P. v. Woodward

 

 

 

 

 

 

 

Filed 6/20/13  P. v. Woodward 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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

(Nevada)

----

 
>

THE PEOPLE,                           Plaintiff and Respondent,               v.   GREGORY JAMES NICHOLAS WOODWARD,                           Defendant and Appellant.

C070676   (Super. Ct. Nos. SF10226B, SF11187B, SF11316)

 

 

            name="_BA_ScanRange">This appeal is from three separate cases involving
defendant Gregory James Nicholas Woodward.

FACTUAL AND PROCEDURAL BACKGROUND

>            The
first case (SF10226A&B) arose when on June 25, 2010, defendant was discovered in href="http://www.fearnotlaw.com/">possession
of a stolen vehicle.  On
November 4, 2010, he pled no contest to unlawful taking of a vehicle in
exchange for a promise of probation upon the condition he serve up to 365 days
in jail and dismissal of four additional drug related charges.  On December 27, 2010, he signed a href="http://www.mcmillanlaw.com/">written
agreement (entitled “ ADDIN BA xc <@$cs> xl 6 s
FOOZNW000004 xpl 1 Vargas
waiver”href="#_ftn1" name="_ftnref1" title="">[1]) agreeing that if he did not appear at the href="http://www.mcmillanlaw.com/">sentencing
hearing, the trial court could impose any lawful
sentence, even if it was inconsistent with the href="http://www.fearnotlaw.com/">plea
agreement.  On May 13,
2011, defendant did
not appear and a bench warrant was issued. 


            The next day, May 14,
2011, officers
recognized defendant during a traffic stop, searched him, and discovered he was
under the influence of a stimulant and in possession of methamphetamine, and
acetaminophen/propoxyphene (a  ADDIN
BA xc <@osdv> xl 11 s FOOZNW000009 xpl 1 l "schedule IV" schedule IV narcotic pain reliever) without
a prescription.  Defendant had been a
passenger in the vehicle.  The vehicle
had been stolen.

            In the second
case (SF11187B) defendant was charged with possession of a controlled
substance, two counts of receiving stolen property, two counts of failure to
appear, being under the influence of a controlled substance, and unlawful
taking of a vehicle.

            On June 6,
2011, while released on bail and on probation with a condition he not possess
any weapons, defendant was found carrying a sword, a metal “SAI” (martial arts
weapon consisting of a pointed dagger and prongs), a double-headed axe, 17
knives, and a live round of .25-caliber ammunition.  This resulted in the third case.  He was charged with illegal possession of
ammunition by a convicted felon, with allegations he committed the offense
while released on bail, and that he has served a prior prison term. 

            On September 7, 2011, defendant
appeared in court on all three cases (as well as several misdemeanor cases) --
on the first case for sentencing, on the second case for change of plea or
trial setting, and on the third case for arraignment.  Defendant stipulated to having been duly
arraigned and said it was his intention to waive preliminary hearing and time
for sentencing on the third case.  The
following summary of the trial court’s and parties’ understanding took place:

            “THE COURT:  So just to put the big picture into play,
what I understand based upon our discussions in chambers and in the past many
months has led us to this point where after he enters a change of plea in the
balance of cases, several various counts and others, and some misdemeanors
cases, there will ultimately be a motion to dismiss those by the prosecution
that we will set a sentencing date out a few months, allow a pass for him to
enter and begin the residential treatment program that is part of the plan for
him.  And after he’s been in there for
several months we’ll have a status date from which to see how far he’s
progressed to see whether he can be released to travel back here for imposition
of sentence, and that sentence may depend on how he’s progressing in the
treatment program, in full or in part, because one of the conditions of the
anticipated probation is that he’s going to be waiving his custody credits if
he fails to successfully complete the residential treatment program.  Is that your understanding?

            “THE DEFENDANT:  Yes.

            “THE COURT:  So even though we’re not going to sentence
him today, it’s the anticipated sentence at this point in time that generally
the imposition of sentence will be suspended, he’ll be placed on five years
formal probation, that the balance of his custody time may be served in the
residential treatment program with the additional terms and conditions of
search and seizure, testing, seeking employment after he completes his
residential outpatient transitional programming and other relevant terms of
probation, but we will not be imposing those until we’ve had some proof and
some time for you to begin your treatment program.

            “And one of the reasons we’re doing
that is because we don’t have probation here, we don’t have an updated
probation report, and that’s going to take a month to six weeks to
prepare.  We don’t have an accurate
tabulation of your custody credits because it’s complicated by the fact that arguably
some of your time may have been served in Placer County, but it may or may not
be allowed to credit against these cases, and we have a lot of circumstances
where you’re in custody on more than one case. 
So how we distribute those credits may have a significant impact; it may
not, depending on how it goes.

            “So that’s my big picture
understanding.  Is that your client’s
understanding, Mr. Walker [defense counsel].

            “MR. WALKER:  Yes, it is.

            “MR. PHILLIPS [prosecutor]:  Yes.  I
would ask the Court to clarify because three different plea agreements from
three different times, that the defendant understands that if that he absconds
from this program the Court can sentence him straight to prison.

            “MR. WALKER:  And, really, I think -- again, I talked to my
client about it and the way I think the Court has made it clear if Mr. Woodward
is not capable or willing to successfully complete any impatient program as
determined by the Court, then the Court could sentence him to State
prison.  So, in other words, Mr. Woodward
understands that he’s completely on the hook, so to speak, to this Court and
the requirements.” 

            The trial court then clarified the
arrangement to defendant as follows:

            “THE COURT:  Mr. Woodward, just so you understand, by
agreeing to go into this program, if you decide this isn’t working or you and
you fail on the program, you’re exposing yourself to three separate felony
cases where State prison is the likely sentence in each case individually.  So you understand that your choices are successfully
complete the program or pretty much resign yourself to a State prison
commitment --

            “THE DEFENDANT:  Yes, Your Honor.

            “THE COURT:  -- in one or all three cases.” 

            The trial court then explained that
he would need to contact his attorney and get an order allowing him to leave
the program prior to leaving before its completion.  The trial court then stated:

            “THE COURT:  Right. 
So Mr. Woodward, I’m going to go through this plea form in [the second
case], and the same rights and the same discussion will apply to [the third
case].  However, we’ll go through the
actual pleas and address the waivers separately, but all these -- the entire
discussion applies to both cases.

            “THE DEFENDANT:  All right.” 


            After reviewing the charges, maximum
potential sentences, and defendant’s rights, the trial court accepted
defendant’s change of plea of no contest to unlawful driving of a vehicle and
possession of a controlled substance in the second case, and to possession of
ammunition in the third case, in exchange for dismissal of the remaining counts
and allegations.  The trial court said
the maximum term for the second case was four years eight months and did not
recite any promise or agreement for probation. 
It did not recite any maximum, promised or agreed-upon sentence for the
third case, although both defense counsel and the prosecutor explained that it
had been agreed that the charge would not be reduced to a misdemeanor pursuant
to  ADDIN BA xc <@st> xl 38 s
FOOZNW000002 l "Penal Code section 17, subdivision (b)" Penal Codehref="#_ftn2"
name="_ftnref2" title="">[2] section 17, subdivision (b), unless
defendant successfully completed felony probation. 

            Written change of plea forms for the
second and third cases were submitted to the court and defendant waived time
for sentencing.  The written change of
plea form for the second case indicated defendant would receive three years of
formal probation and up to 365 days in jail. 
The prosecutor, however, signed the form indicating he did >not agree with the terms of the plea or
indicated sentence therein.  The written
change of plea form for the third case stated it was an “open plea” and recited
the agreement that no reduction pursuant to  ADDIN
BA xc <@$st> xl 27 s FOOZNW000002 section 17, subdivision (b) would be
permitted unless defendant completed probation. 
The prosecutor signed the form indicating his agreement to the terms
therein.  The box providing that the plea
would convert to an open plea upon any subsequent failure to appear was not
initialed on any of the plea forms.

            At the conclusion of the oral change
in plea on the third case, the prosecutor interjected, “Your Honor, in this
case we don’t need a  ADDIN
BA xc <@$cs> xl 6 s FOOZNW000004 Vargas
waiver because it’s an open plea, but the Court should probably clarify with
the defendant that he understands if he absconds, he should expect to go
straight to prison when he comes back before the court.”  The trial court responded, “I think we stated
that.  [¶]  And you understand that, Mr. Woodward?”  Defendant replied, “Yes, Your Honor” and his
counsel added, “For the record, You Honor, his lawyer does as well.”  The trial court then postponed sentencing to
permit defendant to enroll in a residential drug treatment program. 

            The following day, however, it was
discovered that Placer County had a no-bail hold on defendant and would not
agree to his release.  Defendant was
transferred to Placer County to resolve his cases in that county.  Nevada County then revoked defendant’s status
of released on his own recognizance so upon resolution of the Placer County
cases, defendant would be returned to Nevada County.  Nonetheless, Placer County released defendant
and defendant entered into the residential treatment program. 

            Defendant was returned on the
warrant on January 20, 2012.  He had been
terminated from the residential program for misbehavior.  The trial court ordered an updated probation
report and, on March 6, 2012, proceeded to sentencing.  

            Prior to pronouncing sentence, the
trial court noted that it had reviewed the probation report and had discussed
the case “in conference” with the prosecutor and defense counsel on several
occasions.  It also noted that the
parties had agreed that probation would be denied.  The court then sentenced defendant to an
aggregate term of five years as follows: 
on the second case -- the middle term of three years for unlawful
driving of a vehicle and a consecutive eight months for possession of a
controlled substance; on the first case -- a consecutive eight months for
unlawful taking of a vehicle; on the third case -- a consecutive eight months
for possession of ammunition.  Defendant
was awarded 362 days of custody credit. 

            Defendant appeals.  He obtained a href="http://www.fearnotlaw.com/">certificate
of probable cause.  ( ADDIN BA xc <@osdv> xl 8 s
FOOZNW000011 xpl 1 l "§ 1538.5" § 1237.5.) 

DISCUSSION

I

Introduction

            Pursuant to People v. Wende (1979) 25 Cal.3d 436, counsel filed an opening
brief that sets forth the facts of the case and asked this court to review the
record and determine whether there are any arguable issues on appeal.  Defendant Gregory Woodward was advised by
counsel of the right to file a supplemental brief within 30 days of the date of
filing of the opening brief.  Defendant
filed a supplemental brief contending he should be permitted to withdraw his
plea in the second case and that he is entitled to additional custody credits
for time served in Placer County custody. 
We requested supplemental briefing from counsel on whether defendant
should be permitted to withdraw his plea in the second case.  We address these issues, in addition to
undertaking a review of the record as required by  ADDIN
BA xc <@$cs> xl 5 s FOOZNW000001 Wende,
and affirm.

II

Withdrawal
Of Plea In Second Case

            Defendant contends he must be
permitted the opportunity to withdraw his plea in the second case because he
entered the plea with the promise of probation and his prison sentence exceeded
the terms of the agreement.

             ADDIN
BA xc <@osdv> xl 14 s FOOZNW000012 l "Section 1192.5" Section 1192.5 provides in part:  “Where the plea is accepted by the
prosecuting attorney in open court and is approved by the court, the defendant,
except as otherwise provided in this section, cannot be sentenced on the plea
to a punishment more severe than that specified in the plea and the court may
not proceed as to the plea other than as specified in the plea.  [¶]  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.”

            In what is commonly known as a  ADDIN
BA xc <@$cs> xl 4 s FOOZNW000003 Cruz
waiver (or similarly, a “ ADDIN BA xc <@$cs> xl 6 s
FOOZNW000004 xpl 1 Vargas
waiver”), the parties prearrange an agreement wherein the defendant waives his rights
under  ADDIN BA xc <@$osdv> xl 14 s
FOOZNW000012 section 1192.5 in the event a certain
condition, such as failure to appear at sentencing, should occur “such that
. . . the trial court may withdraw its approval of the defendant’s
plea and impose a sentence in excess of the bargained-for term.”  ( ADDIN BA xc <@cs> xl 49 s
FOOZNW000003 xhfl Rep xpl 1 l "People
v. Cruz(1988) 44 Cal.3d 1247" People
v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5.)  In People
v.  ADDIN BA xc <@cs> xl 42 s
FOOZNW000004 xhfl Rep l "People v.
Vargas(1990) 223 Cal.App.3d 110" Vargas,
supra, 223 Cal.App.3d 1107, the
appellate court upheld an arrangement wherein the defendant agreed in a plea
agreement to be sentenced to a two-year term if he appeared for sentencing and
a five-year term if he failed to appear for sentencing.  Such arrangements for increased sentences are
permissible if made part of the plea agreement. 
(
ADDIN BA xc <@cs> xl 52 s FOOZNW000005 xhfl Rep xpl 1 l ">People v. Masloski(2001)
25 Cal.4th 1212" People
v. Masloski (2001) 25 Cal.4th 1212, 1217-1223; see also  ADDIN
BA xc <@cs> xl 50 s FOOZNW000006 xhfl Rep xpl 1 l ">People v. Jensen(1992) 4
Cal.App.4th 978" People
v. Jensen (1992) 4 Cal.App.4th 978, 981-984.)  The trial court cannot, however, unilaterally
impose a sanction for nonappearance in the form of an increased sentence
exceeding that which was negotiated as part of the plea agreement.  ( ADDIN BA xc <@$cs> xl 44 s
FOOZNW000005 xhfl Rep xpl 1 Masloski, at pp.
1217-1223.)

            Defendant contends he was promised
probation as a term of his plea agreement in the second case and, therefore,
the trial court’s imposition of a prison term was in violation of the terms of
his agreement.  He contends that, to the
extent imposition of the prison sentence was based on defendant’s agreement
that his failure to complete residential treatment would convert the plea to an
open plea, that agreement cannot be enforced absent an advisement of the right
to withdraw his plea should the trial court subsequently disapprove of its
terms. 

            Initially, we observe that it is not
clear that defendant was ever “promised” probation as a term of his plea
agreement -- whether it be three years, as set forth on the written change of
plea form not agreed to by the prosecutor, or five years as the trial court
recited as the anticipated sentence depending on how defendant was progressing
in the treatment program.  In any event,
it was clarified prior to defendant’s entry of his no contest plea that the
parties had agreed sentencing would be postponed to permit him to enter into a
residential treatment program but that if he failed the program, he would be
sentenced to state prison on all three cases. 
While the terms of this “ ADDIN BA xc <@$cs> xl 6 s
FOOZNW000004 Vargas
waiver” were repeated at the prosecutor’s request after defendant entered into
his no contest pleas, this is not a case where the trial court unilaterally and
subsequently imposed such a condition of release upon the defendant.  The terms of the “ ADDIN BA xc <@$cs> xl 6 s
FOOZNW000004 Vargas
waiver” here were clearly contemplated and agreed upon by the parties as part
of the plea agreements in both the second and third cases.

            Contrary to defendant’s contention,
the trial court’s failure to advise defendant of his right to withdraw his plea
should the court subsequently disapprove of its terms, as required by  ADDIN
BA xc <@osdv> xl 15 s FOOZNW000013 l "section 11952.5" section 1192.5, is of no consequence.  The trial court did not disapprove of the
plea agreement when it imposed the prison sentence but rather, imposed prison
as a consequence of defendant’s termination from the residential treatment
program, as provided for by the terms of the plea agreement.  Because the trial court acted in accordance
with the terms of the plea agreement, the provisions of  ADDIN
BA xc <@$osdv> xl 14 s FOOZNW000012 section 1192.5 that permit defendant to
withdraw his plea if the court withdraws approval of the agreement were not
implicated.  (People v.  ADDIN
BA xc <@$cs> xl 44 s FOOZNW000005 xhfl Rep xpl 1 Masloski,
supra, 25 Cal.4th at pp.
1223-1224.)

III

Placer
County Conduct Credits

            In his supplemental brief, defendant
states:  “While I was in Placer County I
was fighting [the first case] in Nevada County at the same time.  I should receive credits for both cases.  I did not.” 
Defendant is not entitled to dual custody credit.

             ADDIN
BA xc <@osdv> xl 14 s FOOZNW000014 l "Section 2900.5" Section 2900.5 provides, in pertinent
part:  “(a) In all felony and misdemeanor
convictions, either by plea or by verdict, when the defendant has been in
custody, including . . . any time spent in a jail, . . .
including days served as a condition of probation in compliance with a court
order, . . . shall be credited upon his or her term of imprisonment,
. . .  [¶]  (b) For the purposes of this section, credit
shall be given only where the custody to be credited is attributable to
proceedings related to the same conduct for which the defendant has been
convicted.  Credit shall be given only
once for a single period of custody attributable to multiple offenses for which
a consecutive sentence is imposed.”

 

            In  ADDIN
BA xc <@$cs> xl 6 s FOOZNW000007 Bruner, our Supreme Court rejected
the defendant’s request for credits against his drug sentence for time already
served and credited on the parole revocation term, ruling that “when
presentence custody may be concurrently attributable to two or more unrelated acts,
and where the defendant has already received credit for such custody in another
proceeding,” defendant must demonstrate that “but for” the charge on which he
was convicted and for which he seeks credits, he would have been free during
the presentence period.  ( ADDIN BA xc <@cs> xl 44 s
FOOZNW000007 xhfl Rep xpl 1 l "People
v. Bruner(1995)
9 Cal.4th 1178" People
v. Bruner (1995)
9 Cal.4th 1178, 1180 ADDIN BA xc <@$cs> xl 6 s
FOOZNW000007 xpl 2 ).) 
The high court reasoned that  ADDIN
BA xc <@$osdv> xl 14 s FOOZNW000014 section 2900.5 was “intended only to prevent
inequalities in total confinement among defendants, each similarly sentenced in
a single proceeding, which inequalities arise solely because one
defendant suffered presentence confinement while another did not.   ADDIN
BA xc <@$osdv> xl 14 s FOOZNW000014 Section 2900.5 is not intended to bestow the
windfall of duplicative credits against all terms or sentences that are
separately imposed in multiple proceedings.” 
(
ADDIN BA xc <@$cs> xl 18 s FOOZNW000007 xhfl Rep xpl 1 Bruner, at p. 1191.)  Accordingly, the court concluded:  “[W]hen presentence custody may be
concurrently attributable to two or more unrelated acts, and where the
defendant has already received credit for such custody in another proceeding,
the strict causation rules . . . should apply.”  ( ADDIN BA xc <@$id> xl 14 s ID
xhfl Rep xpl 1 Id. at p. 1180.)

            Here, defendant received credit for
his Placer County custody time in his Placer County case.  He has failed to demonstrate that, but for
his activities which gave rise to the charges in the first case, he would have
been free, or at least bailable, during that presentence period.  (People
v.  ADDIN BA xc <@$cs> xl 35 s
FOOZNW000007 xhfl Rep xpl 1 Bruner, supra, 9 Cal.4th at p. 1180.)  Because he cannot show that the sole reason
for his loss of liberty during his period of confinement in Placer County were
the charges in the first case, he is not entitled to dual custody credit for
that time.  (See  ADDIN
BA xc <@cs> xl 52 s FOOZNW000008 xhfl Rep xpl 1 l ">People v. Mendez(2007) 151 Cal.App.4th
861" People
v. Mendez (2007) 151 Cal.App.4th
861, 864-865.)

IV

Review
Of Record Pursuant To Wende

            Having also undertaken an examination
of the entire record, we find no arguable error that would result in a
disposition more favorable to defendant.

DISPOSITION

            The judgment is affirmed.

 

 

 

                                                                                       ROBIE          , J.

 

 

 

We concur:

 

 

 

          NICHOLSON      , Acting P. J.

 

 

 

          DUARTE         , J.