No. G051712.

THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER GUARDADO, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division Three.

Attorney(s) appearing for the Case

Richard Power , 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, Charles C. Ragland and Scott C. Taylor , Deputy Attorneys General, for Plaintiff and Respondent.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



Appellant Christopher Guardado was facing a prison sentence of 90 years to life for committing multiple child sex crimes, but instead pleaded guilty in exchange for a determinate sentence of 36 years. Unsatisfied with that term, he now seeks to have another 20 years shaved off his sentence. However, because appellant agreed to a 36-year sentence as part of his plea bargain, he has no right to complain about its imposition, and we therefore affirm the judgment.


Appellant was charged with six counts of child sexual abuse. Counts 1-3 alleged he engaged in lewd conduct with a child. (Pen. Code, § 288, subd. (a).)1 Counts 4 and 5 alleged the same offense against a second victim. Count 6 alleged appellant orally copulated or sexually penetrated the second victim. (§ 288.7, subd. (b).) The information also alleged appellant was subject to sentencing under the One Strike Law because he victimized more than one child. (§ 667.61.)

The standard punishment for lewd conduct with a child is three, six or eight years in prison. (§ 288, subd. (a).) However, if found true, the multiple victim allegation would have required appellant to serve a separate and consecutive sentence of 15 years to life on each of the five counts that were charged against him for that offense. (§ 667.61, subds. (b), (c)(8) & (e)(4).) In addition, count 6 carried a mandatory prison sentence of 15 years to life. (§ 288.7, subd. (b).) So, based on the charges against him, appellant was looking at a total prison sentence of 90 years to life.

Seeking to avoid that punishment, appellant entered into a plea agreement with the prosecution. The agreement called for appellant to plead guilty to counts 1-5, plus newly added count 7, which alleged a sixth act of lewd conduct under section 288, subdivision (a). In exchange, the prosecution agreed to dismiss count 6, as well as the multiple victim allegation. With those charges gone, the parties contemplated appellant would receive a total prison sentence of 36 years, comprising the midterm of 6 years on each of the 6 lewd conduct counts.

At the plea hearing, the trial court reminded appellant that had he been found guilty of the original charges, he might have received a mandatory prison term of 90 years to life. Appellant said he understood. He also acknowledged that, in lieu of that sentence, he would be given a determinate term of 36 years in prison. After finding appellant's guilty plea knowing, intelligent and voluntary, the trial court sentenced him to that term. The sentence "consist[ed] of the midterm [six years] on count one and the midterm [six years] on counts two, three, four, five and seven, all to run consecutive to each other, for a total of 36 years."

Appellant's request for a certificate of probable cause to appeal was denied. However, we allowed his appeal to proceed on the basis he is contesting the underlying legality of his sentence.


Appellant argues his sentence is unauthorized because the trial court did not adhere to section 1170.1, which generally requires courts to impose one-third the midterm on consecutively imposed subordinate sentences. (See § 1170.1, subd. (a).) Had the trial court followed that procedure in this case, appellant would have received a prison term of 16 years (6 + 5(2)), which is the sentence he now seeks. But that is not the sentence appellant bargained for and agreed to accept as part of his plea agreement. Therefore, he is not entitled to relief.

Appellant is correct that, as a general rule, an unauthorized sentence may be challenged on appeal, even in the absence of an objection in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 354.) But that rule "is itself subject to an exception," as our Supreme Court has explained: "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. [Citations.]" (People v. Hester (2000) 22 Cal.4th 290, 295.)

And that is precisely what appellant is attempting to do here. Although he pleaded guilty in exchange for a specified term, he asserts the trial court lacked fundamental jurisdiction to impose a sentence in noncompliance with section 1170.1. The concept of fundamental jurisdiction pertains to the court's basic authority "to proceed against a particular defendant in a criminal action" and "to consider and decide the criminal action itself[.]" (People v. Posey (2004) 32 Cal.4th 193, 208.) It is not at issue when, as here, the trial court's ruling simply happens to conflict with a particular statute. (People v. Ford (2015) 61 Cal.4th 282, 286-287; People v. Beebe (1989) 216 Cal.App.3d 927, 932.)

In this case, the trial court may have exceeded its statutory jurisdiction when it failed to comply with the sentencing procedure set forth in section 1170.1, but it did not lack fundamental jurisdiction over appellant or his case. (People v. Hester, supra, 22 Cal.4th at p. 295; People v. Ramirez (2008) 159 Cal.App.4th 1412, 1427-1428; People v. Nguyen (1993) 13 Cal.App.4th 114, 122-123; People v. Beebe, supra, 216 Cal.App.3d at p. 932; People v. Jones (1989) 210 Cal.App.3d 124, 132-134.) Therefore, appellant is estopped from challenging his sentence. Because he "avoided a potentially harsher sentence by entering into [his] plea bargain, it may be implied that [he] waived any rights under [the standard sentencing] rules by choosing to accept [that] bargain.' [Citation.]" (People v. Hester, supra, 22 Cal.4th at p. 295.)

Appellant argues to the contrary, but the law and equities are not on his side. "Having accepted the benefits of his plea, [appellant] should not now be able to better the bargain by scaling back the . . . sentence that was a fundamental component of the plea deal." (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1428.) To rule otherwise would permit appellant to attain a "`bounty in excess of that to which he is entitled'" from his plea agreement. (People v. Nitschmann (2010) 182 Cal.App.4th 705, 709-710, quoting People v. Collins (1978) 21 Cal.3d 208, 215.)


The judgment is affirmed.

O'LEARY, P. J. and FYBEL, J., concurs.


1. All further statutory references are to the Penal Code.


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