People v. Ford CA3

Opinion

Filed 9/23/26 P. v. Ford CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Siskiyou)

THE PEOPLE, C102620 Plaintiff and Respondent, (Super. Ct. Nos. SCCR-CRF- v. 2020-470-2, 23CF11558, 24CF03681, SCCR-CRF- BROOKE FORD, 2020-110, SCCR-CRF-2020- Defendant and Appellant. 1457)

Defendant Brooke Ford pleaded guilty to numerous offenses in multiple criminal matters. As part of a negotiated plea in four cases, she agreed to an aggregate 14-year execution-suspended sentence that included the upper term on a hotel burglary conviction and a consecutive eight-month term for a felon in possession of a firearm conviction in one of the cases, both of which were based on taking a firearm from a guest’s hotel room. The plea deal included a Cruz waiver that allowed her to remain out of custody until sentencing; if she violated the Cruz waiver she agreed her plea would become an open plea to the court and that she could be sentenced up to the maximum allowable term authorized by law. After violating the Cruz waiver, the trial court sentenced her to the upper term on the residential burglary count and the consecutive eight-month term on the felon in 1 possession count but diverged from the prior specified term in other respects. She received an aggregate term of 14 years, four months in prison. Appealing without a certificate of probable cause, defendant argues the trial court should have stayed the sentence on the felon in possession count under Penal Code section 654 (statutory section citations that follow are to the Penal Code), and that it abused its discretion by imposing a consecutive rather than a concurrent term for that offense. She also argues that the amended abstract of judgment must be corrected to accurately reflect the amount of various fees the trial court orally pronounced at sentencing. We reject the People’s argument that a certificate is required to challenge the sentence on the felon in possession count and agree with defendant that the trial court erred in not applying section 654 because the offense was based on the same act or course of conduct underlying the burglary offense for which the trial court also imposed sentence. We shall vacate the sentences on both counts and remand for a full resentencing where the trial court shall impose a sentence for each of defendant’s convictions and where the parties may raise their arguments regarding the appropriate fees.

FACTS AND PROCEDURAL HISTORY In March 2020, defendant pleaded guilty to seven theft-related counts in Siskiyou County case No. SCCR-CRF2020-110 (Case A) and was placed on probation with the imposition of sentence suspended. While released on probation, defendant was charged in several additional cases with multiple counts of residential burglary and various forms of theft, forgery, grand theft from an elder, receiving stolen property, driving or taking a vehicle without consent, several drug-related offenses, and unlawful possession of a firearm, ammunition and tear gas. She repeatedly failed to appear in court as ordered, and was subsequently charged 2 with failing to appear while released on her own recognizance with attached on-bail enhancements. In March 2024, defendant resolved numerous pending cases by plea. Under the terms of the plea agreement, the trial court would impose an execution-suspended state prison sentence of 14 years, place defendant on probation for two years, and order her to serve 180 days in jail. The plea agreement included a waiver pursuant to People v. Cruz (1988) 44 Cal.3d 1247, permitting defendant to remain free of custody until her sentencing hearing so that she could participate in a drug treatment program. Defendant initialed Box 10(a) on the written plea agreement that states: “I understand that the court is allowing me to surrender at a later date to begin serving time in custody. [⁋] I agree that if I fail to appear on the date set for surrender or sentencing without a legal excuse, my plea will become an ‘open plea’ to the court, I will not be allowed to withdraw my plea, and I may be sentenced up to the maximum allowed by law.” The written plea agreement includes no express waiver of defendant’s right to appeal the sentence imposed. Prior to taking defendant’s plea at the change of plea hearing, the trial court explained to defendant “that if you violate the terms of the Cruz waiver, then this becomes an open plea to the Court” and it could sentence her to the “upper term consecutive across the board” and “up to the maximum amount allowed by law.” Defendant responded, “okay” and “yes sir,” indicating she understood. The court further explained: “If you go forward with probation and you violate the terms of probation ... then you can be found in violation of probation and if probation is not reinstated you’re going to prison for the full 14 years eight months.” Defendant responded, “Okay. I don’t want to. Okay.” The court said it was “reluctant to do this plea” because it had previously granted defendant probation but then she had “caught more felonies and more misdemeanors.” The court continued: “And now you’re looking at 14 years prison.” If defendant was unwilling to acknowledge she had a drug problem 3 and “actually make the effort to change,” the court said defendant was “going to be in front of me again wearing an orange jumpsuit and I’m going to find you in violation of probation and you’re going to be sent for 14 years eight months. You understand that?” Defendant responded, “Yes, sir.” The court asked whether “that’s the way you want to resolve these cases?” and defendant replied, “I want to see my grand baby be born. Yes, I want to do this this way.” Later in the hearing, the court explained the Cruz waiver to defendant as follows: “[I]f you failed to appear on the date set for sentencing without a legal excuse that your plea will become an open plea to the Court, you wouldn’t be allowed to withdraw your plea and you could be sentenced up to the maximum amount allowed by law. Do you understand that?” Defendant responded, “Yes, sir.” Thereafter, defendant pleaded guilty in case No. SCCR-CRF2020-470-2 (Case B) to five felonies and nine misdemeanors, admitted certain enhancement allegations (§§ 1203, subd. (k), 1203, subd. (e)(4)), and admitted two prior felony convictions as aggravating factors. Relevant here, defendant pleaded guilty to two counts of residential burglary (counts 1 and 6), being a felon in possession of a firearm (count 3), grand theft from an elder (count 10), and vehicle theft (count 18). This portion of the negotiated execution-suspended sentence included the upper term of six years on count 1, a consecutive 1 year four months on count 6, and consecutive terms of eight months each on count 3, count 10, and count 18 for a total negotiated execution-suspended term of nine years four months in this case. According to the stipulated factual basis for her plea, count 1 and count 3 were based on a December 2021 incident where defendant, while working as a hotel maid, entered a guest’s hotel room and stole his loaded firearm from a nightstand. Under the terms of the plea deal, defendant also pleaded guilty to five failure to appear offenses (one felony and four misdemeanors) and admitted an on-bail enhancement in case No. SCCR-CRF2020-1457 (Case C), which she agreed would add two years, eight months to her aggregate sentence. She also pleaded guilty to two felony 4 counts in case No. 23CF1158 (Case D) (residential burglary and unauthorized use of personal identifying information), which she agreed would add two years to the execution-suspended sentence. The total negotiated execution-suspended sentence was 14 years in prison with any remaining counts and cases to be dismissed. In light of her pleas, the court found defendant in violation of probation in Case A. Defendant waived time for sentencing and the court released her on the Cruz waiver to attend treatment. A week after entering the above pleas, defendant was charged in case No. 24CF03681 (Case E) with four counts of theft-and drug-related offenses. The trial court later revoked defendant’s release after finding she was no longer in treatment and overall had not complied with the terms of her release. In September 2024, defendant admitted she violated the terms of her Cruz waiver. At the same time, defendant pleaded guilty as charged in Case E in exchange for an agreement that any sentence imposed in this latest case would run concurrent to any sentence imposed in her other cases. Sentencing in all five cases occurred in October 2024. Defense counsel asked the trial court to impose an execution-suspended sentence with a grant of probation while the prosecution urged the court to impose the 14 years four months in prison recommended by probation. The court denied the probation request and sentenced defendant in Case A, Case B, Case C, Case D, and Case E to an aggregate term of 14 years four months in prison. Relevant to her appeal, the trial court sentenced defendant in Case B as follows: The trial court selected the hotel burglary (count 1) as the principal term and imposed the upper term of six years plus consecutive one-third the middle terms for each of the remaining felony counts, including eight months for being a felon in possession of a firearm (count 3), one year four months for residential burglary (count 6), one year for grand theft from an elder (count 10), and eight months for vehicle theft (count 18). For two misdemeanor drug convictions (counts 19 and 20), the court imposed a terminal 5 sentence of 90 days in the county jail, to be served concurrent with defendant’s state prison sentence. The court did not impose a sentence on seven misdemeanor counts to which defendant pleaded guilty (counts 5, 8, 14, 16, 17, 21, and 22). The trial court imposed various fines and fees. Regarding the mandatory assessments under section 1465.8 and Government Code section 70373, the court orally imposed the following: “In each case,” the defendant shall pay “a $40 court security fee [under § 1465.8] for each conviction, for a total of $400” and a “$30 criminal conviction assessment ... [under Gov. Code, § 70373] for each conviction, for a total of $300.” The original abstract of judgment filed in October 2024, lists a $400 court operations (or security) assessment and a $300 criminal conviction assessment. An amended abstract of judgment filed in December 2024, lists a $1,000 court operations (or security) assessment and a $750 criminal conviction assessment. Defendant filed separate notices of appeal in all five cases. She did not request or obtain a certificate of probable cause in any of her notices of appeal.

DISCUSSION

I Certificate of Probable Cause Defendant challenges the consecutive eight-month sentence imposed on her felon in possession conviction (count 3) in Case B, arguing the trial court should have stayed the sentence under section 654, or imposed a concurrent rather than consecutive term. The People contend defendant’s failure to obtain a certificate of probable cause precludes her claim because it challenges the validity of her plea. Considering the totality of the circumstances presented here, we conclude a certificate is not required. Section 1237.5 provides that an appeal may not be taken after a plea of guilty or no contest unless the defendant has filed a statement showing reasonable grounds for appeal and the trial court has executed and filed a certificate of probable cause.

6 (§ 1237.5, subds. (a), (b).) Courts have recognized two exceptions to this certificate requirement. A certificate is not required for: (1) issues involving a search and seizure, the validity of which was contested under section 1538.5, and (2) issues regarding proceedings held after the plea for the purpose of determining the degree of the crime and the penalty to be imposed. (People v. Buttram (2003) 30 Cal.4th 773, 780 (Buttram).) Regarding this latter category, the “the 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.” (Id. at pp. 781-782.) “The parties to a plea agreement are free to make any lawful bargain they choose, and the exact bargain they make affects whether a subsequent appeal, in substance, is an attack on the validity of the plea.” (Id. at p. 785.) Where a defendant has agreed to a specified sentence in return for his or her plea, the defendant must obtain a certificate of probable cause to challenge the trial court’s imposition of that exact sentence on appeal. (See e.g., People v. Panizzon (1996) 13 Cal.4th 68, 73, 78 [one who agreed to a specific sentence in return for his plea must obtain a certificate of probable cause in order to claim on appeal that the agreed sentence constitutes cruel and unusual punishment]; People v. Hester (2000) 22 Cal.4th 290, 295 [“defendants are estopped from complaining of sentences to which they agreed”].) But where a defendant negotiates a plea term which provides for a maximum sentence, rather than a specified sentence, which necessarily contemplates further adversary proceedings in which the trial court must exercise its discretion to determine the appropriate sentence within the constraints of the bargain, a certificate of probable cause is not required because, in substance, the defendant’s appeal of the selected sentence is not an attack upon the plea itself. (Buttram, supra, 30 Cal.4th at p. 785.) Here, the People argue that defendant understood and agreed as part of her plea that if she violated the terms of the Cruz waiver, her sentence would include the upper 7 term for count 1 and a consecutive eight months for count 3 and that the court “would impose ‘upper term consecutive across the board.’ ” We disagree. Defendant initially negotiated a sentence of 14 years in prison, with the execution of the sentence suspended. As part of the plea deal, she agreed to a Cruz waiver. Under the written terms of the plea agreement and as explained by the court during the plea hearing, if defendant violated the terms of the Cruz waiver, she agreed that the 14-year negotiated sentence would no longer apply and that her plea would become an open plea to the court. After admitting she violated the Cruz waiver, the trial court had discretion to sentence her up to the maximum term allowable under the law. Recognizing that the court had such discretion at the sentencing hearing (and that it was not required to impose a specified sentence), defense counsel urged the court to suspend execution of sentence and place defendant on probation while the People advocated for 14 years four months in prison (more than what defendant had originally agreed before her plea became an open plea). Under these circumstances, a certificate was not required because defendant challenges the trial court’s exercise of discretion within the maximum allowable sentence authorized by law and not the validity of her open plea. (Buttram, supra, 30 Cal.4th at pp. 790-791 [“a certificate of probable cause is not required to challenge the exercise of individualized sentencing discretion within an agreed maximum sentence”].) The parties’ plea 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.” (Ibid.) The People’s reliance on People v. Vargas (2007) 148 Cal.App.4th 644 (Vargas) to argue a certificate is required is misplaced. The defendant in Vargas pleaded no contest to assault and admitted a strike prior in return for a state prison sentence of two years, doubled to four years for the strike. (Vargas, at p. 646.) As part of the plea, the 8 defendant agreed to a Cruz waiver where he had to return for sentencing or face a maximum term sentence, which was four years, doubled to eight years. (Ibid.) At the plea hearing, “the trial court expressly advised defendant that if he violated the terms of the Cruz waiver, the trial court would sentence defendant to the maximum term of eight years in prison.” (Id. at pp. 649-650, italics added.) By accepting the Cruz waiver, the appellate court found that the “defendant agreed to the eight-year sentence.” (Id. at p. 650.) Because the court found that the Cruz waiver and the specified eight-year term were integral parts of the plea deal, it held that the defendant’s challenge to the agreed- upon sentence was a challenge to the validity of his plea and as such required a certificate of probable cause. (Id. at p. 652.) Here, the trial court did not expressly state that it would sentence defendant to a specific term or to consecutive terms across the board if she violated the Cruz waiver, only that it could exercise its discretion to do so under the terms of the plea deal and Cruz waiver. Furthermore, we find ambiguous the trial court’s comments regarding what could happen if defendant was placed on probation, violated the terms of probation, and probation was not reinstated. It is unclear, at least to us, whether the court was referring to what might happen if defendant violated the Cruz waiver or if it was referring to a situation where the execution of the suspended sentence had already been imposed and defendant had been placed on probation. Because the court’s comments are less than clear, and considering the totality of the circumstances, including the express terms of the written plea agreement and the repeated references during the plea hearing that if defendant violated the Cruz waiver her plea would become an open plea that allowed the trial court to exercise its discretion within the maximum allowable term, we conclude defendant did not agree to a specified sentence. This distinction renders Vargas inapposite. Because we conclude a certificate is not required to raise defendant’s sentencing claim on appeal, we turn to the merits of her challenge.

9 II Section 654 Defendant contends the trial court erred by not staying the consecutive eight- month sentence on the felon in possession conviction (count 3) in Case B because the offense was based on the same act or course of conduct underlying her hotel burglary conviction (count 1) for which the court imposed a six-year term. We agree section 654 applies but disagree that the court was required to stay the lesser eight-month term. Section 654 provides that “[a]n act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).) “At its simplest, ‘section 654 proscribes double punishment for multiple violations of the Penal Code based on the “same act or omission.” ’ ” (People v. Atencio (2012) 208 Cal.App.4th 1239, 1243.) “ ‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ ” (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) Previously, trial courts were required to impose the longest possible term when section 654 applied. In January 2022, the statute was amended to provide courts with discretion to select either the greater or the lesser term and stay execution of the remaining term. (Stats. 2021, ch. 441, § 1.) We first note that defendant did not object based on section 654 in the court below. Nevertheless, a sentence in violation of section 654 is an unauthorized sentence that generally may be corrected on appeal without an objection by the defendant in the trial court. (People v. Hester, supra, 22 Cal.4th at p. 295.) This general rule, however, is subject to an exception. (Ibid.) Where a defendant has “pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in 10 excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction.” (Ibid.; see also Cal. Rules of Court, rule 4.412(b) [“By agreeing to a specified term in prison ... personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654’s prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record”].) Having concluded that defendant agreed to an open plea rather than a specified term, the exception does not preclude defendant from raising section 654 on appeal. As the factual basis for defendant’s pleas in counts 1 and 3, she stipulated that in December 2021, she entered a guest’s hotel room while working as a maid and stole his loaded firearm from a nightstand. The burglary count and the felon in possession count were thus based on a single act or course of conduct. She was convicted of burglary by taking the firearm and then of possessing the firearm after she took it. Under these circumstances, there is a course of conduct pursuant to one criminal objective—to possess the firearm by stealing it from the hotel room—and based on that defendant cannot be punished for both offenses under section 654. (People v. Atencio, supra, 208 Cal.App.4th at p. 1239 [§ 654 precluded punishment for both grand theft of a firearm and being a felon in possession of the same firearm]; People v. Alford (2010) 180 Cal.App.4th 1463, 1468 [recognizing § 654 has been held to preclude punishment for both burglary and theft where the burglary is based on an entry with intent to commit that theft].) Accordingly, we shall vacate the sentences on counts 1 and 3 in Case B and remand for the trial court to exercise its discretion to select which term to impose and which term to stay under section 654. Given this conclusion, we need not address defendant’s claim that the trial court abused its discretion in imposing a consecutive rather than concurrent term on count 3.

11 “[W]hen part of a sentence is stricken on review, on remand for resentencing, ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 893; People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [as commonly applied, the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant].) Upon remand, the trial court may revisit all of its sentencing choices in formulating an aggregate term, and must impose a sentence for each of defendant’s convictions.

III Corrections to the Abstract of Judgment Defendant argues the amended abstract of judgment must be corrected to reflect a $400 court operations assessment (§ 1465.8) and a $300 court facilities assessment (Gov. Code, § 70373) that the trial court orally imposed at sentencing. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [an abstract of judgment is not the judgment of conviction and does not control if it differs from the trial court’s oral pronouncement of judgment].) The People contend the amended abstract of judgment reflects the correct assessment amounts based on defendant’s 25 felony and misdemeanor convictions, but that it must be corrected in another minor respect because portions of the abstract do not correctly identify defendant’s various cases by letter. Because we are remanding the case for a full resentencing hearing, which will necessitate a new abstract of judgment, we need not address the parties’ contentions regarding alleged errors in the current abstract. The parties may address any arguments regarding the correct amount of the fees and fines to the trial court during the resentencing hearing.

12 DISPOSITION Defendant’s convictions are affirmed. The sentences on count 1 (residential burglary) and count 3 (felon in possession of a firearm) in Case B (case No. 2020-470-2) are vacated and the matter is remanded for a full resentencing hearing during which the trial court may revisit all of its sentencing choices in formulating defendant’s aggregate sentence. The court shall impose a sentence on each of defendant’s convictions. Following the resentencing hearing, the clerk shall prepare an abstract of judgment that accurately identifies each case as well as any fees and fines orally imposed at the resentencing hearing and forward it to the Department of Corrections and Rehabilitation.

/s/ HULL, Acting P. J.

We concur:

/s/ KRAUSE, J.

/s/ MESIWALA, J.