People v. Billings CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCS263109
- Trial judge
- Edward P. Allard III
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Judith L. Haller (author), Gilbert Nares, McINTYRE
Analysis
The trial court corrected an error in the plea agreement regarding the maximum sentence, confirmed the defendant's consent to the corrected sentencing triad, and imposed a five-year prison term. The Court of Appeal affirmed the judgment, holding that the defendant consented to the modification and that no amended complaint was required.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
The trial court's imposition of a sentence based on the two, three, or four-year triad under Vehicle Code section 23566, rather than the triad listed in the plea form, without an amended complaint.“In short, an amended pleading was not required under the circumstances of this case, appellant consented to the change in the terms of the plea bargain, and the court did not abuse its discretion in the manner in which it proceeded after the sentencing error was discovered.” | abuse of discretion | not reached | agree with court The appellate court held that the trial court did not abuse its discretion because the defendant consented to the change in the plea terms after being informed of the correct maximum sentence, and that no amended complaint was necessary because no new charges or enhancements were added. |
The trial court's modification of the plea agreement to reflect the correct sentencing triad without a formal motion to amend.“It is well settled that "[o]nce the trial court approves the plea bargain, it cannot change the agreement without the consent of the parties" as "[t]he court lacks jurisdiction to alter the terms and must impose a sentence within the limits of the bargain."” | abuse of discretion | not reached | agree with court The appellate court found no error because the record demonstrated that the defendant, after a recess and direct questioning by the court, knowingly, intelligently, and voluntarily consented to stand by her plea despite the correction to the maximum sentence. |
Authorities
- relied: People v. Superior Court (Sanchez) (2014) 223 Cal.App.4th 567 — Once a trial court approves a plea bargain, it cannot change the agreement without the consent of the parties and lacks jurisdiction to alter the terms.
- relied: People v. Lettice (2013) 221 Cal.App.4th 139 — Due process concerns arise when the prosecution files an amended pleading to add a strike prior after a plea is entered, requiring notice and an opportunity to withdraw.
The appellate opinion: sound — The opinion correctly applies the principle that a plea bargain cannot be modified without consent, distinguishing the present case from *Lettice* because no new charges were added and the defendant explicitly consented to the corrected sentencing range. The reasoning is supported by the detailed record of the court's colloquy with the defendant.
How this analysis was made · dispute it
unusual dispositionAfter accepting a negotiated guilty plea to DUI causing injury with admitted enhancements and two prior DUI convictions, the trial court discovered at sentencing that the plea form misstated the maximum exposure as seven rather than eight years, re-advised the defendant of the correct two/three/four-year triad under Vehicle Code section 23566, confirmed under oath that she stood by her plea, and imposed a five-year prison term. The Court of Appeal, on an appeal it had limited to sentencing matters, held no amended complaint was required, the defendant consented to the modification, and the court did not abuse its discretion, and affirmed the judgment.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Sentencing appellant under the two/three/four-year triad of Vehicle Code section 23566 even though that section and triad were not reflected in the first amended complaint and no amended complaint was filed or approved“In short, an amended pleading was not required under the circumstances of this case, appellant consented to the change in the terms of the plea bargain, and the court did not abuse its discretion in the manner in which it proceeded after the sentencing error was discovered.” | abuse of discretion | correct | agree with court Section 23566 is the punishment provision that applies when a section 23153 offense is accompanied by two qualifying prior convictions; those priors were pleaded and admitted, the DUI Addendum signed at the plea recited the 2/3/4 triad, and no new charge or enhancement was added. The appellate court reasonably distinguished Lettice, where the prosecution added a strike prior after the plea. The court did not discuss the general pleading-and-proof requirement (Mancebo), but on these facts the sentencing consequence was adequately noticed, so the result is defensible. |
Modifying the plea agreement to reflect the correct sentencing triad and eight-year maximum without a motion by either party and without considering whether to enforce the original plea agreement as written“Here, no new charges or enhancements were being added to the complaint and appellant is not claiming she had inadequate notice of the applicable sentencing triad” | abuse of discretion | correct | agree with court Under Sanchez a court may not alter an approved plea bargain without the parties' consent; here the court obtained appellant's informed consent under oath after a recess for consultation with counsel, so the Sanchez rule was satisfied rather than violated. Appellant was effectively offered the chance to withdraw and declined, which is the remedy ordinarily available for a bargain-related error. The opinion does not cite Walker on remedies but the outcome follows from the consent found. |
Finding, after re-advisement at sentencing, that appellant's plea was knowingly, intelligently and voluntarily entered with understanding of the corrected consequences and that she stood by it“the court carefully questioned the appellant about the consequences of this modification and following that inquiry concluded appellant understood the change in her initial plea bargain and stood by her previous guilty plea.” | unclear | correct | agree with court The record as described shows a sworn colloquy in which the court explained why the triad was 2/3/4, appellant affirmed she understood, and she chose to stand by the plea with counsel's concurrence; the DUI Addendum she signed at the plea already stated the 2/3/4 triad. That supports the finding, and appellant did not claim on appeal that the one-year misstatement affected her decision. The appellate court did not articulate a standard of review for this finding. |
Authorities
- relied: People v. Superior Court (Sanchez) (2014) 223 Cal.App.4th 567 — Once a trial court approves a plea bargain it cannot change the agreement without the consent of the parties and must impose a sentence within the limits of the bargain.
- relied: People v. Lettice (2013) 221 Cal.App.4th 139 — Due process concerns arise when the prosecution files an amended pleading adding a strike prior after a plea is entered; distinguished here because no new charges or enhancements were added.
- missed: People v. Mancebo (2002) 27 Cal.4th 735 — Sentencing enhancements and the facts supporting them must be pleaded and proved or admitted before they may be used to increase punishment; relevant to appellant's argument that the section 23566 triad had to appear in the charging document, though the admitted priors likely satisfy it.
The appellate opinion: sound with gaps — The opinion correctly applies the Sanchez consent rule and sensibly distinguishes Lettice, and the record of the sworn re-advisement colloquy supports its conclusion that appellant knowingly consented to the corrected terms. It does not engage the pleading-and-proof framework (Mancebo) or remedies for plea-advisement errors (Walker), leaving a modest gap, but the result is defensible given the admitted priors and the signed DUI Addendum reciting the 2/3/4 triad.
Opinion
Filed 3/25/15 P. v. Billings CA4/1 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 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D065383
Plaintiff and Respondent, v. (Super. Ct. No. SCS263109)
ANDREA J. BILLINGS, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Edward P.
Allard III, Judge. Affirmed.
John E. Edwards, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C.
Ragland, Deputy Attorneys General, for Plaintiff and Respondent. FACTUAL AND PROCEDURAL BACKGROUND1 On February 27, 2013 at approximately 6:00 p.m., deputy sheriffs arrived at the scene of a multi-vehicle traffic collision in Imperial Beach. The preliminary investigation revealed that a Caucasian female had driven a silver Jetta into the rear of a car in front of her, causing several vehicles to collide with one another. One of the victims told the deputies the driver of the Jetta drove around the stopped cars and proceeded south on Third Street. Shortly thereafter, the deputies located a silver Jetta with front end damage parked in a driveway on Third Street. They made contact with appellant Andrea Billings, who smelled of alcohol and admitted she might have been in a collision. She declined to submit to a field sobriety test or a preliminary alcohol screening and was arrested.
Subsequent investigation revealed three individuals had been injured in the accident, one suffering a hairline fracture of her tailbone. Appellant's blood alcohol content was .36 percent.
Appellant was charged in a first amended complaint with driving under the influence causing injury (Veh. Code,2 § 23153, subd. (a)) along with several enhancements (count 1); driving with .08 or greater blood alcohol level causing injury (§ 23153, subd. (b)) along with several enhancements (count 2); and hit-and-run driving (§ 20002, subd. (a)) (count 3).
1 The factual background is taken from the probation report.
2 Subsequent unspecified statutory references are to the Vehicle Code. 2 As part of a plea agreement, on April 17 appellant pleaded guilty to count 1 and admitted she caused bodily injury to multiple victims (§ 23558) and personally inflicted great bodily injury on a person not an accomplice (Pen. Code, § 12022.7, subd. (a)). She also admitted two prior convictions in 2008 for driving with a .08 or greater blood alcohol level. The guilty plea form reflected the sentence would be left to the court and the sentence would "wrap" with the probation violations related to the two prior convictions. The guilty plea form stated her maximum potential sentence was seven years, and that in return for her guilty plea, the remaining charges would be dismissed.
In addition to initialing and signing her change of plea form, appellant also initialed and signed a DUI Addendum form that stated the sentence for count 1 was two, three, or four years and her blood alcohol reading was .36 percent. After confirming appellant had read both forms, discussed them in detail with her attorney, signed and initialed them and understood them, the court found appellant knowingly, intelligently and voluntarily entered her guilty plea and waived her constitutional rights and that there was a factual basis for the guilty plea and the admissions.
When appellant appeared for sentencing on July 12, several issues arose before the court imposed judgment. Relevant here, the court informed the appellant and counsel that the plea form erroneously stated appellant's maximum sentence was seven years, when in fact it was eight years. The court opined the error occurred because the complaint indicated a sentence triad of 16 months, two years, or three years for count 1, but failed to reflect that, due to appellant's current section 23153 conviction and two prior alcohol related convictions within 10 years, the authorized sentence was two, three, or 3 four years under section 23566. After the court, defense counsel and the prosecutor discussed this issue (along with others not raised on appeal), the court called a recess to allow defense counsel and the prosecutor to research the sentence triad that applied to appellant's case. The court also directed defense counsel to talk with appellant about the "maximum punishment" she was facing and "any additional consequences that she may not have been aware of [when she entered the plea agreement] and . . . to see whether or not she understands those, accepts those and still adopts her plea."
Following the recess, the court confirmed the parties agreed the authorized sentence was "2/3/4." The court then spoke directly to appellant, questioning her under oath, to confirm she understood the consequences of her plea, knew her maximum penalty was eight years, and still wanted to "stand by [her] previous plea of guilty." As part of this discourse, the court explained why the sentence for the section 23153 violation in her case was "2/3/4", not "16 [months]/2/3" and asked if she understood the court's explanation. She stated she did. The court then asked if she intended to "stand by [her] previous plea and she stated "Yes." The court found appellant's plea was "knowingly, intentionally and voluntarily entered into, understanding the consequences of her plea" and her counsel concurred "with that." The court pronounced its sentence and imposed a prison term of five years.3 3 The court selected the low term of two years for the section 23153 violation and three years for the great bodily injury enhancement, and dismissed the multiple victims enhancement. 4 On April 1, 2014, the trial court denied appellant's request for a certificate of probable cause. In response to appellant's request that this court issue a certificate of probable cause, we issued an order permitting the appeal but limiting the appeal "to sentencing questions or other matters occurring after the plea. . . ."
DISCUSSION
On appeal, appellant challenges the court's sentence on several grounds. She claims the court abused its discretion because it used the two-, three-, or four-year triad contained in section 23566 despite the fact (1) neither that section, nor the triad, were reflected in the first amended complaint; (2) there was no motion to amend the complaint;
(3) the court did not consider whether an amendment should be allowed; and (4) no amended complaint was filed. She also claims the court abused its discretion by reforming the plea agreement to include a new sentencing triad without (1) a motion to do so by either party and (2) considering whether to simply enforce the plea agreement initially executed by the parties. There was no error.
It is well settled that "[o]nce the trial court approves the plea bargain, it cannot change the agreement without the consent of the parties" as "[t]he court lacks jurisdiction to alter the terms and must impose a sentence within the limits of the bargain." (People v. Superior Court (Sanchez) 223 Cal.App.4th 567, 573.) Here, as the statement of facts makes clear, after the court brought the error about the maximum sentence set forth in the change of plea form to the parties' attention; the court and the attorneys engaged in a thoughtful discussion about the correct sentencing triad, defense counsel and the appellant had a full opportunity to discuss the implications of this issue during a recess in 5 the proceedings; and, after the recess, the court carefully questioned the appellant about the consequences of this modification and following that inquiry concluded appellant understood the change in her initial plea bargain and stood by her previous guilty plea.
The cases appellant relies upon in support of her claim of sentencing error are premised, in part, on the claim an amended complaint was required before the court could proceed with sentencing and the court was obligated to approve the filing of the amended charging document. (See People v. Lettice (2013) 221 Cal.App.4th 139, 141, 149.) The due process concerns raised in Lettice—which arose from the prosecution filing an amended pleading to add a strike prior after the plea was entered—are inapplicable in this case.
Here, no new charges or enhancements were being added to the complaint and appellant is not claiming she had inadequate notice of the applicable sentencing triad or that the reference to a seven-year maximum sentence, instead of eight years, would have affected her decisions with respect to plea bargaining. The DUI Addendum form appellant signed and acknowledged she understood on the day she entered her plea set forth the controlling sentencing triad in this case and the record makes clear the court would not have proceeded with sentencing unless it was satisfied appellant knew the consequences of her plea and did not wish to withdraw her plea.
In short, an amended pleading was not required under the circumstances of this case, appellant consented to the change in the terms of the plea bargain, and the court did not abuse its discretion in the manner in which it proceeded after the sentencing error was discovered.
6 DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
NARES, Acting P. J.
MCINTYRE, J.
Cites, in this corpus
- People v. Super.Ct. (Sanchez) C071008 · 2014-01-29
- People v. Lettice D062445 · 2013-11-04