Opinion
F073566
09-21-2017
THE PEOPLE, Plaintiff and Respondent, v. LUIS FRANCISCO ABRAMS, Defendant and Appellant.
Nuttall & Coleman, Roger T. Nuttall and Jim H. Vorhies, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F15900321)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. James A. Kelley, Judge. Nuttall & Coleman, Roger T. Nuttall and Jim H. Vorhies, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Franson, J. and Peña, J.
-ooOoo-
Appellant Luis Francisco Abrams pled no contest to vehicle theft with a prior (Veh. Code, § 10851, subd. (a) & Pen. Code, § 666.5/count 1) and evading a police officer (Veh. Code, § 2800.2, subd, (a)/count 3). Abrams also admitted four prior prison term enhancements (§ 667.5, subd. (b)) and allegations that he had a prior conviction within the meaning of the "Three Strikes" law (§ 667, subds. (b)-(i)). On appeal, Abrams contends the court abused its discretion when it denied his motion to withdraw his plea. We conclude there is no merit to this contention. However, our review of the record disclosed that the court imposed an unauthorized sentence when it stayed the four prior prison term enhancements and we will strike them. In all other respects, we affirm.
All further statutory references are to the Penal Code, unless otherwise indicated.
FACTS
On January 13, 2015, at approximately 12:16 a.m., as Abrams drove a stolen car with Brittany Olsen as a passenger, a Fresno County Sheriff's deputy attempted to effect a traffic stop. Abrams drove off and during an ensuing chase, he drove at speeds of up to 50 miles per hour on city streets, including through one intersection where he ran a red light. Eventually deputies were able to take Abrams and Olsen into custody and in the car's ignition they found a shaved key. In a postarrest statement, Abrams stated that his "homegirl" gave him the key to the car so he could go to the store and that he stole the car from her.
On January 14, 2015, the Fresno County District Attorney filed a complaint charging Abrams with the counts and allegations he pled to and with receiving a stolen vehicle (§ 496d, subd. (a)/count 2).
On October 19, 2015, Abrams entered his plea, as noted above, in exchange for an indicated sentence of seven years four months. Additionally, the court dismissed count 2 because it was a lesser included offense of the vehicle theft violation charged in count 1. Although the change of plea form indicated the maximum prison term Abrams could receive for all the charges and allegations he pled to was 14 years, during the change of plea proceedings the following colloquy occurred:
In entering his plea to the vehicle theft charge, Abrams admitted that he unlawfully drove or took a vehicle "with the intent to deprive [the owner] of that vehicle." Based on Abrams's admission that he intended to "permanently" deprive the owner of the vehicle, Abrams could not be convicted of receiving the same vehicle. (People v. Garza (2005) 35 Cal.4th 866, 876.) Thus, the court correctly dismissed the receiving stolen property charge.
"THE COURT: The maximum sentence [is] 14 years on this? Is that the maximum?
"[THE PROSECUTOR]: Thirteen years four months.
"THE COURT: Thirteen years four months. The Court is indicating seven years four months based on your early plea. And there are fines and fees involved as well? [¶] Did you read and understand each of those consequences?
"[ABRAMS]: Yes." (Italics added.)
On January 6, 2016, the court granted Abrams's motion to substitute attorney Roger T. Nuttall for appointed counsel.
On February 1, 2016, Nuttall filed a motion to withdraw plea on Abrams's behalf. The motion, in pertinent part, alleged that when Abrams entered his plea, his "judgement was overreached" when he was incorrectly advised by defense counsel that the maximum sentence he faced as a result of his plea was 14 years four months when he actually faced a maximum term of only 13 years four months.
The change of plea form incorrectly stated that the maximum sentence Abrams faced based on his plea was 14 years. Abrams alleges that his counsel erroneously advised him that he faced a maximum sentence of 14 years four months. We agree with the parties that 13 years four months was the maximum prison term Abrams could receive based on the charges to which he pled. --------
On February 8, 2016, Nuttall filed a supplemental memorandum in support of his motion to withdraw plea. In a declaration attached to the memorandum, Abrams stated, in pertinent part, that had he been advised of the "correct maximum possible sentence in this case, [he] would not have accepted the negotiated plea settlement."
On February 24, 2016, in denying the motion the court stated,
"... I am going to deny the request. I don't find good cause to allow the defendant to withdraw the plea. And the benefit of the bargain goes both ways. The bargain was struck, defendant had counsel, and there were very specific terms and conditions and situations, or basically the maximum exposure was put on the record. And so for me to find that conversations were had outside of the record [that] disagree with those, I don't have any evidence that those conversations were even had other than the self-serving declaration. And on the record, it was pretty clear that the maximum penalty was spelled out. So I'm going to deny the motion."
The court then stayed the four prior prison term enhancements and sentenced Abrams to an aggregate prison term of seven years four months: a middle term of three years, doubled, on Abrams's evasion conviction, and one-third the middle term, eight months, doubled, on his vehicle theft with a prior conviction.
DISCUSSION
The Motion to Withdraw Plea
Abrams relies on People v. Johnson (1995) 36 Cal.App.4th 1351 (Johnson) to contend he was denied the effective assistance of counsel in entering his plea because his appointed counsel incorrectly advised him that the maximum sentence he could receive as a result of his plea was 14 years four months when in fact it was only 13 years four months. He further contends he would not have accepted the court's indicated sentence had he been properly advised of the correct maximum sentence. Thus, according to Abrams, the court abused its discretion when it denied his motion to withdraw plea. We reject these contentions.
"Where a defendant has been denied the effective assistance of counsel in entering a plea of guilty, he is entitled to reversal and an opportunity to withdraw his plea if he so desires. [Citation.] To be valid, guilty pleas must be based upon a defendant's full awareness of the relevant circumstances and the likely consequences of his action. [Citation.]
"We undertake a two-tier analysis to determine adequacy of counsel. First, appellant must show that trial counsel failed to act in a manner expected of reasonably competent attorneys acting as diligent advocates. Second, he must establish that counsel's acts or omissions resulted in withdrawal of a potentially meritorious defense. [Citations.] ... [I]neffectiveness may be proven by establishing 'that it is reasonably probable a determination more favorable to the defendant would have resulted in the absence of counsel's failings.' [Citation.]
"When a defendant expresses a desire to plead guilty, his counsel must investigate carefully all factual and legal defenses to him. [Citation.] Prejudice occurs if counsel's acts or omissions adversely affect defendant's ability to knowingly, intelligently and voluntarily decide to enter a plea of guilty. [Citation.] If counsel's acts or omissions appear to result in defendant's entering a plea under the influence of 'mistake, ignorance or inadvertence or any other factor overreaching defendant's free and clear judgment' which would justify withdrawal of his plea, he was ineffectively represented by counsel." (People v. Hunt (1985) 174 Cal.App.3d 95, 104-105 (Hunt).)
Abrams ineffective assistance claim fails because he had not shown that he was prejudiced by defense counsel's representation. (Strickland v. Washington (1984) 466 U.S. 668, 697 ["If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed."].) Although Abrams contends he would not have entered his plea had he been properly advised of the maximum term he faced, the court was not bound by his uncorroborated statement. (Hunt, supra, 174 Cal.App.3d at p. 103.) Moreover, during the change of plea proceeding the prosecutor and the court each stated that based on the charges Abrams admitted, he was facing a maximum term of 13 years four months and Abrams acknowledged that he understood this was the maximum sentence he faced. Thus, even if counsel misadvised Abrams as Abrams now contends, the misadvisement did not prejudice Abrams because prior to entering his plea he acknowledged he understood the court's advisement that he faced a maximum term of 13 years four months.
Abrams's reliance on Johnson is unavailing. In Johnson, a defendant who faced a maximum sentence of 27 years agreed to a 20-year sentence as part of a plea bargain. The appellate court remanded the case to permit the defendant to withdraw his plea after concluding defense counsel had misadvised the defendant that his maximum potential sentence absent a plea bargain was 38 years. (Johnson, supra, 36 Cal.App.4th at pp. 1355, 1358.) In so doing, the appellate court concluded it was obvious that the difference between the true maximum sentence and the misadvised maximum sentence reasonably would have made a difference to the defendant, as the defendant stated in his declaration in support of his petition for habeas corpus. (See Johnson, supra, 36 Cal.App.4th at p. 1358.)
Johnson is distinguishable because in that case the error in the misadvisement involved 11 years, whereas here the error in the misadvisement contained in the change of plea form involves only eight months. Further, unlike Johnson, here the court and the prosecutor both corrected the incorrect statement in the change of plea form that Abrams faced a maximum potential term of 14 years. (Johnson, supra, at p. 1354.) Thus, there is no merit to Abrams's ineffective assistance of counsel claim because he has not established that he was prejudiced by defense counsel's alleged deficient representation.
" ' "[T]he withdrawal of [a defendant's] plea rests in the sound discretion of the trial court and may not be disturbed unless the trial court has abused its discretion." [Citation.] An appellate court will not disturb the denial of a motion unless the abuse is clearly demonstrated.' [Citation.] It is the defendant's burden to produce evidence of good cause [to withdraw his plea] by clear and convincing evidence." (People v. Wharton (1991) 53 Cal.3d 522, 585.) Since Abrams did not meet his burden of showing that he was denied the effective assistance of counsel in entering his plea, he did not establish good cause for the court to grant his motion to withdraw plea. The court did not abuse its discretion when it denied Abrams's motion to withdraw plea.
The Stayed Prior Prison Term Enhancements
In People v. White Eagle (1996) 48 Cal.App.4th 1511, this court held that an "order staying imposition of the prior prison term enhancement is an unauthorized sentence and is subject to correction on appeal." (Id. at p. 1521.) "[S]uch an enhancement, if not imposed, must be stricken." (People v. Jones (1992) 8 Cal.App.4th 756, 758.) Thus, the court erred when it stayed the four prior prison term enhancements Abrams admitted and we will strike them.
DISPOSITION
The judgment is modified to strike the four prior prison term enhancements the court stayed. The trial court is directed to prepare an amended abstract of judgment that incorporates this modification and to forward a certified copy to the appropriate authorities. As modified, the judgment is affirmed.