People v. Beebe

• Decision Date: 18 December 1989
• Docket Number: No. C005181,C005181
• Citation: 265 Cal.Rptr. 242,216 Cal.App.3d 927
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael Eugene BEEBE, Defendant and Appellant.

Page 242

265 Cal.Rptr. 242

216 Cal.App.3d 927

The PEOPLE, Plaintiff and Respondent, v. Michael Eugene BEEBE, Defendant and Appellant.

No. C005181.

Court of Appeal, Third District, California.

Dec. 18, 1989.

Certified for Partial Publication ^*

[216 Cal.App.3d 929] Richard L. Turner, Yreka, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Arnold O. Overoye, Sr. Asst. Atty. Gen., Gary A. Binkerd and Joel Carey, Supervising Attys. Gen., and Thomas Shigemoto, Deputy Atty. Gen., for plaintiff and respondent.

SCOTLAND, Associate Justice.

During the summer of 1984, defendant and his wife lived with their four-year-old daughter. One day that summer, while defendant was lying naked on the living room couch, he made his daughter rub lotion up and down on his penis and instructed her not to tell her mother. ¹

Charged by information with one count of violating section 288, subdivision (a), defendant initially pled not guilty. Then, on the day of trial, he entered a negotiated plea of no contest. Pursuant to the plea, defendant would receive a maximum of 120 days in jail if incarcerated, and the conviction would be reduced to a violation of section 647a (now § 647.6) ² (child molestation), a misdemeanor, if he successfully completed probation.

After a probation report and psychiatrist's report were filed, defendant moved to withdraw his plea. The motion was supported by defendant's declaration stating: "[W]hen I entered my [no contest plea], I understood that I had no choice as my attorney told me I would lose if I went to trial. [p] I now beleive [sic ] that I could prevail if this matter went to trial. [p] I now have found out that I would have to register as a sex offender where ever [sic ] I go even after I complete probation. [p] If I had known that I would have to register as a sex offender even after I completed probation, I would not have entered a plea to the charge. [p] If I had known I had a chance to be found not guilty after trial I would have not pleaded guilty...."

The motion was denied, and defendant was sentenced in accordance with the terms of the negotiated plea.

Having obtained a certificate of probable cause, defendant contends that the trial court erred in denying his motion to withdraw the plea. Defendant argues he was entitled to set aside his plea because the court (1) exceeded its jurisdiction in accepting the plea; (2) led defendant to believe that he would have to register as a sex offender pursuant to section 290 only while he was on probation; and (3) failed to determine that there is a factual basis for the plea.

In the published portion of this opinion, we conclude that a trial court lacks statutory authority to accept a negotiated plea which would "reduce" a "straight felony" (i.e., a felony not alternatively punishable by a fine or imprisonment in county jail) to a misdemeanor upon successful completion of probation. Accordingly, the trial court exceeded its jurisdiction in approving defendant's plea. However, we hold that defendant is estopped from withdrawing the plea. In the unpublished portion of this opinion, we reject defendant's other contentions.

DISCUSSION

I

Defendant contends that the trial court exceeded its jurisdiction when it approved a negotiated plea which provides that defendant's felony conviction for violating section 288, subdivision (a), will be "reduced to a misdemeanor 647a after successful completion of probation."

Asserting that section 288, subdivision (a), is a "straight felony" which cannot be reduced to a misdemeanor by operation of section 17, defendant argues that he should have been permitted to withdraw his plea because the trial court lacked authority to Defendant misreads West, which holds that "the court, in accepting a knowing and voluntary plea of guilty or nolo contendere, is not limited in its jurisdiction to the offenses charged or necessarily included in those charged." (Id., at p. 613, 91 Cal.Rptr. 385, 477 P.2d 409; fn. omitted; emphasis added.)

accept the plea. Citing People v. West (1970) [216 Cal.App.3d 931] 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409, he claims that the trial court could "accept only a plea to the charged offense."

Nevertheless, for other reasons discussed below, we find that the trial court exceeded its jurisdiction in approving the plea.

Negotiated pleas are governed by statute. Section 1192.5, with exceptions not applicable here, provides: "Upon a plea of guilty or nolo contendere to an accusatory pleading charging a felony, ... the plea may specify the punishment to the same extent as it may be specified by the jury on a plea of not guilty or fixed by the court on a plea of guilty, nolo contendere, or not guilty, and may specify the exercise by the court thereafter of other powers legally available to it." (Emphasis added.)

The power of the court to reduce a felony to a misdemeanor is governed by section 17. Under subdivision (b) of that section, the court may reduce the felony offense "[w]hen a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, ..." At the time of defendant's offense, violation of section 288, subdivision (a), was punishable "in the state prison for a term of three, six, or eight years." Since the offense was not alternately punishable by a fine or imprisonment in the county jail, the trial court had no power to authorize the future reduction of this felony to a misdemeanor under section 17. Stated another way, the plea condition allowing for the reduction of defendant's felony conviction to a misdemeanor upon successful completion of probation specified a power not legally available to the trial court for inclusion in the negotiated plea.

It could be argued that although the trial court stated defendant's conviction is to be "reduced," this "reduction" will not be effected under section 17, subdivision (b); rather, the plea will entitle defendant, upon successful completion of his probation, to withdraw his no contest plea to violation of section 288, subdivision (a), and enter a new plea of no contest to violation of section 647a (now § 647.6), a misdemeanor. Yet, this result also is not authorized by statute.

The power of a court to permit the withdrawal of plea after the successful completion of probation is governed by section 1203.4, subdivision (a). This statute provides in relevant part: "In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, ... the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with any offense, be permitted to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; and ... the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, ... however, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed...." Simply stated, section 1203.4 permits the withdrawal of a plea of no contest, the entry of a not guilty plea in its place and then a dismissal of the accusatory pleading. It does not, however, permit the withdrawal of defendant's felony plea and the entry of a no contest plea to a different crime without any dismissal.

In sum, the trial court lacked authority to approve defendant's negotiated plea which would reduce his "straight felony" conviction for violation of section 288, subdivision (a), to a misdemeanor conviction for violation of section 647a upon successful Although defendant's plea agreement exceeded the trial court's jurisdiction, we hold that defendant is estopped from withdrawing his plea. Thus, the trial court did not err in denying defendant's motion to withdraw the plea.

completion of probation. Since this plea condition conflicts with sections 17, 1192.5 and 1203.4, it cannot be accepted as part of a negotiated plea.

It is clear that the trial court's error in approving defendant's plea is premised on an excess of jurisdiction, not on the lack of fundamental jurisdiction. (People v. Ellis (1987) 195 Cal.App.3d 334, 343, 240 Cal.Rptr. 708; see In re Griffin (1967) 67 Cal.2d 343, 347, 62 Cal.Rptr. 1, 431 P.2d 625; People v. Jones (1989) 210 Cal.App.3d 124, 134-137, 258 Cal.Rptr. 294.) "When, as here, the court has jurisdiction of the subject, a party who seeks or consents to action beyond the court's power as defined by statute or decisional rule may be estopped to complain of the ensuing action in excess of jurisdiction. [Citations.] Whether he shall be estopped depends on the importance of the irregularity not only to the parties but to the functioning of the courts and in some instances on other considerations of public policy. A litigant who has stipulated to a procedure in excess of jurisdiction may be estopped to question it when 'To hold otherwise would permit the parties to trifle with the courts.' " (In re Griffin, supra, at pp. 347-348, 62 Cal.Rptr. 1, 431 P.2d 625; see People v. Jones, supra, at p. 136, 258 Cal.Rptr. 294; People v. Ellis, supra, at p. 343, 240 Cal.Rptr. 708.)

Other than his desire to withdraw the plea because he now thinks he can obtain an acquittal if this case goes to trial, the irregularity of which defendant complains does not prejudice him at all. To the contrary, it is beneficial to him. Under the plea agreement, if defendant successfully completes his probation, he will avoid being adjudicated a felon and will suffer only the consequences of a misdemeanor conviction. Thus, aside from his...