P. v. Kashani
Filed 12/26/12 P.
v. Kashani CA4/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
MIRMASSOUD
KASHANI,
Defendant and Appellant.
D059920
(Super. Ct. Nos.
SCD215859 &
SCN236630)
APPEAL
from a judgment of the Superior Court of
County, Daniel B. Goldstein, Judge. Affirmed.
On
May 20, 2009, Mirmassoud Kashani entered an Apple Store with the intent to steal
two software items valued at $398. On
October 27, he entered a negotiated guilty plea to
§ 459) in case No. SCD215859. On October 20, 2010, the court sentenced Kashani to the 16-month lower prison term, to
be served concurrently with a four-year stipulated sentence in case No. SCN236630.
fails to reflect the appropriate time waivers, and thus case No. SCD215859 must
be dismissed because he was denied his right
to a speedy sentencing hearing. We
affirm.
BACKGROUND
Kashani's
change of plea form reflects his waiver of "the right to a speedy and
public trial by jury." An
addendum to the change of plea form reflects his "[unequivocal]"
waiver of "any and all rights to appeal . . . any
sentence derived from this conviction."
The addendum further states:
"The parties agree that, in the event the Defendant is acquitted of
all charges, allegations, and lesser included offenses in [No.] SCN236630,
then, upon duly filed motion of the defense, the People will reduce the
conviction in this plea agreement to a misdemeanor pursuant to Penal Code
section 17[, subdivision] (b)(4).
However, if the Defendant is charged and convicted of any new
criminal offenses while pending sentencing on this case, he will not be
entitled to a misdemeanor in this case notwithstanding an acquittal in [No.]
SCN236630.
[¶] . . . [¶] Both
parties have stipulated that the defendant's sentencing in this case will trail
his pending North County
At
the change of plea hearing in the central division of the superior court, the
trial court noted that according to the plea agreement, "we'll have this
matter pending sentencing for some time."
After a colloquy with defense counsel, the court stated, "The plan
ultimately is then we will have a sentencing hearing, depending on what happens
up in the North County." Addressing Kashani,
the court stated, "And that's your understanding, right?" Kashani replied, "Yes, it is, your
Honor." Referring to "all the
details of the plea agreement" set forth in the addendum, the court asked
Kashani, "This is your understanding and what you're relying upon, this
[addendum], correct?" In response,
Kashani stated, "Yes, with -- with some things that my attorney was going
to clarify, just minor." Kashani's
attorney proceeded to clarify matters unrelated to the issues in this
appeal. The court then asked Kashani if
he had read, understood, initialed and signed the change of plea form and the
addendum. Kashani replied that he
had. The court found that Kashani
understood the consequences of the plea and accepted the plea.
After
accepting Kashani's guilty plea, the court said, "This matter is now
scheduled for sentencing on November 30,[2009,] or shall we waive
time?" Kashani's counsel responded,
"We'll waive time pending the trailing North County case,
your Honor." Kashani's counsel said
that the date of the next hearing in case No. SCN236630 was October 30. The court set a sentencing hearing in this
case for October 30 in the North County division of the superior court, and noted "there's no time
waiver yet as to sentencing, so we'll get a time waiver and schedule it
then."
On
October 30,
2009, the court continued the sentencing
hearing to November 4. The record on
appeal contains no information regarding any proceedings on November 4, and no
record of any further proceedings until January 6, 2010. On January 6, the court continued the hearing
to March 5. There were a number of
subsequent continuances, at least one of which was at Kashani's request, and
several time waivers by Kashani.
name="_ftnref2" title="">[2]
Sentencing
in the instant case and in case No. SCN236630 took place on October 20, 2010. Kashani's counsel stated
that there was "no legal cause why sentencing should not be imposed at
this time." Against his counsel's
advice, Kashani made a statement to the court.
Kashani stated that "on October 27, 2009[,
the court] did not take a sentencing waiver from
me . . . ."
Kashani concluded "that the case has gone far beyond what is
allowed under Penal Code section 1382 and should actually be
dismissed." The court denied the
motion to dismiss.
During
the pendency of this appeal, this court requested that Kashani's appellate
counsel address the following issues:
"(1) The addendum to the
change of plea form . . . provides in part, 'Defendant
unequivocally gives up any and all rights to appeal this conviction or any
sentence derived from this conviction.'
Does this provision preclude the appeal in this case?" and
"(2) The [reporter's transcript of
the change of plea hearing] indicates that appellant's trial counsel stated
that appellant would waive time . . . , but there appears
to be no personal waiver by appellant.
Must the appeal in this case be dismissed for violation of appellant's
right to speedy sentencing?"
the Right to Claim
Sentencing Hearing
We
need not decide whether the waiver of the right to appeal, set forth in the
plea agreement, prevents Kashani from contending on appeal that he did not
waive the right to a speedy sentencing hearing.
At the change of plea hearing, Kashani explicitly waived that right by
"[stipulating] that [his] sentencing in this case [would] trail his
pending North County case[, No.] SCN236630."
Furthermore, Kashani raised no objection to the delay until the
sentencing hearing. Finally, Kashani
cites no authority that would support his contention that he was improperly
denied his right to a speedy sentencing hearing.
DISPOSITION
The
judgment is affirmed.
AARON, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
name="_ftn1" title="">[1] The offenses in case
No. SCN236630 occurred between June 2005 and October 2007.
name="_ftn2" title="">[2] The waivers occurred
on April 19, May 5, May 7, August 13, September 1 and September 21, 2010.
