P. v. DeBruce

Filed 4/27/07 P. v. DeBruce 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. Albert J. Wojcik, Judge. Affirmed.

ORIGINAL PROCEEDING; petition for writ of habeas corpus. Albert J. Wojcik, Judge. Denied.

Andrew E. Rubin, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Robert M. Foster, Deputy Attorney General, for Plaintiff and Respondent.

Defendant and appellant Tanya Rochelle DeBruce appeals after she pleaded guilty to one count of first degree burglary. She contends that the court erred in describing one aspect of the plea bargain, and she wishes to withdraw her plea. She has filed a petition for writ of habeas corpus raising the same issue. We have ordered the habeas petition to be considered and decided at the same time as the appeal. We conclude that, although the trial court erred, no prejudice resulted from the error. The judgment is affirmed and the petition for writ of habeas corpus is denied.

FACTS

Defendant participated in a burglary which resulted in four charges in the Riverside County Superior Court against her and her codefendants: attempted robbery in concert (count 1), first degree burglary (count 2), false imprisonment (count 3), and felon in possession of a firearm (as to defendant only, count 4). The complaint also alleged that defendant had personally used a firearm in the commission of counts 1 through 3.

As a result of plea bargaining, defendant ultimately agreed to plead guilty to count 2, first degree burglary, and to admit the firearm enhancement. Defendants total exposure was a maximum of 16 years in state prison, but the plea bargain called for imposition of an eight-year sentence: The middle term of four years on the burglary, plus the middle term of four years, consecutively, for the enhancement. The remaining charges were dismissed. The court also considered other Riverside County cases pending against defendant, and told defendant that her prison sentence in the current case would be made concurrent to any prison sentence imposed in the other matters. Defendant was also concerned, however, about a San Bernardino County offense for which sentence had not been imposed and for which she was on probation. The following exchange took place:

THE COURT: The agreement provides that by pleading guilty at this time, by admitting that added allegation, that probation will be denied, you will be receiving eight years state prison total; do you understand that as well?

THE DEFENDANT: Yes.

THE COURT: All the other counts are going to be dismissed; do you understand that?

THE DEFENDANT: Yes.

THE COURT: If there is any custody commitment in any other matters, this would run concurrent with all the cases; do you understand that as well?

THE DEFENDANT: Is that like -- does that go for any joint-suspension in San Bernardino or just Riverside County?

THE COURT: This indicates anything else. So if you have something in San Bernardino, this would run -- we are going to run this concurrent with that. Were not asking them to do anything, but this will be concurrent with that; do you understand that?

THE DEFENDANT: Okay. (Italics added.)

Defendant now urges that the court erred in stating that her Riverside County sentence would be concurrent to any sentence in her San Bernardino County case. Sentence had been suspended, not imposed, in San Bernardino County. Consequently, if defendants probation were to be violated on the San Bernardino case and she were sentenced to state prison, the San Bernardino court, as the later sentencing court, would not be bound to impose a concurrent sentence. Defendant urges that the courts error constituted a material misrepresentation of the consequences of her plea, and she now appeals, seeking to withdraw her guilty plea.

DISCUSSION

1.

THE COURT ERRED IN STATING THAT ANY SAN BERNARDINO SENTENCE WOULD BE CONCURRENT

As defendant correctly points out, Penal Code section 669 provides that, whenever a defendant has been convicted of two or more crimes, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively. Sentence in defendants San Bernardino case had been suspended and not executed, and she was on probation. If for any reason the San Bernardino court revoked probation and imposed a prison sentence, it would be up to the San Bernardino court to determine whether that term should be served concurrently or consecutively. Defendants plea bargain in Riverside County would not be binding upon the San Bernardino County court on the issue of concurrent sentencing. (See People v. Todd (1994) 22 Cal.4th 82, 86-87.)

The People respond that the court did not err, but that it properly informed defendant that the concurrent sentence in Riverside County would not bind the San Bernardino court. The Peoples interpretation of the quoted exchange strains credulity. Although the court did state that Were [i.e., the Riverside court] not asking them [i.e., the San Bernardino court] to do anything, that remark was insufficient to inform defendant that she was vulnerable to a potential consecutive sentence on her San Bernardino case if she were ever committed to state prison on that offense. Moreover, the courts other remarks This indicates anything else and but this [i.e., Riverside sentence] will be concurrent with that [i.e., San Bernardino] flatly contradict any notion that defendant was told that her San Bernardino sentence, if executed, could run consecutive to the plea-bargained Riverside term.

The court was mistaken and its remarks were misleading about the effect of a future San Bernardino executed prison sentence.

2.

DEFENDANT RECEIVED THE BENEFIT OF HER PLEA BARGAIN

Despite the courts error, there was no material misrepresentation. The People point out that defendants probationary term on her San Bernardino case expired in June 2006. A check of the records in San Bernardino County reveal that no probation revocation proceedings have been initiated or filed with respect to defendants San Bernardino conviction. Defendant herself admits in her reply brief on appeal that her probation has not been revoked. She states that the San Bernardino file does not reflect that probation has been terminated. Nonetheless, defendant was placed on probation for a term of three years on July 21, 2003. That period concluded, without any revocation of probation, in June 2006. By operation of law, therefore, the probation term has been completed. No probation revocation proceedings can now be filed and defendant cannot be sentenced to any additional prison time for that offense. (See People v. Lewis (1992) 7 Cal.4th 1949, 1955-1956 [termination of probation or a discharge from probation following completion of the probation term formally ends the conditions of probation]; see also People v. Tapia (2001) 91 Cal.4th 738, 742 [[w]here, as here, the term of probation has expired, the defendant is also entitled to an order discharging him from probation.].)

Defendant got what she bargained for: an eight-year prison commitment. The courts error did not, and now cannot, result in any greater term. The judgment is therefore affirmed. For the same reasons, defendants petition for writ of habeas corpus fails to show a prima facie case for relief, and the petition is denied.

DISPOSITION

The judgment is affirmed. The petition for writ of habeas corpus is denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKINSTER

Acting P.J.

We concur:

/s/ RICHLI

J.

/s/ MILLER

J.

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