Metropolitan News-Enterprise


Wednesday, June 13, 2001


Page 5


Defendant Can’t Appeal Bargained-For Sentence, Court of Appeal Rules


By a MetNews Staff Writer


A defendant whose sentence falls within the range agreed to in a plea bargain can’t appeal a sentence at the top of the range absent a certificate of probable cause from the trial court, the Fourth District Court of Appeal ruled yesterday.

Div. Two dismissed David Allen Stewart’s appeal from a six-year sentence for molesting two stepchildren.

The sentence was imposed by San Bernardino Superior Court Judge Tara Reilly after Stewart agreed to plead guilty to one count of continuous sexual abuse of a child and one count of molesting another child.

His conduct came to light in 1998 when his then-wife told police she had just learned he had regularly fondled one of her sons between 1991 and 1993. Police then taped an interview with Stewart, who admitted that the story was true and said he had also molested two other stepchildren.

Reilly accepted Stewart’s plea to the two counts, with the understanding that six other molestation counts would be dismissed and that the “lid” on his sentence would be six years.

The judge told Stewart she “would strongly consider” but would “not guarantee” probation, with weekend jail time, “based entirely upon the [Penal Code Sec.] 288.1 [psychological] report.”

The report turned out to be unfavorable, which Reilly cited as the reason for imposing sentence at the top of the bargained-for range, suggesting that the sentence would have been higher if not for the plea agreement.

Stewart’s court-appointed appellate lawyer, James L. Crowder of Santa Barbara, argued that the sentence constituted an abuse of discretion. Justice Thomas Hollenhorst called the contention frivolous, since the plea negotiation set the limits of the judge’s discretion.

Crowder also argued that the case fell within the sentencing exception to Penal Code Sec. 1237.5. The statute bars a defendant from appealing “from a judgment of conviction upon a plea of guilty or nolo contendere” unless the trial court has issued a certificate of probable cause based on the defendant’s sworn statement “showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.”

The statute has been held inapplicable to alleged sentencing or other post-plea errors. But Hollenhorst noted that the imposition of a bargained-for sentence has been held to fall within the statute, and said there is no logical reason to distinguish between a negotiation for a specific sentence and a negotiation which establishes a range of permissible sentences.

An attack on the adequacy of the judge’s reasons for the sentence or the consideration of the Sec. 288.1 report, both of which were alleged to constitute post-plea error, was waived under the circumstances of the plea bargain, Hollenhorst said.

The case is People v. Stewart, 01 S.O.S. 2805.


Copyright 2001, Metropolitan News Company