Filed 9/29/15 P. v. Dionne CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                         (Butte)
                                                            ----




THE PEOPLE,                                                                                  C075738

                   Plaintiff and Respondent,                                    (Super. Ct. No. CM039957)

         v.

STEVEN DANSON DIONNE, JR.,

                   Defendant and Appellant.




         After defendant Steven Danson Dionne, Jr., robbed two people using a deadly
weapon and was charged in a criminal complaint, he entered into a negotiated plea. He
agreed to plead no contest to one count in exchange for dismissal of other counts. As for
the sentence, defendant agreed only that the trial court would exercise its discretion up to
the maximum of eight years. The trial court, however, treated the plea agreement as
including a negotiated term and imposed the maximum term without exercising its
discretion.


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       We conclude that the sentence must be vacated and the matter remanded for the
trial court to exercise its sentencing discretion. We also conclude that there is no merit in
the Attorney General’s contentions that the appeal must be dismissed for failure to obtain
a certificate of probable cause and that defendant should be estopped from complaining
that the trial court imposed the maximum term.
       A discussion of the relevant procedure is included in the Discussion.
                                       DISCUSSION
                                               I
                     Failure to Exercise Discretion and State Reasons
       Defendant contends that his sentence must be vacated and his case remanded for
resentencing because the trial court failed to exercise its discretion and state its reasons in
sentencing. The Attorney General does not respond to this contention but, instead, argues
that we should dismiss the appeal. Defendant’s contention has merit and requires the
requested relief.
       Defendant was charged by complaint with two counts of robbery and one count of
making a criminal threat. The complaint also alleged that defendant used a deadly
weapon. Defendant entered into a negotiated plea with the prosecution. Under the
agreement, defendant pleaded no contest to one count of robbery (Pen. Code, § 211;
hereafter, unspecified code citations are to the Penal Code) and admitted the deadly
weapon use allegation (§ 12022, subd. (b)(2)). The prosecution agreed to dismissal of the
remaining counts and enhancements.
       The plea form signed by defendant provided that he “may serve this maximum
sentence as a result of [his] plea: 8 years” and “[p]robation will be granted only if the
sentencing judge finds this to be an unusual case (Prison Presumptive).” Defendant
agreed with the statement of the form: “I do understand that the matter of probation and
sentencing is to be determined solely by the Superior Court Judge.”



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       In the part of the oral plea colloquy concerning a possible maximum prison term,
the court asked defendant: “Do you understand that this crime carries up to eight years in
the state prison . . . ?” After defendant answered affirmatively, the trial court accepted
the plea, finding defendant guilty of the robbery and finding the deadly weapon use
allegation true.
       Defense counsel offered to waive preparation of a probation report and informed
the court that defendant would consent to be sentenced immediately to the maximum
term of eight years. After defense counsel stipulated to a factual basis for the plea, the
court asked defendant whether he waived preparation of a probation report and agreed to
be sentenced that day. Defendant agreed on both points, but he did not expressly agree to
be sentenced to a term of eight years.
       The court said that it would sentence defendant immediately “pursuant to a
stipulated maximum term of eight years pursuant to Rule[] 4.412 [of the California Rules
of Court].” The court asked defendant again whether he waived preparation of a
probation report and agreed to be sentenced immediately. Defendant again agreed, but
again, he did not expressly agree to be sentenced to a term of eight years.
       The court then announced that defendant “agreed and the District Attorney [had]
not objected to the following sentence: eight years upper term in state prison.” The court
imposed that sentence.
       A sentencing court must exercise its discretion and set forth its reasons on the
record for imposing the term it selects. (§ 1170, subds. (b) & (c).) However, if the
defendant personally agrees to the sentence, the trial court need not exercise its discretion
and state its reasons when it imposes the sentence. That exception is found in rule 4.412
of the California Rules of Court: “It is an adequate reason for a sentence or other
disposition that the defendant, personally and by counsel, has expressed agreement that it
be imposed and the prosecuting attorney has not expressed an objection to it. The
agreement and lack of objection must be recited on the record.” (Italics added.)

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       Here, the trial court obtained the express agreement from defense counsel for
imposing the eight-year maximum term, but it did not obtain defendant’s express
agreement. Despite the failure to get defendant’s express agreement on the record, the
trial court imposed the term as if it were a negotiated term. The plea procedure on this
record does not reflect that defendant stipulated to an eight-year term, even if he agreed
that the trial court could impose up to eight years. The sentencing procedure therefore
violated rule 4.412 of the California Rules of Court even though the sentence imposed
was within the permissible range. The trial court erred by failing either to (1) obtain
defendant’s express and personal agreement to a stipulated term or (2) exercise its
discretion in making sentencing choices and state its reasons on the record. The Attorney
General does not disagree.
       Defendant also contends that the error was prejudicial because there was no
probation report, and, in essence, it was not a foregone conclusion on this record that the
maximum term was appropriate here. He suggests that there was evidence that may have
supported a lower term. Again, the Attorney General does not disagree. Neither do we.
Without a probation report, and only the barest of factual summaries stating that
defendant used a deadly weapon and took personal property from two victims, there is
not enough on this record to conclude that the sentencing error was harmless.
       We need not consider whether the error also violated defendant’s due process
rights, as he argues on appeal, because we conclude that the error was prejudicial under
any harmless-error analysis.
                                             II
                               Certificate of Probable Cause
       The Attorney General argues that we should dismiss this appeal because defendant
did not obtain a certificate of probable cause. We disagree. The substance of defendant’s
appeal does not challenge the plea agreement; instead, it raises an issue of whether the



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trial court violated the terms of the plea agreement by imposing a sentence as if it had
been a negotiated term.
       Under section 1237.5, a defendant generally may not appeal from a judgment of
conviction following a guilty or no contest plea unless he files with the trial court a
statement “showing reasonable, constitutional, jurisdictional, or other grounds going to
the legality of the proceedings” (§ 1237.5, subd. (a)), and the trial court executes and
files “a certificate of probable cause for such appeal with the clerk of the court” (§
1237.5, subd. (b)). “The purpose of section 1237.5 is practical and salutary: ‘to
discourage and weed out frivolous or vexatious appeals challenging convictions
following guilty and nolo contendere pleas,’ and to do so ‘ “before time and money is
spent preparing the record and the briefs for consideration by the reviewing court.” ’
[Citation.] The requirements of section 1237.5 . . . must be strictly applied. [Citation.]
The Supreme Court has disapproved the practice of applying the rule loosely in order to
reach issues whose consideration would otherwise be precluded. [Citation.]” (People v.
Cole (2001) 88 Cal.App.4th 850, 860, fn. omitted.)
       Nevertheless, the law recognizes an exception to section 1237.5’s certificate
requirement. This exception, stated in rule 8.304(b)(4)(B) of the California Rules of
Court, permits an appeal without a probable cause certificate if the appeal is based on
“[g]rounds that arose after entry of the plea and do not affect the plea’s validity.” “[T]he
critical inquiry is whether a challenge to the sentence is in substance a challenge to the
validity of the plea, thus rendering the appeal subject to the requirements of section
1237.5. [Citation.]” (People v. Panizzon (1996) 13 Cal.4th 68, 76, original italics
(Panizzon); see also People v. Buttram (2003) 30 Cal.4th 773, 781-782 (Buttram).)
       In Panizzon, the defendant agreed to a plea bargain that called for him to receive a
specified sentence and the prosecution agreed to dismiss several charges. (Panizzon,
supra, 13 Cal.4th at p. 73.) After the defendant was sentenced to the negotiated term, he
appealed without first obtaining a certificate of probable cause, contending the sentence

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violated the federal and state prohibitions against cruel and unusual punishment. (Id. at
p. 74.) The Supreme Court concluded that since the defendant was “in fact challenging
the very sentence to which he agreed as part of the plea,” the challenge “attacks an
integral part of the plea [and] is, in substance, a challenge to the validity of the plea,
which requires compliance with the probable cause certificate requirements of section
1237.5 . . . .” (Id. at p. 73.) The Supreme Court dismissed the appeal because the
defendant did not obtain a certificate of probable cause. (Id. at pp. 89-90.)
       In contrast, in Buttram, the Supreme Court considered a situation where the
defendant pleaded guilty to felony drug charges in return for an agreed maximum
sentence. (Buttram, supra, 30 Cal.4th. at p. 776.) Thereafter, the defendant appealed the
trial court’s denial of diversion and imposition of the maximum term. (Ibid.) The
Supreme Court held the defendant was not required to obtain a certificate of probable
cause because, “absent contrary provisions in the plea agreement itself, a certificate of
probable cause is not required to challenge the exercise of individualized sentencing
discretion within an agreed maximum sentence. Such an agreement, by its nature,
contemplates that the court will choose from among a range of permissible sentences
within the maximum, and that abuses of this discretionary sentencing authority will be
reviewable on appeal, as they would otherwise be.” (Id. at pp. 790-791.)
       Where, as here, the parties agreed to a maximum sentence, they leave unresolved
the appropriate sentence within the maximum and preserve the right to urge the exercise
of discretion in favor of probation or a shorter term. (People v. Cuevas (2008) 44 Cal.4th
374, 376 (Cuevas); Buttram, supra, 30 Cal.4th at p. 785.) On appeal, defendant contends
that the trial court failed even to exercise its discretion in imposing a sentence.
Specifically, he claims that the trial court imposed the maximum sentence under the
negotiated plea as if it had been a negotiated term rather than just a statutory maximum.
That contention does not challenge or attack the plea; it only challenges the trial court’s
failure to comply with the terms of the plea agreement.

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       The Attorney General disagrees with this analysis, relying on Cuevas, which she
claims “addressed the precise facts here.”
       In Cuevas, the defendant entered into a negotiated plea agreement under which he
would plead no contest to certain counts, others would be reduced or dismissed, and he
would have a maximum possible sentence of 37 years eight months, which was the
maximum possible sentence he could have received based on the charges to which he
would plead no contest. After the pleas, the court sentenced the defendant to prison for
35 years eight months. The appeal presented the issue of whether the defendant’s failure
to obtain a certificate of probable cause barred a claim that his sentence on certain counts
violated section 654. (Cuevas, supra, 44 Cal.4th at pp. 376-380 & fn. 3.)
       Cuevas did not involve a sentence lid, which is a sentence maximum or cap which
is less than the maximum possible sentence the court lawfully could impose for the
offense or offenses to which a defendant pleaded guilty or no contest. Instead, in Cuevas,
the defendant agreed the court could sentence him to any term less than or equal to the
agreed-upon maximum possible sentence for the offenses to which he pleaded no contest.
(Cuevas, supra, at pp. 376-377.)
       In this respect, Cuevas is essentially identical to this case. The defendant in each
case pleaded guilty, and the trial court retained discretion to impose the maximum
sentence statutorily prescribed for the crime to which the defendant pleaded guilty. But
this case diverges from Cuevas in what happened at sentencing.
       In Cuevas, the trial court sentenced the defendant to a term within the maximum,
as allowed by the plea agreement, but the defendant argued on appeal that the term was
not available because of the application of section 654. In other words, the defendant in
Cuevas challenged the validity of the plea agreement. (Cuevas, supra, 44 Cal.4th at p.
381.) Here, on the other hand, defendant does not dispute that the trial court has
authority to impose the maximum sentence prescribed for the crime to which he pleaded
guilty. Instead, defendant asserts that the court’s sentencing was procedurally flawed.

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This is not an attack on the negotiated plea because (1) defendant concedes that the trial
court has authority under the plea agreement to sentence him to the maximum term and
(2) defendant did not agree to have the maximum term be treated as a negotiated term.
       We therefore conclude that defendant was not required to obtain a certificate of
probable cause to raise this issue on appeal.
                                                III
                                           Estoppel
       The Attorney General also argues that defendant should be estopped from
“challenging the imposition of a sentence he agreed to in his plea bargain.” She claims
the defendant is “challenging the trial court’s exercise of . . . discretion.” To the contrary,
defendant contends that the trial court failed to exercise its discretion.
       In People v. Hester (2000) 22 Cal.4th 290 (Hester), our Supreme Court
determined that “defendants are estopped from complaining of sentences to which they
agreed.” (Id. at p. 295.) “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.]” (Ibid., italics
omitted.)
       However, as we have already discussed, the plea negotiated by defendant included
the condition that the trial court would exercise its discretion in imposing punishment.
That did not happen here. Defendant is not estopped from arguing that he should receive
the benefit of his bargain.




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                                      DISPOSITION
       The conviction is affirmed, but the sentence is vacated. The matter is remanded to
the trial court for resentencing consistent with the plea agreement.



                                                        NICHOLSON          , Acting P. J.



We concur:



      ROBIE                 , J.



      MURRAY                , J.




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