Filed 10/26/15 P. v. Lawson CA1/5
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,                                   A144370

v.                                                                   (Mendocino County
JAMES EDWARD LAWSON,                                                 Super. Ct. Nos. SCTM CRCR
                                                                     12-70121, SCTM CRCR 13-74265)
         Defendant and Appellant.


         James Edward Lawson admitted violating his felony probation in two separate
matters (Super. Ct. Mendocino County, case Nos. SCTM CRCR 12-70121 & SCTM
CRCR 13-74265; respectively, 2012 case & 2013 case). He was sentenced to state
prison. Lawson’s petition for resentencing on the 2013 case, under Proposition 47, was
granted; he was resentenced on both cases, with a state prison sentence imposed on the
2012 case and a concurrent misdemeanor term imposed on 2013 case.
         Assigned counsel has submitted a Wende brief,1 certifying that counsel has been
unable to identify any issues for appellate review. Counsel also submitted a declaration
confirming that Lawson was advised of his right to personally file a supplemental brief
raising any points which he wishes to call to the court’s attention. In response to this
advisement, Lawson has submitted a letter arguing he should be allowed to withdraw his
waiver of custody credits that was made in connection with his earlier sentence. As
required, we have independently reviewed the record. (People v. Kelly (2006) 40 Cal.4th


         1
             People v. Wende (1979) 25 Cal.3d 436.


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106, 109–110.) Our review disclosed an apparent disparity between the aggregate prison
term imposed and the terms of Lawson’s plea agreement in the 2012 case. By order of
October 13, 2015, we asked appointed appellate counsel and the Attorney General to
submit letter briefs on the issue. There is agreement that the sentence imposed was not
authorized under the plea bargain. We therefore order modification of the sentence
consistent with the terms of Lawson’s original plea agreement. We otherwise affirm.
                                    I.     BACKGROUND
       In the 2012 case, Lawson was charged by felony information with two counts of
assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)),2 false imprisonment
(§ 236), making a criminal threat (§ 422), and vandalism (§ 594). On June 24, 2013,
pursuant to a negotiated plea agreement, Lawson pleaded no contest to a misdemeanor
violation of assault with a deadly weapon, and to felony violations of sections 236 and
422.3 Pursuant to the negotiated disposition, it was agreed that Lawson would be placed
on probation for three years with no immediate state prison, and that he would serve
365 days in county jail if he was not accepted into a residential drug treatment program.
The prosecution agreed to dismiss the remaining charges, with a Harvey waiver,4 as well
as new felony charges. As part of the plea agreement, Lawson agreed to waive 180 days
of custody credits. (See People v. Johnson (1978) 82 Cal.App.3d 183, 184–185
(Johnson).) At sentencing on July 8, 2013, Lawson was placed on three years’ probation,
with imposition of sentence suspended. He was required to serve 365 days in the county
jail as a condition of probation and received 354 days total custody and conduct credit
(i.e., with no waiver of custody credits as to the county jail sentence). Conditions of
probation included a requirement to enroll in a one-year residential treatment program.
       In the 2013 case, Lawson was charged by complaint with having possessed
morphine on August 3, 2013, a felony violation of Health and Safety Code section 11350,

       2
           All undesignated statutory references are to the Penal Code
       3
         Lawson was permitted to withdraw a prior plea entered on March 27, 2013, and
the parties agreed to amend and restructure the plea agreement and disposition.
       4
           People v. Harvey (1979) 25 Cal.3d 754.


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subdivision (a). A probation violation petition was filed in the 2012 case on October 8,
alleging that Lawson failed to report to the probation office, failed to enroll in or
complete a minimum 12-month residential drug treatment program, was arrested on a
new petty theft offense, and was found in possession of morphine and drug paraphernalia
(Health & Saf. Code, §§ 11350, subd.(a), 11364). An amended petition filed on
November 4, alleged that Lawson also failed to appear for a scheduled court appearance.
On November 12, Lawson entered a plea of no contest to the new possession of morphine
charge in the 2013 case, and the court found Lawson in violation of his probation in the
2012 case based upon that plea.
       On December 19, 2013, Lawson was sentenced in both cases. The court
suspended imposition of sentence in the 2013 case and placed Lawson on 36 months’
formal probation, with terms including 365 days in county jail. Lawson was awarded
49 days actual custody credit. Probation was reinstated in the 2012 case, and Lawson
waived custody credit of 193 days pursuant to Johnson. The court reminded Lawson that
he was still required to serve a term of 365 days in county jail as a condition of his
probation in the 2012 case, but that he would receive credit against that sentence for time
spent in the required residential drug treatment program.
                              Subsequent Probation Violations
       Another probation violation petition in the 2012 case was filed on December 24,
2013—alleging that Lawson had absconded after transport to the residential program
(prior to his intake interview). A probation violation petition also was filed in the
2013 case. An amended petition in the 2012 case alleged that Lawson failed to appear
for a scheduled court date on January 6, 2014. On May 27, 2014, Lawson, represented
by counsel, admitted the probation violations in both cases.
       On June 10, 2014, the court sentenced Lawson to the upper term of three years in
state prison for his conviction of possession of a controlled substance in the 2013 case,
with total custody credits in the amount of 164 days. In the 2012 case, Lawson received
a consecutive term of imprisonment of eight months for his conviction for false
imprisonment and an additional eight-month consecutive sentence for the criminal threats


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conviction, for a total term of imprisonment of four years, four months. No custody
credits were awarded in the 2012 case, based on the prior Johnson waiver.
                                        Resentencing
       In December 2014, Lawson petitioned for resentencing in the 2013 case based on
section 1170.18, which was enacted as part of Proposition 47. On January 13, 2015, the
court granted the petition and reduced Lawson’s conviction for possession of a controlled
substance from a felony to a misdemeanor. The court then resentenced Lawson on both
the 2012 and 2013 cases. In the 2012 case, the court imposed the upper term of three
years for the felony criminal threats conviction and a consecutive term of eight months
for the felony false imprisonment conviction—for a total term of imprisonment of three
years and eight months. The court awarded actual custody credit of 249 days. Lawson
also received a concurrent one-year county jail term for the misdemeanor assault with a
deadly weapon conviction in the 2012 case, with credit for time served. In the 2013 case,
Lawson received a one-year concurrent terminal sentence for the now-misdemeanor
possession of a controlled substance conviction.
                                           Appeals
       A February 5, 2015 notice of appeal was filed on February 17 in the 2013 case.
That notice was accompanied by a request for a certificate of probable cause, challenging
the sentence as a violation of Lawson’s plea agreement in the 2012 case. The trial court
granted the request for a certificate of probable cause on February 11. A second notice of
appeal designating both the 2012 and 2013 cases appears in the record, but that second
notice is not file-stamped. A proof of service by mail dated February 20, submitted by
Lawson from his prison address, lists the second notice of appeal along with other
documents concurrently submitted to the court, including a Marsden5 motion that was
file-stamped on February 26. The documents listed on the proof of service are
consecutively paginated in the clerk’s transcript, indicating that the later-filed notice of
appeal was timely filed.

       5
           People v. Marsden (1970) 2 Cal.3d 118.


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                                     II.    DISCUSSION
       Apart from the aggregate prison term imposed, we find no arguable issues.
Lawson was represented by counsel at every relevant stage of these proceedings. He
entered pleas of no contest in both matters to the underlying offenses as part of negotiated
dispositions, and the record shows that the pleas were made after appropriate advisement
of rights, and were knowing and voluntary. His plea in the 2013 case established that he
had violated the terms of his probation in the 2012 case. Lawson made no appeal from
the judgments entered in both cases on June 10, 2014.
       Lawson’s principal complaint, set forth in his request for a certificate of probable
cause and in his letter filed with this court on October 5, 2015, appears to be that he
should now be allowed the custody credits he waived in the 2012 case, and the trial
court’s selection of the aggravated term on the criminal threats count on resentencing.
Assuming that his request to withdraw his plea in 2012 case is still cognizable, we find
no merit in his claim to previously waived custody credits. A defendant may knowingly
and intelligently waive the provisions of section 2900.5 that require all days of custody
be credited to his sentence, including any period of imprisonment as a condition of
probation. (People v. Johnson, supra, 82 Cal.App.3d at pp. 187–188.) Lawson did so.
       The trial court expressly conditioned its acceptance of Lawson’s plea on Lawson’s
willingness to waive custody credits in that case. Lawson was admonished by the court
that he would lose those credits “forever for all purposes. He would never get them back.
If he violates his probation, . . . he would lose all the previous time that he’s served as
credits.” At the time of sentencing on his first probation violation, the court again
required a waiver of custody credits as a condition of restoring Lawson to probation, and
told “If you Johnson waive these credits they are waived for all purposes, even if you
were to be sent to prison in the future.” Lawson said that he understood, and counsel
concurred.
       Lawson also complains that the court sentenced him to the aggravated term of
three years for the criminal threats conviction in the 2012 case when the prior sentence
was one-third of the two-year midterm. However, once the original primary term was


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reduced to a misdemeanor, the felony sentences in the 2012 case were no longer
subordinate terms restricted to one-third of the midterm under section 1170.1,
subdivision (a).
       When a defendant is resentenced as a misdemeanant on an eligible count, but will
remain sentenced as a felon on one or more other counts, the court should resentence on
all counts. (Couzens et al., Sentencing California Crimes (Rutter Group 2015)
§ 25:6(B)(4), p. 25-63.) The only limitation is that “the term” on resentencing may not
be longer than the term originally imposed. (§ 1170.18, subd. (e).) The term imposed
here was not. The situation is analogous to that of sentencing on remand after appellate
reversal of one or more charges. In that context, the court is free to “reconsider[] its prior
sentencing choices made under the normal rules of felony sentencing, including imposing
a higher term for the principal, or base, term, so long as the total prison term for all
affirmed counts does not exceed the original aggregate sentence.” (People v. Burbine
(2003) 106 Cal.App.4th 1250, 1253.) “ ‘This rule is justified because an aggregate prison
term is not a series of separate independent terms, but one term made up of
interdependent components.’ ” (Id. at p. 1258.) We see no reason that any different rule
should apply here.
       “When a judgment of imprisonment is to be imposed and the statute specifies
three possible terms, the choice of the appropriate term shall rest within the sound
discretion of the court. . . .” (§ 1170, subd. (b); see Cal. Rules of Court, rule 4.420.)
Lawson made no objection at the time of sentence. He is precluded from raising the issue
for the first time on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353.) Lawson, in any
event, makes no showing that the court abused its considerable discretion in selection of
the upper term of imprisonment for the criminal threats count in the 2012 case.
       We do, however, find a different issue with the sentence imposed. On March 27,
2013, at the time of Lawson’s original plea in the 2012 case, the record colloquy between
the court and counsel indicated that Lawson would receive a maximum term of three
years if committed to state prison. That limitation was also reflected in the probation
report. That plea was withdrawn with the permission of the court, but the transcript of


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Lawson’s subsequent plea on June 24, 2013, while not as clear, again reflects inclusion of
a three-year limitation. The court asked, “There was a three-year lid here though, wasn’t
there?” In response, the district attorney said, “”Well, there’s a three-year stipulated. It’s
not a lid.”
       A negotiated plea agreement is a form of contract, acceptance of which binds the
court and the parties to the agreement. (People v. Segura (2008) 44 Cal.4th 921, 930.)
“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.’ ”6 (Id. at p. 931.) While the original sentence imposed did not
exceed the limits imposed by the plea agreement, the eight-month consecutive term for
Lawson’s felony conviction of false imprisonment did. The parties agree that we may
correct the error by ordering modification of the sentence.
                                    III.   DISPOSITION
       We order modification of Lawson’s sentence to require the midterm sentence
imposed for false imprisonment (§ 236) be served concurrently with the principal upper
term of three years for making a criminal threat (§ 422). The clerk of the Mendocino
County Superior Court is directed to prepare an amended abstract of judgment. We
otherwise affirm.




       6
         We agree with Lawson that the sentence imposed here was consequently
unauthorized, and that his failure to object at the time of sentencing did not waive the
issue. (See People v. Scott, supra, 9 Cal.4th at p. 354 [“claims deemed waived on appeal
involve sentences which, though otherwise permitted by law, were imposed in a
procedurally or factually flawed manner”].)

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                                _________________________
                                BRUINIERS, J.


WE CONCUR:


_________________________
SIMONS, Acting P. J.


_________________________
NEEDHAM, J.




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