P. v. Boothe

Filed 4/12/07 P. v. Boothe 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. Donald E. Shaver, Judge.

Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant, Richard Martin Boothe, pled guilty on March 21, 1995, to petty theft with a prior (count 1/Pen. Code, 666) and assault (count 2/ 245, subd. (a))^[1]and admitted allegations that he had a prior conviction within the meaning of the three strikes law ( 667, subds. (b)-(i)). In exchange for his plea, the prosecutor dismissed one count of reckless driving (Veh. Code, 23103) and a prior prison term enhancement ( 667.5, subd. (b)) and agreed to recommend a two-year sentence on count 1, doubled to four years because of Boothes prior strike conviction, and time served on count 2. The court also released Boothe from custody on bail that day, on the condition that he return for sentencing on May 2, 1995. However, Boothe did not return to court until approximately 11 years later, when he voluntarily appeared in court with defense counsel and turned himself in on May 4, 2006. On that date, the court sentenced Boothe to a six-year term, the aggravated term of three years doubled to six years because of his prior strike conviction. At a hearing on May 12, 2006, the court determined that Boothe was entitled to 18 days of presentence custody credit and sentenced him to time served on his assault offense. On appeal, Boothe contends the court committed sentencing error. We will affirm the judgment of conviction and remand the matter for resentencing.^[2]

FACTS

Boothe was originally arrested in this matter on February 24, 1995, after he took sandpaper valued at $2.69 from a hardware store and then drove his car at an off duty officer who attempted to stop him from fleeing.

On May 4, 2006, defense counsel explained to the court that Boothe had been living with his family in Washington and working, and that he voluntarily turned himself in. Defense counsel also asked the court to impose the original four-year term provided for by Boothes plea agreement. The prosecutor, however, argued for a six-year term.

Thereafter, when Boothe stated he was afraid to be away from his family for six years the following colloquy occurred:

THE COURT: Well I understand that. I just dont know. I mean, the choices I have [are] four or six years. There is no middle ground.

[PROSECUTOR]: No

THE COURT: And I dont think four years is appropriate. I cant do five. I think that ties my hands to six.

After further discussion the court stated:

I took what [defense counsel] had to say at face value. If I could reduce it to five somehow, I would. But I dont have that discretion. Its either four or six. Four is not appropriate for the reasons I stated. And well, six may be a little severe, but this is what I have. (Italics added.)

The court then sentenced Boothe to the aggravated term of three years on his petty theft conviction, doubled to six years because of his prior strike conviction. The court, however, forgot to impose sentence on Boothes misdemeanor conviction. At a hearing on May 12, 2006, to determine Boothes entitlement to presentence credit, the court acknowledged that pursuant to Boothes negotiated plea, he was sentenced to time served on his misdemeanor assault conviction.

DISCUSSION

Boothe contends the matter must be remanded for resentencing because the court misunderstood its discretion to impose an aggregate five-year term. Alternatively, Boothe contends he was denied effective assistance of trial counsel by counsels failure to object to the courts imposition of a six-year term. Respondent cites People v. Scott (1994) 9 Cal.4th 331 (Scott) to contend that Boothe waived this issue on appeal. Respondent also argues that Boothe was not denied effective assistance of counsel and in any event, it is not reasonably probable Boothe would have received a more favorable sentence even if his counsel had objected. We agree with Boothe.

Misdemeanor assault is punishable by up to one year in county jail. ( 245, subd. (a)(1)). Further, the court had discretion to impose a one-year misdemeanor term for Boothes assault conviction, which it could have run consecutive to the term it imposed on Boothes felony petty theft with a prior conviction. (People v. Hartsfield (1981) 117 Cal.App.3d 504, 508-509.) Accordingly, we find that the court could have imposed an aggregate five-year term had it imposed the middle term of two years on Boothes petty theft conviction, doubled it to four years because of Boothes prior strike conviction, and imposed a consecutive one-year county jail term on Boothes assault conviction.

Here, it is clear from the courts sentencing comments that it misunderstood its discretion to impose an aggregate five-year term. Further, the proper relief when the court misunderstands its discretion is to remand the matter to the trial court so that it may exercise its discretion. (People v. Deloza (1998) 18 Cal.4th 585, 600.)^[3]

In Scott, supra, 9 Cal.4th 331, the Supreme Court held that the waiver doctrine should apply to claims involving the trial courts failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons. (Id. at p. 353.) In essence, claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner. (Id. at p. 354.)

Scott is inapposite here because the courts failure to understand its discretion to impose a five-year term did not result from a sentence that was imposed in a procedurally or factually flawed way. In any event, Boothe is entitled to relief based on his ineffective assistance of counsel claim.

To demonstrate ineffective assistance of counsel, a defendant must first show counsels performance was unreasonable when measured by prevailing professional norms and that there is a reasonable probability that but for counsels unreasonable acts or omissions, the result of the proceeding would have been more favorable. [Citations.] A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.] If the record does not disclose why counsel acted or failed to act in the manner challenged, then, unless counsel was asked for and failed to provide an explanation or there could be no satisfactory explanation, we reject the claim on appeal and affirm the judgment. Under such circumstances, the claim is more appropriately made in a petition for habeas corpus. [Citation.] (People v. Alvarado (2001) 87 Cal.App.4th 178, 194.)

Here, Boothe had everything to gain and nothing to lose by defense counsel pointing out to the court that it could arrive at a five-year aggregate term by imposing the middle term on Boothes petty theft offense, doubling it to four years because of Boothes prior strike conviction, and adding a consecutive one-year county jail term for Boothes assault conviction. Further, the courts comments indicate that it is reasonably probable it would have imposed a five-year aggregate term if defense counsel had advised the court of its error. Accordingly, we conclude that Boothe was denied effective assistance of counsel.

DISPOSITION

The sentence is vacated and the matter remanded to the trial court for it to exercise its discretion in sentencing Boothe. In all other respects, the judgment is affirmed.

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^*Before Vartabedian, Acting P.J., Levy, J., and Gomes, J.

^[1] Unless otherwise indicated, all further statutory references are to the Penal Code.

^[2] Boothe also contends the court committed Blakely error (Blakely v. Washington (2004) 542 U.S. 296). However, we do not address this issue because it is moot in light of our decision to remand this matter for resentencing, at which time the court may consider the impact, if any, of the United States Supreme Court decision in Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856, 2007 U.S. LEXIS 1324] on its sentencing choices.

^[3] In a supplemental brief, respondent contends that by sentencing Boothe to credit for time served on his misdemeanor assault conviction, the court showed that it was aware that it could sentence the misdemeanor consecutive to the felony. We reject this contention because we fail to see how sentencing a defendant to time served on a misdemeanor indicates the courts awareness that it could impose a one-year misdemeanor term consecutive to a felony term.