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The People v. Nels Christian Propp

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)


November 20, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
NELS CHRISTIAN PROPP, DEFENDANT AND APPELLANT.

(Super. Ct. No. 10F7060)

The opinion of the court was delivered by: Butz , J.

P. v. Propp

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Nels Christian Propp entered a plea of no contest to possession of methamphetamine and admitted a strike prior in exchange for a stipulated four-year state prison sentence. The court sentenced defendant accordingly, that is, the two-year midterm, doubled for the strike prior.

Defendant appeals. The trial court denied defendant's request for a certificate of probable cause. (Pen. Code, § 1237.5.)*fn1 Defendant contends (1) remand is required so that the trial court may entertain a Romero*fn2 motion and (2) the amount of a penalty assessment on a fee must be reduced. We reject both contentions and shall affirm.

FACTUAL BACKGROUND

In view of defendant's contentions, only a brief statement of facts is necessary. On September 6, 2010, a parole search of defendant revealed marijuana, a gram of methamphetamine, hydrocodone pills, and a fraudulent $5 bill.

DISCUSSION

I. Opportunity to Present a Romero Motion

Defendant contends that the matter should be remanded to the trial court for a hearing on a Romero motion because the original negotiated plea agreement provided for a Romero motion and no one addressed the issue at sentencing. Defendant contends his sentence is void since his plea to the methamphetamine offense was induced in part by the representation that he had the right to bring a Romero motion. He argues that he did not receive the benefit of the plea bargain. The People respond that defendant has forfeited his right to raise the issue by failing to present a Romero motion in the trial court. We conclude that defendant's admission of the strike prior in exchange for a stipulated sentence precludes remand.

A. Background

In case No. 10F7060, an information charged defendant with possession of hydrocodone, possession of methamphetamine, making, possessing, and uttering a fictitious instrument, and possession of 28.5 grams or less of marijuana, a misdemeanor. It was further alleged that defendant had a strike prior (Pen. Code, § 1170.12) and had served four prior prison terms (id., § 667.5, subd. (b)).

Defendant entered a plea of no contest to possession of methamphetamine. The parties agreed to a court trial on the strike prior and, depending upon the outcome of the court trial and any sentencing motions, defendant would be sentenced to either 32 months or 16 months in state prison. The remaining counts and allegations were dismissed. The prosecutor stated that defense counsel indicated that she planned to file a Romero motion. The court trial on the strike prior was continued and defendant was released on his own recognizance (OR) with his written agreement that, if he failed to attend the scheduled hearings, the plea would remain in effect but the judge would not be bound by any sentencing agreements or indications.

Defendant failed to appear for the scheduled hearing. The trial court issued a bench warrant.

In case No. 11F2897, a complaint charged defendant with failure to appear (FTA) at the scheduled hearing. An on-bail or OR enhancement (Pen. Code, § 12022.1), the strike prior and four prior prison terms were also alleged.

At the preliminary hearing in case No. 11F2897, defendant was held to answer and a jury trial was set. The court trial on the strike prior in case No. 10F7060 was set for the same date.

Thereafter, in case No. 10F7060, defendant admitted the strike prior in exchange for a stipulated sentence of four years in state prison and the dismissal of the charges and allegations in case No. 11F2897. The court accepted defendant's admission, finding that it was knowingly and intelligently made, freely and voluntarily entered, with defendant's understanding of the nature and consequences. With referral to probation waived, the trial court immediately sentenced in accordance with the "agreement of the parties."

B. Analysis

"Plea negotiations and agreements are an accepted and 'integral component of the criminal justice system and essential to the expeditious and fair administration of our courts.' [Citations.] . . . [¶] [T]he process of plea negotiation 'contemplates an agreement negotiated by the People and the defendant and approved by the court. [Citations.] . . .' [Citations.] [¶] . . . [¶] Because a 'negotiated plea agreement is a form of contract,' it is interpreted according to general contract principles. [Citations.] Acceptance of the agreement binds the court and the parties to the agreement. [Citations.] . . . [¶] . . . [¶] 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 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.]' [Citations.] [¶] [I]n the context of a negotiated plea the trial court may approve or reject the parties' agreement, but the court may not . . . effectively withdraw its approval by later modifying the terms of the agreement it had approved." (People v. Segura (2008) 44 Cal.4th 921, 929-932, italics added, fns. omitted.)

Here, defendant's admission of the strike prior in exchange for a stipulated sentence and dismissal of another case bars remand because the trial court lacks the authority to alter the bargain by striking the strike prior and reducing defendant's sentence. (See People v. Superior Court (Gifford) (1997) 53 Cal.App.4th 1333, 1335-1339 [trial court lacked authority to alter a bargain by imposing a probationary sentence rather than a prison term]; People v. Cunningham (1996) 49 Cal.App.4th 1044, 1046-1048 [trial court lacked authority to strike a strike prior the defendant admitted in exchange for a stipulated sentence]; People v. Ames (1989) 213 Cal.App.3d 1214, 1216-1218 [trial court lacked discretion to strike a special circumstance that the defendant had admitted in exchange for the dismissal of a second special circumstance allegation and a promise not to seek the death penalty].)

In the original negotiated plea agreement, defendant did nothing more than to reserve the right to present a Romero motion. The written plea form signed by defendant reflects that, if he failed to appear, his plea to the methamphetamine offense would remain but the judge would not be bound by the sentencing agreement of 16 or 32 months. Defendant failed to appear at the scheduled hearing to set the court trial on the strike prior. A new charge (FTA) was filed, along with enhancements. A jury trial on the new charges and a court trial on the strike prior were set. Neither trial proceeded since defendant admitted the strike prior in exchange for a stipulated state prison sentence of four years (two years doubled) in the first case and dismissal of the second case, an agreement that the trial court accepted. By seeking remand to present a Romero motion, defendant is attempting to better his bargain. That he cannot do. He contracted for four years and the prosecutor agreed, dismissing the new case. Defendant is estopped from complaining. (People v. Couch (1996) 48 Cal.App.4th 1053, 1055-1058 [the defendant was estopped from challenging the stipulated 32-month term specified in the plea agreement].)

II. Penalty Assessment on Government Code Section 76000

The trial court ordered defendant to pay various fines and fees, including a $35 county penalty assessment pursuant Government Code section 76000, subdivision (a)(1) on a $50 criminal laboratory analysis fee (lab fee) imposed pursuant to Health and Safety Code section 11372.5. Defendant contends that the trial court erred in imposing the $35 county penalty assessment, claiming that Shasta County is authorized to impose only $3.50 for every $10 of fine or fee rather than $7 for every $10 of fine or fee; thus, he argues the county penalty assessment on the $50 lab fee must be reduced to $17.50.*fn3 The People respond that Shasta County is authorized to impose $7 for every $10 of fine or fee as long as Shasta County is in bonded indebtedness to the state of California for its courthouse facilities, which the record reflects will extend to 2024. We agree with the People.

Government Code section 76000, subdivision (a)(1) provides for a county penalty assessment in the amount of $7 for every $10 of fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses. Subdivision (a)(2) of that section provides that this penalty assessment is to be collected for whatever period of time is necessary to repay any borrowings made by the county on or before January 1, 1991, to pay for construction. Subdivision (e) of that section provides that the $7 additional penalty authorized by subdivision (a) "shall be reduced in each county by the additional penalty amount assessed by the county for the local courthouse construction fund established by [Government Code] Section 76100 as of January 1, 1998, when the money in that fund is transferred to the state under [Government Code] Section 70402." (Italics added.) The chart following subdivision (e) provides that Shasta County shall reduce its penalty assessment to $3.50.

Defense appellate counsel asked the trial court to reduce the $35 county penalty assessment to $17.50, arguing that the court calculated the penalty incorrectly. Based on the State Controller's "Manual of Accounting and Audit Guidelines for Trial Courts," Chief Financial Officer (CFO) of the Shasta County Superior Court, Raymond Tickner, reported to the trial court that the additional $7 on every $10 of base fine is to continue in counties with bonded indebtedness for court facilities and that Shasta County's bonded indebtedness is not scheduled to end until 2024. (See Gov. Code, § 70402, subd. (a)(2); People v. McCoy (2007) 156 Cal.App.4th 1246, 1253.) The trial court denied the reduction request, citing the CFO's reasons.

Here, the trial court imposed a $50 lab fee, the base fine or fee, under Health and Safety Code section 11372.5. The record reflects that Shasta County is in bonded indebtedness on its court facilities and this indebtedness does not end until 2024. (Gov. Code, § 70402, subd. (a)(2).) Defendant does not challenge the CFO's report to the trial court that $7 on every $10 of base fine continues to apply until 2024. Thus, the trial court correctly calculated the county penalty assessment on the $50 lab fee as $35. We reject defendant's claim to the contrary.

DISPOSITION

The judgment is affirmed.

We concur: RAYE , P. J. NICHOLSON , J.


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