People v. Vargas CA4/2 ( 2016 )

Filed 4/21/16 P. v. Vargas 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E063110
v. (Super.Ct.Nos. SWF1402501 &
SWF1402742)
JESUS MATA VARGAS JR.,
OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Elaine M. Kiefer, Judge.
Affirmed as modified with directions.
Kevin Smith, 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, Scott C. Taylor and Junichi P.
Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Jesus Mata Vargas Jr. appeals from his total sentence
stemming from two separate cases, case Nos. SWF1402501 and SWF1402742. On
appeal, defendant argues that he should have been sentenced to a total of 44 months, not
52 months; and that his due process rights were violated when the trial court imposed a
sentence greater than specified in the plea agreements. The People agree. We also agree
and will modify defendant’s sentence to reflect a combined sentence of 44 months in
state prison.
I
PROCEDURAL BACKGROUND1
On September 2, 2014, in case No. SWF1402501, defendant was charged with
assault with a deadly weapon other than a firearm, to wit, an automobile (Pen. Code,
§ 245, subd. (c); count 1); evading a peace officer’s vehicle with willful or wanton
disregard for the safety of others (Veh. Code, § 2800.2; count 2); and hit and run (Veh.
Code, § 20002, subd. (a); count 3).
On September 17, 2014, in case No. SWF1402742, defendant was charged with
being under the influence of a controlled substance while in possession of a loaded,
operable firearm (Health & Saf. Code, § 11550, subd. (e); count 1); and possession of
methamphetamine while armed with a loaded, operable firearm (Health & Saf. Code,
§ 11370.1; count 2).
1 The details of defendant’s criminal conduct are not relevant to the limited issues
he raises in this appeal and we will not recount them here. Instead, we will recount only
those facts that are pertinent to the issues we must resolve in this appeal.
2
On January 14, 2015, pursuant to a plea agreement, defendant pled guilty to
counts 1 and 2 in case No. SWF1402501 and count 1 in case No. SWF1402742. In
return, defendant was promised a dismissal on the remaining charges in both cases and a
total sentence of 44 months in state prison as follows: in case No. SWF1402501, the low
term of three years for the aggravated assault offense in count 1, plus a consecutive term
of eight months for the evading a peace officer charge in count 2, for a total of three years
eight months on that case; and in case No. SWF1402742, the midterm of eight months on
the under the influence while armed offense in count 1.
The felony plea form in case No. SWF1402501 states defendant’s custody term as
follows: “Low term of 3 years on Ct. 1 + 8 months consecutive on Ct. 2 = 3 years 8
months. Consecutive to SWF140742. Total sentence of 44 months.” The felony plea
form in case No. SWF1402742 similarly provides that defendant’s custody term will be
“8 months consecutive to SWF1402501: total sentence of 44 months.” Both forms
clearly indicate the total sentence was intended to be 44 months; however, on the other
hand, both forms also clearly note defendant’s sentences for all three counts were to run
consecutively, such that the total term would be 52 months. The record does not show
whether the parties assumed one of the eight-month sentences would run concurrently or
whether the parties erroneously noted count 2 was to run consecutively to count 1 in case
No. SWF1402501, in which the total sentence would be 44 months.
3
At the sentencing hearing, the trial court clearly intended to accept the terms of the
written plea agreements, and sentenced defendant to three years eight months in case
No. SWF1402501, and a consecutive term of eight months in case No. SWF1402742.
However, the trial court, as well as the prosecutor and defense counsel, assumed
defendant’s total sentence for both cases would be 44 months, instead of 52 months. The
trial court inquired of both parties, “And so, then, in case ending 742, [defendant is]
going to receive one-third the mid term, which is eight months, and that’s consecutive.
So looks like it will be a total of—between the two cases—44 months. Is that correct?”
(Italics added.) Both the prosecutor and defendant’s trial counsel replied, “Yes.” Later
in the hearing, the trial court again informed defendant that the “total term is 44 months”
for both cases.
The abstract of judgment in case No. SWF1402501 indicates a total sentence of
three years eight months. The abstract of judgment in case No. SWF1402742 indicates a
total sentence of eight months. Hence, the combined sentence in both cases total
52 months. A legal status summary for defendant prepared by the California Department
of Corrections and Rehabilitation confirms defendant is currently serving a sentence of
52 months rather than 44 months.2
2 On June 11, 2015, this court took judicial notice of exhibits E, F, G, and H
attached to defendant’s motion to augment the record and request for judicial notice filed
on June 3, 2015.
4
Defendant subsequently filed a notice of appeal in both cases and a request for
certificate of probable cause. The trial court granted the requests for certificate of
probable cause.
II
DISCUSSION
Defendant argues that he should have been sentenced to a total of 44 months on
both cases as intended by the parties. He further asserts that his due process rights were
violated when the trial court imposed a sentence greater than that specified in the plea
agreements without first allowing him the chance to withdraw his guilty pleas. He also
contends that this error requires a remand to correct the sentence or to allow him to
withdraw the guilty pleas.
The People agree that defendant should have been sentenced to a combined term
of 44 months, but believe a remand is not necessary and that this court exercise its
authority to modify the abstract of judgment in the interest of judicial efficiency. Under
the circumstances of this case, we agree with the People.
The parties agree that defendant’s total sentence for both cases should be
44 months in state prison, not 52 months. The parties also agree that defendant
would receive a three-year eight-month sentence in case No. SWF1402501 and a
consecutive eight-month sentence in case No. SWF1402742. The error appears to
stem from the erroneous reference to running count 2 for evading a peace officer in
case No. SWF1402501 consecutively, rather than concurrently. The felony plea form on
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that case states, “Low term of 3 years on Ct. 1 + 8 months consecutive on Ct. 2 = 3 years
8 months. Consecutive to SWF140742. Total sentence of 44 months.” It appears if the
felony plea form in case No. SWF1402501 had correctly noted count 2 was to run
concurrently to count 1, the trial court would not have erroneously ordered count 2 to run
consecutively to count 1 in case No. SWF1402501.
Where a plea bargain specifying the punishment to be imposed on a defendant has
been accepted by the prosecuting attorney and approved by the court, the defendant
cannot be sentenced to a punishment more severe than that specified in the plea. (Pen.
Code, § 1192.5; see People v. West (1970) 3 Cal. 3d 595, 610; People v. Walker (1991) 54
Cal. 3d 1013, 1024-1026, overruled on other grounds in People v. Villalobos (2012) 54
Cal. 4th 177, 183.) If the court is for some reason unable to effectuate the bargain, a
defendant must be given an opportunity to withdraw his guilty plea. (Pen. Code,
§ 1192.5; People v. West, supra, 3 Cal.3d at p. 610; People v. Walker, supra, 54 Cal.3d at
p. 1025; People v. Villalobos, supra, 54 Cal.4th at p. 182; People v. Delles (1968) 69
Cal. 2d 906, 910.) In this case, imposition of a 52-month sentence conflicts with the
principles enunciated in Penal Code section 1192.5. Additionally, imposition of a 52-
month term exceeds the aggregate sum of 44 months written on both of the plea forms
and orally advised by the trial court at the time of the plea hearing. Moreover, at no point
was defendant informed, either verbally or in writing, that his aggregate sentence would
be 52 months. As such, the appropriate and most efficient remedy under the
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circumstances of this case is to modify defendant’s aggregate sentence to effectuate the
bargain of the parties.
“ ‘[A] court has the inherent power to correct clerical errors in its records so as to
make these records reflect the true facts. [Citations.] The power exists independently of
statute and may be exercised in criminal as well as in civil cases.’ ” (People v. Mitchell
(2001) 26 Cal. 4th 181, 185, quoting In re Candelario (1970) 3 Cal. 3d 702, 705.) Courts
may correct clerical errors at any time, and may order the correction of abstracts of
judgment that do not accurately reflect the sentence imposed orally by the trial court.
(People v. Mitchell, supra, at p. 185.) Here, the People ask us to modify the abstract of
judgment to reflect a combined sentence of 44 months on both cases. Defendant requests
that the matter be remanded to allow the trial court to correct the sentence or permit him
to withdraw his guilty pleas. For the sake of judicial economy, we will order the
correction of the court’s minute order dated January 14, 2015, and the abstract of
judgment in case No. SWF1402501 to reflect count 2 is to be served concurrently with
count 1. This modification will thus reflect the trial court’s oral pronouncement of a total
44-month sentence in both cases.
III
DISPOSITION
The judgment in case No. SWF1402501 is modified to reflect an imposition of a
concurrent term of eight months on count 2 (evading a peace officer’s vehicle). The clerk
of the superior court is directed to correct the January 14, 2015 clerk’s minute order,
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prepare an amended abstract of judgment, and forward a certified copy to the Department
of Corrections and Rehabilitation in case No. SWF1402501. As modified, the judgment
in case No. SWF1402501 is affirmed.
The judgment in case No. SWF1402742 is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
McKINSTER
J.
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