P.
v. Porter

















Filed 5/22/13 P. v. Porter CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



SIXTH APPELLATE
DISTRICT




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THE PEOPLE, Plaintiff and Respondent, v. ANTHONY PORTER, Defendant and Appellant.

H037619 (Monterey County Super. Ct. No. SS042332)

A jury convicted defendant
Anthony Porter of a number of crimes
and found true a number of sentence-enhancement allegations following his
participation in a drive-by shooting at individuals who were sitting on a
porch. The crimes included two counts of
attempted murder. The trial court sentenced him to 25 years in
state prison, but in so doing, it granted a new trial on two allegations: (1) that the crimes were committed for the
benefit of a criminal street gang; and (2) that the attempted murders were
committed willfully, deliberately and with premeditation. A true finding on these allegations could
have resulted in a life sentence with an 85-year minimum term.

Defendant
initially contended that he could not be retried on these allegations, but the
California Supreme Court held otherwise, directing this court to deny defendant’s
petition for writ of mandate. (Porter
v. Superior Court (2009) 47 Cal.4th 125, 130, 138, 140). Faced with retrial on these allegations,
defendant agreed to a settlement under which he will serve a total of 34 years
in prison, nine years longer than his original sentence. In exchange, the People agreed to dismiss the
remaining two allegations. Defendant
also agreed “not to ask the court to withdraw my acceptance of this agreement
at any time after it is entered [into].”
In addition, he agreed not to appeal from the judgment or seek habeas
corpus relief, but he did not waive any claims he could bring relating to
ineffective assistance of counsel.

Despite
defendant’s agreement not to withdraw his acceptance of the settlement at any
time after it was entered, he tried to withdraw from it after learning the
results of gunshot residue retesting that he had ordered. The trial court denied defendant’s request to
withdraw from the agreement. Defendant
appeals from the judgment, and, in a separate filing pending before this court,
In re Anthony Porter on Habeas Corpus, No. H039221, is petitioning for a
writ of habeas corpus.

Because defendant waived his
right to appeal the judgment, we will
dismiss his appeal. And by an order
filed today, we have also denied his habeas corpus petition.

FACTS AND PROCEDURAL BACKGROUND

On
March 20, 2004, Albert Johnson was
shot and killed in a drive-by shooting in Seaside, California. Johnson was a member of K.A.P., a Seaside street gang. On that same day, DeShawn Lee, an associate
of a rival gang named Seaside Crips, was arrested and taken into custody on
suspicion of driving the car from which Johnson was shot. Lee’s family of six adults and three children
lived at 1246 Sonoma Street in Seaside.

On
March 26, 2004, the day of Johnson’s
funeral, defendant and another man participated in a drive-by shooting at Lee’s
house at 1246 Sonoma Street. Additional details may be found in People
v. Porter, No. H029031
(nonpub. opn.) (Porter I), but
they are irrelevant to this appeal.

As
we described in defendant’s first appeal, Porter I,
supra, No. H029031, the jury convicted defendant of two counts of
attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 187,
subd. (a), 664, subd. (a))href="#_ftn1"
name="_ftnref1" title="">[1], shooting at an inhabited dwelling
(§ 246), two counts of assault with a semiautomatic firearm (§ 245,
subd. (b)), carrying a loaded and concealable firearm registered to a different
owner (former § 12031, subd. (a)(2)(F); Stats. 1999, ch. 571, § 3,
p. 3964), and shooting from a motor vehicle (former § 12034, subd.
(c); Stats. 1987, ch. 1147, § 3, p. 4059). The jury found true a gang-based sentencing
enhancement allegation (§ 186.22, subd. (b)(1)) with regard to each
charged offense, a sentencing enhancement allegation for personally and
intentionally discharging a firearm (§ 12022.53, subd. (c)) with regard to
the attempted murder counts, and a sentencing enhancement allegation for
personal use of a firearm (§ 12022.5, subd. (a)) on the two
assault-with-a-semiautomatic-firearm counts.


The trial court disposed of >Porter I, supra, No. H029031, by granting a new trial on the gang-enhancement
allegations and the allegations that the attempted murders were willful,
deliberate, and premeditated. It ruled
that the prosecution could request a date for a new trial on those
allegations. (Porter v. Superior
Court, supra, 47 Cal.4th at
pp. 130-131.) On the convictions
and allegation findings that it upheld, it sentenced defendant to a determinate
term of 25 years in prison. (>Id. at p. 131.) It reached this figure by imposing concurrent
25-year terms—a five-year term on each attempted murder conviction and a
20-year consecutive term on each section 12022.53, subdivision (c), finding.

After the California Supreme
Court determined in Porter v. Superior
Court, supra, 47 Cal.4th 125,
that defendant could be retried on the two outstanding allegations, proceedings
resumed in superior court. Counsel for
defendant advised the court, “defendant consents to reopen sentencing
. . . as stated in the agreement . . . .”

The agreement to which
counsel referred was a “waiver of rights regarding stipulation to resentencing
to consecutive sentence and any state or federal writs and appeals.” (Font attribute changed to lower case.) It was signed by defendant, defense counsel,
and the prosecutor, and it was filed with the court. Under it, defendant accepted a 34-year
sentence in exchange for the People’s dismissal of the remaining two
allegations that could have been retried.
To arrive at the 34-year term, defendant was resentenced as follows: on
the second attempted murder count he received a consecutive term of
imprisonment of one-third of the middle term of seven years, i.e., two years
and four months; and on the section 12022.53, subdivision (c), enhancement
allegation he received a consecutive term of imprisonment of one-third the
middle term of 20 years, i.e., six years and eight months. All other counts would run concurrently.

As part of the settlement,
defendant memorialized that “I agree to give up all rights regarding both state
and federal writs and appeals. This
includes, but is not limited to, the right to appeal my conviction, the
judgment, and any other orders previously issued by this court. I specifically agree to waive any right to
appeal the sentence negotiated in these cases.
I agree not to file any collateral attacks on my convictions or sentence
at any time in the future. [¶] I agree not to ask the court to withdraw my
acceptance of this agreement at any time after it is entered.”

Defense counsel explained to
the trial court at a hearing that defendant was agreeing to the settlement
because he faced life in prison if a trier of fact returned true findings on
the section 186.22, subdivision (b), gang-benefit enhancement allegations with
respect to the section 246 conviction.
He faced the same term if a trier of fact found his two attempted murder
convictions to involve premeditated and deliberate murder. In the worst-case scenario, he would have to
serve 85 years in prison before being eligible for parole. He preferred the certainty of an additional
nine-year determinate term to the risk of such long confinement. Defendant personally stated at the hearing
that absent the settlement his term could be, if a new trier of fact found
against him on all of the remaining allegations, “156 years. Three consecutive life terms for 156
years.” “Life without parole, in other
words,” defendant added.

At the hearing, defense
counsel mentioned that the agreement did not contain a specific ineffective
assistance of counsel provision and “obviously we would not able to advise him
on that issue.” The trial court asked
defendant, “Well, you do understand that you’re giving up your right to any
kind of appeal or writ?” Defendant
answered, “Yeah. Yes.” The
court clarified, “You’re waiving your right to seek any kind of relief at a
level above this court, which includes appellate courts, supreme courts,
federal courts, courts that review writs, and that sort of thing. Do you understand that?” Again defendant replied, “Yes.”

The
trial court suggested, however, that if counsel “were ineffective in providing
you . . . with guidance, legal information, that that could possibly
be challenged.”

As the hearing continued,
defense counsel stated, “I think what we’re doing is, by stipulation, agreeing
that the 120-day bar to change a sentence is not prohibiting you, under
[section 1170, subdivision (d)], from resentencing or modifying the sentence.” The trial court responded, “I do think that
the Court retains jurisdiction to resentence in a case where there is a
subsequent conviction.” The court added this caveat: “I don’t know if the parties can stipulate to
the Court’s jurisdiction. I don’t
know. This may be one of those
situations where you can.” But the court
proceeded, commenting only that “If there is an appeal and this is without
jurisdiction, then we’re back to square one, I would think.”

When
the trial court asked defendant if he was exposed to five life-term counts,
defendant corrected the court, saying “No, it’s three.” The court then said, “based on the risk
that’s involved, . . . you are agreeable to extending your prison
commitment, as we’ve just discussed and as . . . outlined here in
this document. Is that all
correct?” Defendant replied, “Yes.”

As
the hearing approached its close, defense counsel asked of his client,
“Anthony, you understand what the Judge just indicated, that there would—it’s a
requirement, to implement the agreement that we’ve reached today, that you
agree that the Court may do this at this time?”
Defendant replied, “Yes.” The
court asked, “Do you understand that?”
Defendant replied, “I’m agreeing that I be resentenced here today,
yes.” The court said, “I think it’s as
clear as it can be.”

At
a hearing a month later, however, defendant reneged on his commitment not to
try to withdraw from the settlement agreement.
The trial court was prepared to impose sentence in accordance with the
agreement. But the previous evening, a
forensic laboratory had informed defense counsel that it had completed
court-ordered gunshot residue retesting.
Counsel informed the court that the laboratory found residue on lifts
taken from the hands of codefendant Travis Williams. (Williams is not a party to this
appeal.) In light of this finding,
defendant’s counsel had asked the laboratory to retest defendant’s lifts and,
pending the results of that retest, requested a continuance of the sentencing
hearing.

The
prosecutor objected, saying defendant had already entered into the agreement
and waived his rights. The trial court
pointed out that this newly discovered evidence could have been brought to
light after the resentencing scheduled to be done at the hearing, and asked
counsel, “then what?” “Or a year from
now or ten years from now,” the court added.


Defense
counsel argued that, given the gravity of the sentence, it was unfair to leave
the issue unresolved. The prosecutor
answered, “I know he [defense counsel] didn’t try this case. I did.
I can tell the Court that a police officer watched Mr. Porter throw the
gun out the window after the shooting.
Mr. Porter told the police officer that he threw the gun out the
window.”

“[T]hat
gunshot residue has great limitations,” the prosecutor continued. “[I]f you’re near a gun or handle a gun after
shooting, or it’s on your clothing in a car where the gunshots are fired, it
[offers] very little help telling us who the shooter was. [¶]
Mr. Porter, after fleeing the car, . . . slid out underneath a
truck in a parking lot, and [was hiding] underneath this truck when police
found him. The idea that he might have
scuffed off or lost the gunshot residue from himself in that procedure was,
according to the expert on it, very likely and, really, his lack of gunshot
residue didn’t tell us much. [¶] . . . We didn’t test everything.” “The defendant has told people under oath
that he handled the gun, that the codefendant handed him the gun and told him
to get rid of it; and it was seen happening.
So that’s really not much of an issue.”
“And, frankly, the counts this would be relevant for are not the
premeditation [element of defendant’s attempted murder convictions]
. . . or the gang enhancement[s]”—i.e., the sentencing enhancements
for which defendant had agreed to reopening his sentencing. “They’re counts that the defendant was found
guilty of five, six years ago, has appealed, has writted, and has lost all of
those appeals and writs.” Finally, the
prosecutor argued, “there was [an] eyewitness that watched him fire the
gun.” “[W]e are six years into this
thing,” the prosecutor concluded, “and it needs to end.”

The
trial court decided to continue the case for three weeks, as defense counsel
requested.

When
court reconvened three weeks later, defendant had moved to withdraw from the
settlement agreement. Counsel argued
that the pending test results had come back and confirmed that defendant had no
gun residue on his person or clothing.
He argued that defendant’s waiver was not knowing and intelligent
because “You can’t waive what you don’t know.”


The
trial court replied that it had become common to waive one’s statutory right to
appeal and the opportunity to seek posttrial writs. “There must be case authority on that issue,”
the court commented. Defense counsel
replied that he had been unable to locate any.
“[T]here should be some kind of case authority on that,” the court
reiterated. Counsel rejoined that “it’s
especially troubling because . . . it requires a waiver of any wrongdoing,
any late discovery . . . it vitiates the existence of any of these.”

The
trial court put the matter over again and ordered the parties to submit
relevant research for the next hearing date.


Three and a half months
later, with defendant’s operative motion to withdraw from the settlement
agreement pending before the trial court, the court convened the next hearing
session. Defense counsel spoke of the
“significant exculpatory evidence” that had led to the bringing of the
motion. The prosecutor insisted that the
settlement must be enforced and that the newly discovered evidence was not
exculpatory, because “all we’re here on is premeditation and a gang
enhancement, and the gunshot residue speaks [to] neither.” Defense
counsel disagreed, saying, “If he didn’t have the gun and he was intoxicated in
the car . . . it reflects significantly on the issue of whether he
premeditated this, whether he even knew about this . . . .”

The
next hearing session took place a month later.
At that session, the trial court observed that if defendant were retried
on the outstanding sentence enhancement allegations and it chose to impose a
longer term, the court would be resentencing defendant anyway and would have
jurisdiction to do so—this, we would add, would seem to be mandated by the
California Supreme Court’s decision in Porter v. Superior Court, supra,
47 Cal.4th 125. Whether through retrial
or by ratifying the settlement agreement, the court said, “the fact of the
matter is [that] it is changing the sentence when the sentence becomes
longer.” For that reason, it said, “I
have tentatively gotten past the jurisdictional issue.”

Defense
counsel acknowledged that this view was supported by case law, although he saw
“significant differentiations” in his client’s case. The discussion proceeded from there to other
matters.

At
the next hearing session, conducted about six weeks later, the trial court held
a contested hearing on the nature and significance of the newly discovered
evidence. Because the substance of the matters
disputed at the hearing is not germane to the disposition we will reach, there
is no need to summarize that lengthy proceeding here.

Some
six weeks later, the trial court held another hearing session, this one to
decide defendant’s motion to withdraw from the settlement agreement. The
court first noted that defendant had agreed not to seek to withdraw from the
negotiated disposition. The court
stated, “the waiver of such a right, or an opportunity, if it has any meaning
at all, means that the defendant cannot withdraw his . . . agreement
in the same fashion, to the same extent, or to the same standards as he could
have had he not waived.” The agreement’s
provision meant that “even if he can demonstrate good cause by clear and
convincing evidence, he will not ask to withdraw from the deal.” An exception would exist, however, if “the
Prosecution extracted the agreement through some kind of malicious
misconduct.” But the court found no
evidence of it and denied the motion to withdraw.

Continuing with its
statement of reasons at the hearing, the trial court ruled that there was no name="surprise_bm">surprise that might be a basis for rescinding the
agreement: defendant knew that certain retests for gunshot residue had not been
done when he agreed to the 34-year sentence disposition. Also, given the case’s complexity and the
time the government had invested in prosecuting it, there was an element of
detrimental reliance on the agreement, especially because it was entered into
on the eve of trial, when the parties had lined up their witnesses and other
evidence.

With regard to the
substantive issue lying behind defendant’s effort, the trial court stated that
“the gunshot residue test results . . . [are] de minimis in the
context of the evidence that defendant was the shooter.” Moreover, the court added, “everyone agrees
both the defendant and the driver [Travis Williams] handled the gun.”

Indeed,
this court noted that defendant handled the gun in our prior opinion: “A handgun was found in the area where
another pursuing officer had observed the suspect vehicle slow and the
passenger’s hand come out of the car and make a throwing motion. The gun’s location was consistent with it
having been thrown out by the passenger and defendant admitted throwing the gun
out of the car.” (Porter I, supra,
H029031 [typed opn., p. 5].)

A week later the trial court
conducted a final hearing in which it sentenced defendant to 34 years in prison
in strict conformity with the settlement agreement and dismissed the sentence
enhancement allegations that would have been retried.

In sum, despite defendant’s
agreement to forgo any future legal proceedings that might benefit him, he
later moved to withdraw from the agreement and brings this appeal from the
judgment entered after the trial court denied his motion to withdraw from the
agreement. He also has presented this
court with the petition for writ of habeas corpus previously mentioned, In
re Anthony Porter on Habeas Corpus,
supra, No. H039221.

DISCUSSION

Defendant contended before
the trial court that his “plea agreement was entered [into] through mistake and
ignorance of facts that were discovered after his submission to the
agreement.” Also, citing >Williams v. Superior Court (1939) 14
Cal.2d 656, 662, he contended that “it is beyond the jurisdictional authority
of another department of the same court to interfere with the exercise of the
power of the department to which the proceeding has been so assigned.” (Id.
at p. 662.) As a result, defendant
argued that the court and parties lacked “jurisdiction to enter into an
agreement” modifying the sentence previously imposed by another superior court
judge. He renews both arguments on appeal.

I. Jurisdictional Considerations

Because defendant waived his
right to appeal, a threshold question is whether we have jurisdiction to decide
whether we may entertain his appeal. “A
court has jurisdiction to determine its own jurisdiction, for a basic issue in
any case before a tribunal is its power to act, and it must have authority to
decide that question in the first instance.”
(Rescue Army v. Municipal Court
(1946) 28 Cal.2d 460, 464.) We proceed
to consider the issues before us.

II. >General Principles

“A criminal defendant may knowingly and voluntarily
waive many of the most fundamental protections afforded by the
Constitution.” (United States v.
Mezzanatto (1995) 513 U.S. 196, 201.)
If a waiver is entered into with a criminal defendant’s full
comprehension of its scope and consequences—i.e., knowingly, intelligently, and
voluntarily––it may be broad and encompass collateral challenges to the
judgment as well as direct review. In a
similar vein, a defendant may waive otherwise available opportunities to seek a
remedy by way of a collateral challenge to the judgment in state or federal
court—e.g., through petitions for writ of habeas corpus challenging one’s
confinement. (See Comer v. Schriro
(9th Cir. 2007) 480 F.3d 960 (per curiam) [defendant validly elected to
waive further federal habeas corpus challenges to a death sentence imposed
against him under Arizona law because he did not wish to engage in further
proceedings].)

In
California, there exists, with certain
exceptions, a statutory right to appeal from a final judgment of criminal
conviction or an appealable superior court order. (§ 1237.) But a defendant may waive that right. “Just as a defendant may affirmatively
waive constitutional rights to a jury trial, to confront and cross-examine
witnesses, to the privilege against self-incrimination, and to counsel as a
consequence of a negotiated plea agreement, so also may a defendant waive the
right to appeal as part of the agreement.”
(People v. Panizzon
(1996) 13 Cal.4th 68, 80, fn. omitted.)

III. >Defendant Executed the Waiver Knowingly,
Intelligently, and Voluntarily

Citing a number of cases
discussing situations in which reviewing courts addressed motions to withdraw
from plea agreements, defendant claims that the trial court abused its
discretion under state law in denying his motion to withdraw from the
settlement agreement. He argues that the
applicable standard is the establishment of “mistake, ignorance, inadvertence
or any factor overcoming the exercise of a free judgment” (People v. Cruz (1974) 12 Cal.3d 562, 566) and that the
trial court in this case meaningfully considered only “surprise” (see ante,
p. 9) and, erroneously, failed to give
meaningful consideration to the other factors listed in Cruz.

“ ‘To
be enforceable, a defendant’s waiver of the right to appeal must be knowing,
intelligent, and voluntary.’ ” (People
v. Buttram (2003) 30 Cal.4th 773, 792 [addressing negotiated plea
agreements].) To the same effect, under
the United States Constitution, when “the seriousness of the matter” (United
States v. Ruiz (2002) 536 U.S. 622, 629 (Ruiz) [speaking of the
entry of a guilty plea]) or matters being waived is evident, a criminal
defendant who executes a waiver agreement must do so knowingly, intelligently,
voluntarily, and with sufficient awareness of the relevant circumstances and
likely consequences. Clearly,
“forgo[ing] not only a fair trial, but also accompanying constitutional
guarantees” (id. at pp. 628-629) and agreeing to a sentence nine years
longer than the one originally imposed meets that standard of seriousness. California’s knowing, intelligent, and
voluntary criteria, although not expressly stating the sufficient-awareness
component mentioned in Ruiz, essentially comprise the same
standard. That is, to waive a right or
benefit intelligently requires doing so with sufficient awareness of the
relevant circumstances and likely consequences.

Defendant’s
waiver was valid. The agreement itself
laboriously and carefully described the rights and opportunities that defendant
was waiving and the prospective benefits for which he was waiving them. The benefits included, in addition to
eliminating the perceived risk of an 85-year minimum sentence, a promise that
defendant would not be required to cooperate with the prosecution in any way,
such as—this was stated expressly—by testifying against anyone else in the
case. When defendant spoke personally in
court regarding the agreement, he did so intelligently and perceptively—he
showed acute awareness of the costs and benefits to him of the agreement. Defense counsel assured the court, in writing
and by questioning his client in court, that defendant understood what he was
doing.

IV. The Trial Court Did Not Lack Fundamental Jurisdiction to Resentence
Defendant

Defendant also claims that
the trial court lacked fundamental jurisdiction to resentence him in accordance
with the agreement and, therefore, he is entitled to withdraw from the
agreement, no matter that he waived his right to appeal. He relies on People v. Nguyen (1993)
13 Cal.App.4th 114 (Nguyen), which
held, in a brief statement, that “[t]he parties should reasonably expect
certain issues would not be waived, including acts beyond the court’s
jurisdiction.” (Id. at p. 121.) And he
relies on People v. Roe (1983)
148 Cal.App.3d 112 (Roe), which in his view requires a conclusion that a
court endeavoring to resentence a defendant after the 120-day grace period set
forth in section 1170, subdivision (d) has expired lacks fundamental
jurisdiction to do so.href="#_ftn2" name="_ftnref2" title="">[2]

References to the term jurisdiction have become a capsule
referent to a legal concept whose outlines are blurry. “The term [jurisdiction], used
continuously in a variety of situations, has so many different meanings that no
single statement can be entirely satisfactory as a definition. At best it is possible to give the principal
illustrations of the situations in which it may be applied, and then to
consider whether the present case falls within one of the
classifications.” (>Abelleira v. District Court of Appeal
(1941) 17 Cal.2d 280, 287-288 (Abelleira).)

“ ‘When courts use the
phrase “lack of jurisdiction,” they are usually referring to one of two
different concepts, although, as one court has observed, the distinction
between them is “hazy.”
[Citation.]’ [Citation.] A lack of jurisdiction in its fundamental or
strict sense results in ‘ “an entire absence of power to hear or determine
the case, an absence of authority over the subject matter or the parties.” (Abelleira[,
supra,] 17 Cal.2d 280, 288.) On the other hand, a court may have
jurisdiction in the strict sense but nevertheless lack “ ‘jurisdiction’
(or power) to act except in a particular manner, or to give certain kinds of
relief, or to act without the occurrence of certain procedural
prerequisites.” (Ibid.) When a court fails to
conduct itself in the manner prescribed, it is said to have acted in >excess of jurisdiction.’ (Ibid.;
[citation].)” (People v. Lara (2010) 48 Cal.4th 216, 224-225 (>Lara).)
As summarized in Abelleira,
“ ‘when a statute authorizes prescribed procedure, and the court acts
contrary to the authority thus conferred, it has exceeded its jurisdiction
. . . .’ ” (>Id. at p. 290.)

Conversely, >Abelleira described certain rare
circumstances in which a trial court would lack fundamental jurisdiction—as
noted, this means “an entire absence of power to hear or determine the case, an
absence of authority over the subject matter or the parties.” (Abelleira,
supra, 17 Cal.2d at
p. 288.) “A state court has no
jurisdiction to determine title to land located outside its territorial
borders, for the subject matter is entirely beyond its authority or power. [Citation.]
A court has no jurisdiction to adjudicate upon the marital status of
persons when neither is domiciled within the state. [Citations.]
A court has no jurisdiction to render a personal judgment against one
not personally served with process within its territorial borders
. . . . A court has no
jurisdiction to hear or determine a case where the type of proceeding or the
amount in controversy is beyond the jurisdiction defined for that particular
court by statute or constitutional provision.
[Citation.] Other examples of
lack of jurisdiction in this fundamental sense will readily occur.” (Ibid.)

In other words, fundamental
jurisdiction is lacking when a person, entity, or interests associated with a
piece of property have no place before the court at all. The distinction between lack of fundamental
jurisdiction and acts in excess of jurisdiction “is important because the
remedies are different. ‘[F]undamental
jurisdiction cannot be conferred by waiver, estoppel, or consent. Rather, an act beyond a court’s jurisdiction
in the fundamental sense is null and void’ ab
initio. [Citation.] ‘Therefore, a claim based on a lack of
. . . fundamental jurisdiction[]
may be raised for the first time on appeal.
[Citation.] “In contrast, an act
in excess of jurisdiction is valid until set aside, and parties may be
precluded from setting it aside by such things as waiver, estoppel, or the
passage of time. [Citations.]” [Citations.]’ ” (Lara,
supra, at p. 225.)

The trial court acted within
its authority in this case, neither exceeding its jurisdiction nor acting
despite a lack of subject-matter jurisdiction, because issuance of the
remittitur following the California Supreme Court’s decision in >Porter v. Superior Court, >supra, 47 Cal.4th 125, restored
jurisdiction in the superior court to try defendant on the sentence enhancement
allegations left unresolved following his first trial. “ ‘The filing of a valid notice of
appeal vests jurisdiction of the cause in the appellate court until
determination of the appeal and issuance of the remittitur.’ ” (Alanis,
supra, at p. 1472.) “On receipt of the remittitur from the
reviewing court, the jurisdiction of the superior court is restored to
it.” (People v. Hall (1952) 115 Cal.App.2d 144, 148; see, e.g., >People v. Picklesimer (2010) 48 Cal.4th
330, 337; People v. Dick (1870) 39
Cal. 102, 103-104.) If the court had
jurisdiction to try defendant and thereafter resentence him, it had
jurisdiction to accept a settlement agreement in which he acquiesced to be
resentenced by that dispositional method instead.

Roe, >supra, 148 Cal.App.3d 112, is of no help
to defendant because the trial court in that case purported to recall and
resentence the defendant on its own motion nine months after originally
pronouncing sentence, after it had lost jurisdiction to do so under the
applicable statute. Here, by contrast,
the remittitur that was issued after the California Supreme Court’s decision in
Porter v. Superior Court, >supra, 47 Cal.4th 125, restored
jurisdiction in the trial court to retry defendant on the sentence enhancement
allegations. That leaves the brief
statement in Nguyen that “[t]he
parties should reasonably expect certain issues would not be waived, including
acts beyond the court’s jurisdiction.” (>Id. at p. 121.) But the trial court was vested with
jurisdiction to retry defendant on the two remaining allegations after the
remittitur issued; therefore, Nguyen
is also of no help to defendant.

V. >Defendant Did Not Receive Ineffective Assistance
of Counsel

Defendant claims that his counsel was ineffective,
in violation of the Sixth Amendment to the United States Constitution, for
persuading him to accept the settlement agreement without waiting for the
results of the new round of gunshot residue testing. Because
the trial court excepted any claim of ineffective assistance of counsel from
the scope of the settlement agreement, we must consider defendant’s claim on
appeal even though arguably the agreement’s plain terms would have barred such
a claim.

Under the Sixth Amendment, a criminal defendant has
the right to the effective assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d
171, 215.) “The ultimate purpose of this
right is to protect the defendant’s fundamental href="http://www.fearnotlaw.com/">right to a trial that is both fair in its
conduct and reliable in its result.” (Ibid.) A claim of ineffective assistance of counsel
in violation of the Sixth Amendment entails deficient performance under an
objective standard of professional reasonableness and prejudice under a test of
reasonable probability of an adverse effect on the outcome. (Strickland v. Washington (1984) 466
U.S. 668, 687-688, 694.)

“ ‘ “Reviewing courts defer to counsel’s
reasonable tactical decisions in examining a claim of ineffective assistance of
counsel [citation], and there is a ‘strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.’ ” [Citation.]
“[W]e accord great deference to counsel’s tactical decisions”
[citation], and we have explained that “courts should not second-guess
reasonable, if difficult, tactical decisions in the harsh light of hindsight”
[citation]. “Tactical errors are
generally not deemed reversible, and counsel’s decisionmaking must be evaluated
in the context of the available facts.”
[Citation.]’ ” (People v.
Stanley (2006) 39 Cal.4th 913, 954.)

Here, there was no tactical error at all. It was a reasonable tactical decision for
counsel to recommend that defendant accept a nine-year increase in his
determinate prison sentence and avoid the risk of being convicted of the
unsettled charges on retrial and receiving what defendant and defense counsel
understood could be three life terms with an 85-year minimum sentence. (Defendant does not argue on appeal that this
was a misunderstanding.) As the
prosecutor pointed out during the litigation over the enforceability of the
settlement agreement, and as defense counsel could reasonably have concluded at
the time he endorsed the agreement, even if the new gunshot residue tests
returned results favorable to defendant in principle, they would have no
bearing on the remaining unsettled matters—i.e., whether the attempted murder
was premeditated and deliberate and whether the crimes were committed for the benefit of
a criminal street gang.
Rather, to the extent they had any significance at all, they impacted
charges that were no longer at issue.

Counsel could also reasonably tell his client that
he was already guaranteed 25 years in prison, that the settlement agreement
would add only nine more years to that term, that at the end of the 34 years
(adjusted for any available credits) defendant would be released, and that if
defendant did not accede to the agreement, he might spend the rest of his life
prison. Until defendant accepted the
agreement, there could be no guaranty that the prosecution would keep it
open. Defendant and his counsel might
have waited for the gunshot residue results only to find out that the
prosecution wished to proceed with a retrial on the remaining allegations. “Strickland . . . permits
counsel to ‘make a reasonable decision that makes particular investigations
unnecessary.’ ” (Harrington v.
Richter (2011) __ U.S. __, __ [131 S.Ct. 770, 778].) On this record, this is what counsel
did. There was no deficient performance
and, accordingly, no ineffective assistance of counsel. Furthermore, defendant and href="http://www.fearnotlaw.com/">defense counsel knew that certain
retesting for gunshot residue had not been completed when defendant agreed to
the settlement agreement.

We reach this conclusion notwithstanding defense
counsel’s statement, in the reply document in defendant’s motion to withdraw
from the settlement agreement, that his client “has a legitimate claim of
ineffective assistance of counsel for current defense counsel’s failure to
advise him not to sign the agreement . . . until we could complete
the gunshot residue retest . . . .” As a general rule, “ ‘[s]elf-proclaimed
inadequacies on the part of trial counsel in aid of a client . . .
are not persuasive.’ ” (In re
Burton (2006) 40 Cal.4th 205, 223.)
There may be exceptions, of course, depending on the circumstances of a
case, but in this case, and for the reasons stated, no such exception appears.

VI. >Other Claims

Defendant’s
remaining claims—that the trial court abused its discretion when it denied his
motion to withdraw from the settlement agreement and erred by failing to advise
him about a parole requirement following the completion of his commitment to
prison—are barred by the terms of the settlement agreement and, with respect to
them, the appeal must be dismissed.

>



DISPOSITION

With regard to the claims on
appeal that defendant did not enter into his waiver agreement knowingly, intelligently,
and voluntarily, and that he received ineffective assistance of counsel, the
judgment is affirmed. With regard to all
other claims, the appeal is dismissed.











_______________________________

Márquez,
J.







WE CONCUR:









______________________________

Elia, Acting P. J.











______________________________

Bamattre-Manoukian,
J.