P. v. Palmer
Filed 1/29/14 P. v. Palmer CA1/1
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opinion has not been certified for publication or ordered published for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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff
and Respondent,
v.
TIMOTHY SCOTT PALMER,
Defendant
and Appellant.
A135077
(Sonoma County
Super. Ct. Nos. SCR600420, & SCR602164)
Defendant Timothy Scott Palmer pleaded
no contest to several felony charges
pursuant to a negotiated disposition. He
challenges the sentence thereafter imposed by the trial court. Specifically, he contends the court was
unaware it had discretion under Penal Code section 1385
erroneously believed it had no choice but to add two years, consecutively, to
his prison sentence. He asks for a
remand to allow the court to consider whether to exercise its discretion under
that statute.
Defendant never asked the
under section 1385, however, and therefore has waived the issue on appeal. Alternatively, we have considered whether
defendant has a claim of ineffective assistance of counsel (IAC) for failure to
raise section 1385 that would entitle him to the relief he seeks. We conclude there is no basis in the record for
such a claim, and affirm
the judgment.
On March
31, 2011,
Rohnert
Park police officers responded to a call concerning a suspected intoxicated
person in a vehicle and found defendant sitting in the driver’s seat of a
parked truck. Police also found, in the
door pocket, two to three ounces of methamphetamine (54.5 grams net) and, under
the driver’s seat, a loaded .45-caliber pistol and a scale with white powder on
it. Defendant was arrested for possessing
the methamphetamine. He
later claimed the truck was not his and he was not aware of its contents.
On
May 7, 2011, while defendant
was out on bail, police officers observed him tailgating a car, speeding,
and disobeying traffic signs. The officers turned on their siren. Defendant turned onto another street,
accelerated to 90 miles per hour, and drove for about a mile in excess of even that
speed before pulling over. Defendant’s
two-year-old daughter was in the back of the car at the time. Defendant claimed “he ‘panicked and took off’ â€
and then realized he was being foolish for risking the safety of his daughter.
The
Sonoma County District Attorney filed criminal charges in two cases. On August 5, 2011, as
part of a negotiated disposition wrapping up both, defendant pleaded no contest
to methamphetamine possession while armed with a loaded gun (Health & Saf.
Code, § 11370.1, subd. (a)) and evading a police officer (Veh. Code, § 2800.2,
subd. (a)). He also admitted an out-on-bail
enhancement (Pen. Code, § 12022.1) alleged in connection with the evasion
offense.
At
the outset of the change of plea hearing, the prosecuting attorney stated the
terms of the negotiated disposition: “In
this case the offer is that with an admission to the 11370.1 in case ending 420
and with the admission to the 2800.2(a), along with the out-on-bail enhancement
pursuant to 12022.1 in case ending 164, there would be the remaining charges
dismissed all with a Harvey[
name="_ftnref2" title="">[2]] waiver and allegations also
dismissed with a Harvey waiver. The defendant is giving an open plea. There would be a RPO where probation would
write a full report and argument made by both counsel.â€
The
court asked both defense counsel and defendant “is that your understanding?†Both replied that it was. The court then stated, and asked defendant if
he understood, the maximum prison terms he was facing in the cases. The prosecuting attorney told the court he
had been the one who had actually written the total maximum time figure on the
advisement form. He had “also explained
[to defendant] that the 12022.1 required that if the defendant is sent to state
prison, it would be mandatory consecutive sentencing.†The court then reiterated, “So you have to
get the extra two years because you were out of custody out on bail when the
second offense happened involving the failing to—evading the police
officer. Do you understand that?†Defendant answered, “[y]es.â€
Following
full advisement on the record of the rights he was waiving, the trial court
accepted defendant’s pleas of no contest to felony possession of
methamphetamine with a loaded, operable firearm (Health & Saf. Code, §
11370.1, subd. (a)) and felony evasion of a police officer (Veh. Code, § 2800.2,
subd. (a)) and his admission of the out-on-bail enhancement (Pen. Code, § 12022.1).
Defense
counsel made no objection during this colloquy, nor did he make any suggestion
that at sentencing, the trial court would be asked to exercise its discretion
under section 1385 to strike the just admitted sentencing enhancement. The prosecuting attorney then moved to
dismiss the remaining charges of methamphetamine possession for sale and child
endangerment.
The
trial court ordered the probation department to prepare a sentencing report and
set a sentencing hearing. The probation
report recommended defendant be sentenced to the high term on the possession
conviction, and one-third of the midterm on the evasion conviction,
consecutively, for a total sentence, including the two-year out-on-bail
enhancement, of six years eight months. At
the sentencing hearing, on November 10, 2011, defense counsel indicated he had just
received the probation report but had gone over it, and stated defendant “would
only ask that if sentencing is going to be imposed, that it be concurrent. But he is asking for probation because he has
been accepted by TASC to the program here . . . .†The court indicated it was inclined to follow
the probation department’s sentencing recommendation, but agreed to continue
the case so defendant could submit whatever materials he wanted the court to
consider.
At
the next hearing on November
30, 2011, defense counsel asked that the
case be re-referred to the probation department for consideration of section
1170, subdivision (h).
name="_ftnref3" title="">[3] A probation department representative said
its report found defendant “eligible†under subdivision (h), and both the
representative and district attorney agreed this meant defendant, if sentenced
to prison, would serve his time in a local jail facility. Defense counsel further advised the court
defendant had been interviewed for the Delancey Street Program. The matter was continued to obtain
verification from Delancey
Street and to provide the court with
any additional materials.
Defendant
submitted a number of materials for the continued hearing on January 5, 2012,
including a sentencing memorandum and a letter from Delancey
Street accepting defendant if he
cleared medically. Defense counsel
stated defendant had no medical condition that would preclude him from the
program. The court continued the matter
so it could thoroughly review the materials.
It also revisited defendant’s eligibility for a local jail term under section
1170, subdivision (h), given his possession of methamphetamine with a firearm
conviction. The prosecuting attorney, at
this hearing, stated defendant was ineligible; defense counsel disagreed. The court invited the parties to submit any
additional information before the next hearing.
On
January
19, 2012, defendant requested, and was
granted, a further continuance to submit additional information. The court clarified defendant was ineligible
to serve any prison term in local jail under section 1170, subdivision
(h). Therefore, defense counsel wanted
“to make sure that all the mitigating circumstances and unusual case factors
can be articulated as thoroughly as possible.†The court then observed “I just want to let
you know that I’m on the fence on this one.
I have very, very, very deep concerns about the safety of the community
in this case when Mr. Palmer decides to take off from the police. The safety issue is my utmost concern. So I realize he has a drug problem, but I
don’t want to give any impression that I am leaning toward one way or the other
at this point. I’m very on the fence on
this.†On February 8, 2012,
defendant filed a supplemental sentencing memorandum.
The
sentencing hearing proceeded on February
16, 2012.
Defense counsel argued at length there were numerous mitigating
circumstances and urged the court to suspend sentence and order defendant to
attend one of the rehabilitation programs available. The prosecuting attorney asserted this was “a
very clear prison case,†citing defendant’s significant prison record and nature
of his current crimes. He urged the
court not to refer the case for a 90-day diagnostic evaluation and to sentence
defendant to six years eight months in prison as recommended by the probation
department. The court agreed with the observation
in the probation report that defendant had “squandered all past intervention.†The court told defense counsel, however, he
had “done an outstanding job, everything a defense attorney could possibly do
for their client in terms of submitting the information†relevant to
sentencing. The court then put the
matter over to the afternoon calendar for defendant to address his reluctance
during his interview with the probation department to take responsibility for
all events that occurred on May
7, 2011.
When
the case was recalled, defendant still denied knowing the methamphetamine was
in the vehicle, which he did not own, but took responsibility for all the
events that transpired. The trial court
then proceeded to pronounce sentence. As
to the Health and Safety Code section 11370.1, subdivision (a), possession
conviction, defendant was presumptively ineligible for probation and the court
found the case not unusual under sections 1203, subdivision (e)(4) and
(6). The court imposed the midterm
(three years), however, rather than the high term recommended by the probation
department, citing numerous mitigating circumstances, including that defendant
took responsibility for his actions. The
court also listed numerous aggravating factors, including defendant’s numerous
prior convictions and their increasing severity, and his largely unsatisfactory
performance on prior probations and parole. As to the Vehicle Code section 2800.2,
subdivision (a), evasion conviction, the subordinate conviction, the court
imposed a one-third, middle term (eight months) to run consecutively. The court again identified a number of
factors in mitigation, as well as a number of factors in aggravation. With respect to the out-on-bail enhancement,
the court stated, “I’m required by law to run the two-year out-on-bail
enhancement consecutive. That matter was
resolved with a plea of no contest for count I, the 2800.2(a).â€
At
no time during the numerous sentencing hearings did defense counsel ever
suggest that, despite the negotiated disposition, the trial court should
exercise its discretion under section 1385 to strike the admitted out-on-bail sentencing
enhancement.
Two
weeks later, on March
2, 2012, defendant filed a motion for
“reconsideration of sentencing.â€
Defendant asked to be sentenced to a “specific†state prison facility,
such as Solano State Prison, that offers “Adult Substance Abuse Treatment
Services and an inmate mentoring program to help him overcome his longtime
addiction to methamphetamine.†(Fn.
omitted.) He also asked the court to
reconsider a 90-day diagnostic evaluation and to specify whether his sentence
was “enhanced†for “using†a firearm or being “armed†with such. The motion came on for hearing on April 6, 2012. With respect to the firearm, the court
explained having the loaded firearm was an element of the possession offense,
not an “enhancement.†The prosecutor
continued to oppose a diagnostic evaluation and urged the court to maintain the
sentence it had imposed. Stating placement
at a CRC,
the court continued the matter for “an oral report from the probation
department†on whether defendant was eligible for CRC.
The
matter was called again on April
25, 2012.
The probation department concluded defendant was technically eligible
for CRC. Defense counsel argued
defendant was not “a violent person†and urged that he be sentenced to
CRC. The prosecutor argued defendant’s
criminal history and the nature of his current convictions would exclude him
from CRC, and urged the court to maintain its sentence. Treating defendant’s motion, with defense
counsel’s concurrence, as made pursuant to section 1170, subdivision (d),
to recall the sentence (since he had
filed a notice of appeal which otherwise divested the court of jurisdiction),
the trial court denied defendant an opportunity for CRC “for the same reasonsâ€
it was sending him to prison—the seriousness of the offenses. It refused to “take that chance†he would
engage in such conduct again “should he fail on CRC parole after completing
that program.†In addition, the court
considered a number of circumstances, including his criminal history,
indicating he was unsuitable for CRC.
Discussion
“Section
12022.1, subdivision (b) provides: ‘Any
person arrested for a secondary [felony] offense [that] was alleged to have
been committed while that person was released from custody on a primary
[felony] offense shall be subject to a
penalty enhancement of an additional two years [in state prison] which shall be served consecutive to any other
term imposed by the court. (Italics
added.)’ †(People v. Meloney (2003) 30 Cal.4th 1145, 1154 (
12022.1, the trial court nevertheless retains discretion, in the interests of
justice, to strike an out-on-bail enhancement under section 1385. (Meloney,
subd. (a) [“The judge or magistrate may, either of his or her own motion or
upon the application of the prosecuting attorney, and in furtherance of
justice, order an action to be dismissed. . . .â€].)
As
we have discussed above, however, defendant never suggested that the trial
court exercise its discretion under section 1385 to strike the out-on-bail
enhancement alleged in connection with the evasion charge under Vehicle Code
section 2800.2, subdivision (a) and which he admitted as part of the negotiated
disposition. He has therefore waived any
claim on appeal that the trial court failed to understand that it had
discretion under section 1385 to strike the enhancement. (See People
v. Carmony (2004) 33 Cal.4th 367, 375–376 (Carmony) [“any failure on the part of a defendant to invite the
court to dismiss under section 1385 . . . waives or forfeits his or her right to
raise the issue on appealâ€];
name="_ftnref5" title="">[5] People
v. Lee (2008) 161 Cal.App.4th 124, 129.)
We
therefore consider whether defendant’s trial counsel rendered ineffective
assistance by failing to suggest that the trial court strike the out-on-bail
enhancement under section 1385. To establish
an IAC claim, a defendant must show: “(1)
his or her counsel’s performance was below an objective standard of
reasonableness under prevailing professional norms and (2) the deficient
performance prejudiced the defendant.†(In
re Hill (2011) 198 Cal.App.4th 1008, 1016 (Hill); see Strickland v. Washington (1984) 466 U.S. 668,
687, 691–692 (Strickland); People
v. Ledesma (1987) 43 Cal.3d 171, 216–217 (Ledesma).)
“
‘In evaluating a defendant’s claim of deficient performance by counsel, there
is a “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance†[citations], and we accord great deference
to counsel’s tactical decisions. [Citations.]
. . . Accordingly, a reviewing court will reverse a
conviction on the ground of inadequate counsel “only if the record on appeal
affirmatively discloses that counsel had no rational tactical purpose for his
act or omission.†’ (
979–980 . . . , disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 . . . .)†(Hill,
supra, 198 Cal.App.4th at p.
1016.) “To show prejudice, a defendant
must show there is a reasonable probability that he or she would have received
a more favorable result had his or her counsel’s performance not been deficient.
(Strickland, [
supra, 198 Cal.App.4th at p.
1017; see also People v. Roberts (2011) 195 Cal.App.4th 1106, 1129–1130.)
While
an attorney’s “dereliction concerning sentencing matters and plea bargainingâ€
may constitute ineffective assistance (Wiley v. County of San Diego
(1998) 19 Cal.4th 532, 542), the record in this case forecloses any conclusion
that “counsel had no rational tactical purpose†for not suggesting that the
trial court exercise its discretion under section 1385 to strike the
out-on-bail enhancement. To the
contrary, what the record shows is that admission of and sentencing on the
out-on-bail enhancement was an important part of the plea deal. Not only was the prosecuting attorney
specific that defendant had to admit the enhancement, he stated at the time he recited
the terms of the deal that the admission would result in a two-year consecutive
sentencing term. The trial court further
reiterated the point and asked defendant if he understood and agree to it,
which he did. It makes abundant sense
that, having reached such a negotiated disposition, defense counsel would make
no suggestion that the trial court strike the enhancement defendant agreed to
admit.
We
also agree with the Attorney General that in light of the negotiated
disposition, the record here does not support any claim that the trial court
erred. (See People v. Gutierrez
(2002) 28 Cal.4th 1083, 1140 [no IAC based on failure to object where evidence
was properly admitted].) It is apparent
the court understood, and reasonably so, that defendant’s admission of the
out-on-bail enhancement as part of the negotiated disposition was dispositive
as to the imposition of the two-year consecutive term. Accordingly, this is not a case where the
record suggests the trial court was in error as to the law or its
authority. Rather, we must presume the
trial court was aware of its discretion under section 1385, but concluded the
negotiated disposition did not contemplate any exercise of that
discretion. (See People v. Fuhrman (1997) 16 Cal.4th 930, 945 [“in a ‘silent record’
case†where the record does not affirmatively show any misunderstanding of the
law, the “appellate court [should] deny
the request for remandâ€]; People v.
Sullivan (2007) 151 Cal.App.4th 524, 549 [“any uncertainty in the record
must be resolved against the defendantâ€].)
Finally,
even if the trial court erred, which it did not, and even if trial counsel’s
representation was constitutionally deficient, which it was not, the record
does not establish that defendant was prejudiced as a result of counsel’s not
raising section 1385. The trial court
stated on the record counsel had done an exceptional job in representing defendant
in connection with sentencing, identifying every possible mitigating factor or
circumstance and strongly advocating for sentencing options substantially less
harsh than that recommended by the probation department. The trial court was persuaded to impose the
midterm, rather than the high term recommended by the probation department, as
to the conviction for possession of methamphetamine with a loaded firearm. But in every other respect, the trial court
consistently returned to the nature of the crimes, defendant’s extensive prior
criminal history, his generally poor performance on probation or parole, and
the paramount need to protect the public’s safety to justify the need for a
significant prison sentence and rejection of the lesser punishments defense
counsel advocated. We conclude that on
this record there is no probability the trial court would have struck the
out-on-bail enhancement had defense counsel raised the issue. Indeed, had the trial court felt a lesser
prison term was appropriate, it could have imposed the low term for both
convictions and it could have ordered the possession and evasion sentences to
run concurrently. It indicated no
inclination to do so. (See
1026, 1033–1034 [given long history of violent behavior, the crime and danger
to community without imprisonment, any error of trial court in failing to
realize it could strike a five-year enhancement was harmless].)
Disposition
The
judgment is affirmed.
_________________________
Banke,
J.
We
concur:
_________________________
Margulies,
Acting P. J.
_________________________
Dondero,
J.
Penal Code unless otherwise indicated.
