P. v. Alvarado

Filed 12/21/09 P. v. Alvarado CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. Peter M. Schultz, Judge.

R. Bruce Finch, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.

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Pursuant to a plea agreement, appellant Gabriel Hernandez Alvarado pled guilty to second degree robbery (Pen. Code, 211, 212.5, subd. (c))^[1]and admitted an enhancement allegation that in committing that offense he personally used a firearm ( 12022.53, subd. (b)). The court imposed a prison term of 12 years, consisting of two years on the substantive offense and 10 years on the enhancement, and awarded appellant 132 days of presentence credits pursuant to section 2933.1, subdivision (c) (section 2933.1(c)).

On appeal, appellant argues that (1) the trial courts award of presentence custody conduct credits calculated pursuant to section 2933.1(c), which limits such credits to 15 percent of actual time in custody, rather than section 4019, which contains a more generous credits provision, violated the plea agreement,^[2]and (2) the courts failure to advise appellant prior to his plea that credits would be calculated pursuant to section 2933.1(c) rendered appellants plea involuntary, in violation of appellants right to due process of law under the United States Constitution. We will affirm.

PROCEDURAL BACKGROUND

It was alleged by information filed March 14, 2008,^[3]that appellant committed the following offenses: second degree robbery ( 211, 212.5. subd. (c); count 1), unlawfully carrying a loaded firearm ( 12031, subd. (a)(1); count 2), and grossly negligent discharge of a firearm ( 246.3; count 3). It was also alleged that in committing the count 1 offense appellant personally used a firearm ( 12022.53, subd. (b)) and personally and intentionally discharged a firearm ( 12022.53, subd. (c)).

In open court on April 8, defense counsel informed the court appellant and the People had entered into the following plea agreement: appellant would plead guilty to count 1 and admit the firearm use enhancement, and the remaining counts and enhancement allegation would be dismissed. Counsel further informed the court that appellant understood the following: he would be sentenced to either 12, 13 or 15 years in prison; defense counsel would ask for the mitigated term; and the prosecutor would argue for the aggravated term.^[4] Both the prosecutor and appellant affirmed that counsel had correctly stated the agreement, and appellant further affirmed that no other promises had been made to him to induce him to plead guilty.

Thereafter, the court advised appellant of certain consequences of appellants plea, but did not mention presentence custody credits. After accepting appellants guilty plea, the court set the sentencing hearing for May 6.

The probation officer, in the presentence report (RPO) prepared on April 23 and filed April 29, recommended the court impose the middle term on the robbery conviction and award appellant presentence custody credits of 121 days, consisting of 106 actual days for the period of January 22 through May 6, and 15 good/work days. The officer also stated in the RPO: Pursuant to 2933.1 PC, any person convicted of a felony listed within subdivision (c) of Section 667.5 shall accrue no more than 15% work-time credit.

On May 6, appellants court-appointed counsel informed the court that appellant sent her (counsel) a letter in which appellant asked about some legal issues regarding his plea, and indicated he wanted to ask for a one-week continuance in order to hire an attorney of his choice. Appellant himself informed the court that a friend had promised to provide him with money so appellant could hire an attorney. The court continued the sentencing hearing to May 15.

At the continued sentencing hearing on May 15, appellant told the court that his friend stated he (the friend) had spoken to an attorney who was going to come see [appellant]. However, appellant told the court, he had not met with the attorney. Defense counsel requested a two-week continuance. The court denied the request. Moments later, the court invited defense counsel to address the RPO. Defense counsel, after acknowledging that in the RPO the probation officer recommended the middle term, argued for the lower term. She made no mention of presentence custody credits.

Still later in the proceeding, just prior to the imposition of sentence, the probation officer, in response to a request by the court for an update on time credits as of [May 15], stated appellant was entitled to 132 days credit, consisting of 115 actual days and 17 good and work. The court then asked, Any dispute about the time credits? Defense counsel answered, No.

DISCUSSION

As indicated above, appellant argues that in violation of his due process rights, the trial court (1) violated the plea agreement by calculating his presentence custody conduct credits under section 2933.1(c), and (2) failed to advise him in advance of his plea that the direct consequences of his plea included the calculation of presentence credits under section 2933.1(c).

Appellants arguments require us to consider two related but distinct legal principles. (People v. Walker (1991) 54 Cal.3d 1013, 1020 (Walker).) The first is that whenever a defendant pleads guilty or no contest, he must be advised of [inter alia] the direct consequences of the plea. (Ibid.) The second principle is that the parties must adhere to the terms of a plea bargain. (Ibid.) In any given case, there may be a violation of the advisement requirement, of the plea bargain, or of both. Although these possible violations are related, they must be analyzed separately, for the nature of the rights involved and the consequences of a violation differ substantially. (Ibid.)
A consequence [of a guilty plea] is deemed to be direct if it has definite, immediate and largely automatic effect on the range of the defendants punishment. (People v. Moore (1998) 69 Cal.App.4th 626, 630.) The requirement that a court advise a defendant of the consequences of his or her plea is not constitutionally mandated. (Walker, supra, 54 Cal.3d at p. 1022.) Rather, the rule compelling such advisement is a judicially declared rule of criminal procedure. (Ibid.) A defendant is thus not entitled to relief from a trial courts misadvisement of the consequences of a plea unless the defendant establishes he was prejudiced by the misadvisement. (People v. McClellan (1993) 6 Cal.4th 367, 378 (McClellan); In re Moser (1993) 6 Cal.4th 342, 352 (Moser).) In order to establish prejudice, the defendant must show he or she would not have entered the plea had the trial court given a proper advisement. (Ibid.)

Plea agreements, on the other hand, have a constitutional dimension. (People v. Knox (2004) 123 Cal.App.4th 1453, 1459.) A criminal defendants constitutional due process right is implicated by the failure to implement a plea bargain according to its terms. [Citations.] (Ibid.) In determining whether such a violation has occurred, the question is whether specific terms or consequences became part of the plea bargain. (Ibid.) And to answer this question, we look to whether the plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration .... (Walker, supra, 54 Cal.3d at p. 1024.) Any deviation from the terms of the agreement that is significant in the context of the plea bargain as a whole constitutes a due process violation. (Ibid.)

With these principles in mind, we first address appellants contention that imposition of sentence which included presentence custody conduct credits calculated pursuant to section 2933.1(c) constituted a violation of the plea agreement. The major premise of this argument is that a term of his plea agreement was his presentence credits would be calculated under section 4019 and not under section 2933.1(c). This premise is false.

To demonstrate that his plea agreement included a term that presentence custody conduct credits would be calculated under section 4019 rather than 2933.1(c), appellant points out that at no time before he entered his plea did any court officer mention[] anything in [his] presence about sentence-credit limitations of any kind .... However, The courts omission of another term cannot transform it into a term of the parties plea agreement. (People v. Dickerson (2004) 122 Cal.App.4th 1374, 1385, citing McClellan, supra, 6 Cal.4th at p. 379.) In our view, the omission of any discussion of credits simply shows that the credits-calculation formula to be employed was not part of the plea agreement.

Indeed, the applicable statutory scheme for calculating presentence custody credits was not a permissible subject of plea negotiations. As indicated above, because appellant stands convicted of second degree robbery with a section 12022.53 firearm use enhancement, the trial court was statutorily required to calculate presentence conduct credits under section 2933.1(c).^[5]Therefore, the parties could not have entered into a valid agreement that presentence conduct credits be calculated in any way other than under section 2933.1(c). (See People v. Crandell (2007) 40 Cal.4th 1301, 1309 [Supreme Court noted that in Moser, supra, 6 Cal.4th at p. 357 and McClellan, supra, 6 Cal.4th at pp. 379-380, where defendants claimed violation of plea agreement based on imposition, respectively, of parole term and sex offender registration requirement, it found no violation of the plea bargain had occurred because the additional burdens imposed on the defendant were statutorily mandated].)

Moreover, as indicated above, the record reveals the following: After defense counsel recited the plea agreement in open court, making no mention of presentence credits, appellant affirmed that counsel had correctly stated the agreement and that no promises, other than those stated by defense counsel, had been made to induce appellant to plead guilty. Subsequently, the probation officer prepared the RPO in which she recommended a credits award consistent with the section 2933.1(c) 15-percent limitation and specifically referred to section 2933.1(c). At sentencing, after the probation officer stated her updated recommendation as to presentence custody credits--which reflected additional days of actual custody and which included conduct credits of less than 15 percent of appellants actual time in custody--the court asked defense counsel if she had any objections. Counsel responded, No.

We conclude, based on the forgoing, that appellant could not have reasonably understood that a term of his plea agreement was that his presentence custody conduct credits would be calculated pursuant to section 4019 rather than section 2933.1(c). (See People v. Crandell, supra, 40 Cal.4th at p. 1310 [rejecting claim that imposition of restitution fine violated plea agreement where defendant could not reasonably have understood his negotiated disposition to signify that no substantial restitution fine would be imposed].) Therefore, the presentence custody credits award did not violate the plea agreement.

We turn now to appellants contention that the court failed to advise him of a direct consequence of his plea--the calculation of presentence custody conduct credits under section 2933.1(c)--and that reversal is required on that basis.^[6] The People argue that appellant has forfeited this claim by failing to raise it below. We agree.

We base our conclusion on this point on McClellan, supra, 6 Cal.4th 367 and Walker, supra, 54 Cal.3d 1013. In Walker, the Supreme Court held that absent a timely objection, a defendant waives a claim of error as to a trial courts misadvisement concerning the consequences of a guilty plea. (People v. McClellan, supra, 6 Cal.4th at p. 377.) As the McClellan court noted, in Walker the record reflects that defense counsel was familiar with the probation report. Had the recommendation that defendants be ordered to pay a restitution fine come as a genuine surprise, it would have been a simple matter to bring the issue to the attention of the trial court. (McClellan, supra, 6 Cal.4th at p. 377.)

In McClellan the defendant, who, pursuant to a plea agreement, pled guilty to assault with intent to commit rape, challenged the trial courts failure to inform him that upon conviction of that offense he would be required to register as a sex offender pursuant to section 290. Although the report of the probation officer recommended imposition of the section 290 registration requirement, at sentencing, defense counsel, while raising objections to some matters in the report, made no mention of the registration requirement. And later in the sentencing proceeding, when the court formally imposed the registration requirement, the defense had a second opportunity to challenge it but failed to do so. (McClellan, supra, 6 Cal.4th at p. 377.) The court, relying on Walker, held: Under these circumstances, we conclude defendant waived any claim of prejudice arising from the trial courts error. (Ibid.)

Here, the RPO recommended that presentence custody credits be calculated under section 2933.1(c). Yet defense counsel, although clearly familiar with the RPO, and specifically with the probation officers sentence recommendation, made no objection, either at the time she was invited to address the RPO or later in the proceeding when, in response to a question from the court, she specifically stated she had no objection to the proposed award of presentence credits. As in Walker and McClellan, the failure to object resulted in the forfeiture of the claim of violation of the rule that the trial court must advise a defendant of the direct consequence of his or her plea.

Appellant contends the waiver rule applied in Walker and McClellan is inapplicable here. He relies on principles stated in Moser, supra, 6 Cal.4th 342. In that case the trial court, prior to the entry of the defendants plea, incorrectly advised the defendant of the length of time he would remain on parole following release from prison. The Supreme Court, after acknowledging that Walker held a claim of prejudice resulting from the trial courts misadvisement as to the consequences of a guilty plea is waived absent a timely objection, stated: That procedural bar is inapplicable in the present case, however, because unlike Walker, the present case does not involve a trial courts imposition at the sentencing hearing of a sentence at variance with the advice given at the earlier plea proceeding-a situation in which a defendant reasonably may be required to bring the discrepancy to the court's attention by a timely objection at the sentencing hearing. Rather, under the present circumstances, where nothing in the record suggests that petitioner had any reason to question the accuracy of the trial courts advisement, it would be unfair to hold that petitioner should have objected to the trial courts erroneous description of the applicable period of parole. (Id. at p. 352, fn. 8, italics added.) However, this exception to the waiver principles applied in Walker and McClellan has no applicability here.

Appellant suggests that the trial court, by omitting any mention of the section 2933.1(c) credits limitation in advising appellant of the consequences of his plea, in effect advised appellant his presentence custody conduct credits would be calculated under section 4019. And from this premise, he further asserts that as in Moser, he had no reason ... to question the accuracy of [this] advisement. But assuming for the sake of argument the truth of his premise, appellant had ample reason to question any advisement that his credits would be calculated under section 4019 rather than section 2933.1(c), because the RPO put appellant on notice that the credit-limiting provisions of section 2933.1(c), applied. This factor distinguishes Moser.

As indicated above, in McClellan, decided the same day as Moser, appellant argued the court failed to advise him of a direct consequence of his plea; the RPO warned appellant in advance of this consequence; defense counsel displayed familiarity with the RPO and had ample opportunity to object; and she failed to do so. McClellan is directly on point. As demonstrated above, appellants challenge to the courts failure to advise him regarding the applicability of section 2933.1(c) is waived.

Furthermore, if we were to reach this claim we would reject it. The record fails to establish that appellant would not have pled guilty had he been advised he was subject to the section 2933.1(c) credits limitation. Appellant argues that his personal effort to substitute retained counsel supports his claim of prejudice. There is no merit to this contention. There is nothing in the record to suggest that the legal issues appellant raised in his letter to his appointed counsel or his efforts to hire an attorney of his own choosing had any bearing on his decision to plead guilty, let alone on how the applicability of section 2933.1(c) might have affected that decision.

McClellan is instructive on the issue of prejudice. There, in finding that the defendant was not prejudiced by the trial courts failure to advise the defendant concerning the section 290 registration requirement, the Supreme Court stated: Because the record of the trial court proceedings contains no evidence (nor even an assertion) concerning the bearing of a registration requirement upon defendants decision to plead guilty, the prosecution never has had an opportunity to contest the assertion made by defendant on appeal [that he would not have pled guilty if advised of the registration requirement], and the trial court had no occasion to pass upon the veracity of defendant's present claim. Indeed, to the extent the trial court record sheds any light upon the issue before us, defendants failure to object at the sentencing hearing suggests that he did not consider the registration requirement significant in the context of his plea agreement. (McClellan, supra, 6 Cal.4th at p.378.) Similarly, in the instant case, there is no evidence in the record regarding the bearing of the section 2933.1(c) credits limitation on appellants decision to plead guilty, and the absence of any defense objection to the award of credits suggests the applicability of section 2933.1(c) was not a consideration in that decision. Appellant has not met his burden of establishing prejudice.

Finally, we reject appellants contention that, under Moser we should order a limited remand for the purpose of holding a hearing on the issue of prejudice. The court in Moser did order a remand for this purpose, but that case involved review of proceedings on a writ petition, not a direct appeal. Moreover, the court ordered the remand only because of unusual circumstances that do not exist in this case, which had caused the parties not to litigate the issue of prejudice when the writ petition was originally heard in the superior court. Specifically, in the superior court proceedings the People had conceded error, but urged the court to adopt the remedy of specific enforcement instead of allowing the defendant to withdraw his plea. (Moser, supra, 6 Cal.4th at p. 349.) By focusing on the remedy, all the parties assumed arguendo that defendant had established a right to relief, and the question whether defendant had shown prejudice had not been raised. No similar circumstances are present in this case that would justify ordering a remand to hold a hearing on the issue of prejudice.

DISPOSITION

The judgment is affirmed.

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^*Before Wiseman, Acting P.J., Cornell, J., and Gomes, J.

^[1]All statutory references are to the Penal Code.

^[2]Section 2933.1(c) limits to a maximum of 15 percent of actual time served in presentence custody the presentence custody conduct credits that may be earned by any person specified in subdivision (a) ( 2933.1(c)), i.e., any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 ( 2933.1, subd. (a)). Offenses listed in section 667.5, subdivision (c) include Any robbery ( 667.5, subd. (c)(9)) and Any violation of Section12022.53 ( 667.5, subd. (c)(22)).

^[3]All references to dates of events are to dates in 2008.

^[4]The agreed upon possible sentences were presumably calculated as follows: 10 years on the enhancement ( 12022.53, subd. (b)) plus, for the substantive offense, either the two-year lower term, the three-year middle term or the five-year upper term ( 213, subd. (a)(2)).

^[5]See footnote 2.

^[6]The People do not dispute, and we assume without deciding, that in the instant case the calculation of presentence custody credits under section 2933.1(c) qualifies as a direct consequence[] of the plea (People v. Walker, supra, 54 Cal.3d at p. 1022) and was thus a matter of which the trial court was obligated to advise appellant.