Filed 12/20/19 P. v. Celerino CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

BENITO FRANCISCO CELERINO,

Defendant and Appellant.

H045325

(Santa Clara County

Super. Ct. No. C1632708)

Defendant Benito Francisco Celerino entered into a plea agreement and pleaded no contest to four counts of forcible lewd acts on a child under 14 (Pen. Code, § 288, subd. (b)(1)). He was committed to state prison for a term of 34 years. The court advised him that he would be on parole for 20 years and six months, imposed a restitution fund fine of $300, and imposed and stayed a parole revocation restitution fine of $300. Defendant did not obtain a certificate of probable cause. On appeal, he contends that (1) the trial court erred in imposing a 34-year term because, although he stipulated to a 40-year term in the plea agreement, his admissions did not support a term of 34 years, (2) the trial court erred in apprising him of the length of the parole period, and (3) the trial court erred in imposing restitution fund and parole revocation restitution fines of $300 each rather than $200 each because it mistakenly believed that the minimum was $300 rather than $200. The Attorney General concedes the last contention, and we accept this concession. We reject defendant’s other contentions and modify and affirm the judgment.

I. Background

In 2016, defendant was charged by felony complaint with one count of continuous sexual abuse of a child under 14 (§ 288.5, subd. (a): count 1), six counts of forcible lewd acts on a child under 14 (counts 2 through 7), and sexual intercourse or sodomy on a child aged 10 or younger (§ 288.7, subd. (a): count 8). Each count identified a discrete period of time. Counts 4, 5, 6, 7, and 8 were the only counts that charged a period in 2010 or thereafter. Counts 1, 2, and 3 alleged that the offenses occurred in 2008 and 2009. Count 4 alleged that the offense occurred “[o]n or about and between January 1, 2010 and June 30, 2010.” Count 5 alleged that the offense occurred “[o]n or about and between July 1, 2010 and December 31, 2010.”

In October 2016, defendant entered into a plea agreement under which he agreed to plead no contest to counts 2, 3, 4, and 5 in exchange for a 40-year prison term “top/bottom” and dismissal of the remaining counts. The plea agreement acknowledged defendant’s understanding that he would be “placed on parole for up to 10” years after his release from prison. The plea agreement also acknowledged that “a mandatory restitution fund fine of not less than $300” would be imposed. Defendant entered no contest pleas to counts 2, 3, 4, and 5 as agreed.

After he entered his pleas, a probation report was prepared, and the probation officer noted in the report that the negotiated disposition had incorrectly used a 10-year upper term “on all Counts” even though the 10-year upper term for a section 288, subdivision (b) violation had not been enacted until September 9, 2010. The probation officer advised: “With this in mind, only Count Five, which occurred between July 1, 2010 and December 31, 2010, falls within the current sentencing triad of 5, 8, 10 years. Due to these facts, the negotiated plea could not be legally reached. Therefore, the suggested total aggravated term is thirty four (34) years, pursuant to Section 667.6(d) of the Penal Code.” The probation officer recommended a $10,000 restitution fund fine and identified defendant’s parole period as 10 years.

Defendant subsequently sought to withdraw his pleas on the ground that he could not have committed the offenses because his wife was always home. The court held an in camera hearing on his motion and denied it.

At the sentencing hearing, the court stated that “there was an adjustment in the negotiated disposition. [¶] And my understanding is that the negotiated disposition is now 34 years; is that correct?” The prosecutor and defendant’s trial counsel both affirmed that it was. The court then imposed an aggregate term of 34 years consisting of a 10-year term for count 5 and fully consecutive upper terms of eight years for each of the other counts. The court imposed a $300 restitution fund fine and an equivalent parole revocation restitution fine, and it advised defendant that he would be on parole for 20 years and six months after his release from prison. Defendant did not object to anything at the sentencing hearing. He timely filed a notice of appeal but did not obtain a certificate of probable cause.

II. Discussion

A. Prison Term

Defendant claims that his 34-year prison term was “unauthorized” and cannot be upheld because an unauthorized sentence “cannot lawfully be imposed” even “when the unauthorized sentence is stipulated.”

“The rule that defendants may challenge an unauthorized sentence on appeal even if they failed to object below is itself subject to an exception: Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process. [Citations.] . . . ‘When a defendant maintains that the trial court’s sentence violates rules which would have required the imposition of a more lenient sentence, yet the defendant avoided a potentially harsher sentence by entering into the plea bargain, it may be implied that the defendant waived any rights under such rules by choosing to accept the plea bargain.’ ” (People v. Hester (2000) 22 Cal.4th 290, 295 (Hester).)

Defendant’s attempt to avoid the Hester rule is unavailing. Although he concedes that he agreed to a 40-year prison term to avoid exposure to a longer prison term, he claims that Hester does not apply here because the trial court sentenced him to a 34-year term rather than the agreed 40-year term. The Hester rule is doubly applicable here. Not only did defendant avoid a potentially longer prison term by stipulating to a 40-year prison term, but the trial court gave him an additional benefit by imposing only a 34-year term rather than the agreed 40-year term. As in Hester, permitting defendant to challenge the 34-year prison term, when he agreed to accept an even longer stipulated term, would be allowing him to “trifle with the courts.” Under Hester, his failure to object at sentencing forfeited any error in the calculation of his prison term.

B. Parole Period

The trial court stated at the sentencing hearing: “Sir, you are advised of the subsequent parole period. And that is 20 years and six months. That is pursuant to the Penal Code.” Defendant contends that the trial court’s statement was erroneous because he was actually subject to a parole period of either five years or 20 years. He asks us to order that his parole period “be reduced” to the correct period.

“ ‘[T]he length of a parole term is not a permissible subject of plea negotiations’ [citation]; ‘the [trial] court is authorized neither to determine whether a parole period shall be served nor to prescribe its duration; that is the province of [the board]’ [citation]; the ‘[parole term] could not have been the subject of negotiation or a condition of the final [plea] agreement’ [citation].” (Berman v. Cate (2010) 187 Cal.App.4th 885, 899.)

We have no issue before us in this appeal concerning the length of defendant’s parole period because the trial court lacked any power to prescribe the duration of defendant’s parole period. The applicable parole period is statutorily mandated (§ 3000), and the Board of Parole Hearings determines the length of an inmate’s parole (§ 3000, subd. (b)(5)(A)). As defendant acknowledges, the length of his parole period was not and could not have been a term of his plea agreement, and he does not claim that any misadvisement regarding his parole period influenced his pleas. Consequently, it is immaterial that the trial court may have overstated the length of his parole period, as the statutorily required parole period will be determined by the Board of Parole Hearings. We reject defendant’s contention because we, like the trial court, lack the power to set or “reduce” defendant’s parole period.

C. Restitution Fund Fine and Parole Revocation Fine

The trial court stated at the sentencing hearing: “The restitution fine will be the minimum of $300.” It also “imposed but suspended” a parole revocation fine “of an equal amount . . . .” Defendant contends, and the Attorney General concedes, that the trial court erred because “the minimum” restitution fund fine was actually $200. We accept the concession.

The “minimum” restitution fund fine that applied to defendant was $200 because his offenses occurred before section 1202.4 was amended to raise the minimum to $300. (Stats. 2007, ch. 302, § 14 [$200 minimum]; Stats. 2010, ch. 351, § 9 [$200 minimum]; Stats. 2011, ch. 358, § 1 [raising minimum to $240, effective in January 2012, to $280, effective in January 2013, and to $300, effective in January 2014].) The parole revocation restitution fine is required to be the same amount as the restitution fund fine. (§ 1202.45, subd. (a).)

Because the court expressly stated that it was imposing the “minimum” restitution fund fine but incorrectly identified that amount as $300 rather than $200, we agree with the parties that the appropriate disposition is to modify the judgment to reduce the restitution fund fine and the parole revocation fine to $200 each.

III. Disposition

The judgment is modified to reduce the restitution fund fine to $200 and the parole revocation fine to $200. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

 

_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Elia, Acting P. J.

_____________________________

Grover, J.

People v. Celerino

H045325