People v. Ramirez
| Decision Date | 11 February 2008 |
| Docket Number | No. A115138.,A115138. |
| Citation | 159 Cal.App.4th 1412,72 Cal.Rptr.3d 340 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Francisco RAMIREZ, Defendant and Appellant. |
Paul F. DeMeester, under appointment by the Court of Appeal, San Francisco, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Dorian Jung and Lisa Ashley Ott, Deputy Attorneys General, for Plaintiff and Respondent.
After appellant Francisco Ramirez pleaded guilty in 2003 to selling cocaine base, the trial court sentenced him to four years in state prison, suspended execution of the sentence, and placed him on probation. In 2004, appellant admitted a probation violation as part of a plea agreement that allowed him to remain on probation but increased his previously imposed, unexecuted sentence from four to five years. In 2006, the trial court found that appellant had violated the terms of his probation, terminated his probation, and ordered him to serve the five-year prison term that had been imposed but suspended in 2004.
On appeal, appellant challenges his five-year sentence, claiming the trial court lacked authority to modify his original four-year sentence. Although we conclude the trial court exceeded its jurisdiction by increasing appellant's sentence, we also conclude that appellant is not entitled to relief under the circumstances presented here. First, because appellant agreed to the increased sentence as part of a plea bargain, he cannot be heard to complain that the court exceeded its jurisdiction by imposing the modified sentence. Second, his challenge is untimely because he did not appeal from the order imposing the increased sentence. Accordingly, we affirm.
On November 8, 2002, the San Francisco County District Attorney filed a two-count information charging appellant with the sale of cocaine base (Health & Saf.Code, § 11352, subd. (a)) and with possession for sale of cocaine base (Health & Saf.Code, § 11351.5). The information contained a number of additional allegations rendering appellant ineligible for probation and imposing three-year sentence enhancements as to each count as a result of appellant's prior drug-related convictions. (See Pen Code,1 §§ 1203.07, subd. (a)(11) [ineligible for probation], 1203.073, subd. (b)(7) [same]; Health & Saf.Code, §§ 11370, subds. (a) & (c) [ineligible for probation], 11370.2 [additional three-year term].)
Appellant pleaded guilty on June 16, 2003, to selling cocaine base. (Health & Saf.Code, § 11352, subd. (a).) On July 24, 2003, the trial court sentenced appellant to the mid-term of four years in state prison, suspended execution of the sentence, and placed him on probation for a period of three years on specified terms and conditions. The record on appeal contains no indication that he appealed from the court's order.
On October 24, 2003, appellant admitted a probation violation for drug-related loitering. The court reinstated appellant on probation with an added condition that he serve 90 days in jail. The additional jail time was stayed for six months, with the stay to become permanent if no new criminal cases were filed against appellant during that time.
The district attorney moved to revoke appellant's probation on March 29, 2004, based on appellant's arrest for forcible sexual penetration, forcible rape, and harm to an elder or dependent adult. According to the police report of the incident, appellant had assaulted and raped a 73-year old woman in his hotel room in San Francisco. Appellant denied the allegation.
On December 17, 2004, pursuant to a negotiated disposition, appellant admitted to having violated the terms of his probation.2 The court reinstated probation on the original terms and conditions with the added condition that appellant serve 268 days in county jail, with credit for 268 days served. Appellant was also to stay away from the victim of the sexual assault. Appellant entered a Blakely3 waiver, giving up his right to a jury trial on any sentencing factors that might warrant an upper term sentence. He admitted that his performance on probation or parole had been unsatisfactory for purposes of imposing the upper term on his 2003 conviction for selling cocaine base. As agreed by the parties to the negotiated disposition, the trial court increased appellant's sentence for selling cocaine base from the middle term of four years to the upper term of five years. (See Health & Saf.Code, § 11352, subd. (a).) The execution of the sentence remained suspended. There is nothing in the record to indicate appellant appealed from the court's December 2004 order.
After being released from jail on December 17, 2004, appellant called his ex-girlfriend, Sonya Baisden. He told her he was "out" and asked if she would pay for his taxi. She told him she would pay for his taxi but "that's all." When appellant arrived at Baisden's residence, she started to go downstairs to pay for his taxi. She ran back up the stairs when she saw that appellant had entered the building and was coming up to her room. Appellant entered Baisden's room and said something to her guests, who quickly left. Appellant locked the deadbolt on the door.
Earner that day, Baisden had purchased a package of steak knives, which were on her bed. Appellant grabbed a knife from the package and began stabbing Baisden in her abdomen and thighs. When the knife blade broke off inside Baisden, appellant grabbed a second steak knife and began to stab her in the thighs and shoulder. The second knife also broke off inside Baisden's body. Before leaving, appellant grabbed the last two knives and slashed Baisden's face. The assault left scars across Baisden's face and diminished vision in her left eye.
On January 5, 2005, the district attorney moved to revoke appellant's probation based on the assault on appellant's former girlfriend. On July 13, 2006, following a contested probation revocation hearing, the court revoked appellant's probation based upon a finding that appellant had willfully violated the terms of his probation by stabbing Baisden. The court found that appellant was not amenable to probation supervision. Appellant's trial counsel sought a delay in sentencing to address the validity of the trial court's order of December 17, 2004, which had increased appellant's sentence from four to five years. The trial court continued the hearing and allowed the parties to brief the issue.
At a hearing on August 10, 2006, the trial court reiterated its order revoking probation. The court also announced its conclusion that it had jurisdiction to increase appellant's ESS [execution of sentence suspended] sentence on December 17, 2004, reasoning that it had authority to do so before appellant was rearrested on the current probation violation. Accordingly, the court ordered into execution the five-year prison term that had been imposed but suspended in December 2004 pursuant to the parties' agreement. The court awarded custody credits totaling 1,281 days. Appellant filed a notice of appeal on September 1, 2006.
Appellant raises three claims on appeal. First, he contends the trial court had no authority to revoke his probation and modify his sentence on December 17, 2004, because he made no admission of any probation violation. The thrust of his argument is that he did not admit the sexual assault charge, and there is no other factual basis in the probation report to support an order revoking his probation. Second, he argues the court had no authority to increase his sentence from four to five years on December 17, 2004, because his four-year sentence was final and not subject to modification. Third, he contends the court erred on December 17, 2004, by imposing the upper term of five years on his 2003 conviction for selling cocaine base, because his waiver of the right to a jury trial on factors supporting an aggravated sentence was legally inadequate.
All of appellant's contentions relate to the court's order of December 17, 2004. Appellant does not directly challenge the August 2006 order revoking probation and ordering execution of his sentence, other than to claim that the previously imposed five-year term of imprisonment is an unauthorized sentence. The People argue that appellant's claims are untimely and should have been raised, if at all, in an appeal from the December 2004 order. We address the timeliness argument at the outset because it is potentially dispositive.
A criminal appeal must generally be filed within 60 days of the making of the order being appealed. (Cal. Rules of Court, rule 8.308(a).) (People v. Mendez (1999) 19 Cal.4th 1084, 1094, 81 Cal.Rptr.2d 301, 969 P.2d 146.) Here, there is no dispute that the August 2006 order revoking probation and directing execution of appellant's sentence is appealable and that appellant filed a timely appeal from that order. The issue is whether appellant's challenge to the December 2004 order is cognizable in this appeal from an August 2006 order.
An order granting probation and imposing sentence, the execution of which is suspended, is an appealable order. (§ 1237, subd. (a); cf. People v. Preyer (1985) 164 Cal.App.3d 568, 576, 210 Cal. Rptr. 807; People v. Chagolla (1984) 151 Cal.App.3d 1045, 1049, 199 Cal.Rptr. 181.) An order modifying the terms of probation is likewise appealable because it is an order following judgment that affects the substantial rights of the defendant. (§ 1237, subd. (b); see People v. Douglas (1999) 20 Cal.4th 85, 91, 82 Cal.Rptr.2d 816, 972 P.2d 151; In re Bine (1957) 47 Cal.2d 814, 817, 306 P.2d 445.)
In general, an appealable order that is not appealed becomes final and binding and may not subsequently...
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