People v. Shelton

• Decision Date: 05 January 2006
• Docket Number: No. S124503.,S124503.
• Citation: 37 Cal.4th 759,37 Cal.Rptr.3d 354,125 P.3d 290
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jonathan Joseph SHELTON, Defendant and Appellant.

37 Cal.Rptr.3d 354

37 Cal.4th 759

125 P.3d 290

The PEOPLE, Plaintiff and Respondent, v. Jonathan Joseph SHELTON, Defendant and Appellant.

No. S124503.

Supreme Court of California.

January 5, 2006.

Deborah Prucha, under appointment by the Supreme Court, Sacramento, for Defendant and Appellant.

Bill Lockyer, Attorney General, Manuel M. Madeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney

General, Carlos A. Martinez, Janet E. Neeley, Stephen G. Herndon, Maggy Krell and Rachelle A. Newcomb, Deputy Attorneys General, for Plaintiff and Respondent.

KENNARD, J.

In this case we granted review on two issues concerning a negotiated plea agreement that includes a sentence "lid" constraining the maximum sentence that the trial court may impose: (1) Must the defendant obtain a certificate of probable cause to challenge on appeal the trial court's legal authority to impose the maximum or "lid" sentence? (2) Is a challenge that is based on the multiple punishment prohibition of Penal Code section 654 barred by rule 4.412(b) of the California Rules of Court, which states that "[b]y agreeing to a specified prison term personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates [Penal Code] section 654's prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record"?

On the first issue, we conclude that inclusion of a sentence lid implies a mutual understanding and agreement that the trial court has authority to impose the specified maximum sentence and preserves only the defendant's right to urge that the trial court should or must exercise its discretion in favor of a shorter term. Accordingly, a challenge to the trial court's authority to impose the lid sentence is a challenge to the validity of the plea requiring a certificate of probable cause. In view of this conclusion, the second issue is moot in this case, and we do not decide it here.

Because the Court of Appeal reached a different conclusion, we reverse its judgment.

I

On February 4, 2003, the District Attorney of Sacramento County filed a complaint charging defendant Jonathan Joseph Shelton with six felony counts: one count of stalking in violation of a protective order (Pen.Code, § 646.9, subd. (b)), two counts of making a criminal threat (id., § 422), two counts of repeated violation of a protective order (id., § 273.6, subd. (d)), and one count of burglary (id., § 459). At the preliminary hearing on March 28, 2003, the magistrate found that the prosecution had presented evidence sufficient to support each of the charges except burglary, and he ordered that defendant be held to answer on the remaining five counts of the complaint. At the prosecutor's request, the complaint was deemed to be an information.

On May 30, 2003, the parties appeared in superior court and announced a plea agreement under which defendant would plead no contest to two counts — stalking in violation of a protective order (Pen.Code, § 646.9, subd. (b)) as alleged in count one of the information and making a criminal threat (id., § 422) as alleged in count three of the information — for which defendant would be sentenced to a prison term not to exceed three years and eight months. The trial court explained the sentencing provision of the plea agreement to defendant in these words: "And the lid is three years eight months. Which means that the agreement is that I cannot sentence you to more than three years and eight months and you can argue for something less than three years and eight months. However, the sentence that I will impose will be a Penitentiary [that is, prison] sentence."

The trial court advised defendant of the constitutional rights he would be waiving by entering the pleas of no contest. The prosecutor then recited the factual basis for the pleas: "On and between January 7th of 2003 and February 2nd, 2003, in Sacramento County, the defendant maliciously and repeatedly followed and harassed Dawn Acerbis and made a credible threat with the intent she be placed in reasonable fear for her safety and the safety of her immediate family. The above conduct occurred while the restraining order was in place in Case Number 02M12679. [¶] And on or about January 15th of 2003 in Sacramento County the defendant willfully and unlawfully threatened to kill Dawn Acerbis with the specific intent that she take that as a threat. Further, the threatened crime on its face and the way it was made conveyed an immediate and specific gravity of purpose to Dawn Acerbis and further Dawn Acerbis was reasonably in sustained fear of her safety and the safety of her family based on that." Defendant then formally entered his no contest plea to the two counts. The remaining three counts of the information were "taken under submission for dismissal at the time of Judgment and Sentence."

On July 17, 2003, the parties appeared before the trial court for judgment and sentence. Defendant's attorney argued that the multiple punishment prohibition of Penal Code section 654 applied to the two counts to which defendant had pleaded no contest because "[t]he threat occurred at the time of the stalking and is also one of the elements of the stalking," and, therefore, any sentence imposed for the criminal threat should be stayed. The prosecutor replied: "Well, we pled to three [years] eight [months] regarding those counts. There were other counts that could have been pled to. I didn't know [the] defense was going to raise a 654.... It would be my position that although it is part of the same course of conduct, they are clearly different elements and he pled to both."

The trial court asked: "It wasn't a stipulated sentence, it was a lid; is that right?" The prosecutor replied: "Correct." The victim, defendant's former wife Dawn Acerbis, addressed the court. The court then pronounced sentence, imposing the middle term of three years on count one (stalking as defined in Penal Code section 646.9, subdivision (b)) and one-third of the middle term consecutive, being an additional eight months, on count three (making a criminal threat as defined in Penal Code section 422), for a total aggregate term of three years and eight months. The court explained that it was imposing consecutive terms "in that the crimes were committed at different times or separate places rather than being committed so close in time and place as to indicate a single period of aberrant behavior." The court granted the prosecution's motion to dismiss counts four, five, and six in the "interest of justice in light of the plea."

On July 25, 2003, defendant filed a notice of appeal stating that the only issue to be raised was that "[t]he sentencing [sic] for the violation of Penal Code section 422 should have been stayed pursuant to Penal Code Section 654."

The Court of Appeal concluded, first, that by entering into a plea agreement with a sentence lid defendant had not waived the right to raise Penal Code section 654 error on appeal. Second, the court concluded that Penal Code section 654 required a stay of the eight-month term imposed for the criminal threat conviction. Finally, the Court of Appeal determined that because the prosecution had agreed to dismissal of the other three counts under the mistaken belief that the trial court could impose a lawful sentence of three years and eight months on the two counts to which defendant pled no contest, the prosecution should have the option of vacating the pleas and reinstating the dismissed charges. The Court of Appeal directed this disposition: "The judgment is reversed and the cause is remanded to the trial court. If within 30 days of the issuance of the remittitur the district attorney so requests, the trial court shall vacate defendant's guilty plea and reinstate the dismissed charges. Otherwise the judgment shall be modified to impose a section 654 stay of the eight month sentence for violating section 422, and as so modified the judgment will be affirmed."

Justice Vance Raye dissented. In his view, by agreeing to a plea bargain with a sentence lid, defendant "presumably reserved the right to attempt to persuade the [trial] court to exercise its discretion and impose a lower sentence," but he "did not reserve the right to assert the court was without authority, by virtue of Penal Code section 654, to impose the agreed-upon lid."

We granted the Attorney General's petition for review, which framed these two issues:

"Did the appellate court have jurisdiction to address the merits of appellant's appeal where he failed to obtain a certificate of probable cause and in his appeal challenged the imposition of the sentence lid to which he had agreed pursuant to his plea bargain?"

"Where appellant agreed to a sentence lid as part of the plea bargain, does California Rules of Court, rule 4.412(b), preclude appellant from raising a Penal Code section 654 challenge on appeal?"

II

Did defendant need to apply for and obtain a certificate of probable cause before he could raise on appeal his claim of trial court sentencing error under Penal Code section 654?

Penal Code section 1237.5 provides that a defendant may not appeal "from a judgment of conviction upon a plea of guilty or nolo contendere" unless the defendant has applied to the trial court for, and the trial court has executed and filed, "a certificate of probable cause for such appeal." (See People v. Mendez (1999) 19 Cal.4th 1084, 1094-1095, 81 Cal.Rptr.2d 301, 969 P.2d 146.) "Despite this broad language, we have held that two types of issues may be raised on appeal following a guilty or nolo plea without the need for a certificate: issues relating to the validity of a search and seizure, for which an appeal is provided under [Penal Code] section 1538.5, subdivision (m), and issues regarding proceedings held subsequent to the plea for...