Super. Ct. Nos. 62098205A & 62085595B
The opinion of the court was delivered by: Duarte ,j.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appointed counsel for defendant Jason Edward Pickett has asked this court to review the record to determine whether there exist any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We shall affirm the judgment, but shall modify the judgment to impose sentence in accordance with the plea agreement and shall order dismissal of the remaining counts from the two cases of conviction, as explained below.
On April 27, 2010, defendant pled no contest to three charges contained in two separate charging documents for a stipulated sentence of four years in state prison. From case No. 62085595B (credit union case), defendant pled no contest to one count of second degree commercial burglary (Pen. Code,*fn1 §§ 459, 460, subd. (b); count nine) and one count of forgery (§ 476; count ten). He admitted a November 2007 serious or violent felony conviction (strike) (§§ 422, 667, subds. (b)-(i), 1170.12), as part of his plea. He also executed a written plea form that read in relevant part: "16 mths x2 (strike prior) 32 mt. STIP." In exchange for this plea, the remaining counts were to be dismissed.
From case No. 62098205A (drug case), defendant pled no contest to possession of methamphetamine (Health & Saf. Code, § 11377; count two) and again admitted the strike. The written form for this plea reads: "8 mths x2 (strike prior) 16 mt." In exchange for this plea, the remaining count was to be dismissed.
At the sentencing hearing held on August 31, 2010, the trial court imposed the stipulated state prison term of four years, but the component parts were not as contemplated on the plea forms. Relying on notes from a deputy district attorney who had not been present for the entry of the plea, the deputy present at sentencing stated: "[the drug case] and the strike was to constitute 32 months, and the other file was third [sic] the middle term times two for 16 more months, which adds up to 48 months or 4 years." There was no objection by defendant to this proffered understanding of the terms of the plea agreement.
The trial court imposed sentence in accordance with this understanding, and, apparently treating the drug case as the principal term, imposed the low term of 16 months, doubled due to admission of the strike, to total 32 months for the drug case, rather than the stipulated 16 months. Then, apparently treating the credit union case as subordinate, it imposed eight months consecutive (one-third the middle term but not doubled) for the burglary count, and the same sentence for the forgery count, adding a total of 16 months consecutive for the credit union case, rather than the stipulated 32 months. The court did not even acknowledge the admitted strike when imposing sentence in the credit union case, much less purport to address it pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
In the credit union case, defendant was awarded one day of custody credit and zero days of conduct credit. In the drug case, defendant was awarded 13 days of custody credit and six days of conduct credit.*fn2 He was ordered to pay an $800 restitution fine (§ 1202.4) and an $800 restitution fine suspended unless parole is revoked (§ 1202.45). Although several trailing misdemeanor cases were addressed and dismissed at the conclusion of sentencing, it does not appear that the remaining counts from the charging documents in the credit union and drug cases were addressed and nothing in the record suggests that the remaining counts were ever dismissed.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant.
As outlined above, our review shows that the sentences imposed did not comport with the terms of the plea agreements signed by defendant. Not only were the agreed-upon sentences on the drug and credit union cases "reversed," with the drug case treated as the principal term and the credit union case as subordinate, but the sentences imposed on the two counts of conviction from the credit union case failed to account for the admitted strike prior and, in that regard, were unlawful. Further, the application of section 654 is not contemplated anywhere in the record, despite the fact that its application is necessary to effectuate the intent of the parties and arrive at a sentence of 48 months, regardless of ...