People v. Sansone CA1/4

Filed 9/2/20 P. v. Sansone CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A159303
v.
ADAM BRANDON SANSONE, (Napa County
Super. Ct. No. 19CR001552)
Defendant and Appellant.
Adam Brandon Sansone appeals a sentence imposed after he pled
no contest to a charge of second degree burglary pursuant to a plea bargain
providing for a 16-month sentence. He contends that the trial court abused
its discretion by denying his request to continue the sentencing to give him
the opportunity to secure new evidence that might have enabled him to
withdraw his plea. He also contends that the court erred in treating his 2006
conviction for assault (Pen. Code, § 245, subd. (a)(1))1 as a strike which,
pursuant to sections 667.5 and 1710.12, required him to serve the sentence in
prison rather than in jail. We conclude that the court did not abuse its
discretion in denying a continuance and that, because defense counsel
expressly advised the court that the 2006 conviction made defendant
All statutory references are to the Penal Code unless otherwise
1
indicated.
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ineligible to serve his sentence in jail, the doctrine of invited error bars
defendant’s challenge to that aspect of his sentence. We shall thus affirm.
Factual and Procedural History
The operative second amended information charged defendant and
Makayla Ann Slayton with felony first degree burglary (§ 459) and
misdemeanor possession of burglary tools (§ 466). The information alleged as
special circumstances that defendant had suffered a prior conviction of a
serious or violent felony (§ 667.5; § 1170.12, subds. (a)–(d)), which was
identified as “PC 245(a)(1) on 2/8/06, Sonoma County SCR #471770.”2
On June 3, 2019, according to testimony at the preliminary hearing, a
Napa County sheriff’s deputy responding to a burglar alarm found defendant
sitting in a car outside an untended vacant house in Calistoga; the deputy
then saw Slayton leave the house carrying what proved to be papers
(including the deed to the house), a prybar, and a methamphetamine pipe.
Slayton told the deputy that the house belonged to defendant’s recently
deceased aunt (which proved to be untrue); that defendant needed to retrieve
property from the house and to check for squatters; and that she and
defendant entered through an unlocked back door, after which defendant had
returned to the car. The deputy found evidence that the house had in fact
been entered through a window pried open with the bar Slayton was
carrying. Inside the car he found other burglary tools in a backpack.
According to probation reports, Slayton met with prosecutors the next
day and told them that defendant had enlisted her in his plan to burglarize
the house. Defendant’s presentence report described a contrary account that
he gave to the deputy and later repeated to the probation officer: he had asked
2
The information also charged Slayton with misdemeanor possession of
drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)).
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Slayton for a ride, during which he passed out; he awoke when the deputy
approached the car; he never entered the house and knew nothing about, and
played no part in, the burglary.
In September 2019, defendant moved to dismiss the information on the
ground that the prosecutor had withheld impeachment evidence about
Slayton’s record, including a conviction for lying to law enforcement. The
parties then stipulated to reopen the preliminary hearing.
On November 1, the date set for the preliminary hearing, defense
counsel told the court that the parties had reached a plea bargain. The
prosecutor would amend the information to add a fourth count of second
degree burglary (§ 459), to which defendant would plead no contest in
exchange for dismissal of the remaining counts and special-circumstance
allegations. This exchange followed:
“THE COURT: Is this going to be a local or a state prison sentence?
“[DEPUTY DISTRICT ATTORNEY] FADEM: State prison sentence.
“THE COURT: It’s based on the prior strike conviction or?
“MR. FADEM: Yes.
“[DEPUTY PUBLIC DEFENDER] SOLGA: Although the strike is being
dismissed, so I think he’s entitled to half time on this case. And the sentence
doesn’t get doubled because of dismissing the strike. I think it also makes it
ineligible under 1170(h) for a local prison term.
“THE COURT: Right.
“MR. SOLGA: Okay.
“THE COURT: Are the parties asking for a [rule 4.412 presentence]
report or do you want him sentenced today?
“MR. FADEM: I would ask for a 412 report, please.
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“MR. SOLGA: And Mr. Sansone would like a little more time than [is]
customary. . . . [M]id-December . . . would be his preference for sentencing.
“THE COURT: Any problem with that?
“MR. FADEM: No, your Honor, and I’ll put on the record that we are
moving to dismiss that strike prior and we are doing so for proof problems
and a witness issue.”
The court accepted defendant’s plea, granted the motion to dismiss the
remaining counts and special-circumstance allegations, and turned to setting
a date for sentencing. The defense attorney, Mr. Solga, advised that a new
deputy public defender would be taking over the case but would be out of the
office the last two weeks of December, and asked if the hearing could be in
the first week of January. When the court instead proposed December 13,
Solga replied: “I’ll be candid with the court. We are so close to a paper
commitment,[3] that if Mr. Sansone could be sentenced in January he might
avoid having to get processed through the prison. So that’s why we’re asking
for more time.” The court denied that request and set the sentencing hearing
for December 13.
On December 6, the probation office submitted a presentence report
describing, among other things, a December 3 interview in which defendant
gave the above-described account of how Slayton had committed the burglary
without his involvement. He stated that Slayton was a known liar whose
story had changed repeatedly, that he felt he had been railroaded into an
unfair plea bargain because he could not afford bail, and that he intended to
3 By this, Solga meant that defendant would be sentenced to state
prison, but his presentence credits would exhaust his term, and he would be
released without ever being transferred from jail to prison.
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talk with his attorney about withdrawing his plea or requesting a
continuance so he could decide what to do.
At the December 13 hearing, after the court noted that it had read the
probation report, defendant’s new attorney moved to continue the sentencing
to January 3 because defendant “has learned that there is a video recording
of [Slayton] confessing that she lied to the district attorney’s office and . . .
the police about what happened in order to point the finger at him.” Stating
that she had not seen the video and had learned of its existence only the day
before, the attorney asked the court to “continue the matter so that I can
send an investigator to try to find this video and discuss the possibility with
Mr. Sansone [of] withdrawing his plea.”
The prosecutor opposed the motion, reminding the court of Mr. Solga’s
prior acknowledgment that defendant was “shooting for a paper commitment.”
Noting the lack of evidence that the video exists, the prosecutor expressed a
belief that “this is simply a way to avoid being sent to state prison and put
this out a little longer.” Defense counsel responded that no one had asked her
to try to achieve a “paper commitment” and that she was not “trying to . . .
pull one over on the court.” The court replied, “I don’t think you are” and
noted that a confession by Slayton that she had lied about defendant’s role
would be consistent with defendant’s reported statement to the effect that he
“wasn’t as involved as the charges suggested.” The court continued the
sentencing hearing to January 3 to “give [defense counsel] a brief period of
time to investigate that.”
At the January 3 hearing, defense counsel stated that her office had
contacted “a witness that said this video does exist, but she does not have it
in her possession, but she’s working on getting it.” She said that the witness
had stated that “[t]he person who took it is working on getting it off his
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phone, and getting it to [the witness] so she can send it to [the] investigator.”
She asked the court to “put sentencing over for one more week to see if we
can get our hands on that video.”
The court denied the motion, stating that it had already continued
sentencing once for that purpose and, “when I look at the factual scenario, I
don’t know if such a tape exists, or what impact it would have [if it does].”
The court added that it had, by that time, taken Slayton’s plea, which had
“given me the opportunity to read the actual scenario in this case,” and that
it was “not prepared to continue the matter again.” The court sentenced
Sansone to 16 months in state prison, with credit for 215 days of time served
and 214 days of conduct credit.
Defendant filed a timely notice of appeal “based on the sentence or
other matters occurring after the plea that do not affect the validity of the
plea,” accompanied by a request for a certificate of probable cause, which
described the events related to the denial of a second continuance. The trial
court granted the request for a certificate.
Discussion
1. The court acted within its discretion in denying a continuance.
The court may continue a criminal matter only upon a showing of good
cause (§ 1050, subd. (a)), and the decision whether to do so “ ‘rests within the
sound discretion’ ” of the trial court (People v. Fuiava (2012) 53 Cal. 4th 622,
650). “ ‘The party challenging a ruling on a continuance bears the burden of
establishing an abuse of discretion, and an order denying a continuance is
seldom successfully attacked,’ ” for “ ‘discretion is abused only when the court
exceeds the bounds of reason, all circumstances being considered.’ ” (Ibid.) A
trial court “ ‘may not exercise its discretion “so as to deprive the defendant or
his attorney of a reasonable opportunity to prepare.” ’ ” (Ibid.)
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Here, the court exercised its discretion thoughtfully. When defense
counsel first requested a continuance, the court independently noted how the
rumored video could be consistent with defendant’s reported statement about
his role in the burglary, and it allowed the defense three weeks to investigate.
After those three weeks, defense counsel could report only that a witness who
did not have the video had alleged that an unidentified person was “working”
in an unspecified way on “getting it off his phone.” Defense counsel offered no
information about the person who allegedly had the video, why he had not
been able to “get it off his phone,” or when he might do so. Moreover, counsel
was unable to indicate what the video revealed or that it was likely to
warrant permission for defendant to withdraw his plea. Under those
circumstances, the court acted within its discretion in denying a second
continuance. Defense counsel’s comments did not show that her office had
acted diligently to secure the video during the initial continuance, and the
court still did not know “if such a [video] exists, or what impact it would have
[if it did].”
Defendant points to the court’s comment that taking Slayton’s plea had
given it “the opportunity to read the actual scenario in this case.” In
defendant’s view, this reference to the “actual scenario” indicated that the
court believed that the probation report definitively established what actually
happened during the burglary. Defendant implies that, because the court
believed that it knew the “actual scenario,” it considered the veracity of
Slayton’s account immaterial. But the court’s reference to the “actual
scenario” does not indicate that it based its ruling on the belief that it knew
what had “actually” happened, making further evidence immaterial. What
the court had read, as it stated, was the presentence report, which
summarized four different accounts of how the burglary transpired: the
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sheriff’s deputy’s report; Slayton’s statements to the district attorney’s office;
a statement allegedly made by an acquaintance of defendant that Slayton
had given to the district attorney’s office; and defendant’s contrary
statements to the deputy and the probation officer. The court’s stated
rationale for denying the second continuance was that defendant had failed,
after one continuance, to show “if such a tape exists, or what impact it would
have.” This ruling did not exceed the bounds of reason or deny defendant a
reasonable opportunity to withdraw his plea.4
2. The doctrine of invited error bars Sansone’s claim that the court
erred in ordering him to serve his sentence in prison.
Defendant contends that the court erred in ordering that he serve his
sentence in prison rather than in jail. Although defendant has now served his
full sentence, the parties agree the issue is not moot because, as a result of
having been sentenced to prison rather than jail, he is now subject to ongoing
postrelease community supervision (§ 3451, subd. (a)). (Cf. People v. Valencia
(2014) 226 Cal. App. 4th 326, 329 [service of entire term does not moot an
appeal that may affect duration of probation or parole].)
Defendant contends that section 1170, subdivision (h) required the
court, once it chose to treat his conviction for second degree burglary as a
felony (see § 461, subd. (b)), to sentence him to jail unless he came within an
exception set forth in section 1170, subdivision (h)(3). (See § 1170, subd. (h)(2)
[“Except as provided in paragraph (3), a felony punishable pursuant to this
subdivision shall be punishable by imprisonment in a county jail . . .”].) One
4 Defendant also argues that it would have been improper to deny a
continuance based on the prosecutor’s speculation that defendant’s real goal
was to cause delay so he could attain a “paper commitment.” But in granting
a three-week continuance on December 13, the court stated explicitly that it
did not think this was defense counsel’s purpose.
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exception is for defendants with prior convictions for serious or violent
felonies as defined by sections 1192.7 and 667.5. (§ 1170, subd. (h)(3).) While
the information alleged that defendant had one such conviction, identified as
“PC 245(a)(1) on 2/8/06, Sonoma County,” the pre-2012 version of that statute
encompassed both assault with a deadly weapon, which is a strike, and
assault by means likely to cause great bodily injury, which is not. (People v.
Delgado (2008) 43 Cal. 4th 1059, 1065.) A reference to a pre-2012 conviction
under section 245, subdivision (a) is thus ambiguous as to whether the
conviction constitutes a strike.5 (Ibid.)
Here, the information did not state whether the 2006 conviction was for
assault with a deadly weapon or for assault by means likely to cause great
bodily injury and, as part of the plea bargain, the People dismissed the
allegation that it constitutes a strike. Yet, as indicated above, when the court
took defendant’s plea and asked if his sentence would be for prison or jail, the
prosecutor said “prison,” the court asked, “based on the prior strike
conviction?,” the prosecutor said “yes,” (See People v. Delgado, supra,
43 Cal.4th at p. 1065 [“if the prior conviction was for an offense that can be
committed in multiple ways, and the record of the conviction does not disclose
how the offense was committed, a court must presume the conviction was for
the least serious form of the offense”].) But here, defense counsel expressly
agreed with the prosecutor’s statement that defendant must serve his
sentence in prison because of his “prior strike conviction,” and the court
relied on that position as stated by both attorneys. Any error was an invited
5
In 2012, the Legislature eliminated this problem by amending
section 245 to move assault by means likely to cause great bodily injury to a
new, distinct subdivision. (Stats. 2011, ch. 183, § 1; see also People v
Learnard (2016) 4 Cal. App. 5th 1117, 1121–1122 & fn. 7.)
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error, for which defendant may not seek relief. (9 Witkin, Cal. Procedure (5th
ed. 2008) Appeal, § 389, p. 447.)
Defendant contends that the invited-error doctrine does not apply
because section 1170, subdivision (h) required the court as a matter of law to
sentence him to jail unless the state proved a disqualifying prior conviction.
(See People v. Clytus (2012) 209 Cal. App. 4th 1001, 1006 [“a trial court . . . has
no discretion to send to prison a defendant whose criminal record and current
felony convictions qualify for a county jail commitment under section 1170,
subdivision (h)”], disapproved on other ground in People v. Scott (2014)
58 Cal. 4th 1415, 1426.) An unauthorized sentence is not subject to harmless-
error analysis and cannot be saved by the doctrines of waiver, estoppel, or
even invited error. (In re Birdwell (1996) 50 Cal. App. 4th 926, 930–931.)
However, a sentence is “unauthorized” only if it “could not lawfully be
imposed under any circumstance in the particular case.” (People v. Scott
(1994) 9 Cal. 4th 331, 354.) That is not true of defendant’s sentence: Except
for the representations of both trial attorneys, the record is silent as to
whether defendant’s 2006 conviction under section 245, subdivision (a)(1) was
for assault with a deadly weapon or for assault by means likely to cause great
bodily injury. The trial court was entitled to accept defense counsel’s express
confirmation that the conviction made defendant ineligible to serve his
sentence in jail—presumably because the conviction was in fact for assault
with a deadly weapon. Accordingly, there is no basis to conclude that the
sentence was unauthorized.
Disposition
The judgment is affirmed.
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POLLAK, P. J.
WE CONCUR:
TUCHER, J.
BROWN, J.
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