Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI018557, Jules E. Fleuret, Judge.
Michelle C. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant and appellant Dennis Michael Alexander appeals following his guilty plea to attempted murder with a deadly weapon. (Pen. Code, §§ 664, 187, subd. (a), 12022, subd. (b)(1)).
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On February 10, 2004, defendant was charged with attempted murder (§§ 664, 187, subd. (a)), with personal use of a knife (§ 12022, subd. (b)(1)). He was also charged with inflicting great bodily injury on the victim under circumstances involving domestic violence. (§§ 12022.7, subd. (e); 1203.075).
At the preliminary hearing, the victim testified she is defendant’s former wife. At the time of the incident, she and defendant were legally separated, but she was living in defendant’s home, along with their two children and defendant’s son. Defendant’s girlfriend Martha and her two children were also living in the same residence. The victim said defendant grabbed her with his left arm and started choking her. She bit him in an attempt to get away. He began hitting her. He then grabbed a kitchen knife and stabbed her right below her left ear. Thereafter, he continued to stab her. Hearing the commotion, several of the other occupants of the home came to her aid. She managed to get out of the house and to run to a neighbor’s home. As a result of the attack, she had multiple stab wounds and collapsed lungs. She was transported to the hospital by helicopter and remained hospitalized about a week. A responding deputy also testified at the preliminary hearing. He said medical personnel at the scene informed him the victim suffered approximately 25 puncture wounds to her neck, torso, chest, and back.
Pursuant to a plea agreement, defendant pled guilty on January 11, 2007, to attempted murder by personal use of a knife in exchange for a six-year sentence and the dismissal of the great bodily injury allegation. On August 29, 2007, before he was sentenced, defendant filed a motion to withdraw his guilty plea. In a handwritten declaration submitted in support of the motion, defendant claimed he signed the plea agreement under duress. According to defendant, he was “tricked” into signing the plea agreement because his attorney told him the court had agreed to allow him to serve his entire sentence in county jail rather than state prison. In order to do this, defendant would be required to continue to waive his final sentencing. However, he was then informed the judge was transferred to another court and would no longer be able to waive his time. As a result, defendant declared he wanted to go to trial and stated, “I want my side to be heard.”
Defendant testified at a hearing on his motion to withdraw on November 2, 2007. He stated it was his understanding he would be doing his time “in county” and “would be released from county on parole.” Defendant further testified he was misadvised by counsel and would not have signed his plea agreement if he realized he would be sent to state prison rather than spend all of his time in county jail. Defendant also testified he wished to withdraw his plea because the parole term was not circled on his change of plea form, and a proposed disposition indicated his parole term would be “life.” According to defendant, he did not read the plea agreement before initialing and signing it. Rather, his attorney summarized the terms for him because they were in a rush.
Defendant’s attorney testified he had discussions with both defendant and the court, but never told defendant he would be spending his entire time in county jail. Rather, he testified he reached an understanding with defendant and the court to postpone defendant’s final sentencing for as long “as we possibly could.” The intent was for defendant to stay in county jail as long as possible and then go to state prison for “a relatively short duration.” The attorney further testified he did not know why the parole term was not circled on defendant’s change of plea form but it was his common practice to advise his client about the length of parole. However, he did not have a specific recollection of discussing the parole term with defendant. He believed defendant understood the terms of the agreement and was not under duress when he entered into it.
After a review of defendant’s guilty plea and some additional research, the parties stipulated that defendant’s parole term would only be four years. In addition, the court agreed based on the record that there was an understanding defendant “would do the majority of his time locally” and be sent to prison for “a turn-around.” Because he was privy to these discussions, the court also stated, “Judge Fleuret needs to be the one to sentence [defendant].” With these matters on the record, defendant withdrew his motion and decided not to seek a withdrawal of his plea.
On February 15, 2008, defendant appeared before Judge Fleuret. Over defendant’s objections, Judge Fleuret referred the matter to the probation department for a presentence investigation and report. On May 8, 2008, defendant appeared again before Judge Fleuret. Through counsel and in a written motion, defendant argued his custody credits should not be limited to 15 percent under section 2933.1, but the court disagreed. In accordance with the plea agreement, Judge Fleuret sentenced defendant to the mitigated term of five years for the attempted murder plus one year for the use of the knife, for a total of six years in prison.
DISCUSSION
On May 27, 2008, defendant filed a notice of appeal. The notice states defendant’s appeal “is based on the sentence or other matters occurring after the plea.” We appointed counsel to represent defendant on appeal. Appointed counsel on appeal has filed a brief under People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth the facts and procedural history, raising no specific issues, and requesting this court to conduct an independent review of the record. We offered defendant an opportunity to file a personal supplemental brief.
Defendant filed a supplemental brief on January 28, 2009. In his supplemental brief, defendant argues (1) his conduct credits were erroneously limited by the trial court to 15 percent under section 2933.1; (2) his plea is invalid because he received ineffective assistance of counsel; and (3) the court reneged on an agreement to allow him to serve all of his time in county jail rather than state prison. Each of defendant’s arguments is discussed separate below.
Custody Credits
The plea agreement dated January 11, 2007, states defendant was to receive “credits of 1,069 actual” and “160 per [section] 2933” for a total of 1,229 “as of plea date (1/11/07).” At the final sentencing hearing on May 8, 2008, the court stated defendant’s “total commitment to state prison is for six years with credits of 1,552 actual.” The court further stated it agreed with the prosecutor that defendant was entitled to a total of 1,784 days, including a total of 232 days of conduct credits calculated pursuant to the 15 percent limitation in section 2933.1.
For two reasons, defendant contends it was error for the court to limit the calculation of conduct credits to 15 percent under section 2933.1. First, defendant claims the plea agreement provided for credits to be calculated at the full-time rate provided in section 2933. However, the plea agreement only provided for calculation of 160 days of credits under section 2933 “as of plea date (1/11/07).” The plea agreement does not make any assertion about defendant’s eligibility to accrue additional full-time credits under section 2933 after the date the plea agreement was executed.
In pertinent part, section 2933, subdivision (a), states as follows: “For every six months of full-time performance in a credit qualifying program . . . a prisoner shall be awarded worktime credit reductions from his or her term of confinement of six months. . . .”
Second, citing subdivision (a) of section 2933.1, defendant argues he is not subject to the 15 percent limitation in section 2933.1, because he is a first time offender, and this section only applies to repeat offenders. According to defendant, the 15 percent limitation in section 2933.1 only applies to repeat offenders because eligibility is determined by reference to subdivision (c) of section 667.5, which enhances prison terms for repeat offenders. We disagree with defendant’s interpretation of section 2933.1.
Section 2933.1, subdivision (a), states as follows: “Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933.” In addition, section 2933.1, subdivision (c), states that: “Notwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in, or commitment to, a county jail . . . following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a).”
Subdivision (a) of section 667.5 enhances prison sentences for those who have previously been convicted of a violent felony. Subdivision (b) of section 667.5 enhances prison sentences for those who have previously served a prison term. Subdivision (c) of section 667.5, which is referenced in subdivision (a) of section 2933.1, simply lists felonies which are considered “violent” for purposes of the enhancement specified in section 667.5, subdivision (a).
Contrary to defendant’s contention that the purpose of section 2933.1 is to enhance punishment for repeat offenders, our Supreme Court has stated that the purpose of section 2933.1 is “to protect the public by delaying the release of prisoners convicted of violent offenses.” (In re Reeves (2005) 35 Cal.4th 765, 771.) Section 2933.1, subdivision (a), only refers to subdivision (c) of section 667.5, because it conveniently lists felonies which are considered “violent.” By way of plea, defendant was convicted in this case of attempted murder and attempted murder is specifically listed as a violent felony under section 667.5, subdivision (c)(12). As a result, any credits defendant accrues under sections 4019 or 2933 after the date of his plea agreement are subject to the 15 percent limitation in section 2933.1.
Ineffective Assistance of Counsel
Alternatively, defendant’s supplemental brief lists a number of reasons why he believes he was not effectively represented by counsel at various stages of the proceedings. For example, defendant claims his attorney would not allow him to testify at his preliminary hearing, did not properly explain the plea agreement, and failed to appear for various hearings, which caused his case to be delayed. He also contends he received ineffective assistance by conflict counsel who advised him to withdraw his motion seeking to set aside his guilty plea without knowing the facts of his case. In addition, he contends his appellate counsel failed to obtain a certificate of probable cause to challenge the validity of his plea as required by section 1237.5.
A cognizable claim of ineffective assistance of counsel following a guilty plea requires a showing that the defendant would not have pled guilty and insisted on going to trial but for counsel’s incompetent advice. (In re Resendiz (2001) 25 Cal.4th 230, 253.) Such a claim must be corroborated by independent, objective evidence. (Ibid.) Pertinent factors to be considered include the advice actually given by counsel, whether counsel accurately and effectively communicated the terms of the offer to the defendant, and the difference between the offer and the probable consequences of proceeding to trial, as viewed at the time the offer was made. (Ibid.)
Defendant does not allege he would have insisted on going to trial but for counsel’s bad advice. Without more, the record suggests counsel’s advice was competent under the circumstances. There is nothing in the record that even suggests defendant would have had any viable reason to pass up the exceedingly favorable offer he accepted in order to proceed to trial. Defendant viciously and repeatedly stabbed his former wife numerous times while several eyewitnesses were present. His sentencing exposure for the charges against him was considerably higher than the sentence he agreed to as part of the plea agreement. For the charge of attempted murder, defendant’s exposure was five, seven, or nine years in state prison. (§§ 664, 187.) For the infliction of great bodily injury on his former wife, defendant’s exposure was another three, four, or five years in state prison. (§ 12022.7, subd. (e).) For the use of a knife during the commission of the offense, defendant was also subject to a one-year enhancement. (§ 12022, subd. (b)(1).) In other words, defendant could have been sent to prison for 15 years if he had been convicted of all charges at trial. The plea agreement provided defendant would only spend six years in custody. In order to reach this favorable sentence, the prosecution agreed to dismiss the great bodily injury allegation. The record also indicates the prosecution agreed to a favorable calculation of pretrial custody credits under section 2933 up to the time of the plea. Under these circumstances, there is no reason for us to conclude defendant was given advice that was not in his best interest. Nor can we discern how defendant could have been prejudiced by counsel’s advice in connection with the plea agreement he entered. Although defendant also alleges his appellate counsel failed to obtain a certificate of probable cause, there is nothing to indicate defendant would have had any viable basis to challenge the validity of his plea on appeal. We must therefore reject defendant’s claim of ineffective assistance of counsel.
Local Custody Time
We must also reject defendant’s contention the trial court “reneged” on an agreement to have him serve his “entire sentence” in county jail rather than state prison. The record does not support defendant’s claim. Defendant was originally charged on February 10, 2004, and he pled guilty on January 11, 2007. On January 11, 2007, defense counsel asked the trial court to delay sentencing “as long as is acceptable” and suggested the court “could put it away for say four months and come back and discuss a date at that time.” More than four months later, on August 17, 2007, the trial court indicated it was willing to delay pronouncement of judgment in order to sentence defendant “in eight months” as “we’ve discussed all along,” in order to shorten the amount of time he would spend in state prison. The court pronounced judgment and sentenced defendant approximately eight months later on May 8, 2008. In addition, as outlined above, the trial court considered testimony by defendant and his attorney on this topic in connection with defendant’s motion to withdraw his plea. At that time, the court considering the motion to withdraw concluded there was no agreement to allow defendant to serve all of his time in local custody. Rather, the agreement was for defendant to “do the majority of his time locally,” and the record indicates this is what actually took place.
Our independent examination of the entire record revealed no other arguable issues exist.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST J., RICHLI J.