California Court of Appeal Jul 28, 2015 No. E062445Unpublished
Filed 7/28/15 P. v. Khneiser 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E062445
v. (Super.Ct.No. RIF1401355)
RONY ANTOINE KHNEISER, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed with modifications.
Rony A. Khneiser, in pro. per.; Marta I. Stanton, under appointment by the Court
of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Pursuant to a plea to the court, defendant and appellant Rony Antoine Khneiser
pled guilty to the sheet as charged to numerous serious and violent felony offenses and a
misdemeanor offense. Defendant also admitted to all of the alleged firearm enhancement
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allegations and the six prior prison terms. In return, defendant was sentenced to the
indicated term of 10 years in state prison with credit for time served. Defendant appeals
from the sentence or other matters occurring after the plea. We find no error and affirm
“Acceptance of the agreement binds the court and the parties to the agreement.” (Segura,
at p. 930.)
“Although a plea agreement does not divest the court of its inherent sentencing
discretion, ‘a judge who has accepted a plea bargain is bound to impose a sentence within
the limits of that bargain. [Citation.] “A plea agreement is, in essence, a contract
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between the defendant and the prosecutor to which the court consents to be bound.”
[Citation.] Should the court consider the plea bargain to be unacceptable, its remedy is to
reject it, not to violate it, directly or indirectly. [Citation.] Once the court has accepted
the terms of the negotiated plea, “[it] lacks jurisdiction to alter the terms of a plea bargain
so that it becomes more favorable to a defendant unless, of course, the parties agree.”
[Citation.]’ ” (Segura, at p. 931; see § 1192.5 [“Where the plea is accepted by the
prosecuting attorney in open court and is approved by the court, the defendant, except as
otherwise provided in this section, cannot be sentenced on the plea to a punishment more
severe than that specified in the plea and the court may not proceed as to the plea other
than as specified in the plea.”].)
In contrast, “[i]n an indicated sentence, a defendant admits all charges, including
any special allegations[,] and the trial court informs the defendant what sentence will be
imposed. No ‘bargaining’ is involved because no charges are reduced. [Citations.]”
(People v. Allan (1996) 49 Cal.App.4th 1507, 1516 (Allan), italics added.) Rather, “the
trial court simply informs a defendant ‘what sentence he will impose if a given set of
facts is confirmed, irrespective of whether guilt is adjudicated at trial or admitted by
plea.’ [Citations.]” (People v. Superior Court (Ramos) (1991) 235 Cal.App.3d 1261,
1271 (Ramos).) “In contrast to plea bargains, no prosecutorial consent is required.
[Citation.]” (Allan, at p. 1516.)
Another significant distinction between a plea bargain and an indicated sentence is
that only a plea bargain is subject to the procedural requirements set forth in Penal Code
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section 1192.5 for the acceptance of a guilty plea.3 Section 1192.5 only applies where a
guilty plea is “accepted by the prosecuting attorney in open court . . . .” (§ 1192.5.)
Thus, that section only governs “ ‘the procedures to be followed by the trial courts in
dealing with negotiated pleas, commonly known as plea bargaining.’ [Citation.]”
(People v. Hoffard (1995) 10 Cal.4th 1170, 1181 (Hoffard); accord, People v. Fairbank
(1997) 16 Cal.4th 1223, 1245 [section 1192.5, “by its terms, applies only to ‘negotiated
pleas’ ”].) An indicated sentence is not a negotiated plea and therefore is not subject to
section 1192.5. (Hoffard, at p. 1184, fn. 12.)
3 Section 1192.5 provides: “Upon a plea of guilty or nolo contendere to an accusatory pleading charging a felony, other than a violation of paragraph (2), (3), or (6) of subdivision (a) of Section 261, paragraph (1) or (4) of subdivision (a) of Section 262, Section 264.1, Section 286 by force, violence, duress, menace or threat of great bodily harm, subdivision (b) of Section 288, Section 288a by force, violence, duress, menace or threat of great bodily harm, or subdivision (a) of Section 289, 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. [¶] Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea. [¶] If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so. The court shall also cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea. [¶] If the plea is not accepted by the prosecuting attorney and approved by the court, the plea shall be deemed withdrawn and the defendant may then enter the plea or pleas as would otherwise have been available. [¶] If the plea is withdrawn or deemed withdrawn, it may not be received in evidence in any criminal, civil, or special action or proceeding of any nature, including proceedings before agencies, commissions, boards, and tribunals.”
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The record in this case does not support the conclusion that there was any
negotiated plea between defendant and the prosecution. The prosecutor never accepted
defendant’s guilty pleas in open court, nor did she ever represent to the court that she and
defense counsel had reached any plea agreement. Although the record does show that the
prosecutor did not object to the 10-year indicated sentence when the court announced it,
most significant is the fact that the prosecutor never signed the plea form.
In criminal practice, the phrase “plea to the court” refers to a plea of guilty or nolo
contendere to all of the charges, without any promises or participation by the prosecution.
(See, e.g., Liang v. Superior Court (2002) 100 Cal.App.4th 1047, 1053 [the defendant
pled nolo contendere to all charges; defense counsel described plea as “not a People
versus West plea bargain involving the People at all. It was an open plea to this court”];
People v. Cole (2001) 88 Cal.App.4th 850, 856 [the defendant pled nolo contendere to all
charges; plea form described the disposition as an “ ‘open plea to court—no promises
made’ ”].) A “plea[] to the sheet” is an admission of all charges, without any promise of
consideration from the prosecution. (See People v. Marsh (1984) 36 Cal.3d 134, 140
[“defendant makes the unwarranted assumption that a nolo or guilty plea is invalid unless
made for a consideration which would support a contract. If that were the law a
defendant could not ‘plead to the sheet,’ simply in the hope that the court will show
leniency”].)
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The record clearly establishes that the October 17, 2014 transaction was not a plea
bargain but a plea to the sheet. Neither party ever contended otherwise. As such,
defendant mistakenly argues the court breached the plea agreement by sentencing him to
nine years on count 1 plus one year for the gun enhancement rather than as noted in his
plea form. In addition, our conclusion that there was no plea bargain means that the
procedural requirements of section 1192.5 were not applicable. Defendant does not seek
to withdraw his plea to the court or claim he did not voluntarily, freely, and intelligently
plea to the court. In fact, defendant believes the plea was “fair and just.” Rather, it
appears defendant is attempting to reduce his sentence, even though he had already
received a great benefit and avoided a potentially much greater sentence if convicted of
all of the charges, by the passage of Proposition 47.
Furthermore, it does not necessarily follow that the disposition was a proper
indicated sentence. An indicated sentence is one that the trial court indicates it will
impose “ ‘irrespective of whether guilt is adjudicated at trial or admitted by plea.’
[Citations.]” (Ramos, supra, 235 Cal.App.3d at p. 1271.) Years ago, the California
Supreme Court recognized as a general principle that it is improper for a trial court to
grant any form of leniency to a defendant because he has agreed to plead guilty rather
than go to trial: “ ‘A court may not offer any inducement in return for a plea of guilty or
nolo contendere. It may not treat a defendant more leniently because he foregoes his
right to trial or more harshly because he exercises that right.’ [Citation.]” (In re
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Lewallen (1979) 23 Cal.3d 274, 278-279, quoting People v. Superior Court (Felmann)
(1976) 59 Cal.App.3d 270, 276 (Felmann).)
Thus, a trial court is precluded from “negotiating a more lenient sentence than
would be imposed after trial in return for a plea of guilty or nolo contendere . . . .”
(Felmann, supra, 59 Cal.App.3d at p. 273.) Instead, “[l]eniency in return for a plea of
guilty or no contest must be negotiated by the defendant with the prosecutor.” (Id. at
p. 276.)
Accordingly, where a defendant pleads guilty without reaching any plea
agreement with the prosecution, a reviewing court must determine whether the trial judge
accepted the plea “solely in the exercise of his [or her] sentencing discretion” or instead,
“determined to accept an offer of the defendant to enter his plea in return for more lenient
treatment than he otherwise would have received.” (Felmann, supra, 59 Cal.App.3d at
p. 277.) In the first instance, the trial court would be acting within its proper sentencing
authority, but in the second, it “would unconstitutionally be invading the province of the
executive branch which had not accepted defendant’s offer.” (Ibid.)
Here, it appears the trial court accepted the plea “solely in the exercise” of its
sentencing discretion. (Felmann, supra, 59 Cal.App.3d at p. 277.) As the court noted, it
was prepared to give defendant the indicated 10-year sentence but could calculate the
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term in many different ways considering the numerous charges and enhancement
allegations.4
Based on the foregoing, we reject defendant’s contention that the trial court
breached the plea agreement in imposing the indicated sentence.
B. Proposition 47
We also reject defendant’s claim that he is “being discriminated against for relief”
of Proposition 47 or that he should benefit from Proposition 47.
On November 4, 2014, voters enacted Proposition 47, which became effective the
next day. (Cal. Const., art. II, § 10, subd. (a).) The focus of Proposition 47 was to render
misdemeanors a class of certain drug- and theft-related offenses that previously were
felonies or “wobblers” (crimes that can be punished as either felonies or misdemeanors),
unless they were committed by certain ineligible defendants. Proposition 47 also created
a new resentencing provision—section 1170.18—by which a person currently serving a
felony sentence for an offense that is now a misdemeanor may petition for a recall of that
sentence and request resentencing in accordance with the offense statutes as added or
amended by Proposition 47. (§ 1170.18, subd. (a).)5 A person who satisfies the criteria
4 If we were to accept defendant’s argument that the court was required to sentence him as noted in the plea form, then we would find the court to have engaged in illegal plea bargaining because it is impermissible for a trial court to “negotiate” with a defendant to obtain a guilty plea. (People v. Orin, supra, 13 Cal.3d at p. 943.) In that case, defendant would have to withdraw his plea.
5 Section 1170.18, specifically provides, as is pertinent here, “(a) A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act . . . had this act [footnote continued on next page]
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in subdivision (a) of section 1170.18 shall have his or her sentence recalled and be
“resentenced to a misdemeanor . . . unless the court, in its discretion, determines that
resentencing the petitioner would pose an unreasonable risk of danger to public safety.”
(Id., subd. (b).) Proposition 47 also created a process whereby eligible persons who have
already completed their sentences may have the particular conviction or convictions
designated as misdemeanors. (§ 1170.18, subds. (f), (g).)
Proposition 47 added section 490.2, which provides, “Notwithstanding
Section 487 or any other provision of law defining grand theft, obtaining any property by
theft where the value of the money, labor, real or personal property taken does not exceed
nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as
a misdemeanor” unless the person is otherwise ineligible for misdemeanor resentencing.
(Italics added.)
Here, defendant received the benefit of Proposition 47. At the time of sentencing,
the trial court specifically reduced the receiving stolen property offense in violation
of section 496, subdivision (a) (count 12), to a misdemeanor. The court also specifically
advised defendant of his right to petition the court pursuant to section 1170.18 in regard
to his present and prior offenses. As such, there is no indication in the record to support
defendant’s assertions that he cannot benefit from Proposition 47.
[footnote continued from previous page] been in effect at the time of the offense may petition for a recall of sentence . . . to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act.”
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C. Imposition of Prior Prison Terms
Although not raised by defendant, we find that the trial court erred in staying,
rather than striking, defendant’s six prior prison terms. Defendant admitted serving six
prior prison terms within the meaning of section 667.5, subdivision (b). These six prior
prison terms were for five second degree burglary offenses and one forgery offense. At
sentencing, the trial court imposed then stayed imposition of the one-year enhancement
for each of the six prior prison term allegations.
The trial court erred by staying the prior prison term enhancements. An
enhancement under section 667.5 cannot be stayed. (See People v. White Eagle (1996)
48 Cal.App.4th 1511, 1521.) A trial court must either impose or strike a prior prison term
enhancement pursuant to section 667.5, subdivision (b). (People v. Langston (2004) 33
Cal.4th 1237, 1241 [“the trial court may not stay the one-year enhancement, which is
mandatory unless stricken”]; People v. Campbell (1999) 76 Cal.App.4th 305, 311 [“the
court must either impose the prior prison enhancements or strike them”]; § 1385.) “The
failure to impose or strike an enhancement is a legally unauthorized sentence subject to
correction for the first time on appeal. [Citations.]” (People v. Bradley (1998) 64
Cal.App.4th 386, 391; see People v. White Eagle, supra, 48 Cal.App.4th at p. 1521.) It is
clear by the trial court’s comments that it did not intend to impose the prior prison term
enhancements. Accordingly, we strike these prior prison term enhancements.
In light of the trial court’s intent, it is unnecessary to remand for resentencing to
enable the trial court to explicitly exercise its discretion. Such a remand would be a
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wasteful use of judicial resources. However, we will direct the trial court to amend the
abstract of judgment and the court’s minute order of the November 6, 2014 sentencing
hearing to reflect the six prior prison term enhancements are stricken and to forward the
amended abstract of judgment to the Department of Corrections and Rehabilitation.
We further find that the court’s minute order of the November 6, 2014 sentencing
hearing incorrectly states that the gun enhancements were stayed and then stricken. At
sentencing, the trial court imposed the upper term of nine years on count 1 for first degree
robbery, plus a consecutive one year for the principal armedwith a firearm (§ 12022,
subd. (a)(1)) enhancement, and imposed and stayed the section 12022, subdivision (b)(1)
enhancement, for a total term of 10 years. The court then imposed one year each on the
gun enhancement allegations under section 12022, subdivisions (a)(1) and (b)(1) attached
to counts 2, 3, 4, 6, and 7, but stayed imposition of the sentences on those gun
enhancements.
Generally, when there is a conflict between the oral pronouncement of judgment
and a minute order, the former controls and the latter is presumed to be the result of
clerical error. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) The oral pronouncement
also controls over the abstract of judgment if the two conflict. (People v. Delgado (2008)
43 Cal.4th 1059, 1070.)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the entire record for potential error and find no arguable error
that would result in a disposition more favorable to defendant.
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III
DISPOSITION
The six prior prison term enhancement allegations are stricken. The clerk of the
superior court is directed to amend the abstract of judgment and the court’s minute order
of the November 6, 2014 sentencing hearing in accordance with this opinion and forward
a copy of the amended abstract of judgment to the Department of Corrections and
Rehabilitation. The judgment, as so modified, is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J. We concur:
HOLLENHORST J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant's plea was an 'indicated sentence' rather than a negotiated plea bargain, and that the trial court erred by staying rather than striking the defendant's prior prison term enhancements.
Issues
Whether the defendant's plea constituted a negotiated plea agreement or an indicated sentence.
Whether the trial court breached the plea agreement by imposing a sentence different from the plea form.
Whether the defendant was entitled to relief under Proposition 47.
Whether the trial court erred by staying rather than striking the prior prison term enhancements.
Disposition. Affirmed with modifications.
Quotations verified verbatim against the opinion
“A plea bargain and an indicated sentence are distinctly different ways of resolving a criminal case without a trial.”
“An enhancement under section 667.5 cannot be stayed.”
“The six prior prison term enhancement allegations are stricken.”