P. v. Odom

Filed 4/3/07 P. v. Odom CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Keith Howard Odom pleaded no contest to six counts of second degree burglary, two counts of attempted second degree burglary, one count of petty theft with a prior conviction, and one count of possession of a controlled substance. (Pen. Code,  459-460, 664-459, 666, Health & Saf. Code,  11377.) He also admitted one prior strike conviction and four prison prior convictions. (Pen. Code,  1170.12, 667, subds. (b)-(i), 667.5, subd. (b).) Appellant entered his no contest pleas in exchange for a sentence of 20 years in state prison. At sentencing, he was sentenced to 20 years in state prison and ordered to pay victim restitution as set forth in the probation report. The total amount of restitution ordered was $42,090.00.

Appellant contends that he "must be permitted to withdraw his plea because $42,000 worth of victim restitution fines were not a part of his plea agreement and because he was misadvised as to the consequences of his plea." We affirm.

Background

Appellant was charged in two cases with a total of 25 counts of burglary, attempted burglary, petty theft with a prior conviction, and possession of methamphetamine. He was further charged with excessive taking enhancements as to some counts, a prior strike conviction, and four prison prior convictions. In a series of conversations with law enforcement personnel, appellant admitted to certain burglaries and thefts. Some stolen property was seized from appellant's apartment and a storage locker. The victims of appellant's crimes included Prospect High School, Capri Elementary School, Dot Com Depot, American Cryogenics, The Antique Market, Dough-To-Go Bakery, the Lucky Stars Tattoo Parlor, and Golden State Ice Cream. At the preliminary examination, the prosecutor introduced evidence to support the excessive taking enhancements that the aggregate loss to victims of appellant's burglaries was $111,000.

On February 25, 2005, the trial court stated that there had been a disposition of both of appellant's cases. The court stated its understanding of the disposition as to one of the cases as follows: "I believe that the defendant is prepared to plead guilty or no contest to counts 1 through 6 and admit all allegations alleged in connection with that charging document. [] The understanding is the remaining counts in that case will be dismissed, although the Court can consider the circumstances surrounding those events that led to the dismissed charges when imposing the appropriate sentence." The court said that as to appellant's second case, "The defendant will be entering a guilty or no contest pleas to all charges and admitting all charges. The understanding is that when he is sentenced he will be sentenced to state prison for 20 years."

The court described for appellant the consequences of his pleas. Included in this advisement were these statements: "Additionally, you should know that you could be ordered to make restitution for losses suffered by any of the victims in this case, if there were losses. And under the terms of resolution of the case that includes victims of charges that will be dismissed. [] You can be ordered to contribute as much as $10,000 to the state restitution fund, with a required minimum contribution of $200." After describing further consequences of appellant's plea, the court asked appellant if he "underst[ood] all of the consequences which I just explained to you?" Appellant said, "I believe I had a question I might ask my lawyer." The court gave appellant a moment to have an off-the-record discussion with his counsel after which appellant confirmed that his counsel had answered his question and that appellant understood all of the consequences that had just been explained to him. The court did not advise appellant of the circumstances under which he would be permitted to withdraw his plea.

The probation report said that correspondence had been sent to the victims requesting information about financial losses and the report detailed the amount of loss each victim had reported, including the cost of repairs to and the replacement of fixtures damaged in the burglaries. The report said that appellant was given a statement of assets form to complete and bring to court at the time of sentencing. The recommendation of the probation officer included the amount of direct restitution to be ordered for each victim, the imposition of restitution fines under the formula of Penal Code section 1202.4, subdivision (b), and a recommendation that the court order "The Director of the Department of Corrections is directed to collect this restitution from the defendant's earnings in prison or while on parole." Attached to the probation report were various documents substantiating the victims' claims for restitution.

At the time of sentencing, defense counsel asked the court to adjust the credits to be awarded so that appellant could receive credit on both cases. Defense counsel also asked the trial court to request that appellant serve his sentence at a prison near to where appellant's mother lived. Appellant made a public statement of apology to his mother for "all the trouble" he had been. The trial court sentenced appellant to 20 years in prison and ordered direct restitution to six different victims for various amounts. The total amount of restitution ordered was $42,090.00. The court said, "Because of restitution owed to identifiable victims, I will not impose a State Restitution Fund fine."

Appellant obtained a certificate of probable cause and this appeal followed.[1]

Discussion

The Advisement

Appellant contends that he should be allowed to withdraw his plea because the trial court did not adequately inform him of the consequences of his plea.

"[B]efore taking a guilty plea the trial court must admonish the defendant of both the constitutional rights that are being waived and the direct consequences of the plea. [Citations.]" (People v.Walker (1991) 54 Cal.3d 1013, 1022.) Penal Code section 1202.4, subdivision (a)(1) provides that "a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime." This restitution is mandatory. "[I]n every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims . . . . The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record." ( 1202.4, subd. (f), 1202.4, subd. (g).)

Appellant contends that because "The court did not tell appellant the California Constitution makes such fines mandatory and did not inform appellant that the amount of these fines cannot be determined until after entry of the plea and after preparation of the probation report" that his plea advisement was inadequate. Appellant argues, "Where direct victim restitution is concerned, because the trial court cannot determine a maximum direct victim restitution fine at the plea stage, to be legally adequate, a direct victim fine admonition must put the defendant on notice that the court cannot provide a maximum direct victim restitution fine when his plea is entered. Thus, a legally adequate admonition puts a defendant on notice that by pleading guilty, he is writing a blank check to those eligible for direct victim restitution."

We disagree that a proper admonition concerning direct victim restitution needs to include an admonition that the defendant is writing a "blank check." Unlike advisements concerning statutory fines and fees, the nature and amounts of which the court will know at the time of the plea but about which a defendant might be unaware, a defendant may be in a better position than the trial court to understand the losses his victims have suffered as a result of his conduct. This is particularly true in this case, in which the restitution was, for the most part, for property that appellant had stolen and for structural damage that occurred during the burglaries.

The trial court advised appellant, "you should know that you could be ordered to make restitution for losses suffered by any of the victims in this case, if there were losses. And under the terms of resolution of the case that includes victims of charges that will be dismissed."[2] It is true that this advisement did not explain that restitution for victims named in the counts to which appellant was pleading no contest would be mandatory. However, the restitution to victims in the dismissed counts was not statutorily compelled and it was their losses that made up the lion's share of the restitution that was ordered. The advisement informed appellant that as a direct consequence of his plea he could be ordered to pay restitution to the victims of all of the crimes that had been charged and put appellant on notice, by the use of the phrase "if there were losses," that the amount of restitution had not yet been determined but that that amount was tied to the victims' losses. This stands in contrast with the part of the advisement concerning the restitution fines, which identified the minimum and maximum amounts. Under the circumstances of this case, the advisement sufficed to put appellant on notice as to the restitution consequences of his plea.

The Plea Agreement

Appellant contends that he "should be allowed to withdraw his plea because $42,000 worth of fines significantly exceeded the terms of the negotiated plea." He relies on Walker.

The Walker case addressed the issue of whether the plea agreement has been violated when a restitution fine is imposed. "When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agreed upon." (People v. Walker, supra, 54 Cal.3d at p. 1024.) Where, as here, a defendant has not received the admonition pursuant to Penal Code section 1192.5, a defendant's failure to affirmatively request a change of plea should not be deemed a waiver of his or her right to do so. [3] When the defendant is not advised of his or rights pursuant to section 1192.5, he or she cannot be held to have waived them. A violation of the plea bargain is not subject to harmless error analysis. (Id. at pp. 1025-1026.)

In People v.Dickerson (2004) 122 Cal.app.4th 1374, this court concluded that given all of the relevant circumstances surrounding the guilty plea in that case, it did not reasonably appear that the parties had included imposition of fines in their plea negotiations; and consequently, the setting of the fines had been left to the court's discretion. The fact that the court did not mention the restitution fine when reciting the plea bargain suggested that, unlike in Walker, no agreement had been reached on the imposition or amount of any restitution fines. Additional facts in Dickerson further confirmed that "nobody in the trial court seemed to think that the imposition of restitution fines totaling $6,800 violated the terms of the bargain." (Dickerson, supra, 122 Cal.App.4th at p. 1385 .) This court also held in People v. Knox (2004) 123 Cal.App.4th 1453, that the question whether a restitution fine exceeded the scope of a plea bargain comes down to this core inquiry: Was the imposition or amount of the restitution fine actually negotiated and made a part of the plea agreement, or was the imposition and range of the fine within the defendant's contemplation and knowledge when he entered his plea with the specific amount left to the discretion of the court? (Id. at p. 1460.)

Thus, a review of appellant's claim that the imposition of $42,000 in direct victim restitution violated the terms of his plea bargain begins with ascertaining the terms of the plea agreement. Here, appellant distinguishes his case from Dickerson because in Dickerson the defendant was aware of the maximum fine. Appellant argues, "However in the instant case, the trial court did not inform appellant that his maximum fine under section 1202.4, subdivision (f) could not be determined at the time of his plea. Based on this record, one cannot say that respondent [sic] understood $42,000 worth of victim restitution to be a mandatory consequence of his plea."

Consistent with Dickerson, we think that the reference to the amount of the victims' losses, without specifying a maximum or minimum, in contrast to the inclusion of those parameters in specifying the prison term and the restitution fine consequences, signified that the parties reached no agreement on the amount of direct restitution. " '[I]t would appear that [the amount of direct restitution] was not a part of the plea agreement.' ([In re] Moser [(1993)] 6 Cal.4th 342, 356.)" (Dickerson, supra, 122 Cal.App.4th at p. 1385.) The omission of a term concerning the amount of direct restitution cannot convert it "into a term of the parties' plea agreement." (People v.McClellan (1993) 6 Cal.4th 367, 379.) Therefore, the fact that the parties and the court did not, and could not, specify the amount of direct restitution in reciting the plea agreement cannot be construed to imply that, like in Walker, there was an agreement that the sentence would consist of no direct restitution or some lesser amount than what was claimed by the named victims and those in the dismissed counts. Instead, the transcript of the plea agreement suggests that the parties understood that the amount of the direct restitution would be based on a determination of the victims' losses.

As we held in Dickerson, a "defendant cannot establish that a later imposed fine violated his or her plea agreement without evidence that the agreement was for no fine or for a minimum fine within a statutory range." (People v. Sorenson (2005) 125 Cal.App.4th 612, 619.) Here, at the time of the plea, the court advised appellant that he could be ordered to pay a restitution fine of between $200 and $10,000. The court advised appellant that he could be ordered to pay direct victim restitution. At that point, the sentence had been agreed upon as a top and bottom of 20 years. Other than the calculation of custody credits, there was very little purpose to be served in referring this case, in which the sentence was a fixed prison term, to the probation department, unless it was to determine the amount of restitution to the victims. Likewise, there was no purpose in including the terms of the plea agreement for a fixed prison sentence the statement that the court could consider "the circumstances surrounding those events that led to the dismissed charges when imposing the appropriate sentence" unless it was for the purpose of determining the amount of victim restitution. These aspects of the plea agreement persuade us that appellant was aware the matter of the amount of victim restitution was still to be resolved and that the amount depended on the victims' losses. There is certainly no evidence here that the agreement was for direct victim restitution in some lesser amount than that mandated by law.

We find further support for this conclusion in the record of the post-plea proceedings. Although the probation report included a detailed account of the amount of restitution it was recommending that the court order for each victim, and both trial counsel and appellant addressed the court at the time of sentencing, neither took exception to this aspect of the report.

Appellant contends that he "received ineffective assistance of counsel because counsel failed to object to the prejudicially inadequate admonishment." Appellant argues that counsel was ineffective because he "[made] no objection to the fines admonishment which did not inform appellant that victim restitution fines are mandatory and the maximum amount had yet to be determined."

Plea bargaining and pleading are critical stages in the criminal process at which a defendant is entitled, under both the Sixth Amendment to the federal Constitution and article I, section 15 of the California Constitution, to the effective assistance of legal counsel. (In re Alvernaz (1992) 2 Cal.4th 924, 933.) To establish ineffective assistance of counsel under either the federal or state guarantee, a defendant must show that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsel's deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel's failings, the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052].)

In the context of a no contest plea, a defendant must establish not only incompetent performance by counsel, but also a reasonable probability that, but for counsel's incompetence, the defendant would not have pleaded no contest and would have insisted on proceeding to trial. (In re Alvernaz, supra, 2 Cal.4th at p. 934.) As the court in In re Vargas (2000) 83 Cal.App.4th 1125, explained: "[W]hen defendants claim they received ineffective assistance of counsel at the plea bargain stage, they must show that had they received effective representation, they would not have accepted the offer. [Citations.] A defendant's statement to that effect is not sufficient. Rather, there must be some objective showing. [Citation.]" (Id. at p. 1140.)

Here, as explained above, we do not consider the advisement given by the trial court to have been inadequate. Thus, reasonably effective counsel would not have objected to it. On the issue of prejudice, appellant argues that he "would not have agreed to a term of 20 years if he [had] been told his plea would have $42,000 worth of mandatory, direct victim restitution as a consequence." Appellant claims that he "would have bargained for a shorter prison term, a logical position for someone who needs to find employment and pay large direct victim restitution fines." Appellant's argument places him in the driver's seat during these plea negotiations. We do not find support for this in the record. It appears that appellant's exposure was much greater than 20 years in prison. Given his admissions to the authorities and the recovery of stolen property from his apartment and storage locker, there was very little chance of a more favorable result by taking this case to trial. All that was in appellant's favor was his willingness to admit wrongdoing. This record does not support the claim that appellant would have rejected

the offer of a 20-year fixed term because he wanted to avoid being ordered to pay a large amount of direct victim restitution.[4]

Disposition

The judgment is affirmed.

______________________________

ELIA, J.

WE CONCUR:

_____________________________

RUSHING, P. J.

_____________________________

PREMO, J.

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[1] This case began in this court as an appeal pursuant to People v. Wende (1979) 25 Cal.App.2d 436, because the trial court denied appellant's request for a certificate of probable cause. This court denied a petition for a writ of mandate and prohibition seeking issuance of a certificate of probable cause. The California Supreme Court granted appellant's petition for review with directions to this court to issue an alternative writ. This court issued an alternative writ, the trial court issued a certificate of probable cause, and the matter was then briefed.

[2] Respondent refers to this statement as "an explicit waiver of any rights under People v. Harvey (1979) 25 Cal.3d 754, to ensure specifically the sentencing court's ability to rely on all facts underlying dismissed counts to calculate the restitution award." In reply, appellant argues, "Query how a Harvey waiver can be 'explicit' without the words 'Harvey,' 'waiver,' and 'I agree,' being present at the taking of a plea and amenable to citation on appeal." Harvey prohibits the negative consideration at sentencing of dismissed charges. A Harvey waiver thus permits the sentencing court to consider the facts of a dismissed count in determining the appropriate disposition, including restitution. (People v. Ozkan (2004) 124 Cal.App.4th 1072, 1078; People v. Moser (1996) 50 Cal.App.4th 130, 132-133.) By informing appellant that the trial court could consider the dismissed counts at the time of sentencing, the court told appellant what a Harvey waiver means and appellant told the court that he understood what the court had said in its advisement.

[3] Penal Code section 1192.5 provides in pertinent part: "If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so."

[4] The Supreme Court has repeatedly emphasized that a claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)