P. v. Rivera
Filed 1/18/13 P. v. Rivera
CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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courts and parties from citing or relying on opinions not certified for
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
THE PEOPLE,
Plaintiff
and Respondent,
v.
MICHAEL BENJAMIN RIVERA,
Defendant
and Appellant.
B235066
(Los Angeles County
Super. Ct. No. KA085570)
APPEAL from a judgment of the Superior Court of
County, Wade D. Olson, Temporary Judge. (Pursuant to Cal. Const., art.
VI, § 21.) Affirmed.
Richard B. Lennon, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and Nima
Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
* * * * * *
The trial court revoked appellant
Michael Benjamin Rivera’s probation because he had been arrested and held to
answer for a new crime. We conclude any
error was not prejudicial because two weeks after sentencing appellant pleaded
no contest to the new crime, establishing its commission by his plea. Accordingly, we affirm the judgment.
PROCEDURAL HISTORY
Appellant was charged with two counts of
victims. He pleaded no contest to one of
the counts as part of a plea bargain.
The bargain required him to make
restitution of $51,942.62 on the first count and $27,000 on the second count
for a total of $78,942.62.
name="_ftnref1" title="">[1] Sentencing was deferred
pending payment of restitution
failed to effect restitution, he would be sentenced to state prison for 16
months. Once restitution had been
completed, appellant would be put on probation for three years. He was warned that if he violated probation,
he could be sentenced to state prison
for up to three years. Appellant
expressly waived his right not to be sentenced to a term greater than that
provided for in the plea bargain
make an appearance or committed another crime.
The foregoing took place on October 6, 2009. Appellant regularly
appeared thereafter in court from December 2009 to August 2010 and made
restitution payments on each occasion.
Appellant initially failed to appear
at the hearing set for October 15, 2010; defense
counsel stated that appellant may have been taken into custody in another
matter. Appellant’s failure to appear
was cured in due course. On October 21, 2010, the case was continued for sentencing to December 22, 2010, and appellant again waived his rights under Penal Code section
1192.5 (see fn. 3). Appellant continued
to make restitution payments each time he appeared in court. On January 26, 2011, the court noted that the balance due on the restitution was
$3,000.
Appellant failed to appear at the
hearing set for March 30, 2011. The court found that there was an arrest
warrant for appellant in another case, which is referred to hereafter as the
“second case.†The case was continued
several times thereafter with no more restitution payments being made.
Appellant filed a
newly substituted, privately retained counsel; appellant had been represented
by retained counsel throughout.
The matter was heard on July 6, 2011. Defense counsel
acknowledged appellant had been arrested in the second case and asked that
appellant be sentenced to the low term of 16 months. The prosecutor stated without contradiction
by the defense that appellant had been held to answer in the second case. The court, after stating there were “supposed
to be no further violations of the law, no further problems,â€
sentenced appellant to the midterm of two years on the first count. The motion to withdraw the plea was of course
also denied.
On July 20, 2011, appellant pleaded no contest on one count of the second case.
FACTS
Appellant worked as a loan officer and helped the victim to
refinance his home. Appellant falsified
some documents and managed to steal $51,942.62 from the victim.
DISCUSSION
Appellant contends that an arrest and the filing of a charge do not
establish that he committed a crime. We
agree. We need not, however, reach the
more difficult questions of what proof and what type of hearing are required to
prove commission of a new crime under these circumstances because appellant’s
subsequent no contest plea rendered any error harmless.
“Neither a departure from the form or mode prescribed by this Code
in respect to any pleading or proceeding, nor an error or mistake therein,
renders it invalid, unless it has actually prejudiced the defendant, or tended
to his prejudice, in respect to a substantial right.†(Pen. Code, § 1404.) Appellant pleaded no contest to one of the charges
in the second case on July 20, 2011. Thus,
as the record now stands, appellant did commit a crime in that a no contest
plea is the equivalent of a plea of guilty for all purposes (4 Witkin &
Epstein, Cal. Criminal Law (4th ed. 2012) Pretrial Proceedings, § 292,
p. 561) and a plea of guilty admits every element of the offense. (Boykin
v. Alabama (1969) 395 U.S. 238, 242.)
While between July 6, 2011, and July 20, 2011, the record did not
reflect the commission of a new crime, after the latter date there is no
question that appellant did commit another, new crime.
We note the absence of an objection
during the hearing on July 6, 2011, to the court’s decision to impose
sentence because appellant had been arrested and held to answer on a new
charge. Immediately after the court’s
statement we have quoted, defense counsel vigorously argued that appellant was
fighting the new charges, but counsel did not object to the imposition of the
sentence on the ground it had not been shown that a crime had been committed. We also note that appellant did not seek
review of the imposition of sentence by way of an extraordinary writ, although
it appears that for 14 days he could have done so. While it is unnecessary to take up the
question of waiver, these omissions suggest that at the time of the
July 6, 2011 hearing, appellant tacitly admitted the commission of a new
crime. Nonetheless, it remains true that
as of that date it could not be said he had committed a new crime.
We asked the parties to brief the
question, among others, what effect should be given to the fact that appellant
pled no contest in the second case.
Appellant states that no effect should be given to this plea because “it
may well have been entered solely because he was already sentenced in the instant
case†and he was attempting by his new plea to receive concurrent
sentencing. This is pure speculation and
must therefore be rejected. Even if we
were so inclined, and we are not, we would be without power to set aside the
plea and judgment in the second case.
The conviction in the second case is a fact of record, which we cannot
simply ignore.
As far as the imposition of a
two-year sentence is concerned, appellant clearly waived the right he had under
Penal Code section 1192.5 to be sentenced to the term provided for in the
It is fundamental that for error to be
reversible, it must be prejudicial.
(Pen. Code, § 1404; People v.
Watson (1956) 46 Cal.2d 818, 836.)
Not only is there no prejudice, it cannot be said that there is, at this
point in time, error. Appellant’s plea
on July 20, 2011, cured the error that had been planted on July 6, 2011. Error may be cured in a variety of ways (see
generally 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 436 et seq.)
and while this may not have been one of the traditional ways to cure error, the
plea on July 20, 2011, nonetheless did cure any error in that we must take
the record as we find it.
DISPOSITION
The judgment is affirmed.
FLIER,
J.
We concur:
RUBIN, Acting P. J.
SORTINO, J.
name="_ftn1" title="">[1] He
agreed to make restitution on both counts even though he pled only to one.
name="_ftn2" title="">[2] Sentencing
was continued at intervals of two months.
