Filed 9/2/15 P. v. Hill 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F068590
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. CRF41810)
                   v.

SCOTT ANTHONY HILL,                                                                      OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tuolumne County.
William G. Polley. (Retired Judge of the Tuolumne Sup. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.)
         John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-


*        Before Gomes, Acting P.J., Kane, J. and Detjen, J.
       Defendant Scott Anthony Hill was convicted by a guilty plea of possession of an
illegal substance in a jail facility (Pen. Code, § 4573.6)1 in exchange for a specified term
of six years, the low term of three years, doubled pursuant to the Three Strikes law
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b)). On appeal, he contends
we should remand for resentencing because his aggregate term with his prior four-year
term should have been eight years rather than 10 years. The People counter that
defendant is estopped from contesting his sentence because he pled guilty in return for a
specified sentence. We agree with the People and affirm.
                                       DISCUSSION
       On December 5, 2012, defendant was convicted of possession of an illegal
substance in a jail facility (§ 4573.6) in case No. CRF38799. He was serving a four-year
term for this conviction when he committed the current offense on June 5, 2013. He
initially pled not guilty, but decided to change his plea to guilty. He signed an
advisement and waiver of rights form. The following occurred at the plea hearing on
October 28, 2013:

              “[PROSECUTOR]: … I will represent to the Court it’s my
       understanding the defendant will plead guilty to the offense of
       [section] 4573.6 of the Penal Code and will admit the prior strike
       allegation, subject will be sentenced to a stipulated term of six years[’] state
       prison consecutive to any other terms he may be serving or have received.

              “And that will be served at 80 percent. It is further understood that
       the Court indicated restitution fine will be set at $200. He will be
       sentenced before November 9th if the probation officer can accommodate
       that.

             “THE COURT: All right. [Defense counsel], is that an accurate
       statement?

              “[DEFENSE COUNSEL]: It is, your Honor.”


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


                                              2.
       The trial court sentenced defendant to the stipulated six-year term. The court
granted defendant’s request for a certificate of probable cause.
       Defendant now argues that, pursuant to the sentencing scheme of section 1170.1,2
the trial court should have considered the six-year term in the instant case as the principal
term and the prior four-year term as a subordinate term, calculated as one-third the three-
year midterm, doubled to two years. Because the subordinate term would have been
two years rather than the original four years, his total term would have been eight years
rather than 10 years.

2      Section 1170.1, subdivision (c) provides: “In the case of any person convicted of
one or more felonies committed while the person is confined in the state prison or is
subject to reimprisonment for escape from custody and the law either requires the terms
to be served consecutively or the court imposes consecutive terms, the term of
imprisonment for all the convictions that the person is required to serve consecutively
shall commence from the time the person would otherwise have been released from
prison. If the new offenses are consecutive with each other, the principal and
subordinate terms shall be calculated as provided in subdivision (a). This subdivision
shall be applicable in cases of convictions of more than one offense in the same or
different proceedings.” (Italics added.)
       Section 1170.1, subdivision (a) provides: “Except as otherwise provided by law,
and subject to Section 654, when any person is convicted of two or more felonies,
whether in the same proceeding or court or in different proceedings or courts, and
whether by judgment rendered by the same or by a different court, and a consecutive
term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of
imprisonment for all these convictions shall be the sum of the principal term, the
subordinate term, and any additional term imposed for applicable enhancements for prior
convictions, prior prison terms, and Section 12022.1. The principal term shall consist of
the greatest term of imprisonment imposed by the court for any of the crimes, including
any term imposed for applicable specific enhancements. The subordinate term for each
consecutive offense shall consist of one-third of the middle term of imprisonment
prescribed for each other felony conviction for which a consecutive term of imprisonment
is imposed, and shall include one-third of the term imposed for any specific
enhancements applicable to those subordinate offenses. Whenever a court imposes a
term of imprisonment in the state prison, whether the term is a principal or subordinate
term, the aggregate term shall be served in the state prison, regardless as to whether or
not one of the terms specifies imprisonment in a county jail pursuant to subdivision (h) of
Section 1170.” (Italics added.)


                                             3.
               “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.” (People v. Hester (2000) 22 Cal.4th
       290, 295, original italics.)
       Here, the court had fundamental jurisdiction. “A lack of jurisdiction in its
fundamental or strict sense results in ‘“an entire absence of power to hear or determine
the case, an absence of authority over the subject matter or the parties.” [Citation.] On
the other hand, a court may have jurisdiction in the strict sense but nevertheless lack
“‘jurisdiction’ (or power) to act except in a particular manner, or to give certain kinds of
relief, or to act without the occurrence of certain procedural prerequisites.” [Citation.]
When a court fails to conduct itself in the manner prescribed, it is said to have acted in
excess of jurisdiction.’” (People v. Lara (2010) 48 Cal.4th 216, 224-225.)
“‘“[F]undamental jurisdiction cannot be conferred by waiver, estoppel, or consent …”
[whereas] “an act in excess of jurisdiction is valid until set aside, and parties may be
precluded from setting it aside by such things as waiver, estoppel, or the passage of
time.”’” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 140, quoting People v. Lara,
supra, at p. 225.)
       California case law has long applied estoppel or waiver principles to reject
challenges to plea bargains that contain some unauthorized elements, provided the
defendant knowingly and intelligently entered his plea, the limiting provision at issue was
enacted for the benefit of criminal defendants as a class, the defendant falls into that
class, and the defendant received the benefit of his bargain. (See, e.g., People v.
Otterstein (1987) 189 Cal.App.3d 1548, 1550-1552; People v. Jones (1989) 210




                                              4.
Cal.App.3d 124, 132-133; see also People v. Nguyen (1993) 13 Cal.App.4th 114, 122-
123.)
        Defendant argues he did not receive a benefit from his bargain because his total
10-year term was the same as what he would have received if he had gone to trial and
received the maximum term.3
        The People respond that defendant’s appeal in the prior case was pending before
this court when he entered into the plea bargain in this case.4 Thus, if he had won his
appeal in the prior case, his total sentence would have been lower. Defendant replies that
his appeal in the prior case was a Wende appeal without any merit, and everyone knew he
would not prevail on it when he entered his plea in this case.
        Defendant does not claim he was unaware of the pending appeal when he entered
into the plea bargain in the current case. Indeed, his pending appeal in the prior case
could have been his motivation to accept the plea. Had he succeeded on appeal, a lower
term in the present case would have benefitted him. The fact that he did not succeed on
appeal does not mean he did not receive the benefit of his plea bargain. He received the
six-year term, as specified, and avoided exposure to the maximum eight-year term at trial.
He got exactly what he bargained for and we see no basis for giving him a greater bounty
than that which he bargained for, expected, and received. He cannot now attempt to



3      Specifically, defendant explains that the plea bargain was for the midterm of three
years, doubled to six years pursuant to the Three Strikes law, plus the prior four-year
term, for a total of 10 years. If instead he had gone to trial and received the upper term of
four years, doubled to eight years pursuant to the Three Strikes law, plus a subordinate
term of two years, he would again have received a total of 10 years.
4      We take judicial notice of the prior case of People v. Hill (F066688) in which
defendant filed a brief on May 6, 2013, requesting, pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende), that we independently review the record. Our review identified
no arguable issues for appeal and thus defendant’s conviction remained unchanged.
(People v. Hill (November 7, 2013, F066688) [nonpub. opn.].)


                                             5.
better his bargain through the appellate process. (See People v. Hester, supra, 22 Cal.4th
at p. 295.)
                                     DISPOSITION
       The judgment is affirmed.




                                            6.
