P. v. Moore

Filed 3/17/06 P. v. Moore CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Robert F. O'Neill, Judge. Affirmed as modified.

Darry Moore pleaded guilty to selling cocaine base (Health & Saf. Code,^[1] § 11352, subd. (a)) and possessing cocaine base for sale (§ 11351.5). As part of his plea, he also admitted having two prior convictions for possession of cocaine (§ 11379, subd. (a)) and having served a prior prison term (Pen. Code, § 667.5, subd. (b)). The trial court sentenced him to four years in prison.

Moore appeals, contending he did not receive due process of law at his sentencing hearing because the court was misinformed as to the charges against him and his eligibility for probation. Alternatively, Moore contends his counsel's performance at sentencing was so ineffective that it deprived him of his right to counsel under the California and United States Constitutions. As discussed below, we conclude that Moore's due process claim is forfeited by his failure to raise the asserted errors in the trial court and his failure to obtain a certificate of probable cause under Penal Code section 1237.5. We conclude as well that Moore's claim that his sentence must be vacated because he received ineffective assistance of counsel -- a claim that is limited but not precluded by the procedural obstacles noted above -- also fails because Moore cannot demonstrate the requisite prejudice from his counsel's asserted errors.

FACTS^[2]

Moore pleaded guilty in exchange for an indicated sentence offered by the trial court; there was no agreement reached with the prosecutor. He entered his guilty pleas at a September 22, 2004 hearing at which he engaged in a colloquy with the trial court regarding the terms of the plea agreement and his maximum exposure if he did not accept the plea. The trial court explained that Moore's "exposure in this case, assuming you [a]re convicted, . . . is six years state prison" -- the maximum base sentence for the sale conviction under section 11352 of five years, plus one year for Moore's prior prison term.^[3] If Moore pleaded guilty, the court indicated Moore would receive "a sentence of four years," and additionally, the court "would listen to an argument at the time of sentencing to strike the prison prior." After a recess, Moore submitted a change of plea form to the court, documenting his change of plea for each of the charges filed against him, and the accompanying allegations, from not guilty to guilty. (See People v. Allan (1996) 49 Cal.App.4th 1507, 1516 (Allan) ["In an indicated sentence, a defendant admits all charges, including any special allegations and the trial court informs the defendant what sentence will be imposed"].)

The section of Moore's change of plea form that lists the terms of the plea agreement states: "No Deals; Sentence to Court[;] Court: 3yrs + 1yr prison prior = 4yrs. Court will hear argument as to striking pp @ prob. hearing + sentencing." Moore also initialed a portion of the form that states: "I give up my right to appeal . . . issues related to strikes priors (under PC sections 667(b)-(i) and 1170.12), and . . . any sentence stipulated herein." On the form, Moore expressly reserved his right to be sentenced by the same judge who presided over the entry of his guilty pleas and to have a probation report prepared prior to sentencing. After reviewing the form, the trial court reiterated the plea agreement, stating that it had "indicated a sentence of three years plus a year for the prison prior, total[ing] four years. However, [the court] will hear argument at the time of the sentencing as to striking the prison prior, which is worth one year." Moore acknowledged that these were the terms of the plea. Moore then entered a plea of guilty to each of the counts against him, admitted having two prior convictions for possession of cocaine, and admitted that the prior convictions were "probation denial priors" under section 11370, subdivision (a) (section 11370(a)), and Penal Code section 1203.073, subdivision (b)(7).^[4] The prosecutor voiced no objections to the plea and the case was set for sentencing at a later date.

Prior to sentencing, Moore's counsel submitted a five-page sentencing memorandum. In the memorandum, Moore's counsel accurately recounted that Moore had been charged with violating sections 11352 and 11351.1, as well as special allegations under section 11370(a) and Penal Code sections 1203.073 and 667.5, and had "plead[ed] guilty to the face of the Complaint." The memorandum then asked the court to "not only consider striking the prison prior, but to also find this case to be the unusual case" and grant Moore probation conditioned on his obtaining drug treatment, as an alternative to incarceration. The memorandum emphasized that contrary to the suggestion of the probation officer's report prepared for Moore's sentencing (the Probation Report), there "is no mandatory statutory bar against probation," and urged the court to give Moore "one last chance at rehabilitation." Moore's counsel also submitted letters written by Moore's friends and family urging leniency.

On December 16, 2004, Moore's case came before the trial court for sentencing. The same judge who presided over the entry of Moore's guilty plea, presided over the sentencing hearing. The court noted that it had reviewed the Probation Report, which recommended "a commitment to state prison consistent with the terms and conditions of the change of plea form"; the court stated the "only issue" for sentencing was "the amount of time [Moore would spend] in prison."

The nine-page Probation Report accurately reflects the charges that Moore pleaded guilty to and the terms of the plea agreement on its first page, and later details Moore's prior criminal history, which includes nine prior convictions, including the two convictions for possession of cocaine that Moore acknowledged as part of his plea. The Probation Report states that Moore was "absolutely ineligible for a grant of probation pursuant to HS11370(a)." The Probation Report also lists four "possible circumstances in aggravation," that Moore: (i) had "numerous" prior convictions; (ii) was on parole when he committed the instant offenses; (iii) performed poorly on probation and parole in the past; and (iv) "received the benefit of having charges dismissed through the plea agreement which could have resulted in additional consequences. The special allegation HS11370.2(a), 3 years enhancement, was dismissed in Counts 1 and 2."^[5] The Probation Report also states in another context that "[i]n accordance with the defendant's pre[-]plea agreement, the special allegation HS11370.2(a), 3 years enhancement, was dismissed in Counts 1 and 2." These references to a section 11370.2, subdivision (a) (section 11370.2(a)) enhancement are erroneous as Moore was not charged with any section 11370.2 enhancement.^[6]

Moore's counsel's argument at the hearing echoed the theme of her sentencing memorandum -- that Moore primarily was "a user not a seller" -- and asked the court to accept the recommendation of her memorandum: that, instead of prison, Moore receive probation conditioned on his participation in a drug treatment program.^[7] Moore's counsel recognized that her argument for probation was contrary to the conclusion of the Probation Report, and specifically its enumeration of aggravating factors. Seemingly accepting the accuracy of the erroneous statement in the Probation Report, she stated she had not discussed the "three-year priors" in her sentencing memorandum because she "believed [it] was kind of a given that they would be stricken."

The prosecutor, in a very brief statement, advocated that Moore receive the four-year prison sentence contemplated by the plea agreement. He emphasized that Moore "has been . . . on probation numerous times and committed new offenses while on probation and parole." The prosecutor did not argue that Moore was legally ineligible for probation, or that Moore had been charged with a section 11370.2(a) enhancement.

Despite the court's statement that the only issue for sentencing was the amount of prison time, the court responded at length to Moore's counsel's argument for probation, stating that her contention that Moore would be able to rehabilitate himself in a drug treatment program outside of prison was "speculation at best." The court noted Moore's extensive criminal record "go[ing] back to 1991," which included "three separate drug-related offenses" and two subsequent "D.U.I. cases." The court stated that Moore had twice been placed on probation in the past and twice had probation revoked for failing to comply with its terms. Another grant of probation, in the court's view, was futile as Moore had "never successfully completed a grant of felony probation." The court stated that "performance is reality" and Moore's "performance has been dismal, to say the least," demonstrating not a desire to rehabilitate but an increased level of criminality. "[E]ssentially," the court stated, "he's gone from a user to a dealer" -- "that's what this case is about." Emphasizing that Moore was fortunate not to be receiving the maximum penalty allowed for his offense of "six years" in prison, the court sentenced Moore to four years in prison as contemplated by the plea agreement, and declined to strike Moore's prison prior. The court recommended that Moore be housed at a prison facility with a drug treatment program, where Moore could "partake of the drug program, if he wishes to do so."

Moore appeals. Moore did not obtain a certificate of probable cause under Penal Code section 1237.5, contending in his notice of appeal that this appeal is solely "based on the sentence or other matters occurring after the plea."^[8]

DISCUSSION

On appeal, Moore requests that this court vacate his sentence and remand for resentencing. He argues that his sentencing proceeding violated his right to due process under the California and United States Constitutions because the sentencing court was erroneously informed by the Probation Report and through defense counsel that: (i) Moore was legally ineligible for probation; and (ii) "had been charged with and admitted a three-year enhancement [under section 11370.2(a)], which the court had or would dismiss." Alternatively, Moore contends his sentence is invalid because he did not receive effective assistance of counsel during sentencing. He bases this contention on his counsel's repetition of, and failure to remedy, the assertedly erroneous information presented to the court through the Probation Report at his sentencing hearing.

Moore argues that because of these errors, he was deprived of an opportunity to receive either a sentence of probation or, alternatively, a sentence of three, rather than four, years in prison.

I

Moore's Failure to Object Below and to Obtain a Certificate of Probable Cause

Limits the Issues Properly Presented in This Appeal

In evaluating Moore's appeal, we must first address significant procedural obstacles that limit his ability to challenge his sentence. As discussed below, these obstacles completely preclude Moore's claim that his rights to due process were violated, and limit his claim to have received ineffective assistance of counsel.

Moore's contention that his sentencing was flawed because of erroneous information communicated to the trial court in the Probation Report is barred by his failure to raise these challenges below. It is well established that "a criminal defendant cannot argue for the first time on appeal that the court" "aggravated a sentence based on items contained in a probation report that were erroneous or otherwise flawed."^[9] (People v. Scott (1994) 9 Cal.4th 331, 351-352 (Scott), citing People v. Chi Ko Wong (1976) 18 Cal.3d 698, 725; People v. Llamas (1998) 67 Cal.App.4th 35, 39 [" 'It is settled that failure to object and make an offer of proof at the sentencing hearing concerning alleged errors or omissions in the probation report waives the claim on appeal' "].) Thus, Moore can only raise the trial court's receipt of erroneous information at sentencing in the form of a challenge to his counsel's performance at the sentencing hearing -- a challenge we address in part II of this opinion.^[10]

In addition, both Moore's contention that his sentencing violated due process, and his argument that he received ineffective assistance of counsel, are restricted by Moore's failure to obtain a certificate of probable cause as required under Penal Code section 1237.5 for a challenge to his plea.^[11]

Under Penal Code section 1237.5, absent a certificate of probable cause Moore's appeal is only cognizable if it is not "in substance a challenge to the validity of the plea." (Buttram, supra, 30 Cal.4th at p. 782.) To fit within this exception, Moore's appellate contention must concern an issue that was left open by the terms of the plea. "[W]here the terms of the plea agreement leave issues open for resolution by litigation, appellate claims arising within the scope of that litigation do not attack the validity of the plea, and thus do not require a certificate of probable cause." (Id. at p. 783.)^[12]

Here, the terms of Moore's plea agreement leave only one open question -- whether Moore would receive a prison sentence of three or four years. Moore admitted during his plea that his prior record included "probation denial priors" under section 11370(a), which states that offenders who fall within its purview "shall not, in any case, be granted probation." In addition, Moore's agreement as stated on his plea form, and reiterated by the court at the plea hearing, was that Moore would receive "a sentence of three years plus a year for the prison prior, total four years" with the sole exception that the court would "hear argument at the time of the sentencing as to striking the prison prior, which is worth one year." Thus, the fact that Moore would receive a prison sentence of at least three years was an " 'integral part of the plea' " and cannot be challenged on appeal without a certificate of probable cause. (Buttram, supra, 30 Cal.4th at p. 782.) Consequently, Moore's claim that errors at his sentencing prevented the trial court from granting him probation, i.e., no prison time at all, are not cognizable on appeal -- whether in the context of a due process claim or an ineffective assistance of counsel claim. (Ibid.; People v. McNight (1985) 171 Cal.App.3d 620, 624, 625 & fn. 5 [applying procedural bar of Penal Code section 1237.5 to defendant's claim to have been prejudiced "by his counsel's failure to argue mitigating circumstances" at sentencing].)^[13]

In sum, given the forfeiture of Moore's due process claim under Scott, and Penal Code section 1237.5's prohibition of a challenge to any of the terms of his guilty plea, Moore is left with only one cognizable claim on appeal. Moore may contend that his counsel was ineffective in advocating that the trial court dismiss Moore's prison prior and favorably resolve the sole issue left open by his plea -- whether Moore would receive three or four years in prison. We address this contention in part II, post.

II

Moore's Claim of Ineffective Assistance of Counsel Fails Because

He Cannot Demonstrate Prejudice

Moore claims he received ineffective assistance of counsel at sentencing because his counsel failed to effectively contradict the statements in the Probation Report that he: (i) was ineligible for probation; and (ii) had "received the benefit of having charges dismissed through the plea agreement," namely the "special allegation[ section] 11370.2(a), 3 years enhancement, was dismissed in Counts 1 and 2." His contention, to the extent it is cognizable on appeal, is that these failings caused the trial court to decline to strike his prison prior.

"A defendant seeking relief on the basis of ineffective assistance of counsel must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel's failings." (People v. Hayes (1990) 52 Cal.3d 577, 607-608 (Hayes).) "If the defendant fails to establish the prejudice component of the ineffectiveness claim, a reviewing court need not determine whether counsel's performance was deficient." (Ibid., citing Strickland v. Washington (1984) 466 U.S. 668, 697 (Strickland).)

Here, we determine that Moore has failed to carry his burden of establishing that he suffered prejudice from his counsel's asserted errors and thus we need not address whether counsel's performance was deficient.

A

Moore Suffered No Prejudice from His Counsel's Failure to More Vigorously

Rebut the Probation Report's Contention That He Was Ineligible for Probation

Moore argues he was prejudiced by his counsel's failure to more thoroughly explain the legal basis by which Moore could have received probation because "even if the court did not grant probation," the court "might have given more serious consideration to dismissal of the prison prior" if it did not believe the law precluded probation. We disagree with Moore's contention because there is neither any basis to believe that the trial court thought it was legally prevented from granting Moore probation, nor that it based Moore's sentence on any such belief.

The record contains no suggestion that the trial court believed Moore was legally ineligible for probation. Moore's counsel argued at length for a sentence of probation both in her oral allocution and in her sentencing memorandum, which unequivocally states there "is no mandatory statutory bar against probation." The court responded to these arguments by stating that it would not grant probation for discretionary reasons -- primarily that Moore, who had a continuous, 13‑year history of criminal conduct, had twice been placed on probation and been revoked both times for violating the terms of probation.

Moore highlights the Probation Report's statement that he was "absolutely ineligible for probation pursuant to[ section] 11370(a)" as the basis for his contention that the trial court believed Moore to be legally ineligible for probation. Moore contends that the statement is legally incorrect because the court, under Penal Code section 1385, could strike the Health and Safety Code section 11370(a) enhancement "[i]n an unusual case." (See Pen. Code, § 1385, subd. (a) ["The judge . . . may . . . in furtherance of justice, order an action to be dismissed"]; People v. Ruby (1988) 204 Cal.App.3d 462, 465 [holding that trial court may dismiss a § 11370(a) enhancement under Pen. Code, § 1385], modified by statute as noted in People v. McGuire (1993) 14 Cal.App.4th 687, 692-693, fn. 7.)

The statement in the Probation Report that probation is precluded by section 11370(a), however, is not contrary to Moore's contention that if the section 11370(a) enhancement were stricken, Moore could receive probation. The Probation Report simply reflects the unambiguous text of section 11370(a) (which Moore himself refers to as a "no‑probation enhancement"), which states that an offender such as Moore with an outstanding section 11370(a) allegation "shall not, in any case, be granted probation." (Ibid.). The question as to whether the court could avoid the command of section 11370(a) by employing Penal Code section 1385 never arose and there is no basis in the record to support Moore's assumption that the court (or the probation officer) held a view on this question that was contrary to the view Moore now claims his counsel should have expressed. In any event, the court's explicit statement that probation was plainly inappropriate based on discretionary factors demonstrates both that the court would have been uninterested in the argument that it could circumvent section 11370(a) by exercising its discretion under Penal Code section 1385, and that the court would not have sentenced Moore any differently had such an argument been made.

As there is no suggestion in the record that the trial court believed Moore was legally ineligible for probation, there is also nothing that would suggest the trial court refused to strike Moore's prison prior based on any such belief. Consequently, we can only conclude that Moore's counsel's alleged deficiencies in arguing that Moore was legally eligible for probation did not alter the court's sentencing calculus.^[14]

B

Moore Suffered No Prejudice from His Counsel's Failure to Correct the

Record Regarding the Section 11370.2(a) Sentencing Enhancement

With respect to Moore's counsel's more serious alleged failing -- her failure to correct the record regarding the section 11370.2(a) allegation -- we also see no prejudice. Again, Moore contends that this failing influenced his sentence with respect to the striking of the prison prior, contending that "even if the court would not have granted probation if it had been presented with correct information about the three-year enhancement, it might well have dismissed the prison prior." We disagree. The record not only fails to establish, but effectively rebuts, any suggestion that the trial court either believed Moore to have been charged with a section 11370.2(a) enhancement, or sentenced him based on that assumption.

Apart from the two portions of the nine-page Probation Report highlighted by Moore, and his counsel's isolated reference to the Probation Report during sentencing, the balance of the record, including the charging document, Moore's sentencing memorandum, Moore's change of plea form, the minute orders (signed by the judge who presided over sentencing), and the portions of the Probation Report reporting Moore's criminal record and the plea agreement, accurately reflect that Moore was not charged, never admitted, and was not eligible to have been charged with a section 11370.2(a) enhancement.

The record further demonstrates that at the time Moore entered his plea of guilty the court understood that Moore was not charged with a section 11370.2(a) allegation. As the guilty plea was not negotiated with the prosecutor, Moore was required to plead guilty to each of the allegations against him, or, as the court stated, to plead "to the sheet." (See Allan, supra, 49 Cal.App.4th at p. 1516 ["In an indicated sentence, a defendant admits all charges, including any special allegations and the trial court informs the defendant what sentence will be imposed"]; People v. Marsh (1984) 36 Cal.3d 134, 140 [referencing practice of pleading " 'to the sheet' "].) In its colloquy with Moore, the court went through each of the allegations against him, and Moore admitted each one. This colloquy did not include any section 11370.2(a) allegation. In fact, after Moore had entered his guilty plea to count 1, the court began to ask Moore whether for that count he "admit[ted] the prior conviction under [section ]11370.2" but abruptly interrupted its inquiry, stating "strike that," and before Moore could answer, and moved on to ask how Moore pled to count 2. This colloquy conclusively demonstrates that at the time of the entry of Moore's guilty plea, the trial court was aware that there was no section 11370.2(a) allegation.

The record does not contain any indication that the trial court's understanding of the charges against Moore changed in the time between the entry of Moore's guilty pleas and the court's later pronouncement of sentence at the sentencing hearing. The court never suggested at the sentencing hearing that Moore was or had been charged with a section 11370.2(a) enhancement. Further, had the court believed Moore had been charged with and admitted a section 11370.2(a) sentencing enhancement, it would necessarily have either dismissed the enhancement, or aggravated Moore's sentence based on the enhancement. Yet the court did neither of these things, demonstrating an awareness that there was no such enhancement.

In addition, the court made at least two comments during the sentencing hearing that are irreconcilable with Moore's contention that the court believed he had been charged with a section 11370.2(a) enhancement. First, the court noted that Moore had "already" received the benefit of the plea bargain by avoiding a six‑year sentence. If, as Moore contends, the court believed Moore was or had been charged with an additional three-year enhancement, it would have believed Moore's pre-plea exposure to have been nine years, not six. Second, the court explicitly recognized that prior to the instant conviction, Moore had only been convicted of drug use offenses, i.e., that he was a "user" who had by virtue of the instant case graduated to a "dealer." If Moore was charged with, and admitted a section 11370.2(a) allegation, that would necessarily mean that prior to the instant offense, Moore had been convicted of a non-use offense for either drug sale or manufacture. (§ 11370.2(a).) Thus, it is plainly apparent from the court's statements at sentencing, and its failure to make any effort to dismiss the enhancement, that the court accurately understood that Moore was not charged with a section 11370.2(a) enhancement.

Given that on appeal we cannot assume that a trial court acted erroneously, but instead "must indulge in every presumption to uphold a judgment," this record sufficiently demonstrates that the trial did not erroneously believe Moore had suffered a section 11370.2(a) enhancement. (People v. Garcia (1987) 195 Cal.App.3d 191, 198 ["[f]aced with this ambiguity in the [sentencing] record, however, defendant must lose" because reviewing court "must indulge in every presumption to uphold a judgment, and it is defendant's burden on appeal to affirmatively demonstrate error -- it will not be presumed"].) Consequently, we must conclude that Moore's sentence would not have been any different had Moore's counsel corrected, and not implicitly adopted, the error in the Probation Report regarding the section 11370.2(a) enhancement.^[15] (Cf. People v. Dolliver (1986) 181 Cal.App.3d 49, 59 [rejecting contention that counsel was ineffective for failing to "request the court at the time of sentencing to exercise its discretion pursuant to Penal Code section 1385 to strike the priors for purposes of sentencing" because "[t]here is no reason to think there was any possibility the court would have exercised such discretion in petitioner's favor"].)

In sum, whatever confusion was expressed by Moore's counsel and the probation officer with respect to the erroneous enhancement and Moore's legal eligibility for probation, there is nothing in the record to suggest that this confusion was shared by the trial court, and absolutely no suggestion that these factors influenced the court's sentencing determination.^[16] The record instead reflects the opposite. The sole factors that appear to have influenced Moore's sentence are the plea agreement which limited his exposure to four years in prison, Moore's extensive criminal record and Moore's previous failures on probation -- all factors that are unaffected by the errors asserted by Moore on appeal.

Consequently, we conclude that Moore has failed to demonstrate that absent the deficiencies he identifies in his counsel's performance at sentencing, "it is reasonably probable a more favorable determination would have resulted." (Hayes, supra, 52 Cal.3d at p. 608.) As a result, we cannot reverse Moore's sentence based on his claim to have received ineffective assistance of counsel.^[17]

III

The Abstract of Judgment Must Be Amended

The abstract of judgment reflects the imposition of a concurrent sentence on count 2. Moore argues, and the Attorney General agrees, that sentence on that count must be stayed pursuant to Penal Code section 654. We accept the Attorney General's concession. It appears to have been an implicit (and legally sound) assumption accepted by the parties, the trial court, and the probation officer below that sentence on count 2 would be stayed pursuant to Penal Code section 654. Consequently, we order that the abstract of judgment be amended to reflect a stayed sentence on count 2.

DISPOSITION

The judgment is affirmed, except that we order the abstract of judgment be amended to reflect a stayed sentence on count 2.

IRION, J.

WE CONCUR:

McCONNELL, P. J.

NARES, J.

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^[1] All further statutory references are to the Health and Safety Code unless otherwise specified.

^[2] As Moore pleaded guilty to the offenses for which he was charged, he cannot and does not challenge the sufficiency of the evidence underlying his convictions. (People v. Martin (1973) 9 Cal.3d 687, 693.) Consequently we set forth solely the facts relating to the procedural aspects of his plea.

^[3] A felony prison sentence "for which a prison sentence is imposed" may be enhanced by one year for each prior conviction for which the defendant has served a prior "separate prison term." (Pen. Code, § 667.5, subd. (b).) This sentencing enhancement is commonly referred to as a "prison prior."

^[4] Section 11370(a) states that a person convicted of violating section 11352, as Moore was in this case, "shall not, in any case, be granted probation" if he was previously convicted of certain offenses enumerated in that section. Penal Code section 1203.073 states that "probation shall not be granted to" a person convicted of violating Health and Safety Code section 11352, except "in an unusual case where the interests of justice would best be served" by such a grant. (Pen. Code, § 1203.073, subds. (a), (b)(7).)

^[5] Section 11370.2, subdivision (a) states: "Any person convicted of a violation of [section] 11352 shall receive, in addition to any other punishment authorized by law . . . a full, separate, and consecutive three-year term for each prior felony conviction of" certain sale, possession for purposes of sale, or manufacturing of illicit substance, offenses.

^[6] The Attorney General concedes that "the probation officer mistakenly referred in two places in the probation report to appellant having a Health and Safety Code section 11370.2, subdivision (a) three-year enhancement." The Probation Report makes no effort to reconcile its accurate statement of the terms of Moore's plea agreement on its first page, and its list of his prior convictions, which includes no convictions that would make Moore eligible for a section 11370.2(a) enhancement, with its statements that Moore was charged with and admitted such an enhancement. The charges against Moore's codefendant in the instant case included a section 11370.2(a) enhancement; the parties suggest that this was the source of the confusion.

^[7] The court noted that it received Moore's counsel's sentencing memorandum. The memorandum accurately recounts the charges against Moore and includes no suggestion that Moore suffered a section 11370.2(a) allegation of a prior drug sale/manufacture conviction. Moore's counsel concluded her allocution by stating, "Other than that, I think everything is in the sentencing memoranda [sic]."

^[8] Under Penal Code section 1237.5, "[n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty" unless "[t]he trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court" (id., subd. (b)).

^[9] As Moore recognizes, to the extent the court's purported misunderstanding of the facts and law applicable to Moore's sentencing was based on his own counsel's statements, this contention is properly addressed as an ineffective assistance of counsel claim, not a claim that the trial court erred by accepting his counsel's arguments. (See, e.g., People v. Duncan (1991) 53 Cal.3d 955, 970.)

^[10] We conclude in part II, post, that Moore's counsel's apparent acquiescence in and failure to correct the alleged errors was not sufficiently prejudicial to warrant reversal, because the record demonstrates that Moore's sentence was not in any way based on those errors. Consequently, we would not reverse Moore's sentence even were we to determine that his due process claim was not forfeited. (See People v. Avalos (1984) 37 Cal.3d 216, 233 ["In order to determine whether error by the trial court in relying upon improper factors in aggravation requires remanding for resentencing 'the reviewing court must determine if "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." ' "]; cf. People v. Buttram (2003) 30 Cal.4th 773, 789 (Buttram) ["As a practical matter, a defendant may rarely succeed with an argument that it was arbitrary or unreasonable to impose a sentence within an agreed maximum"].)

^[11] We are required to "strictly apply the certificate requirements of [Penal Code] section 1237.5." (People v. Cole (2001) 88 Cal.App.4th 850, 866-867 (Cole).) In addition, our Supreme Court has "condemn[ed]" the practice of addressing the merits of contentions despite failure to comply with Penal Code section 1237.5, because "the purposes behind [Penal Code] section 1237.5 will remain vital only if appellate courts insist on compliance with its procedures." (People v. Panizzon (1996) 13 Cal.4th 68, 89, 90, fn. 15 (Panizzon).)

^[12] Penal Code section 1237.5 applies to any "judgment of conviction upon a plea of guilty." Thus, its reach extends to cases such as this where a defendant enters a plea of guilty in exchange for a benefit promised by the trial court, rather than the prosecution. (See Cole, supra, 88 Cal.App.4th at p. 855.) Moore's assertion that People v. Lloyd (1998) 17 Cal.4th 658, 666, stands for a contrary position is unavailing. In that case, our Supreme Court determined that Penal Code section 1237.5 did not preclude a challenge to a sentence imposed after a plea, because the defendant changed his plea without any promise from the prosecution or the trial court as to his sentence. Consequently, the defendant was not "in substance . . . challeng[ing] the validity of the plea" by contesting the sentence he received. (Lloyd, at p. 665.)

^[13] This same analysis applies to Moore's express waiver of appellate rights as part of his plea, which constitutes an additional and parallel limitation on Moore's challenge to his sentence. (Panizzon, supra, 13 Cal.4th at pp. 82, 86 [waiver of " 'right to appeal from the sentence [defendant] will receive in this case' " precludes claim on appeal as to issues contemplated within plea agreement "as opposed to a matter left open or unaddressed by the deal"].)

^[14] Contrary to Moore's contention, the court's statement at the commencement of the sentencing hearing that "[t]he only issue is the amount of time in prison" is not inconsistent with our analysis. In light of the subsequent sentencing discussion, the court's statement appears to be a recognition that the plea agreement did not contemplate probation and that probation was inappropriate given Moore's criminal record and previous failures on probation, rather than a suggestion that it lacked authority to grant probation.

^[15] Moore also claims prejudice from his counsel's purported statement at the sentencing hearing that "the prison prior . . . prohibited probation." Moore's counsel, however, did not state that his prison prior legally prohibited a grant of probation, as Moore suggests. Rather, she listed the prison prior as a factor which, along with others such as the fact that his offense was a "presumptive prison" offense, "would prevent" a grant of probation absent mitigating factors, which she then described. We see no prejudice from this admission by Moore's counsel as it can hardly be disputed that a prison prior is a factor that counsels against a grant of probation. Moore also asserts in passing that his counsel used outdated numbering of the Rules of Court and mistakenly referenced "Penal Code § 1203.07(b)(1)" in her sentencing memorandum instead of Penal Code section 1203.073, subdivision (b)(7). Moore fails to explain how prejudice resulted from these clerical errors and consequently the contention is waived on appeal. (See People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1364, fn. 6.)

^[16] The trial court's comment that the Probation Report "noted the factors in aggravation far exceed the factors in mitigation" is not inconsistent with this conclusion. Apart from the erroneous factor, the Probation Report contained three other significant and undisputed factors in aggravation, which the trial court explicitly relied on, and only one -- that Moore "acknowledged wrongdoing at an early stage of the criminal process" -- in mitigation.

^[17] Citing People v. Cropper (1979) 89 Cal.App.3d 716, 721, Moore contends that "prejudice is presumed" where counsel argues "against his or her client." The cryptic language referenced in Cropper that Moore relies on does not specifically address the prejudice prong of an ineffective assistance of counsel claim. Rather, it appears to state that the first prong of an ineffective assistance claim -- deficiency -- will be presumed in such a circumstance. (Ibid.) In any event, we do not view Cropper, which predates the seminal case regarding ineffective assistance of counsel, Strickland, supra, 466 U.S. 668, as establishing an exception that would apply here to the well-established principle that reversal is not warranted based on counsel's errors absent a showing of prejudice. (Scott, supra, 9 Cal.4th at pp. 356-357, fn. 18 [noting that standard for relief based on a claim of ineffective assistance of counsel at sentencing is "stringent," requiring "[b]oth incompetence and prejudice [to] be shown"].) Moore's related contention that no showing of prejudice is necessary where counsel "entirely fails to subject the prosecution's case to meaningful adversarial testing," is similarly unavailing. (See United States v. Cronic (1984) 466 U.S. 648, 659.) As explained in People v. Dunkle (2005) 36 Cal.4th 861, 931, this narrow exception to the requirement of a showing of prejudice applies only where " 'the attorney's failure [is] complete,' " such as counsel's failure to participate in a hearing, and is not applicable in circumstances such as those of the instant case where counsel was an active participant in the sentencing proceeding. (Ibid.)