People v. Tannenbaum CA3 ( 2021 )

Filed 4/19/21 P. v. Tannenbaum 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Yolo)
----
THE PEOPLE, C085067
Plaintiff and Respondent, (Super. Ct. No. CRF124131)
v.
JOSHUA TANNENBAUM,
Defendant and Appellant.
This case involves the sentences imposed on seven criminal cases involving
crimes defendant Joshua Tannenbaum committed in five counties: Yolo, Butte, Shasta,
San Joaquin, and Glenn. The Yolo County Superior Court was the final sentencing court.
After adjudication of the other cases, the Yolo County Superior Court resentenced
defendant Joshua Tannenbaum. In that resentencing, the court corrected an earlier
sentencing error it had made, and imposed consecutive sentences on the other convictions
as well as the Yolo County matter, for an aggregate term of nine years.
1
On appeal, defendant contends the Yolo County Superior Court erred in imposing
consecutive sentences because, by operation of law, the Glenn County Superior Court’s
silence on the matter made all the previously imposed terms from Butte, Shasta and San
Joaquin counties concurrent and a subsequent sentencing court could not alter a previous
court’s discretionary sentencing choices. Alternatively, defendant contends the Yolo
County Superior Court should have imposed concurrent terms on the Glenn County
convictions. We conclude defendant is not entitled to concurrent sentences on the prior
cases in Butte, Shasta, and San Joaquin counties. We further conclude defendant’s plea
agreement in the Glenn County case forecloses his claim that he is entitled to a
concurrent term as to one of those convictions. As to the other Glenn County felony
conviction, although there was an irregularity we discuss post, defendant was sentenced
to a concurrent term.
There is a clerical error in the abstract of judgment. We direct correction of the
abstract and affirm.
PROCEDURAL BACKGROUND1
Proceedings in Yolo County
In October 2012, defendant was charged in Yolo County case No. CRF124131,
with three counts of theft or unauthorized use of vehicle (Veh. Code, § 10851, subd. (a);
counts 1, 2 & 3), and one count of receiving a stolen vehicle, trailer, motorized vessel or
special construction equipment (§ 496d, subd. (a); count 4). The complaint also alleged
that defendant had a previous conviction for vehicle, trailer or construction equipment
theft (§ 666.5, subd. (a)), and four prior prison terms (§ 667.5, subd. (b)).
1 The facts underlying the various convictions are not relevant to any issue raised on
appeal.
2
Proceedings in Shasta County
Before the Yolo County case could be adjudicated, defendant pleaded guilty in
May 2014 in Shasta County to felony vandalism (§ 594, subd. (b)(1)) in case No.
N12F5944 and attempted residential burglary (§§ 664/459) in case No. N13F1271. He
also admitted a prior prison term (§ 667.5, subd. (b)) in case No. N13F1271. The Shasta
County Superior Court sentenced defendant to an aggregate term of three years eight
months, consisting of two years plus a consecutive one year for the prior prison term in
case No. N12F5944 and a consecutive eight months in case No. N13F1271.
Proceedings in Butte County
In August 2014, the Butte County Superior Court sentenced defendant to an
aggregate term of six years consisting of three years in Butte County case No.
NCM036782, a consecutive eight months in Butte County case No. NCM037189, a
consecutive one year eight months in Shasta County case No. N12F5944, and a
consecutive eight months in Shasta County case No. N13F1271.
Proceedings in Yolo County
In December 2014, in Yolo County case No. CRF124131, pursuant to a plea
bargain, defendant pleaded no contest to one count of vehicle theft and admitted the prior
vehicle theft allegation (Veh. Code, § 10851, subd. (a)/§ 666.5). In exchange, the Yolo
County Superior Court sentenced him to an aggregate term of seven years in state prison,
consisting of one year on the Yolo County case, consecutive to his current terms of three
years in Butte County case No. NCM036782, eight months in Butte County case No.
NCM037189, one year eight months in Shasta County case No. N12F5944, and eight
months in Shasta County case No. N13F1271.2
2 The probation presentencing memorandum noted that defendant had charges pending
in Glenn County case No. 13NCR09827 for evading police (Veh. Code, § 2800.2,
subd. (a)), receiving a stolen vehicle, trailer, motorized vessel or special construction
3
Proceedings in Butte County
In January 2015, defendant filed a motion for Proposition 47 resentencing in Butte
County case No. NCM036782, as to the Health and Safety Code section 11377,
subdivision (a) conviction. In February 2015, the Butte County Superior Court granted
the motion, reduced that conviction to a misdemeanor, and resentenced defendant to a
three-year term on the vehicle theft conviction in case No. NCM037189.
Proceedings in San Joaquin County
In September 2015, defendant pleaded guilty to manufacturing a weapon while in
prison custody (§ 4502, subd. (b)) in San Joaquin County case No. SF131946. The San
Joaquin County Superior Court sentenced defendant to a midterm sentence of two years
in state prison, to be served consecutively to all his other sentences.
Proceedings in Yolo County
In February 2016, the Yolo County Superior Court sentenced defendant to the
negotiated term, less the reduction from the Proposition 47 resentencing in Butte County,
and added the San Joaquin County term, but erroneously imposed one-third the midterm
consecutive on the prison weapon conviction . Thus, the court imposed a sentence
consisting of three years in Butte County case No. NCM037189 (Veh. Code, § 10851,
subd. (a)), one year consecutive in Yolo County case No. CRF124131 (Veh. Code,
§ 10851, subd. (a)/§ 666.5), eight months consecutive in Shasta County case No.
N12F5944 (§ 594, subd. (b)(1)), eight months consecutive in Shasta County case No.
N13F1271 (§§ 664/459), eight months consecutive in San Joaquin County case No.
equipment (§ 496d, subd. (a)), and misdemeanor driving under the influence (Veh. Code,
§ 23152, subds. (a) & (b)), with an enhancement for a prior prison term (§ 667.5, subd.
(b)). The memorandum stated the probation department could not prepare a sentencing
recommendation in Yolo County case No. CRF124131 until defendant’s cases in Butte
and Glenn counties were resolved.
4
SF131946 (§ 4502, subd. (b)), and one year consecutive for a prison prior (§ 667.5, subd.
(b)) from Shasta County.
In April 2016, the Legal Processing Unit of the Department of Corrections and
Rehabilitation (CDCR) informed the Yolo County Superior Court that the abstract of
judgment was in error, in that the mandatory sentence for San Joaquin County prison
weapon possession conviction in case No. SF131946 was a full consecutive term, not
one-third the midterm. Based on the CDCR’s letter, the People moved to recall
defendant’s sentence and the court did so on May 4, 2016. (§ 1170, subd. (d)(1)).
Proceedings in Glenn County
One week later, on May 11, 2016, in Glenn County case No. 13NCR09827,
defendant pleaded guilty to evading police (Veh. Code, § 2800.2, subd. (a)), and
receiving a stolen vehicle, motorized vessel or special construction equipment (§ 496d,
subd. (a)). Page one of the plea form indicated defendant was initially to be sentenced to
16 months,3 but “when resentenced, 1/3 midterm, 8 months consec.” Under “Other
Terms,” on page two, the plea form also stated, “DA recommends low term 16 months
consecutive to any other sentence, when resentenced on pending sentencing DA
recommends 1/3 midterm consec, 8 months. DA dismisses prison priors. Stipulated
sentence per page 1.” The Glenn County Superior Court sentenced defendant to the low
term of 16 months on the Vehicle Code section 2800.2, subdivision (a) conviction, but
did not impose any sentence on the receiving a stolen vehicle conviction. The abstract of
judgment makes no reference to any of defendant’s other cases.
Proceedings in Yolo County
Between August 2016 and May 2017, there were multiple continuances and delays
of the Yolo County resentencing. On June 22, 2017, the Yolo County Superior Court
3 The plea form refers to this sentence as 1 year 4 months.
5
sentenced defendant to an aggregate term of nine years in prison, calculated as follows:
three years in Butte County case No. NCM037189 (Veh. Code, § 10851, subd. (a)),
designated the principal term; a consecutive one-year term in Yolo County case No.
CRF124131 (Veh. Code, § 10851, subd. (a)/§ 666.5, subd. (a)); a consecutive eight-
month term in Shasta County case No. N12F5944 (§ 594, subd. (b)(1)); a consecutive
eight-month term in Shasta County case No. N13F1271 (§§ 664/459), a full consecutive
two-year term in San Joaquin County case No. SF131946 (§ 4502, subd. (b)); a
consecutive eight-month term on the Vehicle Code section 2800.2, subdivision (a),
conviction, and a concurrent eight-month term on the section 496d, subdivision (a),
conviction in Glenn County case No. 13NCR09827; plus one year for the section 667.5,
subdivision (b), prison prior from Shasta County.
DISCUSSION
I. Imposition of Consecutive Terms
Defendant contends the Yolo County trial court erred by imposing consecutive
terms when it resentenced him in June 2017. Specifically, he contends that because
Glenn County purportedly did not determine whether his May 11, 2016 sentences would
run concurrently or consecutively, by operation of law under section 669, subdivision (b),
his prior sentences from Shasta, Butte, San Joaquin and Yolo became concurrent when he
was resentenced in Glenn County. He goes on to contend that under California Rules of
Court, rule 4.452(3),4 the Yolo County Superior Court could not then alter this
discretionary sentencing choice of Glenn County. We disagree with defendant’s analysis.
First, as part of his original negotiated plea agreement in Yolo County, defendant
agreed that his sentences in Yolo, Butte, and Shasta counties would run consecutively.
Second, according to the Glenn County plea form, he also agreed as part of his Glenn
4 Undesignated rule references are to the California Rules of Court in effect at the time
of sentencing.
6
County plea that “when resentenced,” his sentence on the Glenn County conviction
would be “1/3 midterm 8 months.” Yet, defendant challenges the consecutive sentences
imposed here as unauthorized. As our high court has noted, “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.”
(People v. Hester (2000) 22 Cal.4th 290, 295, (Hester) third italics added; See also
People v. Couch (1996) 48 Cal.App.4th 1053, 1057 (Couch) [Defendant estopped from
challenging a negotiated second strike sentence because he agreed to accept it and
thereby waived the alleged errors which he challenged on appeal]; “The fact that a
defendant has received a benefit in return for agreeing to accept a specified sentence is
itself sufficient to estop that defendant from later seeking to unfairly supplement this
benefit by mounting an appellate attack on the trial court’s imposition of the specific
sentence which the defendant agreed to accept. . . When a defendant maintains that the
trial court’s sentence violates rules which would have required the imposition of a more
lenient sentence, yet the defendant avoided a potentially harsher sentence by entering into
the plea bargain, it may be implied that the defendant waived any rights under such rules
by choosing to accept the plea bargain”; People v. Jones (1989) 210 Cal.App.3d 124,
132-138 (Jones) [Defendant estopped from complaining about dual use of the same five-
year section 667, subdivision (a) prior imposed in connection with an earlier case, but
later imposed again in resentencing and as part of a negotiated resolution involving a
second case, combining to add ten years to the negotiated aggregate term].)
Moreover, the sentence here is not unauthorized; defendant has misinterpreted
section 669, subdivision (b). Defendant states: “Section 669 provides that when a trial
court fails to determine whether multiple sentences shall run concurrently or
7
consecutively, the terms shall run concurrently.” Defendant’s paraphrasing of the statute
is misleading. Section 669, subdivision (b), does not operate to make prior sentences
concurrent when a subsequent court fails to make them consecutive. Rather, section 669,
subdivision (b), provides for a “default” of concurrent sentences (People v. Black (2007)
41 Cal.4th 799, 822) on second or subsequent judgments when the court in the second or
subsequent case does not so specify.
Pursuant to subdivision (b) of section 669, the trial court has 60 days to
“determine how the term of imprisonment upon the second or other subsequent judgment
shall run with reference to the prior incompleted term or terms of imprisonment. Upon
the failure of the court to determine how the terms of imprisonment on the second or
subsequent judgment shall run, the term of imprisonment on the second or subsequent
judgment shall run concurrently.” (Italics added.) Here, the decisions to run the earlier
imposed terms consecutively were discretionary sentencing choices made by the Butte
and Shasta County Superior Court judges. (Rule 4.452(3).) As defendant notes, under
rule 4.452(3), discretionary sentencing choices by judges in the previous cases cannot be
altered by a judge in a subsequent case.5 Consequently, the earlier sentences could not be
altered by the Glenn County sentencing. In addition, the Glenn County Superior Court
could not have run defendant’s San Joaquin conviction for violating section 4502,
subdivision (b), concurrent, as the Legislature has mandated the imposition of a full
consecutive term. (§§ 4502, subd. (b), 1170.1, subd. (c).) Accordingly, defendant is not
5 Former rule 4.452(3) provided in pertinent part: “Discretionary decisions of the judges
in the previous cases may not be changed by the judge in the current case. Such
decisions include one of the three authorized terms of imprisonment referred to in section
1170(b) [the triad terms], making counts in prior cases concurrent with or consecutive to
each other, or the decision that circumstances in mitigation or in the furtherance of justice
justified striking the punishment for an enhancement. . .” One exception to this rule is
where a subsequent court makes a previously imposed principal term a subordinate term
to a new principal term. (Rule 4.452(2).)
8
entitled to be sentenced to concurrent sentences on the prior cases from Shasta, Butte, and
San Joaquin.
II. Glenn County Sentences
Defendant contends we should remand the matter with directions to the Yolo
County Superior Court to impose concurrent terms for the Glenn County convictions.
We disagree.
As we have already noted, the Glenn County plea form indicated defendant would
be sentenced to eight months (one-third the midterm) on resentencing as part of the
negotiated resolution there. He bargained for that sentence, and that is the sentence the
Yolo County Superior court imposed. Since it was part of his plea bargain, he cannot
now challenge that sentence on appeal. (See Hester, supra, 22 Cal.4th at p. 295; Couch,
supra, 48 Cal.App.4th 1053, 1057; Jones, supra, 210 Cal.App.3d at pp. 132-138.)
However, there is an anomaly related to the Glenn County conviction for receiving a
stolen vehicle, trailer, motorized vessel or special construction equipment (§ 496d, subd.
(a).) Based on the Glenn County plea form, it appears defendant negotiated for no
additional time on that conviction, and the abstract of judgment shows the term imposed
on the section 496d conviction as being “0” years “0” months.
“The failure to pronounce sentence on a count is an unauthorized sentence and
subject to correction on remand. (See People v. Benton (1979) 100 Cal.App.3d 92, 102,
and cases cited therein.)” (People v. Price (1986) 184 Cal.App.3d 1405, 1411, fn. 6.)
But because defendant negotiated for and agreed to no sentence on the Glenn County
section 496d conviction, it would appear he is entitled to the benefit of his bargain. (See
Hester, supra, 22 Cal.4th at p. 295; Couch, supra, 48 Cal.App.4th 1053, 1057; Jones,
supra, 210 Cal.App.3d at pp. 132-138.) And, in any event, under former rule 4.452(3),
the Yolo County Superior Court could not alter that sentence to the extent a sentence
involving imposition of no punishment could be considered a discretionary decision.
Indeed, at the final sentencing in Yolo County, defense counsel argued that the court
9
should not resentence on the Glenn County case at all, or if it did, the sentences had to be
concurrent.
However, the Yolo County Superior Court imposed an eight-month sentence (one-
third the midterm) concurrent on the Glenn County section 496d conviction. We note
that this was unauthorized, although neither party to this appeal says anything about it.
The one-third the midterm scheme under section 1170.1 applies only when imposing
consecutive terms. (§ 1170.1, subd. (a).) When imposing concurrent sentences, a full
term must be imposed. “Because concurrent terms are not part of the principal and
subordinate term computation under section 1170.1, subdivision (a), they are imposed at
the full base term[,] not according to the one-third middle term formula.” (People v.
Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3; accord, People v. Thompson (2009)
177 Cal.App.4th 1424, 1432, overruled on another ground in Johnson v. Department of
Justice (2015) 60 Cal.4th 871, 888.)
Nevertheless, the record reflects that the parties agreed to this sentence. At the
final sentencing, the Yolo County Superior Court initially stated it would impose a
consecutive 8 months, one-third the midterm on the section 469(d) conviction from
Glenn County. The prosecutor then stated: “I’m sorry. Your Honor, that would actually
be concurrent to the 2800.2 in Glenn County.” Defense counsel then stated: “That’s
correct.” Seeking clarification, the court asked: “So the two 8-month terms out of Glenn
County are concurrent to each other?” Defense counsel replied: “That’s correct.” The
court then stated: “But the result i[s] eight months is consecutive.”
Thus, in the end, defendant got what he requested as to the Glenn County section
496d conviction, a concurrent sentence (or no additional time as reflected in the
originally negotiated resolution in Glenn County), even if it appears to have been
unauthorized. Nobody is complaining about that sentence, and it would serve no useful
purpose to remand this matter to the trial court to impose a full term concurrent term.
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III. Abstract Correction
Defendant pleaded guilty to section 496d(a), receiving a stolen vehicle, trailer,
motorized vessel or special construction equipment, in the Glenn County case and was
sentenced under that statute. The last amended abstract lists the offense as “PC 496(D).”
Defendant contends the abstract must be corrected and the People agree. So do we.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of
judgment to reflect a conviction of section 496d, subdivision (a) in Glenn County case
13NCR09827 and to forward a certified copy of the corrected abstract to the Department
of Corrections and Rehabilitation.
/s/
MURRAY, J.
We concur:
/s/
HULL, Acting P. J.
/s/
DUARTE, J.
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