Metropolitan News-Enterprise


Monday, March 29, 2004


Page 3


Plea Bargain Did Not Bar Double Punishment Claim, C.A. Rules


By a MetNews Staff Writer


A defendant’s plea bargain for a term no greater than a specified maximum did not waive his right to argue on appeal that the term involved illegal consecutive sentences based on the same conduct, the Third District Court of Appeal ruled Friday.

Justice Fred K. Morrison said the consecutive sentences imposed on Jonathan Joseph Shelton for stalking and making criminal threats were improper, since both were based on the same threat by the defendant to kill his ex-wife. That ruling, based on Penal Code Sec. 654, came in an unpublished portion of the court’s opinion.

In the published portion, Morrison rejected the government’s contention that Shelton waived his right to contest the sentence by agreeing to a plea bargain under which he would be sentenced to no more than three years and eight months in prison. Sacramento Superior Court Judge James L. Long sentenced him to three years for the stalking conviction and eight months under the criminal threats statute.

There was no waiver under Rule 4.412(b) of the California Rules of Court, which states that by agreeing to a “specified prison term” a defendant abandons any claim that a component of the sentence violates Sec. 654’s prohibition of double punishment, Morrison said. Shelton did not agree to a specified term, the justice explained, but to a term no longer than a specified maximum.

He reserved the “right to argue” for a lesser sentence under the terms of the plea agreement, Morrison said.

Justice Richard M. Simms III concurred, but Justice Vance W. Raye dissented.

Raye said he could agree “for purposes of argument” that there was no waiver under the rule of court, though he suggested he was not convinced that a “specified” term means a “specific,” “explicit,” or “particular” one. But that rule, he said, was not the only basis for the general proposition that a defendant is estopped from challenging a sentence to which he agreed.

“Having received a sentence of three years eight months, defendant now, in effect, cries ‘gotcha’ and yelps that the court was without authority to impose the maximum term contemplated by the agreement,” Raye declared, adding:

“Regrettably, the majority agrees; I do not.”

The dissenting jurist explained:

“Defendant has received the benefit of this bargain.  His maximum punishment exposure was greatly reduced by his plea bargain.  In return, he agreed that the court was empowered to impose a prison sentence of up to three years eight months.  He presumably reserved the right to attempt to persuade the court to exercise its discretion and impose a lower sentence.  He did not reserve the right to assert the court was without authority, by virtue of Penal Code section 654, to impose the agreed-upon lid.”

Morrison noted that in imposing sentence, Long described the plea agreement as providing “that I cannot sentence you to more than three years and eight months and you can argue for something less than three years and eight months.” That “left the door open for defendant to argue that the trial court was compelled to impose less than the maximum term by reason of applicable sentencing statutes and rules,” he said.

In the unpublished portion of his opinion, Morrison pointed out that according to the probation report Shelton made only a single threat, a statement that he was going to blow up his ex-wife’s house and shoot at her at her workplace. That utterance both violated the threat statute, Penal Code Sec. 422, and satisfied the “credible threat” element of the stalking statute, Penal Code Sec. 646.9, the justice said.

“Where two convictions arise from a single act, punishing defendant for both crimes is prohibited by section 654,” he explained. Since staying the eight-month sentence under Sec. 422 would “unfairly rewrite the bargain struck by the parties,” Morrison said, the appropriate remedy was to give prosecutors an opportunity to reinstate the dismissed charges, which included burglary, an additional criminal threats count, and two counts of violating a restraining order.

The case is People v. Shelton, C044625.


Copyright 2004, Metropolitan News Company