People v. Pastel CA4/2 ( 2014 )

Filed 11/21/14 P. v. Pastel CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E060656
v. (Super.Ct.Nos. INF067218 &
INF067449)
ROBERT ANTHONY PASTEL,
OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Jorge C. Hernandez,
Judge. Affirmed with directions.
William D. Farber, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
William M. Wood and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and
Respondent.
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INTRODUCTION
After defendant and appellant Robert Anthony Pastel was convicted by a jury in
case No. INF067449, but before he was sentenced, he entered a guilty plea in case
No. INF067218. He contends that in the latter case, he entered into a plea bargain which
provided that he would receive an aggregate sentence of no more than eight years for the
two cases. This appeal arises following resentencing in both cases.1
Several years after defendant was sentenced, the California Department of
Corrections and Rehabilitation (CDCR) notified the court that the sentences in both cases
were unauthorized because the gang enhancement in each case should have been five
years, not the three and four years, respectively, that the court imposed. Upon
resentencing, the court imposed a term of nine years in case No. INF067449 and a
concurrent term of eight years eight months in case No. INF067218. Defendant contends
that the modified sentence violated the terms of his plea bargain, and he is entitled to
specific performance of the plea bargain. The Attorney General contends that there was
no plea bargain, and the court properly modified the unauthorized sentences. However,
she points out that the California Supreme Court’s decision in People v. Mesa (2012) 54
Cal. 4th 191 requires staying the sentence on count 2 in case No. INF067218, thus
reducing defendant’s sentence in that case to eight years. As we will explain, we agree
with the Attorney General that the sentence on count 2 in case No. INF067218 must be
1 Defendant appealed from the conviction in case No. INF067449. (People v.
Pastel (Apr. 11, 2012, E052309 [nonpub. opn.] (Pastel I).) On May 8, 2014, this court
took judicial notice of the record in Pastel I.
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stayed. However, contrary to her assertion, this will not have the effect of reducing the
aggregate sentence to the eight years defendant contends is required by the purported plea
bargain.2
STATEMENT OF THE CASE
On June 8, 2010, a jury found defendant guilty in case No. INF067449 of assault
with a deadly weapon (count 2; Pen. Code, § 245, subd. (a)(1)), active participation in a
criminal street gang (count 3; Pen. Code, § 186.22, subd. (a)), and misdemeanor battery
(count 4; Pen. Code, § 242). The jury also found it true that counts 2 and 4 were
committed to benefit a criminal street gang (Pen. Code, § 186.22, subds. (b), (d)).
Defendant admitted that he was a minor, 16 years of age or older, at the time of the
offenses. (Welf. & Inst. Code, § 707, subd. (b).)3 (Pastel I, supra.)
On June 29, 2010, defendant pleaded guilty in case No. INF067218 to assault with
a firearm (§ 245, subd. (a)(2)) and active participation in a criminal street gang (§ 186.22,
subd. (a)). Defendant admitted he committed the assault to benefit a criminal street gang.
(§ 186.22, subd. (b).) Sentencing was set for both cases.
2 As noted above, the purported plea bargain called for an aggregate sentence of
no more than eight years for the two cases, not just the one case in which defendant
pleaded guilty. (See further discussion below.) Modifying the sentence in case
No. INF067218, as suggested by the Attorney General, will not reduce the aggregate
sentence to eight years, in that the sentence in that case is concurrent with the nine-year
sentence in case No. INF067449. However, although the amended notice of appeal states
that it is taken from the judgments in both cases, defendant does not assert any error with
respect to the modified sentence in case No. INF067449, and he affirmatively requests
that we adopt the Attorney General’s analysis if we do not find the error he asserts.
3 All further statutory citations refer to the Penal Code unless another code is
specified.
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On November 16, 2010, in case No. INF067449, the trial court sentenced
defendant to eight years in state prison, consisting of the upper term of four years on
count 2 with a consecutive term of four years for the gang enhancement on that count,
and a concurrent three-year term on count 3, active participation in a criminal street gang.
The court also stayed the misdemeanor sentence on count 4 pursuant to section 654. The
court then sentenced defendant in case No. INF067218 to a term of six years eight
months in state prison, to run concurrent with the sentence in case No. INF067449. As to
count 1, the court imposed the middle term of three years, with a consecutive three-year
term for the gang enhancement. On count 2, participation in a criminal street gang, the
court sentenced defendant to one third the middle term, or eight months, to run
consecutive to count 1.
Defendant appealed his conviction in case No. INF067449. (Pastel I, supra.) We
affirmed the judgment, but directed the trial court to stay the sentence on count 3, for
active gang participation. (§ 186.22, subd. (a).) We held that because there was no
evidence that defendant engaged in felonious conduct as required for purposes of section
186.22, subdivision (a), other than the assault, section 654 precluded an unstayed
sentence on that count. We also directed the trial court to state the sentence imposed on
count 4 and the enhancement associated with that count on the corrected abstract of
judgment. (Ibid.) The trial court later modified the felony sentence as directed.
On September 4, 2013, CDCR issued a letter to the trial court stating that the
sentence imposed in each case was unauthorized. The letter stated that because
section 245, subdivision (a)(2), qualifies as a serious felony under section 1192.7,
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subdivision (c)(8), defendant should have been ordered to serve an additional term of
five years for the gang enhancement in case No. INF067218, pursuant to section186.22,
subdivision (b)(1)(B). The letter further stated that because a violation of section 245,
subdivision (a)(1), qualifies as a serious felony under section 1192.7, subdivision (c)(31),
defendant should have been ordered to serve an additional term of five years for the gang
enhancement in case No. INF067449.
On January 6, 2014, the court resentenced defendant in both cases. In case
No. INF067449, the court imposed a consecutive five-year term for the gang
enhancement on count 2, resulting in a sentence of nine years. In case No. INF067218,
the court imposed a consecutive five-year term for the gang enhancement, resulting in a
sentence of eight years eight months. The court again made the sentence in case
No. INF067218 concurrent with the sentence in case No. INF067449.
On February 14, 2014, defendant filed a notice of appeal. On March 3, 2014, he
filed an amended notice of appeal.
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FACTS
The facts underlying the offenses are not material to the issue raised in this appeal.
Briefly stated, in case No. INF067449, defendant approached a man he believed to
be a member of a certain gang and stated, “You’re Willie from ST.” The man responded,
“No, that’s not me.” Defendant yelled, “South Side TCB,” then punched the victim in his
face. Defendant was holding a screwdriver in his hand. He demanded the victim’s cell
phone, which the victim refused to surrender, and then fled. TCB is a criminal street
gang, also called The Crime Boys.
In case No. INF067218, defendant drove past the home of a different victim a
number of times. At one point, he threw a rock at the victim’s truck. On another pass,
defendant got out of his truck and challenged the victim to a fight. When the victim
refused, defendant sprayed pepper spray in the victim’s face and left. He returned a short
time later, got out of his truck holding a handgun and chased the victim, firing two shots
at him but not striking him.
LEGAL ANALYSIS
There Was No Plea Bargain.
Appellant contends that in case No. INF067218, he entered into a plea bargain
specifying that in return for his guilty plea on both counts and his admission of the gang
enhancement, he would be sentenced to a total aggregate sentence of no more than eight
years for both cases. He contends that correcting the unauthorized sentences violates the
terms of his plea bargain, and he is entitled to specific performance.
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A plea bargain “‘contemplates an agreement negotiated by the People and the
defendant and approved by the court.’ [Citations.]” (People v. Clancey (2013) 56
Cal. 4th 562, 569-570.) Here, there is nothing in the record that shows that defendant and
the district attorney arrived at a negotiated agreement. The plea agreement form recited
that defendant would plead guilty to counts 1 and 2 and admit the gang enhancement in
return for a total unstayed aggregate term of no more than eight years in state prison for
the two cases. However, the form was not signed by the district attorney. Moreover, it
stated defendant would enter a “plea to the court.” This indicates that the parties’
negotiation for a plea agreement was unsuccessful. It appears that the prosecutor was
holding out for the sentence to run consecutive to the sentence imposed in case
No. INF067449. During the hearing at which defendant entered his guilty plea in case
No. INF067218, the court explained to defendant that after learning the facts of the case,
the court had concluded that “eight years would probably be a sufficient amount of
punishment . . . so that if you pled guilty to this, I would agree to run this concurrent.”
Based on the court’s indicated sentence for concurrent time, defendant agreed to enter a
plea of guilty. The prosecutor disavowed any purported agreement for concurrent time,
stating, “I just would like it to be recognized that this is a plea to the court . . . based upon
the fact that this is for concurrent time. The People, of course, would be asking for
consecutive time.” Accordingly, there is no basis in the record to support defendant’s
contention on appeal that he entered into a plea bargain.
Because there was no plea bargain, there is also no basis for defendant’s
contention that the subsequent correction of the sentence violated any of his rights under
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a plea bargain or that he was entitled to be resentenced in a manner consistent with the
term he claims he bargained for. An unauthorized sentence—one which may not
lawfully be imposed under any circumstances in the particular case—may generally be
corrected at any time, even on appeal. (People v. Scott (1994) 9 Cal. 4th 331, 354.)
The Sentence on Count 2 in Case No. INF067218 Must Be Stayed.
On resentencing, the trial court imposed a three-year term on count 1, assault with
a firearm, and imposed a consecutive five-year term for the gang enhancement alleged as
to that count. The court also imposed a consecutive term of eight months (one third the
middle term) on count 2, for violation of section 186.22, subdivision (a), participation in
a criminal street gang. The parties concur that the eight-month term on count 2 must be
stayed. We agree.
Section 654 provides: “An act or omission that is punishable in different ways by
different provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision.” Section 186.22, subdivision (a), which
penalizes active participation in a criminal street gang, requires an act beyond mere
membership in a gang. Where the sole act supported by the evidence which can
constitute active participation in a gang also constitutes a charged offense, the defendant
may be convicted of both but may be punished only under the statute which provides for
the greatest punishment. The other sentence must be stayed. (People v. Mesa, supra, 54
Cal.4th at pp. 195-198, 201.) Accordingly, because both counts in case No. INF067218
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are based on the same act of assault, section 654 precludes multiple punishment. The
sentence on count 2 must be stayed.
DISPOSITION
In case No. INF067218, the sentence imposed on count 2 is stayed. The superior
court is directed to issue corrected sentencing minutes and a corrected abstract of
judgment staying the sentence imposed on count 2. The court is directed to forward the
corrected minutes and abstract of judgment to the Department of Corrections and
Rehabilitation within 30 days after the finality of this opinion. The judgments in case
No. INF067218 and case No. INF067449 are otherwise affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
HOLLENHORST
Acting P. J.
RICHLI
J.
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