P. v. Jones

Filed 10/17/07 P. v. Jones CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Placer)

----

Defendant entered a negotiated plea of no contest to stalking (Pen. Code, 646.9, subd. (a); unspecified section references that follow are to the Penal Code), dissuading a witness ( 136.1, subd. (b)(1)) and battery against a person with whom defendant had a dating relationship ( 243, subd. (e)(1)). He was sentenced pursuant to the plea to an aggregate state prison term of three years four months.

Defendant appeals, contending his conviction must be reversed because he was unrepresented at a critical stage of the proceeding in violation of the Sixth Amendment to the United States Constitution. We find no constitutional violation and affirm the judgment.

Facts and Proceedings

On July 3, 2005, defendant entered the residence of P.N., defendants former girlfriend, without her permission, and found her in bed with a friend. P.N.s erstwhile friend left and defendant began slapping P.N. in the head and grabbing her by the hair. P.N. attempted to leave the residence, but defendant prevented her from doing so, by throwing her onto a chair. Defendant spat at P.N., and beat her head against the furniture. Defendant eventually left.

Police officers later arrived at P.N.s residence and found her frightened, with bruising on her limbs and torso. P.N. reported that defendant had been stalking her for about six months since their relationship ended.

After the incident, defendant continued to harass P.N. by making threatening phone calls about five times per day. On July 7, 2005, P.N. reported the harassing phone calls to the police.

On January 20, 2006, P.N.s 13-year-old son discovered defendant inside of the residence, again without permission. After being repeatedly told to leave, defendant finally did so.

Defendant was charged with the following: stalking ( 646.9, subd. (a)); residential burglary ( 459); false imprisonment ( 236); dissuading a witness ( 136.1, subd. (b)(1)); domestic battery ( 243, subd. (e)(1)); felony criminal threats ( 422); and residential burglary ( 459).

On May 15, 2006, defendant entered a negotiated plea of no contest to the stalking, dissuading a witness, and domestic battery charges, with a sentencing lid of three years eight months. The remaining charges were dismissed with a People v. Harvey (1979) 25 Cal.3d 754 waiver.

On August 24, 2006, the date set for sentencing, defense counsel advised the court that defendant wished to withdraw his plea, and asked to be relieved as counsel. The court permitted defense counsel to withdraw and appointed the public defender to represent defendant. Defendant thereafter filed a motion to withdraw his plea. The court denied the motion.

On October 5, 2006, defendant was sentenced as previously indicated.

Discussion

Defendant contends his constitutional right to counsel was violated, when, on August 24, 2006, in the absence of defense counsel, he was offered and rejected a plea deal. Defendant argues plea bargaining is a critical stage of criminal proceedings for which he is entitled to counsel. We conclude there was no plea bargaining on August 24 in the absence of defense counsel.

Under both the California and federal Constitutions, a criminal defendant has the right to counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, 15; Gideon v. Wainwright (1963) 372 U.S. 335, 339-345 [9 L.Ed.2d 799, 802-806]; People v. Koontz (2002) 27 Cal.4th 1041, 1069.) This right applies to all critical stages of a criminal proceeding. (Koontz, supra, at p. 1069; see also Mempa v. Rhay (1967) 389 U.S. 128, 134 [19 L.Ed.2d 336, 340].) Moreover, [a] complete denial of counsel at a critical stage of the proceedings . . . gives rise to a presumption that the trial was unfair. (People v. Benavides (2005) 35 Cal.4th 69, 86.) It is well recognized that both the plea bargaining and the sentencing stages of a criminal proceeding are critical stages in the criminal process during which defendant has a right to counsel. (In re Alvernaz (1992) 2 Cal.4th 924, 933-934; People v. Dial (2004) 123 Cal.App.4th 1116, 1122.)

On August 24, 2006, the date set for sentencing, defense counsel informed the court that defendant had rejected the latest offer, and that he wished to be relieved so that defendant might pursue a motion to withdraw his plea. The court thereafter relieved defense counsel and appointed the public defender to represent defendant. However, the public defender was not present in court at the time. The following colloquy then ensued:

THE COURT: Well see you August 31, and that will be at 1:30. Now, lastly Mr. Jones, just so were very clear on the record, based on what you had previously entered a plea to I was--if I sent you to CDC it was--pretty much the least amount was 3 years, 4 months [sic]. Do you understand that?

THE DEFENDANT: Yes, I understand that.

THE COURT: The District Attorney was prepared today to modify that and actually do a limited withdrawal of plea and entry of a plea to a 422 instead of the 136.1 which would have given me the opportunity to sentence you to a lesser term. And I had indicated that if you were to enter that plea I would be offering you mid-term, which is 2 years, 8 months. Do you understand that?

THE DEFENDANT: On?

THE COURT: On a violation of Penal Code Section 646.9, which was the felony stalking, I would give you mid-term of 2 years. And for a violation of Penal Code Section 422 I would give you one-third the mid-term, 8 months consecutive, for a total of 2 years and 8 months. And you currently have credits of about a 152 days. That was the offer for today. Do you understand that?

THE DEFENDANT: No, I dont. What I was understanding was the violation--you said something about a violation on some charge.

THE COURT: You were charged with violating Penal Code Section 646.9(a), stalking. And that is what you pled to.

THE DEFENDANT: Thats a violation?

THE COURT: No, its a crime. You admitted that you committed the crime of stalking. Do you understand that?

THE DEFENDANT: That I pleaded guilty to it?

THE COURT: Yes.

THE DEFENDANT: When? How much time did I plead to on that charge?

THE COURT: You entered a plea on May 15th, 2006 in this Court and you admitted that you committed the crime of stalking.

THE DEFENDANT: To how much time?

THE COURT: A maximum of 3 years and 8 months in prison.

THE DEFENDANT: Okay. But how much was I offered on that day?

THE COURT: A maximum of 3 years and 8 months in prison?

THE DEFENDANT: Okay, But how much was I offered?

THE COURT: You were not offered anything other than go to probation and the worst that would happen to you was 3 years and 8 months.

THE DEFENDANT: Well, see I thought--I only took that plea for a year county and waited for probation--

THE COURT: No.

THE DEFENDANT: Thats what I believed. Thats the only--

THE COURT: Then thats what you need to discuss with the Public Defender. What you need to know today is the District Attorney was offering to modify this so that it would be 2 years, 8 months. If you dont want to do that, thats fine. But I cant guarantee that that would again be on the table. Okay.

THE DEFENDANT: Okay.

THE COURT: Do you understand?

THE DEFENDANT: So, I would have to be ready to file my motions on the 31st?

THE COURT: You need to be back in court with the Public Defendant and let the Public Defender do the talking for you.

THE DEFENDANT: Okay.

The foregoing exchange between defendant and the trial court was not plea bargaining. The trial court was simply making the record clear. Apparently, there had been a previous discussion in chambers during which defendant had been offered a reduced term if he agreed not to seek withdrawal of his plea. No new deal was offered to defendant, and there were no negotiations.

The exchange took place at the end of the hearing, was brief in duration, and was simply an attempt by the court to provide a historical recitation of the events that had already transpired. The court only reiterated information that had already been conveyed to defendant so that the court could be very clear on the record that defendant had just rejected the two years eight months offer and that there would be no guarantee this offer would be on the table again.

Because no plea bargaining occurred during defense counsels absence, defendant was not denied the right to counsel during a critical stage of the proceeding.

Disposition

The judgment is affirmed.

HULL, J.

We concur:

MORRISON , Acting P.J.

BUTZ , J.

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