Filed 5/28/13 P. v. Daniel CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A136611
v.
JOHNATHAN PHILLIP DANIEL,                                            (Sonoma County
                                                                     Super. Ct. No. SCR597295)
         Defendant and Appellant.


         Appellant Johnathan Phillip Daniel pled no contest to two counts of first degree
robbery and admitted the truth of two firearm use enhancements. A negotiated plea
indicated a potential sentence of 16 years and 4 months. (Pen. Code,1 §§ 211, 459;
former § 12022.53, subd. (b).) The trial court rejected a request to withdraw his plea.
Daniel was sentenced to 16 years, 4 months in state prison for these two robberies and a
probation violation matter. He appeals, asking us to strike a term that he challenges as an




         1
         All statutory references are to the Penal Code unless otherwise indicated.
Although several of the relevant statutes defining crimes, specifying enhancements or
setting punishments have been amended since the dates of the 2011 charged offenses, we
apply the version of those provisions in effect as of the date of the specific crime, to
avoid imposition of an ex post facto law. Our comparison of these provisions with the
current versions of them satisfies us that current law is—for our purposes—substantially
the same as it was at the time that the offenses were committed. (See former §§ 12021,
subd. (a)(1) [Stats. 2008, ch. 599, § 4, pp. 4281-4287; now § 29800, subd. (a)(1)],
12022.53, subd. (b) [Stats. 2006, ch. 901, § 11.1, pp. 7075-7077]; Health & Saf. Code,
§ 11378 [Stats. 2001, ch. 841, § 6, p. 6870].)

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unauthorized sentence and contending that the trial court erred by refusing to allow him
to withdraw his plea. We affirm the conviction, including the sentence.
                                          I. FACTS
       On January 31, 2011, two men entered a Rohnert Park apartment occupied by
Nicholas Mason, Matthew Mason, and Matthew Vollers. The intruders—one of them
pointing a pistol—bound each of the victims’ hands and advised them that they were
being robbed. Nicholas Mason saw the suspects drive away in a tan Ford Expedition or
Explorer. The Masons reported to police that two pounds of processed marijuana worth
$4000, two laptop computers, an external hard drive, a camera, headphones, and $1100 in
cash were missing from the apartment. Vollers told police that his cell phone and items
from his wallet were also taken.
       The Masons told police that they suspected that Christopher Leschinger—a person
who had been at the apartment several hours before the robbery—was one of the
perpetrators. They had hoped that Leschinger would help them sell their marijuana.
       The day after the robbery, two of Leschinger’s associates—Charles Davenport and
appellant Johnathan Phillip Daniel—were arrested at a Santa Rosa motel on narcotics
charges. In their motel room, police found Nicholas Mason’s laptop computer, some
marijuana, and $879 in cash. Three days later, Daniel’s grant of probation stemming
from a 2007 burglary was summarily revoked. He was also charged in a separate matter
with possession of a controlled substance for sale. Apparently, he had several hundred
Ecstasy pills in his possession at the time of his arrest.
       Nicholas Mason and Matthew Vollers both identified Daniel in photographic
lineups as the armed man who pushed his way into the apartment. A March 3, 2011,
parole search of Leschinger’s residence turned up a camera bag and digital camera.
Photographs of the Masons were on the camera, which Leschinger said that he had
purchased from Daniel. When questioned about the January 2011 robbery, Leschinger
admitted going to the Masons’ apartment before the robbery to look at their marijuana.
After Leschinger told Daniel and Davenport about the marijuana, the two men borrowed
a Ford Explorer and went out for a while. Daniel and Davenport returned later with a


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duffel bag containing computers, a digital camera, and about two pounds of marijuana.
One of them also had a black semi-automatic pistol. It was clear to Leschinger that
Daniel and Davenport had just robbed the Masons. Except for the camera he bought
from Daniel, Leschinger said that the other two took the stolen property with them.
       Leschinger’s roommate was also interviewed. He admitted that he loaned his
Explorer to Daniel and Davenport at Leschinger’s request. Daniel and Davenport
showed off the contents of the duffel bag when they returned his vehicle. He confirmed
that computers, and more than a pound of marijuana were inside the duffel. One of the
men also had a camera and a weapon.
       In jail, Leschinger called Davenport and told him that his roommate had told the
police “ ‘everything.’ ” He advised Davenport to “get out of town” because the police
“ ‘know everything.’ ” The police overheard this call.
       Later that month, a felony complaint charged Daniel with three counts of robbery,
each allegedly committed in concert with others. He was alleged to have personally used
a firearm in the commission of two of these serious, violent offenses. In a fourth charge,
he was alleged to have been an ex-felon in possession of a firearm at the time of the
robberies, based on a 2007 burglary. (§ 211, 213, subd. (a)(1)(A), 459; former §§ 667.5,
subd. (c)(8) [Initiative Measure (Prop. 83, § 9)], 1192.7, subd. (c)(8) [Stats. 2006,
ch. 337, § 37, pp. 2643-2645], 12021, subd. (a)(1), 12022.5, subd. (a) [Stats. 2004,
ch. 494, § 4, pp. 4043-4044], 12022.53, subd. (b).) A public defender was appointed to
represent him.
       In March 2011, a first amended complaint was filed, adding Leschinger as a
defendant. With regard to Daniel, it added a firearm use allegation in the commission of
the third robbery and an allegation of a 2010 prior conviction for possession for sale.
(See former §§ 667.5, 12022.5, subd. (a), 12022.53, subd. (b); see Health & Saf. Code,
§ 11378.) A second amended complaint was soon filed, adding Davenport as a
defendant. In Daniel’s case, this latest complaint added an allegation that he was armed
with a firearm during the commission of each robbery. A receiving stolen property
charge was also added. (Former §§ 496, subd. (a) [Stats. 2009-2010, 3rd Ex. Sess.,


                                              3
ch. 28, § 23], 12022, subd. (a)(1) [Stats. 2004, ch. 494, § 3, pp. 4042-4043].) Daniel pled
not guilty to these charges and denied all enhancement allegations.
          Before the preliminary hearing, the prosecution offered to settle the case if Daniel
pled to two counts of robbery, admitted a weapons enhancement and stipulated to a
sentence of 12 years, 8 months. Daniel rejected the offer. The preliminary hearing was
conducted over two days in April 2011. Nicholas and Matthew Mason each identified
Daniel in court as the armed perpetrator. At the close of the preliminary hearing, Daniel
was held to answer for all charges.
          By the end of April 2011, an information was filed charging Daniel with three
counts of robbery, allegedly committed in concert. These three charges were each
enhanced by allegations that Daniel personally used a firearm in the commission of these
serious and violent offenses and that he was armed with a firearm. The information also
alleged single counts of being an ex-felon in possession of a firearm and receiving stolen
property. (§§ 211, 213, subd. (a)(1)(A); former §§ 496, subd. (a), 12021, subd. (a)(1),
12022.5, subd. (a), 12022.53, subd. (b).)
          In May 2011, Leschinger gave police a statement further implicating Daniel in the
robberies, and linking him to a weapon allegedly used in the commission of the robberies.
On June 3, 2011, a first amended information was filed that no longer charged Daniel
with receiving stolen property. He entered a plea of not guilty to the charges. In July
2011, the People offered to settle Daniel’s case if he stipulated to a prison term of 16
years, 4 months.
          In August 2011, Leschinger pled to two charges in exchange for a seven-year
suspended prison sentence and probation. In early October 2011, Davenport was
convicted of the offenses charged against him. He was given an eight-year, four-month
prison sentence which was suspended. He also received probation.
          On October 7, 2011, Daniel had not decided whether to accept the People’s offer
of a maximum sentence of 16 years, 4 months. The minutes of that day’s proceedings
indicated that, considering all pending charges, he faced the possibility of 26 years in
prison.


                                                4
       On October 14, 2011, the case was on for trial. As pretrial motions were being
determined and jury selection was in progress, a negotiated plea was still being discussed.
The public defender indicated that the case before the court—not including the probation
violation and the other pending case—exposed Daniel to a maximum prison term of 25
years, 4 months. Daniel asked for a lower sentence but the prosecution was not willing to
offer less than 16 years, 4 months. He discussed that offer with his family, but rejected it
later that day. The prosecution withdrew its offer and the case proceeded for jury
selection.
       Three days later, on October 17, 2011, the public defender was still trying to settle
the case for 12 years, 8 months, but the prosecution rejected that offer. The public
defender indicated that the maximum prison term Daniel faced, considering all the
trailing cases, was 26 years, 4 months. The trial court advised Daniel that it would be in
his best interest to accept an offer of 16 years, 4 months if the prosecution would offer
this agreement again. Daniel was still hoping for the 12 year, 8 month term, believing
that it gave him a better chance to have a life after he served that time, but the trial court
made it clear that the prosecution would not offer that again.
       During the course of two recesses, Daniel consulted with the public defender
about the offer. At the conclusion of this discussion, Daniel entered into a negotiated
agreement with the prosecution. He pled no contest to two counts of robbery and
admitted the two related firearm use enhancement allegations were true. The negotiated
agreement stipulated that he would be sentenced to 16 years, 4 months in state prison.
(§ 211; former § 12022.53, subd. (b).)
       Daniel signed a written waiver of rights form as part of his plea agreement. In it,
he stated that he believed that the plea exposed him to a maximum sentence of 20 years, 8
months. He stipulated to a sentence of 16 years, 4 months. This form indicated that he
also expected that his pending possession for sale case would be dismissed, along with
the remainder of the charges and enhancements he faced in the robbery case, as part of
the plea. He also anticipated receiving a concurrent term for his probation violation.
(See former Health & Saf. Code, § 11378.)


                                               5
       Based upon Daniel’s no contest plea, the trial court found him guilty of two
robberies and the related firearm use enhancements. The prosecution’s motion to dismiss
the remaining robbery charge, the count of being an ex-felon in possession of a firearm,
and all remaining enhancements at the time of sentencing was granted. The matter was
set for a December 2011 sentencing.
       In November 2011, the matter was put back on calendar at Daniel’s request, to
enable him to seek to withdraw his plea. After hearing, his Marsden motion to remove
the public defender was denied. In December 2011, Daniel’s public defender filed a
written motion to withdraw his plea, complaining that the defendant had not had an
opportunity to review Leschinger’s statement before entering his plea. Daniel also
complained that he was to be sentenced to prison, while his co-defendants were granted
probation. The motion hearing was continued several times. The trial court obtained a
transcript of the change of plea hearing, and the prosecution filed its opposition to the
motion to withdraw.
       By May 2012, Daniel had obtained new counsel who filed a new motion to
withdraw his plea.2 The motion argued that Daniel entered into the plea under the
mistaken belief that he was exposed to 30 years. He asserted that the “deal” that the
defendant accepted was nearly the same as his actual exposure. In a May 2012
declaration supporting the motion, Daniel stated that the public defender had told him
that he faced 25 or 30 years in prison if tried and convicted. He declared that if he had
not believed that his plea would cut 14 years off his sentence, he would not have entered
into the plea agreement. He stated that he accepted the offer of 16 years, as a better
option than spending “25 or 30” years in prison. The new motion also argued that section
654 should have applied to limit Daniel’s exposure to a single sentence for robbery,
because all three robberies were committed in the same transaction. The prosecution also
opposed the new motion.


       2
        In so doing, Daniel abandoned his earlier motion to withdraw that had been filed
by the public defender, with whom he claimed to have a conflict of interest.

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       In June 2012, the trial court denied Daniel’s motion to withdraw his plea. It found
that the exposure was stated in open court as 26 years, 4 months, was correct, and that
Daniel’s declaration made it clear that he considered the negotiated sentence of 16 years,
4 months to be acceptable if his actual exposure was between 25 and 30 years.
       The probation report recommended a prison term of 20 years, 8 months, with a
consecutive term of 8 months for the probation violation. The trial court noted that this
differed from the negotiated disposition, which it followed. In August 2012, Daniel was
sentenced to 16 years, 4 months in state prison for the two enhanced robberies and a
second degree burglary for which he had been on probation at the time of robberies. The
total term was composed of a lower term of three years for the first robbery with a ten-
year enhancement for firearm use; a concurrent lower term of three years for the second
robbery, with a one-third consecutive enhancement term of three years and four months
for firearm use; and a concurrent two-year term for the violation of probation. The
remaining counts were dismissed pursuant to the plea agreement, as was the possession
for sale charge.
                                      II. ESTOPPEL
       First, Daniel challenges the sentence imposed for a firearm enhancement as an
unauthorized sentence—that is, one that the trial court imposed in excess of its
jurisdiction. He objects that the trial court imposed a one-third firearm enhancement term
as a consecutive term, even though the underlying robbery was imposed as a concurrent
term. Citing this as an act in excess of the trial court’s jurisdiction, Daniel asks that we
strike this three year, four month enhancement. The Attorney General counters that
Daniel stipulated to any act in excess of jurisdiction and is thus estopped from raising this
claim of error on appeal. We agree.
       Ordinarily, a criminal defendant may challenge an unauthorized sentence as one
imposed in excess of jurisdiction. However, a defendant may not raise such a challenge
if he or she pled guilty in return for a specified sentence—even if the trial court acted in
excess of jurisdiction in reaching that sentence—as long as the defendant was properly
before that court for sentencing. A defendant who received the benefit of a plea


                                              7
agreement may not challenge that sentence—even if it was in excess of jurisdiction—in
an attempt to obtain a greater benefit on appeal. (People v. Hester (2000) 22 Cal.4th 290,
295; In re Griffin (1967) 67 Cal.2d 343, 347-348.) Daniel entered his plea stipulating to
the sentence that he now challenges as in excess of jurisdiction. He is estopped from
raising this claim of error on appeal. (See People v. Hester, supra, 22 Cal.4th at p. 295;
In re Griffin, supra, 67 Cal.2d at pp. 347-348.)
                            III. MOTION TO WITHDRAW
A. Calculation of Maximum Exposure
        Daniel also argues that the trial court abused its discretion by denying his motion
to withdraw his no contest plea. He argues that confusion about his maximum
exposure—the sentence that he could have received if convicted of all charges and
sentenced to the greatest sentence for them—should have entitled him to withdraw his
plea.
        As some of Daniel’s argument is based on two miscalculations about his
maximum exposure, we clarify these misunderstandings before turning to the merits of
the claim of error. First, he assumes that the sentence he received was only four months
shorter than what he would have received if he had been convicted of the two crimes he
admitted. This calculation ignores the additional sentences that his plea agreement
avoided or mitigated. Daniel enjoyed a two year reduction as a result of the imposition of
a concurrent term for his violation of probation in the burglary case. He was not
sentenced on several charges—the third robbery, being an ex-felon in possession of a
firearm, and the outstanding possession for sale case—dismissed as part of the
agreement. His erroneous calculation fails to take into account these benefits that he
received as a result of his negotiated plea in the robbery case.
        Second, Daniel suggests that his maximum exposure was overstated because the
ban on multiple punishment codified in section 654 precluded more than one sentence for
robbery. He is incorrect. An act made punishable in different ways by different statutes
must be punished only under the statute that provides the longest potential prison term,
but may not be punished under more than one statute. (§ 654, subd. (a).) The ban on


                                              8
multiple punishment applies when there is one act in the ordinary sense, but also when
the crimes arise as the result of an indivisible course of conduct. In those circumstances,
the general rule is that the defendant may be punished for any of these offense, but not for
more than one of them. (People v. Latimer (1993) 5 Cal.4th 1203, 1208; People v. Jones
(2002) 103 Cal.App.4th 1139, 1143.)
       However, violent crimes committed against multiple victims can be separately
punished without violating the statutory ban on multiple punishment. (People v. Latimer,
supra, 5 Cal.4th at p. 1212.) The three robberies were charged against Daniel as violent
offenses. (See former § 667.5, subd. (c)(8).) His maximum exposure for the three
robberies properly included three terms for robbery.
B. Abuse of Discretion
       Daniel contends that the trial court erred by denying his motion to withdraw his
plea. For good cause, a criminal defendant who was represented by counsel at the time of
the plea may—at any time before judgment—seek trial court permission to withdraw a
guilty plea. (§ 1018; People v. Gontiz (1997) 58 Cal.App.4th 1309, 1314, fn. 3,
disapproved on another ground in People v. Superior Court (Zamudio) (2000) 23 Cal.4th
183, 200, fn. 8.) The motion is addressed to the discretion of the trial court. (People v.
Weaver (2004) 118 Cal.App.4th 131, 146.) On appeal, we review its decision for an
abuse of discretion. (People v. Holmes (2004) 32 Cal.4th 432, 442-443; People v.
Weaver, supra, 118 Cal.App.4th at p. 146.) We will uphold the trial court’s ruling unless
there is a clear showing of an abuse of discretion. (People v. Wharton (1991) 53 Cal.3d
522, 585.)
       To prevail, Daniel must produce clear and convincing evidence of good cause to
withdraw his plea. (People v. Wharton, supra, 53 Cal.3d at p. 585; People v. Cruz (1974)
12 Cal.3d 562, 566.) Mistake constitutes good cause to withdraw a guilty plea if the
defendant entered the plea under a “ ‘serious misapprehension’ ” of the consequences of a
negotiated plea. (People v. Johnson (1995) 36 Cal.App.4th 1351, 1357; People v. Cruz,
supra, 12 Cal.3d at p. 566.) Daniel claims that his public defender misadvised him of his



                                             9
maximum exposure, telling him that he faced 30 years in prison.3 In open court, she
advised him that he faced a possible term of 26 years, 4 months in prison.
       Daniel’s own declaration stated that he accepted a 16 year, 4 month term because
he thought that was better than 25 or 30 years. The trial court cited this evidence when it
found that Daniel did not demonstrate good cause to withdraw his plea. This evidence
also satisfies us that the trial court did not abuse its discretion in denying the motion to
withdraw. Even if we assume arguendo that Daniel was misadvised as he asserts that he
was, his plea agreement accepted a sentence that avoided the range of prison time that
was unacceptable to him.
       The judgment—including the sentence—is affirmed.




                                                   _________________________
                                                   REARDON, J.


We concur:


_________________________
RUVOLO, P. J.


_________________________
RIVERA, J.




       3
        No declaration from the public defender detailing what she told Daniel privately
was obtained.

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