P. v. Abernathy

Filed 10/17/07 P. v. Abernathy CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Rick Abernathy appeals the judgment entered after he pleaded no contest to selling cocaine (Health & Saf. Code, 11352, subd. (a)) and possession of cocaine for sale (Health & Saf. Code, 11351). He admitted that he had a prior strike conviction (Pen. Code^[1], 667, subds. (b)-(i), 1170.12), and that he committed the possession offense while free on bail ( 12022.1). The trial court sentenced him to 12 years in state prison, and ordered him to pay a $400 restitution fine. ( 1202.4, subd. (b).) The court also imposed but suspended a parole revocation restitution fine in the same amount. ( 1202.45.)

Appellate counsel filed a brief contending that the restitution fines were imposed in violation of his plea bargain, and must therefore be reduced to the statutory minimum of $200. We subsequently allowed Abernathy to file a supplemental letter brief in which he asserts (1) that his plea was not knowing, intelligent, and voluntary; (2) that his strike prior was not properly considered; and (3) that his trial and appellate attorneys provided ineffective assistance of counsel. We affirm.

FACTS AND PROCEDURAL HISTORY

Because appellant pleaded no contest, the relevant facts are derived from the preliminary hearing transcript and probation report. On November 3, 2002, appellant was found in possession of cocaine base and a loaded handgun. On August 2, 2004, appellant sold $40 worth of cocaine to an undercover police officer. On August 19, 2004, cocaine, cocaine base, and hydrocodone were found in appellant's possession after he was observed selling drugs at several locations.

On October 26, 2004, appellant was charged by information on a total of nine counts, including sale and possession for sale of cocaine or cocaine base, possession of hydrocodone for sale, possession of a controlled substance with a firearm (Health & Saf. Code,   11370.1, subd. (a)), and being a felon in possession of a firearm ( 12021, subd. (a)(1)). It was alleged as to all of the offenses that appellant was on bail when he committed the crimes ( 12022.1) and that he had a prior strike conviction for assault with a deadly weapon ( 245, subd. (a)(1)). As to three of the counts, it was also alleged that appellant was armed with a firearm ( 12022, subd. (c)).

Appellant initially pleaded not guilty and denied the special allegations. On June 2, 2006, he withdrew his plea and pleaded no contest to two counts, in exchange for the dismissal of the other seven. During the plea colloquy, the trial court advised appellant, among other things, that he would be sentenced to 12 years in state prison and "will be ordered to pay certain fines and fees." The court noted that appellant faced "essentially a life" sentence if he did not accept a plea and was convicted and sentenced on all counts. The court also told appellant that he would receive approximately four years and four months presentence custody credits, which "leaves you with about seven years eight months ahead of you. You will do about 80 percent of that which is just a little bit over six years." Appellant stated that he understood all the consequences of his plea, and acknowledged that no other promises had been made to him. The plea was accepted, and appellant was found guilty and the special allegations he admitted were found true. Appellant waived his right to be sentenced until September 13, 2006.

At the September 13th hearing, appellant moved the court to exercise its discretion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, to strike the prior conviction that appellant had admitted as part of his plea. The court denied the request on the ground that appellant had agreed to be sentenced to a 12-year prison term based in part on the prior strike allegation, in exchange for which he received the dismissal of numerous other charges.

Sentencing was continued until September 27, 2006. After the court pronounced sentence at that hearing and calculated 1,650 days presentence custody credit, appellant complained, "I don't agree with the deal that I took. . . . [T]he only reason that I considered even taking the deal . . . is because [my attorney's] calculations told me that I would have just a little over four years to do." The court reminded appellant that he had been expressly advised otherwise at a no contest plea hearing, and that he was "facing 30 something years" if he withdrew his plea. Appellant's attorney also verified that he had told appellant prior to his plea that he would receive four years and four months of credit on a 12-year sentence. Appellant responded, "I would like to withdraw my plea. It's just not right, sir." The court informed him that he would allow him to withdraw his plea, but not his jury waiver. The matter was continued again until October 11 so appellant could decide how he wished to proceed.

At the hearing on October 11, the prosecution objected to the withdrawal of appellant's plea. The court responded, "I wouldn't normally let him withdraw the plea and I wouldn't in this case. There is no legal reason to do so. If he would like to waive jury, have a court trial, I would be happy to hear the evidence and the chips fall where they fall." Appellant asserted that he told his attorney on the morning of the plea hearing that he "absolutely will not take the deal" requiring him to serve 85 percent of a 12-year sentence. The court noted that appellant would actually only serve 80 percent of his sentence. Appellant also complained that he had been unable to obtain a transcript of the plea hearing where this was made clear to him. The court gave appellant a copy of the transcript and gave him the opportunity to review it.

Appellant asked for "a chance to go over my entire file myself so I can intelligently make a decision myself. . . . I have got so much time on this case and I have requested my transcripts. I don't think it's fair for me. It's like I am taking a plea in the blind." The court responded, "if you would like access to your file, that is what your attorneys are for. But this case has been going on for years. []  You have never asked me to see your file before, and I put this over so you could give it thought and we are here now for sentencing. . . . What do you want to do? Do you want the benefit of the offer or . . . I will let you withdraw your plea."

Appellant replied, "I don't want the plea," but insisted on a jury trial. The court denied the request on the ground that "[t]here is nothing wrong with the plea. . . . All of the consequences of the plea [were] explained a[d] nauseum and thoroughly to the defendant. []  The court believes the defendant has already entered into a jury waiver and has indicated, despite the validity of the plea, it would be willing to hear the facts sitting alone if that is what the defendant preferred and wanted to enter into a more formal jury waiver. Defendant has elected not to do that. []  The court intended fully to deny the motion in any event and the motion to withdraw the plea will therefore be denied."

Appellant was thereafter sentenced to 12 years in state prison as contemplated by the plea agreement. He was awarded 1,495 days presentence custody credit. He was also ordered to pay a $400 restitution fine pursuant to section 1202.4, subdivision (b). Appellant did not object to the imposition of that fine. A $400 parole revocation fine was also imposed and suspended pursuant to section 1202.45. Appellant's attorney assured the court that appellant would receive an entire copy of his file for his review, and represented that he and appellant's prior attorney "went over all the cases with him, all the reports, all the transcripts numerous times."

Appellant filed a timely notice of appeal and a request for a certificate of probable cause, the latter of which was denied.

DISCUSSION

I.

Restitution Fines

Appellant contends, in reliance on People v. Walker (1991) 54 Cal.3d 1013 (Walker), that the $400 restitution fines imposed under section 1202.4, subdivision (b), and 1202.45, must be reduced to the statutory minimum of $200, because the trial court failed to advise him that a substantial fine would be imposed pursuant to the plea agreement. We disagree.

"In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record."

( 1202.4, subd. (b).) For felony convictions, the fine ranges from a minimum of $200 to a maximum of $10,000. (Id., subd. (b)(1).) The amount of the fine is subject to the court's discretion. (Ibid.)

In People v. Crandell (2007) 40 Cal.4th 1301 (Crandell), which was decided after appellant's opening brief was filed, the California Supreme Court held that a $2,600 restitution fine was properly imposed against a defendant pursuant to a no contest plea because he had been advised at the plea hearing that "he would 'have to pay a restitution fund fine of a minimum of $200, a maximum of $10,000'" and had indicated that no other promises had been made to him regarding the terms of his plea. (Id., at pp. 1304-1306, 1309-1310.) In so holding, the court distinguished Walker on the ground that the defendant in that case had been advised only that a restitution fine was a "possible" consequence of his plea. (Id., at pp. 1307-1308.) Although the defendant in Walker had waived the court's error in this regard by failing to object to the fine when it was imposed, the defendant was entitled to a reduction of the fine from $5,000 to the statutory minimum of $100.^[2] The court noted: "In reaching that conclusion, we stressed that 'normally the defendant should not receive any more punishment than that bargained for' [citation]; we allowed 'the nonbargained $100 fine' to stand on appeal only because it was 'statutorily mandated and . . . not significant in the context of the bargain as a whole' [citation]." (Id., at p. 1308.) In distinguishing the two cases, the court reasoned that "while 'the defendant in [Walker] reasonably could have understood the negotiated plea agreement to signify that no substantial fine would be imposed' [citation], defendant in this case was flatly informed: 'You will be ordered to pay restitution to the victims in this case.' In light of these circumstances, it is clear that when defendant entered his plea, he could not reasonably have understood his negotiated disposition to signify that no substantial restitution fine would be imposed." (Id., at p. 1310.)

In a concurring opinion joined by Justices Chin and Corrigan, Justice Baxter deemed it significant that the defendant had not only been advised that he would "'have to pay'" a restitution fine, but had also acknowledged that no other promises had been made to him with regard to the plea: "The parties have an obligation to address all subjects they deem significant to the bargain, specifically including the amount of a restitution fine. [Citation.] They have the further obligation to state their agreement fully on the record. They should not leave trial and appellate courts guessing about missing or unstated terms. If the record does not disclose any agreement, one way or the other, on a particular subject, there is no reason to assume a term favorable to the defendant. Thus, when (1) the parties, in stating their bargain for the record, have mentioned no agreement to limit the restitution fine, (2) the court warns that it will impose such a fine, and that the amount may be anywhere in the statutory range, (3) the defendant says he understands, and (4) neither the defendant nor counsel protests that such a fine would violate the bargain, it is most sensible to assume the parties made no agreement with respect to the fine, leaving it to the law and the court's discretion upon proper advisement." (Crandell, supra, 40 Cal.4th at p. 1311.)

We find this reasoning persuasive and apply it here. Even assuming that the $400 fine is "significantly" more than the statutorily mandated minimum fine of $200, such that appellant was entitled to an advisement as part of his plea as contemplated by Walker and Crandell, and that any error in failing to give that advisement would constitute prejudicial error (Walker, supra, 54 Cal.3d at pp. 1022-1023), appellant was unequivocally notified that he "will be ordered to pay certain fines" as part of his plea agreement. Moreover, appellant acknowledged his understanding of the agreement, as well as the fact that no other promises had been made to him regarding any aspect of his plea. Under the circumstances, it is proper to assume that no agreement had been made with respect to the fine. Although the trial court did not state the statutory range of the fines to be imposed, "[t]he fact that the precise amount of the fine was not specified prior to the entry of defendant's plea does not change the analysis. To the contrary, it represents defendant's implicit recognition that the amount of the fine will be left to the sentencing court's discretion." (People v. Knox (2004) 123 Cal.App.4th 1453, 1461, fn. omitted.) Given this implicit recognition, there is no basis for reducing the fines that were imposed against him.

II.

Appellant's Supplemental Letter Brief

In a supplemental letter brief that was filed with the court's permission, appellant argues (1) that he should have been allowed to withdraw his plea; (2) that the strike prior he admitted "was not even taken into consideration;" and (3) that he has been denied constitutionally effective assistance of counsel at trial and on appeal. With regard to the first contention, appellant asserts that the court effectively coerced him into accepting the plea by refusing to allow him to withdraw the plea as well as his waiver of the right to a jury trial. In his third contention, appellant claims that appellate counsel "received only portions of the transcript which didn't show stronger points for her to attack" and that his retained trial counsel "was never present for 95% of my hearings" and "coerce[d] me into a deal" by misrepresenting the amount of time appellant would actually have to serve under the plea agreement. None of these claims has merit.

Appellant's claim that he should have been allowed to withdraw his plea is plainly an attack on the plea. Because he did not obtain a certificate of probable cause, he is barred from raising this claim on appeal. ( 1237.5; Cal. Rules of Court, rule 8.304(b); People v. Panizzon (1996) 13 Cal.4th 68, 75-76.) In any event, the record unequivocally reflects that appellant's plea was knowing, voluntary and intelligent. The transcripts of the plea hearing flatly belie appellant's assertion that he was misadvised, misinformed or coerced into accepting the plea. In exchange for his plea, appellant was sentenced to 12 years in state prison, given custody credit for almost half of that sentence, and avoided prosecution on five other charges that could have resulted in a longer term of incarceration. Because appellant was not entitled to withdraw his plea, it necessarily follows that the trial court was entitled to condition any withdrawal on a court trial in lieu of a jury.

It is not clear what appellant means to convey in arguing that his strike prior "was not even taken into consideration." It appears from the record, however, that the court denied appellant's motion to strike the prior in the interests of justice pursuant to People v. Superior Court (Romero), supra, 13 Cal.4th 497. Because appellant agreed to be sentenced on the prior as part of his plea agreement, appellant's challenge is in essence an attack on the validity of his negotiated sentence. "'[A] challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself' and thus requires a certificate of probable cause." (People v. Shelton (2006) 37 Cal.4th 759, 766, quoting People v. Panizzon, supra, 13 Cal.4th at p. 79.) As we have explained, the record contradicts appellant's claim that his plea was invalid.

Appellant's claims of ineffective assistance also fail. "'". . .". . ."In order to prevail on [an ineffective assistance of counsel] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission." [Citation.]' [Citation.]" (People v. Majors (1998) 18 Cal.4th 385, 403.) The record affirmatively discloses that counsel properly advised appellant regarding the consequences of his plea, and that plea was clearly favorable under the circumstances. The record also belies appellant's claim that appellant's counsel failed to review the entire record on appeal, and there is no indication that any documents that were admitted in the trial court are not a part of that record.

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Michael A. Latin, Judge

Superior Court County of Los Angeles

______________________________

Rick Abernathy, in pro. per.; Julie Schumer, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Lance E. Winters, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

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^[1]Further statutory references are to the Penal Code unless otherwise stated.

^[2]The minimum statutory restitution fine is now $200. ( 1202.4, subd. (b)(1); Crandell, supra, 40 Cal.4th at p. 1308, fn. 5.)