P. v. Hutt
Filed 8/8/07 P. v. Hutt CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, Plaintiff and Respondent, v. DAVID DALE HUTT, Defendant and Appellant. | C050807 (Sup.Ct. No. CM022233) |
Defendant David Dale Hutt pled no contest to a single count of felony failure to appear while released from custody on his own recognizance (OR) (Pen. Code, 1320, subd. (b); undesignated section references are to the Penal Code) in exchange for no immediate state prison (NISP) and dismissal of a related charge. The court released defendant on his own recognizance pending sentencing pursuant to a stipulation that the NISP agreement would be forfeited in the event defendant failed to abide by the terms and conditions of that agreement.
Prior to sentencing, defendant was arrested on two separate occasions and charged with crimes in both instances. At sentencing, he admitted that the arrests violated his NISP agreement, and acknowledged that he was no longer subject to the NISP promise in exchange for dismissal of several other matters pending against him and referral of the matter back to probation.
After denial of defendants Marsden[1]motion and motion to withdraw his plea, the court found defendant unsuitable for probation and sentenced him to the low term of 16 months in state prison.
On appeal, defendant contends his purported waiver of the NISP agreement was invalid, requiring remand to either enforce the agreement or allow him to withdraw his plea. He further contends that any purported waiver of the NISP agreement was the result of ineffective assistance of counsel. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND[2]
On November 16, 2004, with a charge of possession of stolen property pending against him in case No. CM020301, defendant was charged by a complaint in case No. CM022233 with failure to appear while released on his own recognizance.
On December 6, 2004, defendant pled no contest in case No. CM022233 in exchange for dismissal of case No. CM020301 and a promise of NISP subject to his compliance with various terms and conditions while released on his own recognizance pending sentencing, including that he obey all laws. Defendant was represented by retained counsel, Denny Forland, at the hearing. On December 9, 2004, defendant was arrested and charged in case No. SCR48106 with being under the influence of a controlled substance in violation of Health and Safety Code section 11550, subdivision (a).
On February 14, 2005, defendant was arrested again and charged in case No. CM022602 for carrying a concealed dirk or dagger in violation of section 12020, subdivision (a)(4).
At the May 10, 2005 sentencing hearing on case No. CM022233, defendant was represented by attorney Dennis Hoptowit, specially appearing for Forland. At the outset of the hearing, Hoptowit informed the court that defendant was prepared to acknowledge and admit that he violated the terms and conditions of his no immediate state prison agreement in case No. CM022233 in exchange for dismissal of several other cases pending against him, including case Nos. CM022602 and SCR48106. When the court inquired whether the defendant wished to admit that he failed to abide by the terms of the NISP agreement, Hoptowit responded, He is willing to admit that he was arrested for the [section] 12020 and hes willing to admit that he was arrested for [section] 11550. The court then asked defendant directly whether he agreed that this is a violation of your no immediate state prison term agreement[,] to which defendant responded, Yes, sir.
The court also made a finding, based upon its independent review of the transcript of the preliminary hearing on case No. CM022602, that defendant violated his NISP agreement. However, when the court indicated that a waiver of time by the defendant would result in a sentence not to include probation, Hoptowit clarified defendants position that the acknowledgment of forfeiture of the NISP agreement was given with the understanding that the matter would be referred back to probation for reconsideration. Hoptowit also reminded the court that the order of referral should reflect that defendant has waived his no immediate state prison agreement in order to avoid duplication of the prior probation report.
At the June 6, 2005 sentencing hearing, the court stated its intention to impose a midterm sentence of two years; however, defendant requested a Marsden hearing and moved to withdraw his plea. The court appointed separate counsel, Stephen King, to determine whether grounds existed for withdrawal of the plea.
On July 18, 2005, King advised the court that, although he found no basis for withdrawal of the plea, defendant still requested that the court do so. Finding it to be in the interest of justice because there is confusion thats arisen in defendants mind concerning circumstances of the plea[,] the court initially granted the withdrawal motion. However, at the urging of defendants counsel, the court continued the matter so that it could review the May 10, 2005 transcript. The hearing on defendants Marsden motion was also continued for that purpose.
On August 15, 2005, after reviewing the May 10th transcript, the court concluded that it was very apparent to the Court from the transcript that [defendant] did acknowledge that the [NISP] offer was properly withdrawn and had been violated because of his criminal conduct that followed the original making of that [NISP] agreement. The matter was referred back to probation for preparation of a supplemental report.
On September 13, 2005, the court reiterated its opinion that the [NISP] agreement was voided. It denied defendants Marsden motion and his motion to withdraw his plea and, finding defendant unsuitable for probation, sentenced him to the low term of 16 months in state prison, minus presentence custody credits. In doing so, the court commented: I should say, for counsels benefit and [defendant] also, that there are aspects of this that I think went over [defendants] head. He wasnt perhaps fully aware of what was going on when he was told that he was still eligible for probation, even after he was told that it was no longer guaranteed to him.
Defendant filed a timely notice of appeal and request for certificate of probable cause.
DISCUSSION
I
Defendant first contends his purported waiver of the NISP agreement was invalid because it was not made knowingly, intelligently or voluntarily. We disagree.
There is no contention on appeal as to the validity of the plea originally entered by defendant. That plea was the product of defendants confession of no contest to the charge of failure to appear given in exchange for dismissal of the underlying charge and a promise of NISP. As stipulated in writing by the defendant, the NISP promise was contingent upon, among other things, defendants compliance with all laws.
In light of those terms and conditions, the new charges filed against defendant in case Nos. CM022602 and SCR48106 were the focus of the discussion at the May 10th sentencing hearing. That hearing began with a representation by defendants counsel that defendant was prepared to acknowledge and admit violation of the terms of the NISP agreement. Through counsel, defendant admitted the arrests for violation of sections 12020 and 11550, and defendant himself admitted that those arrests were a violation of his NISP agreement.
Defendant characterizes his statements and representations as a purported waiver of the NISP agreement. To the extent that defendant waived anything, he waived the prosecutions burden of proving, by a preponderance of the evidence, a violation of the NISP agreement. (See People v. Carr (2006) 143 Cal.App.4th 786, 792 [burden of proof re violation of plea agreement in the form of a Vargas[3]waiver is preponderance of the evidence]; see, also People v. Rodriguez (1990) 51 Cal.3d 437, 441, 447 [probation violation must be proved by preponderance of the evidence].) We are of the opinion that defendants statements and representations to the court are more appropriately characterized as admissions. While those admissions may have been made in conjunction with an agreement for dismissal of several other cases pending against defendant, they were admissions nonetheless and they provided the basis for forfeiture of the NISP promise pursuant to the negotiated plea agreement.
Defendant now contends that those admissions were not knowing, intelligent or voluntary. He points to the fact that the May 10, 2005 hearing was hastily convened, held after hours and was not on a regularly scheduled court proceeding[,] and that he was represented by someone other than his regular attorney who told him he would be sentenced to state prison if he did not admit the charges underlying the two new arrests. He also makes much of the fact that the trial court noted the possibility that defendant may not have fully understood the proceedings. We are not persuaded.
The fact that the hearing was held at 5:30 p.m. and was not a regularly scheduled court proceeding is not insignificant. Defendants counsel made it clear that defendant was prepared to discuss the issues presented and had contemplated doing so in the context of a potential deal with the prosecution. We have trouble with defendants suggestion that it was a surprise sentencing for the same reason. That defendant was represented by substitute counsel is also of no consequence, given that defendant admits he met with counsel and discussed the matter prior to the hearing. We should also point out that counsels opinion that a decision not to admit the new charges would likely result in a prison sentence for defendant was undoubtedly accurate.
As for the courts comments regarding possible confusion on defendants part, it is clear that the courts concerns in that regard were all but erased by its review of the transcript from the May 10th proceedings. Despite the courts final comment that defendant wasnt perhaps fully aware of what was going on when he was told he was still eligible for probation, even after he was told that it was no longer guaranteed to him, there is nothing in the record to suggest that defendant did not understand he was admitting a violation of his NISP agreement or that he was doing so in exchange for dismissal of the charges arising out of the two arrests, as well as other matters pending against him. The colloquy between the defendant and the court when the plea was entered at the December 6, 2004 hearing, evidences the fact that defendant understood the possible consequences of violating the NISP agreement to include imposition of a prison sentence. Counsels representation at the May 10th hearing that defendant was prepared to acknowledge and admit the violation demonstrates that defendant conferred with his attorney prior to the hearing and determined the best course of action to take. The absence of any objection from defendant as to the representations made by his counsel at the hearing confirms that fact.
In any event, given the courts finding of violation of the NISP agreement based on its review of the preliminary hearing transcript in case No. CM022602, admissions or waivers from defendant regarding that agreement would have been unnecessary.
Defendant also asserts that he should have been given the opportunity to withdraw his plea once the court determined he was unsuitable for probation. Not so. This is not a case which triggers the protections of section 1192.5, where the defendant must be given an opportunity to withdraw his plea in the wake of a courts decision to withdraw its approval of the negotiated agreement and impose a sentence more severe than that called for in the plea bargain. ( 1192.5.) In imposing the prison sentence, the trial court was not withdrawing its approval of the plea; it was simply enforcing the agreed-upon sanction of forfeiture of the NISP promise as a result of defendants admitted violation of the conditions of that promise. Defendant had no right to withdrawal of the plea. (See People v. Vargas, supra, 223 Cal.App.3d 1107, 1113.) We find no error.
II
Defendant argues that, to the extent he waived the NISP agreement, he did so as a result of the ineffective assistance of his counsel. We do not agree.
To establish ineffective assistance, defendant bears the burden of showing (1) counsels performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms, and (2) absent counsels error, it is reasonably probable that the verdict would have been more favorable to him. (Strickland v. Washington (1984) 466 U.S. 668 [80 L.Ed.2d 674] (Strickland); People v. Hawkins (1995) 10 Cal.4th 920, 940 (disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89).)
In order to show trial counsels performance was deficient, defendant must show that counsel failed to act in a manner to be expected of [a] reasonably competent attorney[] acting as [a] diligent advocate[]. (People v. Pope (1979) 23 Cal.3d 412, 425.) If the record fails to show why counsel acted or failed to act as he did, the contention fails unless counsel failed to provide an explanation upon request or there could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268; People v. Pope, supra, at p. 425.)
We accord great deference to counsels reasonable tactical decisions. (People v. Weaver (2001) 26 Cal.4th 876, 925; see also People v. Freeman (1994) 8 Cal.4th 450, 484.) Tactical errors are generally not deemed reversible, and counsels decisionmaking must be evaluated in the context of the available facts. [Citation.] (People v. Weaver, supra, at p. 926.)
Defendant argues he was denied effective assistance of counsel because he received inaccurate advice--that the burden of proof for violation of the plea agreement was something less than beyond a reasonable doubt. Had he put the prosecution to its proof as to the new charges, defendant argues, he may have obtained a better result. In the absence of an express explanation in the record as to why counsel advised defendant to admit the violations, we have no trouble finding a satisfactory explanation in that the benefit defendant received by admitting the violation (i.e., dismissal of virtually all remaining cases pending against him and referral of the case back to probation for reconsideration) far outweighed the risk that, after an evidentiary hearing, he would be found to be in violation thereby subjecting defendant not only to a prison sentence on the failure to appear, but also to a possible additional prison time on the new charges and those not dismissed by agreement. It is true that he might have achieved a better result absent his admissions; he may also have suffered a much worse result.
Defendant also argues that the hastily-convened surprise sentencing denied him effective assistance because he was not represented by Forland, his regular counsel. It is not uncommon for counsel to specially appear when the attorney of record is engaged in other pressing matters or has a scheduling conflict, as was the case here. There is nothing in the record to suggest that Hoptowit was not fully informed by Forland as to the status of defendants case or that he was not competent to represent
defendant in Forlands absence, and defendant has not persuaded us otherwise.
DISPOSITION
The judgment is affirmed.
MORRISON , J.
We concur:
RAYE , Acting P.J.
CANTIL-SAKAUYE , J.
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[1]People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
[2] The facts of the offense underlying defendants release on OR and subsequent failure to appear are not at issue in this appeal.
[3]People v. Vargas (1990) 223 Cal.App.3d 1107.
