Filed 9/8/17 P. v. Haley CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. TODD MICHAEL HALEY, Defendant and Appellant.

H044029 (Monterey County Super. Ct. No. SS120702A)

In 2013, defendant Todd Michael Haley pleaded no contest to two counts of second degree robbery (Pen. Code § 211)[1] and admitted a prior serious/violent felony conviction (§ 1170.12, subd. (c)(1)). As called for by the plea agreement, the Monterey County Superior Court sentenced defendant to 12 years in state prison, to be served concurrently with a six-year sentence in Santa Clara County case No. C1113668. Nearly three years later, defendant filed an “Objection to the Sentence,” by which he sought to challenge his sentence in the trial court on ineffective assistance of counsel grounds. Defendant appeals from the trial court order denying that objection.

Defendant’s counsel filed an opening brief in which no issues are raised and asked this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). We notified defendant of his right to submit a written argument on his own behalf. In response, he requested that the appeal be dismissed.

I. Factual Background[2]

At approximately 2:30 p.m. on July 18, 2011, a white man in his forties handed a teller at the Santa Barbara Bank and Trust in Monterey a note reading “BANK ROBBERY.” When she asked if he was serious, he responded that he was “sorry.” She gave him approximately $4,400 in cash and a dye pack.

Outside the bank, an eyewitness saw the dye pack explode. He watched the man who had been carrying the dye pack change clothes and get on a bike. The eyewitness followed the man to a McDonald’s, and then returned to the vicinity of the bank to report what he had seen to police.

In the area where the eyewitness reported seeing the suspect change clothes, officers recovered money with red dye on it and a plastic toy gun. Police viewed surveillance video at the McDonald’s, which showed a white male wearing a black t-shirt and black pants and carrying a white bag walk in the direction of a garbage can. The man exited the video frame and when he reentered the frame he no long had the bag. Police search the McDonald’s trash cans and dumpsters and found a pair of men’s athletic shoes, one of which had a red dye stain on it.

Within an hour of the Santa Barbara Bank and Trust robbery, a robbery occurred at a Bank of America in Sand City, a few miles from the McDonald’s. The robber was a white male in his forties wearing a yellow Cal hat, black pants, and a black shirt. He told the teller he was “sorry to do this to you” and handed her a note indicating it was a robbery.

On March 19, 2012, officers learned that DNA recovered from the plastic gun matched defendant. Officers compared a booking photo of defendant to surveillance video images from the two banks and the McDonald’s and believed he was the robber. At the time, defendant was in custody at the Santa Clara County jail.

II. Procedural Background

Defendant was separately charged with committing a third bank robbery in Santa Clara County case No. C1113668. In that case, he pleaded no contest to robbery and admitted a prior strike conviction on May 24, 2012. (People v. Haley (June 26, 2013, H038928) [nonpub. opn.].) Pursuant to the plea bargain, the court sentenced him to six years in prison on September 18, 2012.

Following an April 26, 2013 preliminary hearing in this case, the Monterey County District Attorney charged defendant by information with two counts of second degree robbery (§ 211). The information also alleged that defendant had suffered a previous serious and/or violent conviction for robbery (§ 1170.12, subd. (c)(1)).

Defendant requested a new attorney on November 13, 2013. The trial court treated the request as a Marsden[3] motion, held a closed session hearing, and denied the motion, finding no mutual breakdown in the relationship between defendant and his court appointed attorney.

Also on November 13, 2013, defendant pleaded no contest to both counts of second degree robbery. He also admitted the allegation that he had a prior violent or serious felony conviction within the meaning of section 1170.12, subdivision (c)(1). In his plea agreement, defendant initialed beside the following statements: “I understand that the maximum sentence of imprisonment in state prison I could receive is: 12 years”; “I will receive a stipulated sentence of 12 years in prison/county jail (§ 1170(h))”; and “In Santa Clara case no. C1113668, defendant to receive concurrent 6 year sentence . . . .”

The court sentenced defendant on November 22, 2013 to the upper term of five years on count 1, doubled by the strike pursuant to section 1170.12, subdivision (c)(1), and one year on count 2 (one-third the middle term of three years), doubled by the strike pursuant to section 1170.12, subdivision (c)(1). The court ordered that count 2 run consecutive to count 1 and that the sentence be concurrent with the sentence defendant already was serving in Santa Clara case No. C1113668. In sum, the court imposed a state prison term of 12 years to run concurrent to the six-year Santa Clara sentence, as called for by the plea agreement.

Defendant also was ordered to pay a restitution fine of $560 (§ 1202.4, subd. (b)); a parole revocation restitution fine of $560, which was suspended (§ 1202.45); a court operations assessment of $80 (§ 1465.8, subd. (a)(1)); a court facilities assessment of $60 (Govt. Code, §70373); a crime prevention fund fine of $41 (§ 1202.5); and victim restitution of $2,141 to Bank of America and $3,928 to Santa Barbara Bank (§ 1202.4, subd. (f)).

Defendant moved to correct his sentence on June 23, 2014, arguing that the court had erred by ordering his sentence in this case to run concurrent to his sentence in the Santa Clara County case. In his view, section 667, subdivision (c)(7) required the court to order the sentences to run consecutively. And, given the consecutive sentences, section 1170.1, subdivision (a), required the court to sentence him to just one-third of the middle term, doubled, on both the Monterey County offenses, for a total term of four years. Defendant argued that his sentence was unauthorized and subject to correction at any time under People v. Scott (1994) 9 Cal.4th 331, 354. The trial court denied that motion as untimely, citing section 1170, subdivision (d), on March 26, 2015.

Defendant filed a petition for writ of habeas corpus on July 15, 2016 (H043732). In it, he reiterated his unauthorized sentence argument—that his Monterey County convictions must run consecutively to any sentence previously imposed and must be one‑third the midterm for each count. Defendant also asserted that trial counsel was ineffective for allowing him to accept a plea deal that called for an unauthorized sentence. This court summarily denied the petition on July 25, 2016.

On August 22, 2016, defendant filed a document in the trial court captioned: “Objection to the Sentence; Grounds: Sixth Amendment Violation Ineffective Assistance of Counsel; Marsden Motion at the Time of Sentencing.” He argued that defense counsel was ineffective with respect to the plea bargain because defendant received the maximum sentence and because the sentence was unauthorized under section 1170.1, subdivision (a). The trial court issued an order denying that objection on August 25, 2016, reasoning that an ineffective assistance of counsel claim must be raised by direct appeal or petition for writ of habeas corpus. On October 3, 2016, defendant timely appealed from that order. His request for certificate of probable cause was denied on October 5, 2016.

On March 8, 2017, defendant’s appointed appellate counsel filed a Wende brief. That same day, we sent defendant a letter advising him of his right to personally submit any argument that he wished us to consider within 30 days. We granted defendant several extensions of time to file a supplemental brief, as he represented that ongoing proceedings in the trial court might impact his appeal. On August 17, 2017, defendant informed this court that the trial court had corrected his sentence and requested that his appeal be dismissed.

III. Disposition

The appeal is dismissed pursuant to defendant’s request filed on August 17, 2017.

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