4th at p. 379; see also Cal.
Rules of Court, rule 8.304(b)(4)(B).)
“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).)
“Even when a defendant purports to challenge only the sentence imposed, a
certificate of probable cause is required if the challenge goes to an aspect of the sentence
to which the defendant agreed as an integral part of a plea agreement. [Citations.]”
(People v. Johnson (2009) 47 Cal. 4th 668, 678; see also People v. Sem (2014)
229 Cal. App. 4th 1176, 1187 [“A challenge to any part of the sentence to which the
defendant agreed in a plea bargain is regarded as a challenge to the validity of the plea”].)
We conclude that defendant’s challenge to his sentence constitutes a challenge to the
validity of his plea, because the stipulated aggregate sentence of 18 years eight months
was “part and parcel of the plea agreement he negotiated with the People.” (Panizzon,
supra, 13 Cal.4th at p. 78.)
“ ‘ “When a guilty [or nolo contendere] plea is entered in exchange for specified
benefits such as the dismissal of other counts or an agreed maximum punishment, both
parties, including the state, must abide by the terms of the agreement.” ’ (Panizzon,
supra, 13 Cal.4th at p. 80; see People v. Hester (2000) 22 Cal. 4th 290, 295 [‘defendants
who have received the benefit of their bargain shall not be allowed to trifle with the
courts by attempting to better the bargain through the appellate process’].)” (Cuevas,
supra, 44 Cal.4th at p. 383.) In this case, defendant entered a guilty plea and admitted a
prior strike allegation in case No. 13F6691 in exchange for certain benefits, including the
9
dismissal of other charges and enhancements in case No. 13F6691. In addition, the
parties apparently agreed that defendant would receive new stipulated sentences in case
Nos. 12F4632 and 12F7716 (two years and three years four months, respectively),
effectively superseding their previous agreement that defendant would be sentenced to 11
years four months in those cases in the event that he failed to appear for sentencing,
which he did. In negotiating the second plea agreement, defendant necessarily
understood and agreed that an aggregate sentence of 18 years eight months represented a
significant reduction in his overall exposure to prison.7 “ ‘Defendant’s attack on the
legality of his maximum sentence is an effort to unilaterally improve, and thus alter, the
terms of that which was agreed and thus should not be permitted without a certificate of
probable cause.’ ” (Ibid.)
In his reply brief, defendant argues that no certificate of probable cause is required
because his sentence is unauthorized, and therefore subject to judicial correction at any
time. The Fourth District Court of Appeal recently considered the same argument in
People v. Zuniga (2014) 225 Cal. App. 4th 1178, at page 1186 (Zuniga).
In Zuniga, the defendant pleaded no contest to active participation in a criminal
street gang in violation of section 186.22, subdivision (a), in return for a stipulated
sentence of 16 months in state prison. (Zuniga, supra, 225 Cal.App.4th at p. 1180.) On
appeal, the defendant argued that his conviction was void under People v. Rodriguez
(2012) 55 Cal. 4th 1125 because there was no evidence to show that he committed the
7 Defendant suggests that the parties intended to append the original stipulated sentence
of seven years four months in case Nos. 12F4632 and 12F7716 to the new 12-year
sentence in case No. 13F6691, but incorrectly concluded that the sum of 12 years and
seven years four months is 18 years eight months. Defendant’s suggestion ignores the
terms of the first plea agreement, which provided that the stipulated sentence of seven
years four months in case Nos. 12F4632 and 12F7716 would increase to 11 years four
months in the event that defendant failed to appear for sentencing, which he did. We also
observe that any such mathematical error operated in defendant’s favor.
10
underlying offense with another gang member. (Zuniga, at p. 1180.) There, as here, the
People argued that defendant’s claim was not cognizable on appeal because he did not
obtain a certificate of probable cause. There, as here, the defendant countered that no
certificate was required because he was raising a purely legal challenge to an allegedly
unauthorized sentence. (Id. at p. 1182.) Because Zuniga addresses the same arguments
and authorities raised here, we quote from the court’s opinion at length:
“In People v. Arwood (1985) 165 Cal. App. 3d 167 (Arwood), the defendant
pleaded nolo contendere to a charge of forcible rape and admitted a prior felony
conviction for assault with a deadly weapon involving personal use of the deadly weapon
under section 667, which provided for a five-year enhancement for prior serious or
violent felonies. (Arwood, supra, at p. 170.) On appeal, the defendant argued that his
prior conviction was not a serious felony within the meaning of section 667 and should
be stricken. (Arwood, supra, at p. 171.)
“The Arwood court agreed with the People that the challenge was not cognizable
on appeal absent the execution and filing of a certificate of probable cause ‘because the
enhancement was imposed as a result of [the defendant’s] admission of the prior serious
felony conviction, and his admission occurred before entry of the nolo contendere plea.’
(Arwood, supra, 165 Cal.App.3d at p. 171, italics omitted.) The defendant’s plea
constituted a challenge to the validity of his plea ‘insofar as it encompassed admission of
a prior serious felony within the meaning of section 667.’ (Id. at p. 172.)
“Like Arwood, People v. Breckenridge (1992) 5 Cal. App. 4th 1096 (Breckenridge),
disapproved on another point in In re Chavez [(2003)] 30 Cal.4th [643,] at page 657,
footnote 6, addressed a sentencing enhancement issue based on the defendant’s admission
of a prior felony conviction. (Breckenridge, supra, at p. 1098.) The defendant pleaded
guilty to the charge of lewd conduct with a child, and admitted a prior serious felony
conviction for a similar offense. The court imposed a five-year enhancement for the prior
serious felony conviction. On appeal, the defendant sought reversal of the enhancement,
11
contending that his admission of the prior was invalid ‘due to an inadequate advisement
of rights.’ (Ibid.) The defendant’s appeal did not include a certificate of probable cause.
The Breckenridge court held that because the challenge was based on a claim of
‘inadequate advisement of rights,’ it related back to and implicated the validity of his
admission of the prior. (Ibid.) Accordingly, an appeal without a certificate of probable
cause was precluded under section 1237.5, and the appeal was dismissed. (Breckenridge,
supra, at p. 1098.)
“People v. Jones (1995) 33 Cal. App. 4th 1087 (Jones) also followed Arwood. In
Jones, the defendant pleaded no contest to, inter alia, one count of burglary and two
counts of possession of stolen property. (Jones, supra, at p. 1088.) She appealed on the
ground that she could not lawfully be convicted of both burglary and receiving the
property stolen during the burglary. (Id. at p. 1089; § 496, subd. (a); People v. Jaramillo
(1976) 16 Cal. 3d 752, 757, superseded by statute on another ground as stated in People v.
Strong (1994) 30 Cal. App. 4th 366, 371-372.) The Jones court did not reach the merits of
the defendant’s claim that the conviction had to be reversed or vacated as unlawful and
agreed with the People that a certificate of probable cause was required. (Jones, supra, at
p. 1091.) The court explained, ‘Claims regarding the illegality of the judgment, whether
on jurisdictional or other grounds, are precisely the types of claims which are covered by
Penal Code section 1237.5 and require a certificate of probable cause.’ (Id. at p. 1092.)
“The Jones court acknowledged a contrary view expressed by the First District
Court of Appeal in two cases. In People v. Loera (1984) 159 Cal. App. 3d 992, 996
(Loera), the defendant pleaded guilty to receiving stolen property and admitted that the
value of the property exceeded $25,000, which entailed a one-year sentence enhancement
under former section 12022.6. The defendant then challenged on appeal the imposition
of the enhancement, arguing that for several reasons, former section 12022.6, subdivision
(a), could not be used to enhance a sentence based upon a conviction for receiving stolen
property. (Loera, supra, at p. 997.) The Loera court held that the defendant was not
12
required to obtain a certificate of probable cause, concluding that the defendant was
challenging the sentence as being unlawful and void and was therefore claiming ‘a
jurisdictional defect subject to correction whenever it comes to the attention of either a
trial court or a reviewing court. [Citations.]’ (Id. at p. 998.) In People v. Corban (2006)
138 Cal. App. 4th 1111 (Corban), the court considered whether a probable cause
certificate was required where the defendant, who admitted a great bodily injury
allegation as part of her plea, argued on appeal that the imposition of the enhancement
was unlawful because it was inapplicable to circumstances where child endangerment
resulted in death. (Corban, supra, at pp. 1114-1117.) The Corban court acknowledged
the results in Arwood, Breckenridge, and Jones, and the contrary position in Loera.
(Corban, supra, at pp. 1115-1116.) Corban distinguished Loera as addressing purely
legal arguments about the applicability of the enhancement that had ‘nothing to do with
the particular facts of the defendant’s case.’ (Corban, supra, at p. 1116.) The Corban
court concluded that the issues in Arwood and Breckenridge were at least partially factual
as they related to the plea, whereas Corban’s case and Loera involved purely legal
arguments. (Corban, supra, at pp. 1116-1117.)
“For the reasons expressed in Jones, supra, 33 Cal.App.4th at page 1093, we
conclude that Loera is inconsistent with Arwood and Breckenridge, and we choose to
follow those cases and Jones. To the extent that Corban offers a distinction between
Loera, we note that here defendant’s challenge to the factual basis for the plea, even in
light of the Rodriguez decision, is not purely a legal argument resolvable without
reference to the particular facts presented.
“We believe that an analysis of the cases shows that Corban’s distinction does not
hold up under scrutiny. Arwood, like Loera and Corban, involved issues of statutory
interpretation. In Loera, moreover, the court relied upon the principle that an
unauthorized-sentence claim is cognizable on appeal despite a lack of objection below.
(Loera, supra, 159 Cal.App.3d at p. 998.) This principle, however, is an exception to the
13
rule that only claims raised by the parties below may be heard on appeal. (People v. Scott
(1994) 9 Cal. 4th 331, 354.) This principle cannot be employed to sidestep the additional
hurdle of section 1237.5, which is triggered by entry of a guilty or no contest plea. In
Corban and Loera as well as in Jones, Breckenridge, and Arwood, the defendants’ claims
were all directed to elements of their pleas that the defendants had freely admitted. The
claims thus challenged the validity of their pleas. We believe the better course is to
follow Arwood and Jones and require compliance with section 1237.5 in cases that are, in
substance, challenges to the validity of a guilty plea.” (Zuniga, supra, 225 Cal.App.4th at
pp. 1183-1186, fns. omitted.)
We agree with the Zuniga court’s analysis and likewise conclude that defendant
cannot rely on an unauthorized-sentence claim to “sidestep the additional hurdle of
section 1237.5, which is triggered by entry of a guilty or no contest plea.” (Zuniga,
supra, 225 Cal.App.4th at p. 1186.) Furthermore, we observe that defendant’s appeal
raises a number of factual issues, making his reliance on Corban and Loera even more
unpersuasive. For example, defendant contends that the stipulated aggregate sentence of
18 years eight months was the product of a mathematical error. Defendant also suggests
that the prosecutor agreed to dismiss the on-bail enhancement in case No. 12F7716
despite the fact that defendant failed to appear for the original sentencing hearing, raising
a factual question as to the terms of the parties’ plea agreement. We therefore reject
defendant’s contention that “[t]he challenge here is not to the terms of the plea and [is]
resolvable without reference to the particular facts presented.” 8
8 Defendant also contends his trial counsel rendered ineffective assistance in failing to
object during the sentencing hearing. Defendant’s ineffective assistance claim also
requires a certificate of probable cause. (§ 1237.5; Cal. Rules of Court, rule 8.340(b).)
Because defendant did not obtain a certificate of probable cause, his appeal is also
nonoperative as to his ineffective assistance claim. (People v. Stubbs (1998) 61
Cal. App. 4th 243, 244-245.)
14
To summarize, we conclude that defendant’s challenge to the stipulated aggregate
sentence “imposed as part of the plea bargain . . . is challenging the validity of his plea
itself,” and therefore requires “a certificate of probable cause, which [he] failed to
secure.” (Cuevas, supra, 44 Cal.4th at p. 384.) Accordingly, we decline to consider
defendant’s attack on the legality of his sentence.
II.
Restitution and Parole Revocation Fines
Next, defendant contends the restitution and parole revocation fines in case Nos.
12F4632 and 12F7716 should be deleted from the abstract of judgment because the trial
court did not orally impose them. The People concede the error, and we concur.9
We have reviewed the record and confirmed that the trial court did not impose the
restitution and parole revocation fines in case Nos. 12F4632 and 12F7716 during the oral
pronouncement of judgment. The oral pronouncement of judgment controls over the
abstract of judgment. (People v. Farell (2002) 28 Cal. 4th 381, 384, fn. 2.) Although a
restitution fine is mandatory, the court can refuse to impose it for “compelling and
extraordinary reasons” that it states on the record. (§ 1202.4, subd. (c); People v. Hanson
(2000) 23 Cal. 4th 355, 362.) Here, while there were no “compelling and extraordinary
reasons” stated on the record, the People forfeited any objection to the statement of
reasons by failing to object in the trial court. (People v. Tillman (2000) 22 Cal. 4th 300,
303.) Accordingly, we order the $280 restitution fines in case Nos. 12F4632 and
12F7716 deleted from the abstract of judgment.
We also order the $280 parole revocation fines in case Nos. 12F4632 and 12F7716
stricken. The trial court can impose a parole revocation fine only if it imposes a
9 Defendant’s challenge to the restitution and parole revocation fines in case Nos.
12F4632 and 12F7716 does not require a certificate of probable cause. (People v. Kunitz
(2004) 122 Cal. App. 4th 652, 657-658.)
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restitution fine. (§ 1202.45, subd. (a).) Here, the trial court never orally pronounced
restitution fines in case Nos. 12F4632 and 12F7716, so it could not legally impose parole
revocation fines in those cases. (Ibid.)
DISPOSITION
The restitution and parole revocation fines in case Nos. 12F4632 and 12F7716 are
modified as stated above. As modified, the judgment is affirmed. We direct the trial
court to prepare an amended abstract of judgment that: (1) deletes the $280 restitution
fine in case No. 12F4632; (2) deletes the $280 parole revocation fine in case No.
12F4632; (3) deletes the $280 restitution fine in case No. 12F7716; and (4) deletes the
$280 parole revocation fine in case No. 12F7716. The trial court is directed to forward a
certified copy of the amended abstract to the Department of Corrections and
Rehabilitation.
RENNER , J.
We concur:
BLEASE , Acting P. J.
MAURO , J.
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