Filed 1/30/18 P. v. Williams CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Jarrett James Williams appeals from a final judgment entered after her pleas of guilty[1] to four counts of first degree burglary (Pen. Code, §§ 459/460, subd. (a)),[2] and a single count of second degree burglary (§§ 459/460 subd. (b)), and admission of a prior strike conviction (§§ 1170.12, 667). Her court-appointed counsel has filed a brief raising no legal issues and asking this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Appellant has been informed of her right to file supplemental briefing and she has not done so.

FACTS AND PROCEEDINGS BELOW

During a three-week period in June and July 2016, appellant engaged in a series of burglaries of residences in Ukiah and business premises in Covelo. Appellant ransacked the residences from which she stole jewelry, heirlooms, and numerous other items.[3] Appellant was apprehended by the police after she was identified by videotape from a surveillance video at one of the residences.

On January 31, 2017, the Mendocino County District Attorney filed a seven-count complaint charging appellant with as many residential burglaries. After appellant waived time, the complaint was amended and appellant was arraigned on May 16, 2017. Also on May 16, the district attorney filed a first amended complaint in this case alleging eight felony counts: seven residential burglaries (§§ 459/460, subd. (a)), all felonies, and one burglary in the second degree of a commercial building. (§§ 459/460, subd. (b).) The amended complaint also alleged eight enhancements for prior offenses (§ 667.5, subd. (b)), and a prior prison term (§ 1170.12). At appellant’s arraignment, which also took place on May 16, counsel for the parties asked the court to consolidate the amended complaint with a prior case (case No. 16-85979), which also charged first degree burglaries, but which the district attorney told the court he would later move to dismiss. Appellant acknowledged receipt of the amended complaint, waived formal arraignment and judicial advisements pertinent thereto, waived “any irregularity,” entered a not guilty plea, and denied “any and all special allegations.”

The district attorney then advised the court that he and defense counsel were in the process of negotiating a disposition and “by stipulation we’re both asking the court at this time to vacate the prelim that’s set for [May 23] and have [the case] on for plea or reset on that date.” Defense counsel concurred in the request and entered the requisite time waiver. After appellant stated that she understood she was giving up her right to a preliminary hearing within 10 court days and 60 calendar days, the court vacated the preliminary hearing set for May 23 in consolidated case No. 85979 “into [case No.] 88879, so that the former case “can be dropped or dismissed.” The court noted that a third case, No. 86348 “can continue to trial, it’s a misdemeanor.”

At the “pre-preliminary hearing” held on June 14, 2017, defense counsel provided the court a written “Tahl waiver” signed by her and the district attorney and advised the court about the terms of the proposed plea agreement. Appellant entered guilty pleas to four counts of first degree residential burglary (counts 2, 4, 5, and 8) and one count of second degree burglary of commercial premises (count 7), and admitted a strike conviction in a prior Sonoma County case (§§ 1170.12, 667). The waiver form indicated that appellant’s maximum exposure on the current charges was 21 years, three months. Under the plea agreements, all other charges and all of the prior prison term enhancements were dismissed.

Defense counsel also advised the court that appellant “is currently serving a prison sentence in San Quentin for two Lake County cases.” (Case Nos. CR-943626 & CR-942154.) “So at judgment and sentencing this will be a resentencing.” When asked by the court whether the parties had agreed about sentencing, the district attorney responded that “This case is a stipulated sentence. But how it’s impacted by the resentencing is yet to be determined.” The district attorney stated a factual basis for the pleas, with which defense counsel concurred. The court inquired of appellant as to her understanding of the written waiver form she completed and signed and, specifically, whether she understood that her maximum period of confinement on the admitted charges was 21 years 3 months, and the nature of the rights she was giving up, as explained on the form and by her attorney, and that she was not going to have a trial, and appellant indicated that she did fully understand those things. At that point the following colloquy took place:

“THE COURT: And do you understand that based on the counts you were pleading guilty to the maximum confinement time is 21 years and three months?

“THE DEFENDANT: Yes.

“THE COURT: And do you understand there is a stipulation that you would serve 12 years in state prison for the offenses? [¶] Now if at the time of sentencing the sentencing judge reviews the probation report and determines that you should serve more time than the agreed-upon stipulation—sentence, you’d be allowed to withdraw your plea at that time. [¶] Do you understand?

“THE DEFENDANT: Yes.

“MR. MCMENOMEY [district attorney]: I hate to interrupt, but did you say 12 years stipulated? It’s 21 years, three months . . . .

“THE COURT: I thought you guys stipulated to the 12 years.

“MR. MCMENOMEY: No.” (Italics added.)

When the court pointed out that that the plea agreement form said “12 years,” the public defender stated that that “that’s predicated on the fact that this will be resentenced, your Honor.” The district attorney then declared “I’m not accepting this plea based on that assumption. So it’s 21 years. Three months. That’s what the defendant needs to know going into this.” The public defender thereupon agreed to amend the written plea agreement and it was amended to indicate that appellant understood that “the court will sentence me as follows: . . . 21 years, 3 mos.” And the handwritten change made by counsel was initialed by appellant after reviewing its terms and discussing them with counsel, who also signed the agreement.

In the portion of the plea form and waiver of rights entitled “Charges and Maximum Term,” defense counsel wrote in that the total maximum times for each of the 5 counts that were not dismissed was 12 years (or 144 months) for count 2, 32 months each for counts 4, 5, and 8, and 16 months for count 7. The original figure aggregating all of these time periods was written in but then erased or whited out and replaced with the handwritten figure of “21y, 3m.” That tally was erroneous. The total number of months was 144 for count 2, plus 112 months for the remaining counts, which adds up to 256 months, or 21 years and 4 months.

At the sentencing hearing on July 7, 2017, which was presided over by a different superior court judge, the court relied heavily on the probation report. As material, the report stated that “n exchange for the defendant’s plea, [counts 1, 3, and 6]” were dismissed with a [i]Harvey Waiver, and special allegations 1 through 7 were dismissed. Correctly adding up the maximum terms for the 5 counts of the Mendocino County complaint that were not dismissed, the probation report stated that “[t]he defendant stipulated to the aggravated term of 21 years, 4 months in the California Department of Corrections and Rehabilitation.” (Italics added.)

Focusing on this statement, the trial observed at the commencement of the sentencing hearing that there “is a stipulated sentence in this case and I’m going to follow the stipulation.”

With respect to the Mendocino case, the court imposed sentence as follows:

“As to count 2, that will be the aggravated term and principle of six years;

“Count 4, the midterm which would be 16 months;

“Count 5, the midterm which would be 16 months;

“Count 7, the midterm which would be 8 months;

“and count 8, one-third the midterm: 16 months.”

The court ordered the subordinate terms to run consecutively and that all terms be doubled pursuant to the strike allegation. (§§ 1170.12, 667.)

In sum, the court stated, “the total confinement time [for the undismissed Mendocino charges] will be 21 years 4 months,” which is one month longer than the “aggregate maximum time of imprisonment” set forth in the plea agreement. The court also allowed total credits of 172 days.

Due to counsel’s computational error in the plea form and waiver of rights, the 21 years and 4 months imposed by the sentencing court is one month longer than the “aggregate maximum time of imprisonment” designated in the plea agreement.

With respect to the Lake County cases, in case No. CR943626, the court imposed the one-third midterm sentence of 16 months on the first degree burglary conviction, doubled to 32 months due to the strike prior, to run consecutive to the Mendocino County term. The term on Lake County case No. CR942154 was ordered to run concurrent to the Mendocino County term.

The total on the Mendocino and consecutive Lake County terms resulted in a 24-year prison term. Credits were awarded and fines and mandatory fees imposed.

The district attorney told the court appellant was prepared to stipulate to the amount of restitution owed the victims, and appellant, through her attorney, agreed and waived her presence at any additional future hearings regarding such restitution. The court then imposed victim restitution in excess of $135,000 for four families or individuals and one commercial business, and reserved the amount owing an additional victim.

After her request for a certificate of probable cause was denied, appellant filed a timely notice of appeal.

DISCUSSION

The scope of reviewable issues on appeal after a plea of guilty or no contest is restricted to matters based on constitutional, jurisdictional, or other grounds going to the legality of the proceedings leading to the plea; guilt or innocence is not included. (People v. De Vaughn (1977) 18 Cal.3d 889, 895-896.)

Preliminarily, the minor discrepancy between the maximum aggregate sentence described in the plea agreement (21 years and 3 months) and the prison term actually imposed (21 years and 4 months), is not indicative of prejudicial error or ineffective assistance of counsel. First of all, the discrepancy is obviously the result only of an inadvertent arithmetical mistake. Furthermore, defense counsel never objected to the corrected amount set forth in the probation report, or to the sentencing judge’s determination that the parties had stipulated to the correct term. Finally, appellant did not seek to appeal from the term imposed by the court. Appellant’s request for a certificate of probable cause, which is attached to her notice of appeal, was not based on the discrepancy between the term designated in the plea agreement and the term imposed on her. It is instead based on the assertion “that the plea in this matter was not intelligent, knowing, or voluntary.”

The admonitions appellant received before she entered her plea conformed to the requirements of Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122, and the plea form and waiver of rights she signed, and the court’s inquiries of appellant at the time she entered her plea indicate she understood the rights she was giving up and the consequences of the plea, and that appellant entered her plea freely and voluntarily.

There is a factual basis for the plea. There is no reason to question appellant’s mental competence to participate in the proceedings and enter her plea. Appellant was at all times represented by competent counsel who guarded her rights and interests. The sentence imposed is authorized by law.

Our independent review having found no arguable issues that require briefing, the judgment of conviction is affirmed.

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Kline, P.J.

We concur:

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Stewart, J.

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Miller, J.