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Name: People v. Jones
Case #: C059440
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 06/28/2013
Summary

Where the court imposes the maximum term provided by the plea bargain, appellant is barred from arguing on appeal that the sentence violated Penal Code section 654. Appellant entered into a plea bargain whereby he pled no contest to all the counts and admitted a prior prison term enhancement and a prior “strike” enhancement in exchange for a “lid” or maximum term in sentencing. In order to reach the “lid,” it was understood that the court would strike the prior “strike” conviction and the prior prison term enhancement. Appellant did not assert a Penal Code section 654 reservation when the agreement was negotiated. At sentencing, the court denied appellant probation and sentenced him to the maximum term. On appeal, appellant contended that the sentence imposed violated Penal Code section 654’s prohibition against double punishment and, despite California Rules of Court rule 4.412(b), he can raise the issue because his plea bargain contemplated a maximum, rather than a specific, sentence. Affirmed. Rule 4.412(b) states that by agreeing to a specified term, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654. Here, the court reasoned that specified and maximum are not mutually exclusive and a term is specified in a plea agreement even when it is a maximum term because it is identified explicitly. This conclusion that rule 4.412(b) applies to a maximum sentence as well as an exact sentence is supported by cases discussing the concepts on which the rule is based. When an appellant challenges his sentence as violating section 654, he contends that the court did not have jurisdiction to impose the maximum term. (People v. Hester (2000) 22 Cal.4th 290.) Because such a contention conflicts with the plea bargain, he is estopped from relying on section 654. (Compare with People v. Buttram (2003) 30 Cal.4th 773 [permitting a challenge to a sentence as being an abuse of discretion].)

Defense counsel did not provide ineffective assistance by failing to argue for concurrent rather than consecutive sentencing on two counts because there was no indication in the record that appellant would have received an even more lenient sentence. In addition to other offenses, appellant pleaded no contest to two counts of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1); counts 1 & 2). The probation report listed numerous circumstances in aggravation and recommended a longer sentence than the one provided by the plea agreement. While the case was pending, appellant committed additional crimes. At sentencing, defense counsel argued for probation and encouraged the court to be lenient. Relying on the factors in aggravation, the court sentenced appellant to the upper term on count 1. The court also imposed a consecutive term of 8 months for count 2 but did not state the reasons for making the term consecutive. Appellant contended that defense counsel was ineffective because counsel failed to argue for concurrent sentencing on count 2 based on the prohibition on the dual use of aggravating circumstances to impose the upper term and impose consecutive terms. The Court of Appeal concluded that defense counsel was not deficient because it was unlikely that such an argument would have convinced the court to be even more lenient. Appellant’s punishment was remarkably lenient based on the circumstances of his case. Additionally, there were multiple aggravating circumstances for the trial court to consider.

Information in an affidavit for a search warrant concerning ongoing identity theft was not stale. The victim’s purse was stolen in 2002 and in July 2004 she began receiving letters from collection agencies regarding overdue accounts with cell phone companies. She also received a letter from Sprint Wireless informing her that her application for a phone was denied but she had not applied for phone services. Appellant’s name and address were on one of the accounts. Based on this information, a detective filed an affidavit in support of an application for a warrant to search appellant’s residence in September 2004. Police obtained the warrant and located incriminating evidence during the search. In a motion to suppress the evidence, appellant argued that the search warrant was invalid because the information in the affidavit was stale. The trial court denied the motion. Affirmed. Information generally is considered stale and, thereby, insufficient when there is a delay of more than four weeks between the information and the seeking of the warrant. Longer delays are justified, however, if the activity is ongoing and will continue until the time of the search. Here, appellant’s illegal use of another’s identity to set up an account allowed the court to reasonably infer that later illegal uses of the identity for similar purposes were also connected to him, such that issuance of the warrant was valid.