People v. Lopez CA4/2 ( 2016 )

Filed 6/28/16 P. v. Lopez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E061511
v. (Super.Ct.No. FWV1303253)
LEONARDO LOPEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Bridgid M.
McCann, Judge. Affirmed as modified.
Christopher Love, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Minh
U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Leonardo Lopez was charged by felony complaint with
second degree robbery (Pen. Code,1 § 211, count 1), extortion (§ 520, count 2),
dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1), count 3), and street
terrorism (§ 186.22, subd. (a), count 4). It was alleged that defendant committed the
robbery in count 1 for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(C).)
It was also alleged that he served two prior prison terms. (§ 667.5, subd. (b).) Defendant
entered a plea agreement and pled guilty to counts 1, 2, and 3, and he admitted the gang
enhancement allegation (§ 186.22, subd. (b)(1)(C)), as well as the two prison priors. In
exchange for the plea, the parties agreed that the court would dismiss the remaining count
and allegations and sentence defendant to an eight-year prison term, as follows: five
years on count 1, a consecutive one year on count 2, a concurrent two years on count 3,
and two consecutive one-year terms for the prison priors. It was also agreed that the
court would strike the term on the gang enhancement. (§ 186.22, subd. (b)(1)(C).) The
court sentenced defendant on May 27, 2014, in accordance with the agreement, except
that the court imposed and stayed the gang enhancement term, instead of striking it.
On appeal, defendant argues that the term on the gang enhancement must be
stricken. The People concede, and we agree. In all other respects, the judgment is
affirmed.
1 All further statutory references will be to the Penal Code, unless otherwise
noted.
2
ANALYSIS2
The Matter Should Be Remanded for the Trial Court to Strike the Term on the Gang
Enhancement
Defendant argues that the court erred in staying the gang enhancement term,
instead of striking it. The People correctly concede.
“Because a ‘negotiated plea agreement is a form of contract,’ it is interpreted
according to general contract principles. [Citation.] Acceptance of the agreement binds
the court and the parties to the agreement.” (People v. Segura (2008) 44 Cal. 4th 921,
930.) “Although a plea agreement does not divest the court of its inherent sentencing
discretion, ‘a judge who has accepted a plea bargain is bound to impose a sentence within
the limits of that bargain. [Citation.] “A plea agreement is, in essence, a contract
between the defendant and the prosecutor to which the court consents to be bound.”
[Citation.] Should the court consider the plea bargain to be unacceptable, its remedy is to
reject it, not to violate it, directly or indirectly. [Citation.] Once the court has accepted
the terms of the negotiated plea, “[it] lacks jurisdiction to alter the terms of a plea bargain
so that it becomes more favorable to a defendant unless, of course, the parties agree.”’”
(Id. at p. 931.)
In the instant case, the plea agreement clearly stated that the gang enhancement
term would be stricken. The court accepted the terms of the plea agreement and was,
2 We have not included a recitation of the facts since they are not relevant to the
issue on appeal.
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therefore, bound to honor the terms of the agreement. (People v. Blount (2009) 175
Cal. App. 4th 992, 997.) Thus, it is clear that the court erred when it imposed but stayed
the term on the gang enhancement term.
We note defendant’s argument that the court imposed an unauthorized sentence
when it stayed, rather than struck, the gang enhancement. He contends that the court was
required to either impose the enhancement or strike it, under section 186.22, subdivision
(g). That statute provides that “the court may strike the additional punishment for the
enhancements provided in this section . . . where the interests of justice would best be
served, if the court specifies on the record and enters into the minutes the circumstances
indicating that the interests of justice would best be served by that disposition.”
(§ 186.22, subd. (g).) Defendant asserts that we should remand the matter for the trial
court to strike the term on the gang enhancement and to state its reasons for doing so,
pursuant to section 186.22, subdivision (g). However, the court should have struck the
gang enhancement term in accordance with the terms of the plea agreement, not pursuant
to any discretionary decision under section 186.22, subdivision (g). Thus, no statement
of reasons under section 182.66, subdivision (g), is needed.
DISPOSITION
The superior court is directed to strike the prison term on the section 186.22,
subdivision (b)(1)(C) gang enhancement, in accordance with the terms of the plea
agreement. The court is further directed to amend the abstract of judgment to reflect this
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modification and to forward a copy of the amended abstract of judgment to the
Department of Corrections and Rehabilitation. The judgment, as modified, is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P. J.
SLOUGH
J.
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