Filed 1/22/14 P. v. Turner CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F065239
         Plaintiff and Respondent,
                                                                            (Super. Ct. Nos. 10CM3957 &
                   v.                                                                11CM3471)

VERNON LEE TURNER, JR.,                                                                  OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kings County. Robert S.
Burns, Judge.

         Deborah Prucha, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne
LeMon, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                      INTRODUCTION
        Defendant Vernon Lee Turner, Jr., contends that, as a result of the Criminal
Justice Realignment Act of 2011, the trial court erred in requiring he serve three years
four months in state prison. More particularly, defendant contends his underlying offense
allows for its 16-month term to be served in local custody, and although he admitted an
enhancement pursuant to Penal Code1 former section 12022.1 requiring a two-year term
in state prison, the underlying felony determines the location where the sentence is to be
served. He also contends his position is supported by the Legislature’s subsequent
amendment of former section 12022.1, omitting the requirement the two-year term be
served expressly in state prison. We will affirm.
                              PROCEDURAL BACKGROUND2
Case No. 10CM3957
        In case No. 10CM3957, the Kings County District Attorney filed a complaint
alleging the following crimes: count 1—unlawful transportation of methamphetamine
(Health & Saf. Code, § 11379, subd. (a)); count 2—possession of methamphetamine for
sale (id., § 11378); count 3—unlawful possession of methamphetamine (id., § 11377,
subd. (a)); count 4—unlawful transportation of marijuana (id., § 11360, subd. (a)); count
5—possession of marijuana for sale (id., § 11359); and count 6—unlawful use and being
under the influence of a controlled substance (id., § 11550). Pursuant to section 667.5,
subdivision (b), it was further alleged as to counts 1 through 4 that defendant had served
prior prison terms for burglary (§ 459) in 1996, unlawful possession of a controlled
substance (Health & Saf. Code, § 11377) in 1998, and possession of a concealed dirk or
dagger (former § 12020, subd. (a)(4)) in 2007.



        1All further statutory references are to the Penal Code unless otherwise indicated.

        2Because the facts of defendant’s crimes are not pertinent to the issues on appeal, we
forgo a recitation of those facts.



                                                2.
       On May 12. 2011, defendant pled no contest to possession of methamphetamine
for sale (Health & Saf. Code, § 11378; count 2). The remaining counts and allegations
were to be dismissed at the time of sentencing.
Case No. 11CM3471
       In an information filed March 1, 2012, it was alleged defendant had committed the
following: counts 1 and 2—assault with a deadly weapon (§ 245, subd. (a)(1)); count 3—
unlawful possession of a controlled substance, to wit: Oxycodone (Health & Saf. Code,
§ 11350, subd. (a)); and count 4—unlawful possession of not more than 28.5 grams of
marijuana (id., § 11357, subd. (b)). Further, as to counts 1 through 3 it was alleged
defendant had been released from custody on bail or his own recognizance (OR) at the
time of the commission of the offenses within the meaning of former section 12022.1,
and that defendant had served a prior prison term within the meaning of section 667.5,
subdivision (b) in 2007 for possession of a concealed dirk or dagger (former § 12020,
subd. (a)(4)). On March 2, 2012, defendant pled not guilty and denied all allegations.
The Subsequent Proceedings
       On May 31, 2012, in case No. 11CM3471, defendant and the People entered a
stipulated plea agreement. Defendant pled guilty to count 3, unlawful possession of
Oxycodone (Health & Saf. Code, § 11350), and admitted the on-bail enhancement
allegation (former § 12022.1). The parties stipulated to the lower term of 16 months in
prison on count 3, plus an enhancement of two years for the section 12022.1 violation.
All remaining counts and allegations were dismissed.
       During the proceedings of May 31, 2012, the following exchange occurred:

             “[THE COURT:] We’re here on several cases, and it’s my
       understanding that the parties have reached an agreement as to both a plea
       and sentencing.

              “And correct me if I’m wrong, but as I understand it, in case number
       11CM3471, [defendant] is going to be pleading to Count 3, the felony
       violation of Health and Safety Code Section 11350 subdivision (a) for
       possession of Oxycodone, and that he will admit that that will violate—or


                                             3.
that that also constitutes a violation of Penal Code Section 12022.1 as he
was released on bail in case 10CM3957, and that the remaining counts and
charges on that case and allegations would be dismissed.

      “And that case 10CM2384—or excuse me, 11CM2384 would be
dismissed in its entirety.

       “And that case number 11CM2172 would be dismissed in its
entirety.

        “And that case 10CM3957, on that case the defendant will be placed
on probation for a period of three years with standard drug terms and
conditions. It would not be a Prop 36 because of the underlying charge, as
well as on 11CM3471, the agreement was to the low term in state prison of
16 months plus the two years on the out-on-bail enhancement. So it would
be probation on one case while serving a prison term on the other. [¶] Did I
state that correctly, Mr. [prosecutor]?

      “[PROSECUTOR]: Yes.

      “THE COURT: Mr. [defense counsel]?

      “[DEFENSE COUNSEL]: Yes, sir.

      “THE COURT: All right, was that your understanding of the
agreement, Mr. [defendant]?

      “THE DEFENDANT: Yes.

      “THE COURT: And you want to take advantage of that plea
agreement and enter a guilty plea today?

      “THE DEFENDANT: Yes.

       “THE COURT: All right. Before you can do that I have to go over
certain rights and consequences from entering those pleas.

       “First, you understand that a violation of Health and Safety Code
Section 11350 is punishable by a low term of 16 months, a middle term of
two years, and an aggravated term of three years? And that the out-on-bail
enhancement under Penal Code Section 12022.1 adds a two year
enhancement to that. The parties have stipulated or agreed to the term of a
low term plus the two which I’m inclined to follow.”




                                     4.
       After further advising defendant of his rights and the consequences of his plea, the
court accepted defendant’s plea and stated, in significant part: “All right, … you have a
right to be sentenced in 20 court days and have a full-blown sentencing report prepared
for that hearing. Do you want to waive that right since it’s a stipulated sentence and be
sentenced immediately?” Defendant responded affirmatively.
       That same date, the trial court sentenced defendant in both matters. As to case
No. 10CM3957, defendant was to serve 128 days in custody, with credit for 128 days,
and three years’ formal probation. As to case No. 11CM3471, probation was denied and
defendant was to serve the lower term of 16 months on count 3 and a consecutive two-
year term for the on-bail enhancement. Various fines and fees were imposed and
defendant received credit for a total of 441 days. He was remanded to the custody of the
Department of Corrections and Rehabilitation.
       Defendant subsequently filed a notice of appeal. He filed a request for certificate
of probable cause on June 15, 2012, and the court denied the request on July 3, 2012.
                                      DISCUSSION
The Applicable Statutes
       As a result of the Criminal Justice Realignment Act of 2011 (Realignment Act),
numerous offenses previously punishable by 16 months, two years, or three years in state
prison are now punishable by serving that same term in local custody at the county jail.
(Stats. 2011, ch. 15, §§ 2–633; Legis. Counsel’s Dig., Assem. Bill No. 109 (2011–2012
Reg. Sess.) Stats. 2011, 1st Ex. Sess. 2011–2012, ch. 12, §§ 4–11; Legis. Counsel’s Dig.,
Assem. Bill No. 17 (2011–2012 1st Ex. Sess.); see § 1170, subd. (h).) The legislation
altered the housing arrangements for individuals convicted of certain felonies. It “shifted
responsibility for housing and supervising certain felons from the state to the individual
counties.” (People v. Cruz (2012) 207 Cal.App.4th 664, 671.) It also provided the new
sentencing provisions are to be applied prospectively to persons sentenced on or after
October 1, 2011. (§ 1170, subd. (h)(6); Stats. 2011, 1st Ex. Sess. 2011, ch. 12, § 12.)


                                             5.
      Section 1170, subdivision (h) provides, in relevant part:

            “(1) Except as provided in paragraph (3), a felony punishable
      pursuant to this subdivision where the term is not specified in the
      underlying offense shall be punishable by a term of imprisonment in a
      county jail for 16 months, or two or three years.

            “(2) Except as provided in paragraph (3), a felony punishable
      pursuant to this subdivision shall be punishable by imprisonment in a
      county jail for the term described in the underlying offense.

              “(3) Notwithstanding paragraphs (1) and (2), where the defendant
      (A) has a prior or current felony conviction for a serious felony described in
      subdivision (c) of Section 1192.7 or a prior or current conviction for a
      violent felony described in subdivision (c) of Section 667.5, (B) has a prior
      felony conviction in another jurisdiction for an offense that has all the
      elements of a serious felony described in subdivision (c) of Section 1192.7
      or a violent felony described in subdivision (c) of Section 667.5, (C) is
      required to register as a sex offender pursuant to Chapter 5.5 (commencing
      with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime and as
      part of the sentence an enhancement pursuant to Section 186.11 is imposed,
      an executed sentence for a felony punishable pursuant to this subdivision
      shall be served in state prison.”
      Health and Safety Code section 11350, subdivision (a) provides, in relevant part:

      “Except as otherwise provided in this division, every person who possesses
      … any controlled substance classified in Schedule III, IV, or V which is a
      narcotic drug, unless upon the written prescription of a physician …
      licensed to practice in this state, shall be punished by imprisonment
      pursuant to subdivision (h) of Section 1170 ….”
      Former section 12022.1, subdivision (b), effective from January 1, 2012, to
June 26, 2012, including the date upon which sentence was pronounced here, provided as
follows:

      “Any person arrested for a secondary offense which was alleged to have
      been committed while that person was released from custody on a primary
      offense shall be subject to a penalty enhancement of an additional two years
      in state prison which shall be served consecutive to any other term imposed
      by the court.” (Italics added.)




                                            6.
The Trial Court’s Imposition of Sentences
       On May 31, 2012, after defendant entered a plea of not guilty to count 3 and
admitted the on-bail enhancement allegation (in case No. 11CM3471), the trial court
imposed its sentences with regard to both cases then pending against defendant. It
granted probation in case 10CM3957. As to 11CM3471 the court stated:

              “[THE COURT:] In CM3471, the Court’s going to deny probation
       based upon the stipulation of the parties. I’m going to order that you do the
       lower term of 16 months, on Count 3, that there will be a term of two years
       under … Section 12022.1 consecutive to that 16 months, and that on that
       you will be given credit for time served …. [¶] … [¶]

              “All right, with that … you will be remanded to the custody of the
       California Department of Corrections ….”
       At the time of the plea and sentencing, the parties agreed former section 12022.1
required a commitment to state prison. In fact, they stipulated to a prison commitment.
Defendant never asserted the underlying offense (Health & Saf. Code, § 11350, subd. (a))
permitted defendant to serve the entire sentence in the county jail.
Our Analysis
       On appeal, defendant contends Health and Safety Code section 11350 requires a
convicted defendant to serve the term imposed in a county jail facility. He argues the
trial court should have sentenced him to serve his 16-month term in the Kings County
jail. Furthermore, defendant asserts the underlying offense dictates the location or place
a sentence is to be served, and hence, the two-year, consecutive term imposed for the on-
bail enhancement must also be served in local custody. Because defendant has received
the benefit of his bargain, we reject his contentions.

              “When a guilty plea is entered in exchange for specified benefits
       such as the dismissal of other counts or an agreed maximum punishment,
       both parties, including the state, must abide by the terms of the agreement.
       The punishment may not significantly exceed that which the parties agreed
       upon.” (People v. Walker (1991) 54 Cal.3d 1013, 1024, overruled on other
       grounds in People v. Villalobos (2012) 54 Cal.4th 177, 183.)



                                              7.
When a plea rests in any significant degree on a prosecutor’s promise or agreement, so
that it is part of the inducement or consideration, the promise must be fulfilled.
(Santobello v. New York (1971) 404 U.S. 257, 262; People v. Walker, supra, at p. 1024.)
The requirements of due process attach to the plea bargain itself. (Walker, at p. 1024.) A
negotiated plea agreement is in the nature of a contract and is interpreted according to
general contract principles. The trial court’s approval of the agreement binds the court to
the terms of the bargain, and the defendant’s sentence must be within the negotiated
terms of the agreement. (People v. Martin (2010) 51 Cal.4th 75, 79.)
       As explained in People v. Segura (2008) 44 Cal.4th 921, 931:

               “For its part, of course, the trial court may decide not to approve the
       terms of a plea agreement negotiated by the parties. (See [People v.] Orin
       [(1975)] 13 Cal.3d [937,] 942-943.) If the court does not believe the
       agreed-upon disposition is fair, the court ‘need not approve a bargain
       reached between the prosecution and the defendant, [but] it cannot change
       that bargain or agreement without the consent of both parties.’ (People v.
       Godfrey (1978) 81 Cal.App.3d 896, 903; cf. People v. Superior Court
       (Gifford) (1997) 53 Cal.App.4th 1333, 1338-1339 (Gifford) [by statute the
       trial court may withdraw its approval prior to sentencing, permitting
       withdrawal of the negotiated plea].)

               “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.]’ (People v. Ames (1989)
       213 Cal.App.3d 1214, 1217 (Ames); see People v. Tang (1997) 54
       Cal.App.4th 669, 681-682; Gifford, supra, 53 Cal.App.4th at pp. 1337-
       1338; People v. Armendariz [(1993)] 16 Cal.App.4th 906, 910-911; People
       v. Godfrey, supra, 81 Cal.App.3d at p. 904.)”




                                              8.
        Plaintiff here opposes defendant’s appellate contentions and thereby does not
agree to alteration of the plea bargain to allow defendant to serve his sentence in county
jail.
        In support of our conclusion, we note and consider the applicability of an
October 22, 2013, decision of Division Eight of the Second District Court of Appeal to
this case.
        In People v. Wilson (2013) 220 Cal.App.4th 962, the defendant entered a plea of
no contest to commercial burglary; in exchange for his plea, a misdemeanor petty theft
charge would be dismissed and the court would impose and suspend execution of a two-
year prison sentence, and impose three years’ probation. Probation was subsequently
revoked following an assault charge, but the court ultimately reinstated probation. (Id. at
p. 965.) About a year later, the district attorney moved to revoke the defendant’s
probation in light of new charges. The defendant admitted the violation and pled no
contest to two new misdemeanor counts. The court then executed the previously imposed
two-year state prison term, as well as an additional 180-day concurrent term for the new
misdemeanor counts. Although the prosecutor and defense counsel believed the
defendant’s sentence could be served in county jail, the trial court held otherwise and
imposed the state prison sentence, finding the defendant ineligible “‘due to the nature of
the charges and/or his prior criminal history.’” (Id. at pp. 965-966.)
        On appeal, the defendant argued the trial court improperly sentenced him to state
prison because when it revoked his probation and executed his suspended sentence in
August 2012, he was subject to the Realignment Act and should have been sent to county
jail. (People v. Wilson, supra, 220 Cal.App.4th at p. 966.) That court elected to address
the Attorney General’s alternative argument that applying the Realignment Act to send
defendant to county jail would impermissibly alter a material term of the parties’ plea
agreement. (Id. at p. 965.) The court agreed, holding that sending Wilson “to county jail
under the Realignment Act would alter a material term in the parties’ plea agreement that


                                             9.
he serve his executed sentence in state prison.” (Wilson, at p. 973.) In so holding, the
court reasoned, in part:

       “The prosecutor may not have agreed to probation at all for appellant’s
       most recent offenses if the only sentence hanging over appellant’s head was
       a term in county jail without parole, part of which could be suspended in
       favor of mandatory supervision. [Citation.] Indeed, the probation report
       recommended probation be denied and appellant be sentenced to state
       prison because appellant had a significant criminal history and he was on
       several grants of probation at the time he committed the offenses that led to
       the plea agreement. Given appellant’s background and the fact that the
       Realignment Act was to become operative shortly, the suspended state
       prison sentence may have assured the prosecutor that appellant would
       comply with the terms of his probation, while a county jail sentence may
       not have. By the same token, if the prosecutor was unwilling to agree to
       probation if the suspended sentence would have been served in county jail,
       appellant may have been deprived of the benefit of probation, i.e., the
       opportunity to avoid actual custody. … Applying the Realignment Act to
       appellant’s sentence now would therefore deprive the parties of an
       expressly agreed-upon benefit of their bargain. (See [People v.] Wilcox
       [(2013)] 217 Cal.App.4th [618,] 624 [Applying the Realignment Act in this
       circumstance ‘would also alter the terms of the plea agreement where the
       suspended term was part of a stipulated sentence under the plea
       agreement.’].)” (People v. Wilson, supra, 220 Cal.App.4th at p. 972, fn.
       omitted.)
       In this case, when defendant pled no contest to unlawful possession of Oxycodone
and admitted the on-bail enhancement in May 2012, after the operative date of the
Realignment Act, he also agreed to serve a term of 16 months in state prison on the
underlying term and an additional two years in state prison for the on-bail enhancement.
Thus, following the reasoning of Wilson, to permit defendant to be sentenced in
accordance with the Realignment Act and to serve his entire term in local custody would
materially alter the terms of the parties’ bargain.
       We note defendant does not seek to withdraw his plea to allow for a restructuring
of a plea agreement with sentencing in county jail. Instead he wants both the benefit of
his plea agreement and a favorable change of custodial placement based on his new
assessment on appeal that county jail was the only lawful placement. This was not his


                                             10.
legal position in the trial court, and he now faults the trial judge for an alleged sentencing
error defendant expressly invited. The doctrines of estoppel and waiver preclude
acceptance of defendant’s new stance on appeal.
       Generally, where a party by its conduct induces the commission of error, the party
is estopped from asserting it as a ground for reversal. (9 Witkin, Cal. Procedure (5th ed.
2008) Appeal, § 389, p. 447.) The waiver may be express where, for example, it results
from a stipulation by the parties. (Id., § 395, at p. 453.) “Under the doctrine of waiver, a
party loses the right to appeal an issue caused by affirmative conduct or by failing to take
the proper steps at trial to avoid or correct the error. [Citation.] Similarly, under the
doctrine of invited error, a party is estopped from asserting prejudicial error where his
own conduct caused or induced the commission of the wrong. (Norgart v. Upjohn Co.
(1999) 21 Cal.4th 383, 403, citing 9 Witkin, Cal. Procedure (1999 supp.) Appeal, § 383,
p. 62.)” (Telles Transport, Inc. v. Workers’ Comp. Appeals Bd. (2001) 92 Cal.App.4th
1159, 1167.) “Succinctly put, the invited error doctrine prevents a party to a legal action
from profiting where he causes or invites the error.” (People v. Davenport (1966) 240
Cal.App.2d 341, 346.)
       Here, whether we apply waiver or estoppel principles, the result is the same.
Defendant has received the benefit of his bargain, and the trial court’s acceptance of the
plea deal is binding on the parties and the court. By stipulating to serving his sentence in
state prison as part of the plea bargain, defendant may not be heard to complain on appeal
that the court should have sentenced him under the Realignment Act.
       Although defendant has not argued he received an “unauthorized sentence,” this
argument would also fail. At the time of sentencing, former section 12022.1 provided for
a state prison term. The plain meaning of the language of this enhancement called for a
prison commitment, not county jail. At best for defendant, at the time of his plea
agreement it was an unsettled question of law whether the Realignment Act would apply.
Because defendant failed to preserve the sentencing issue for appeal, we decline to


                                             11.
resolve it. We note, however, in similar circumstances we have resolved the issue against
defendant’s position. (See People v. Torres (2013) 213 Cal.App.4th 1151, 1160-1161;
People v. Vega (Jan. 2014, F065909) __ Cal.App.4th ___.)
                                            DISPOSITION
       The judgment is affirmed.

                                                           ___________________________
                                                                               PEÑA, J.
WE CONCUR:


 _______________________________
GOMES, Acting P.J.


 _______________________________
OAKLEY, J.*




       *Judge of the Madera Superior Court assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.



                                                12.
