Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA 073806. James B. Pierce, Judge.
Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, Acting P. J.
Defendant Anthony Earl Emery timely appealed from his conviction for possession for sale of cocaine base (Health & Saf. Code, § 11351.5), possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1, subd. (a)), felon with a firearm (Pen. Code, § 12021, subd. (a)(1)), possession for sale of methamphetamine (Health & Saf. Code, § 11378) and possession for sale of cocaine (Health & Saf. Code, § 11351). The jury found that during the commission of the offenses for violating Health and Safety Code sections 11351.5, 11378 and 11351, defendant was personally armed with a firearm within the meaning of section 12022, subdivision (c). The court sentenced defendant to 18 years and 8 months. Defendant raises a number of issues, including contentions the court erred when it denied his motions to quash the search warrant and to disclose the identity of a confidential informant (CI). We affirm as modified.
Unless otherwise noted, all statutory references are to the Penal Code.
FACTUAL BACKGROUND
I. Prosecution Case
Defendant lived in an apartment on Orange Avenue in Long Beach. On March 21, 2007, Long Beach Police Detective Scott Destefano saw defendant park a Mercedes near the apartment. Appellant and his passenger Donald Johnson walked into the apartment.
Several officers executed a search warrant and searched the apartment. Detective Richard Miller found a toolbox in the bathtub. Defendant had a key to the toolbox in his pants’ pocket. Miller opened the toolbox and found several plastic baggies, a scale, cash, about 700 grams of cocaine and cocaine base, and 155 ecstasy pills. The officers found several bundles of 20 and 100 dollar bills in the apartment. The cash amounted to over $2,000. In the kitchen, officers found several digital scales (some containing white residue), plastic baggies, a cell phone, a laptop computer, and a razor blade.
Officer Tony Benskin opened the vacuum cleaner in the living room and looked in the vacuum bag. Benskin found $20,000 in cash and a loaded revolver, which appeared to be operable. Detective Chris Thue heard appellant say to his friend Johnson, “‘Tell him it’s yours.’” The revolver in the vacuum was about 12 to 15 feet away from the toolbox in the bathtub. Detective Christopher Bolt testified as a narcotics expert. Bolt opined someone possessed the drugs for sale and someone used the gun in the commission of drug sales and to protect the drugs and cash.
Defendant was the only tenant on the rental agreement. In the kitchen, there were several documents listing defendant’s name and the address on Orange Avenue.
II. Defense Evidence
Nishel Jackson, who had been convicted of the sale of cocaine, was serving a prison term for that conviction. Jackson had a prior conviction in 1992 for grand theft of a vehicle. Jackson testified that in the sale of cocaine case, he had filed a complaint against Detectives Bolt and Thue stating that they had falsely accused him of selling drugs to an informant, falsely stated he possessed money marked by law enforcement and falsely claimed he admitted selling drugs.
DISCUSSION
I. Motions to Quash Search Warrant And Disclose Identity of The CI
A. Background
Appellant filed separate motions to quash the search warrant and to disclose the identity of the CI.
Detective Bolt wrote the search warrant affidavit, which the magistrate signed on March 21, 2007. In the affidavit, Bolt stated, “During the month of March, I received information that a male Black subject by the name of ‘Low Key’ is in the business of delivering base cocaine in the City of Long Beach. This subject drives a silver Mercedes Benz vehicle.”
Bolt stated that a “reliable confidential informant” helped him “for the purpose of attempting to make a controlled buy from this subject.” Bolt did not explain why the CI was reliable. Bolt searched the CI and verified the CI had no contraband or cash. Bolt then gave the informant “City Funds.” The CI “under [Bolt’s] direction purchased base cocaine from the above subject.” Bolt “conducted a presumptive analysis examination on the substance purchased from the above subject and found it to test positive for cocaine.”
Bolt and his partner Detective Camrin saw Low Key driving a silver Mercedes with a particular license plate number. Camrin saw Low Key use keys to unlock the door to the apartment they wanted to search. On a separate occasion, Bolt saw Low Key go to the same apartment “in his silver Mercedes, park and then enter” the apartment. The Mercedes was registered to appellant. Bolt looked at Low Key and noticed he “matched” the DMV photo of appellant. Based on those facts, Bolt concluded, “I believe there is base cocaine now being possessed for the purposes of sales” at the apartment.
On June 19, the court heard simultaneous argument on the two motions. Appellant’s counsel began by arguing the motion to disclose noting, “[t]he informant makes no description of the individual who sold him the drugs” and did not identify appellant as the seller and Bolt did not state the police department used marked money or recovered any drugs from the controlled buy. Counsel argued “[t]here’s basically nothing other than the officer’s vague statements about someone named Low Key selling drugs out of the apartment complex and that it was sold to this particular informant. But there’s nothing else.” Counsel argued that information was insufficient to maintain the informant’s confidentiality and he needed more information “to determine whether this informant even exists.” Counsel noted there was no certified search warrant or affidavit in the court file and argued there was “no indication that this informant would be endangered” if the prosecution disclosed his identity.
The prosecutor asked to argue both motions simultaneously as the arguments were very similar, and the court gave him permission to do so. The prosecutor noted the information did not charge appellant with the sale of cocaine, meaning the informant was not a percipient witness and could not provide relevant evidence.
Regarding the motion to quash, the prosecutor argued the affidavit was adequate, noting it stated the informant was reliable, there had been a controlled buy, the informant used certain funds at Bolt’s direction, and the authorities analyzed an item and determined it was cocaine. The prosecutor stated Bolt corroborated the informant because Bolt had seen appellant “drive a silver Mercedes going to a certain location, and it was matched with [appellant’s] DMV photograph.”
In the reply, appellant’s counsel argued the court could only consider the circumstances preceding the search, the affidavit’s description of the suspect was vague, it did not identify appellant as the suspect, it did not name the apartment complex, the money the informant used was not recorded, the affidavit did not list the amount of money or the amount of drugs, and although Bolt saw someone drive the Mercedes to the location, he did not see any drug sale.
The court stated the parties had identified the important issue which was whether the informant could be a material witness, which was relevant to the charges at hand as appellant was charged with possession, not sale. The court noted the police relied on “the prior sale, as vague as it may be, to show that there’s probable cause to search that particular residence.” The court reasoned:
I am satisfied that under the Gates [Illinois v. Gates (1983) 462 U.S. 213] standard that there has been independent corroboration of all the factors, at least all the significant facts, so that probable cause was, in fact, given at the time of the search warrant. I would have preferred that there actually be more details especially as to the time, place, and manner. They’re not there. Is there enough? I think there is. He mentions the month of March. They talk about further investigation. They don’t talk about dates and time, but they do talk about... one event following the other. There was not only just one additional further investigation, but there’s at least two that are mentioned because he talks about on separate occasions we also verified driving that Mercedes, him living at that particular location by going in there on multiple occasions with keys. [¶] So I think that, while it does not meet the standard of Aguilar [Aguilar v. Texas (1964) 378 U.S. 108] and Spinelli [Spinelli v. United States (1969) 393 U.S. 410], I think there’s enough corroborating evidence in the totality of the circumstances that it does meet the standard of Gates, and the motion to quash this warrant is denied.
Regarding the motion to disclose the informant’s identity, the court reasoned there was no indication “this informant, in anyway even could be a material witness as to the charges that are here today, that is the possession charges.” The court denied the motion.
On July 11, appellant renewed his motion to quash arguing the affidavit had been obtained based on an unverified tip from an informant. The court denied the motion reiterating there was independent corroboration for the information.
Pursuant to a supplemental motion to quash, the court held a third hearing on December 11. Appellant argued that based on the affidavit and when examining the officer at the preliminary hearing, none of the evidence (i.e., the money or the drugs) was available, it appeared no informant existed. Appellant also argued that because the warrant was not returned for five and a half months, the circumstances of its issuance were highly suspect. The court denied the motion noting appellant had failed to show actual prejudice from the delay in returning the warrant and the supplemental motion and declaration did not add any new facts or arguments.
B. Motion to Quash
“The question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing. ‘The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.’... ‘In determining the sufficiency of an affidavit for the issuance of a search warrant the test of probable cause is approximately the same as that applicable to an arrest without a warrant..., namely, whether the facts contained in the affidavit are such as would lead a man of ordinary caution or prudence to believe, and conscientiously to entertain, a strong suspicion of the guilt of the accused.’ The magistrate’s determination of probable cause is entitled to deferential review.” (Citations omitted.) (People v. Kraft (2000) 23 Cal.4th 978, 1040-1041; see also Illinois v. Gates, supra, 462 U.S. at p. 235 [probable cause is less than a preponderance of the evidence or a prima facie showing].)
“A search warrant must be supported by probable cause. In determining whether probable cause exists, the magistrate considers the totality of the circumstances. ‘Probable cause, unlike the fact itself, may be shown by evidence that would not be competent at trial. Accordingly, information and belief alone may support the issuance of search warrants, which require probable cause.’ [¶] Because they are often written by nonlawyers in the midst of an investigation, technical requirements for elaborate specificity have no place in the review of search warrant affidavits. [¶] A magistrate may reasonably rely on the special experience and expertise of the affiant officer in considering whether probable cause exists. [¶] While, in a particular case it may be difficult to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases should be largely determined by the preference to be accorded to warrants. [¶] A court reviewing the issuance of a search warrant defers to the magistrate’s finding of probable cause unless the warrant is invalid as a matter of law. The duty of the reviewing court is to ensure there was a substantial basis for the magistrate concluding there was probable cause to issue the warrant.” (Citations omitted.) (People v. Varghese (2008) 162 Cal.App.4th 1084, 1103-1104.)
Appellant argues the search warrant was not supported by probable cause as the affidavit omitted significant facts, i.e., it did not identify the original source of the information about Low Key, it did not explain the nature of the further investigation, it did not contain information about the informant or the circumstances of the initial purchase (the controlled buy) and whether that seller had been appellant, it did not explain how the affiant linked Low Key to appellant, it was unclear if the affiant directly observed the controlled buy or if the CI purchased drugs from Low Key or appellant, and it did not identify if the transaction took place in appellant’s apartment or the apartment building. Appellant further posits the affidavit describes different events involving Low Key and himself and tried to connect them by investigation, but even under the totality of circumstances, there was no probable cause he was Low Key.
In Bolt’s affidavit, he stated that during March he received information that a male Black by the name of Low Key was delivering cocaine base in Long Beach and that Low Key drove a silver Mercedes Benz. The search warrant was signed on March 21, indicating the events described in the affidavit took place within a matter of a couple of weeks. Bolt engaged a reliable CI to make a controlled buy from Low Key. Bolt searched the CI, verified the CI had no contraband or cash, and gave the CI some city funds. Under Bolt’s direction, the CI purchased cocaine from Low Key. Bolt conducted a presumptive analysis examination of the substance purchased by the CI and found it tested positive for cocaine. Thus, the controlled buy corroborated that Low Key possessed cocaine for sale.
In his motion to disclose, appellant acknowledged the CI “purchased base cocaine from subject Emery.”
Even though the CI did not identify appellant as Low Key, Bolt and his partner Camrin did. Bolt and Camrin saw Low Key driving a silver Mercedes with a particular license plate number. On separate occasions, Bolt and Camrin saw Low Key use keys to unlock the door to the apartment that was the subject of the search warrant. The Mercedes was registered to appellant. At some point, Bolt matched appellant’s DMV photo to Low Key, establishing appellant was Low Key.
Bolt stated he believed base cocaine was being possessed for the purpose of sale at appellant’s apartment. Thus, the location of the controlled buy was not relevant to the search warrant, which was for appellant’s vehicle and residence. (See People v. Koch (1989) 209 Cal.App.3d 770, 778-781 disapproved on another point in People v. Weiss (1999) 20 Cal.4th 1073, 1075 [regarding probable cause to search a defendant’s residence for contraband].) Even though the court stated it would have preferred more details, it found there was sufficient corroboration for probable cause to issue the search warrant. Accordingly, under the deferential standard, the court had a substantial basis to conclude there was a fair probability that contraband would be found at appellant’s apartment.
C. Motion to Disclose
The court denied the motion to disclose the CI’s identity on the basis he or she was not a material witness to the charged crimes. Appellant’s motion to disclose was based on the CI’s status as a material witness.
“If the informant was not a material witness on the issue of guilt and the defendant seeks to learn his identity in order to challenge the legality of a facially valid search warrant based on information provided by the informant, the informant’s identity need not be disclosed. The rationale for this exception is based on the fact that a warrant is issued by a neutral magistrate. Because the magistrate will issue a warrant only upon a showing of probable cause, and has the power to question the informant if he sees fit, there is adequate protection against police abuse.” (People v. Navarro (2006) 138 Cal.App.4th 146, 163-164; People v. Hobbs (1994) 7 Cal.4th 948, 959 [“It has long been the rule in California that the identity of an informant who has supplied probable cause for the issuance of a search warrant need not be disclosed where such disclosure is sought merely to aid in attacking probable cause.” (Italics deleted.)].)
“In [Franks v. Delaware (1978) 438 U.S. 154], the United States Supreme Court held that a defendant may challenge the veracity of the search warrant’s affidavit due to police misconduct, but only upon a substantial preliminary showing that the affiant lied and that the remaining contentions in the affidavit are insufficient to establish probable cause. In [People v. Luttenberger (1990) 50 Cal.3d 1], our Supreme Court established a discovery procedure where a defendant seeks to mount a Franks challenge to a search warrant obtained through information from a confidential informant.” (Citation omitted.) (People v. Navarro, supra, 138 Cal.App.4th at p. 165.) Appellant does not claim he made the substantial preliminary showing necessary for a Franks hearing. Franks hearings are rarely held because of the difficulty of meeting the substantial preliminary standard. (People v. Estrada (2003) 105 Cal.App.4th 783, 790.)
“In order to accommodate the competing interests of the state and the defendant, the court fashioned a rule that allowed a defendant to obtain limited discovery of police records concerning a confidential informant as part of a Franks challenge to a search warrant: the defendant must make a preliminary showing that describes the information sought with some particularity and that is supported by a plausible justification. The defendant must offer some evidence casting reasonable doubt regarding either the existence of the informant or the truthfulness of the affiant’s statements concerning the informant. Once that showing is made, the trial court has discretion to order an in camera review of the documents. If the court determines that the defendant’s challenge is not supported, then the court should report only that. If the court determines that the information it reviewed tends to contradict material representations in the affidavit or constitutes material omissions from it, the court should order disclosure of the documents, but only after excising all information that might reveal the informant’s identity.” (People v. Navarro, supra, 138 Cal.App.4th at p. 166.)
Appellant notes he also sought disclosure of the CI’s identity as essential to his challenge to the search warrant and cited Luttenberger and Hobbs in his motion to quash. Appellant asserts he made a preliminary showing the existence of the CI was suspect, meaning the court should have held an in camera hearing. In addition, appellant claims he “amply established the necessity of an in-camera hearing based on the unreliability of the informant and the deficiency of the affidavit.” Even though Bolt did not provide information as to why the CI was reliable, nothing in the record demonstrates the CI was unreliable. Moreover, the affidavit was not deficient.
In the case at bar, the court stated it was considering appellant’s Pitchess declaration in regards to the motion for disclosure of the informant and the motion to quash the warrant. In appellant’s declaration, he denied selling any drugs to any individual or possessing any city funds. One court held such a declaration justified an in camera review because it inferred the detectives had fabricated the drug transaction which served as the basis to justify the search. (See People v. Estrada, supra, 105 Cal.App.4th at p. 792 [“Thus, before an in camera review may be ordered, the defendant must raise some reasonable doubt regarding either the existence of the informant or the truthfulness of the affiant’s report concerning the informant’s prior reliability or the information he furnished.”].)
In Estrada, the defendant filed a motion to compel disclosure of the informant’s identity premised on the allegation the informant was a material witness, five months later, the defendant filed both a motion to quash and traverse the search warrant premised on lack of probable cause and requested an evidentiary hearing be held pursuant to Franks as well as a motion pursuant to Luttenberger “‘to disclose the existence of the confidential informant(s) used in this case and whether said informant made the controlled buy described in the affidavit in support of the search warrant.’” (People v. Estrada, supra, 105 Cal.App.4th at p. 787.)
Unlike the defendant in Estrada, although appellant cited to Luttenberger in his initial motion to quash, he did not make a motion to disclose the identity of the CI pursuant to Luttenberger or request an in camera hearing either in his motions or at the oral arguments. Moreover, as appellant did not make a proper motion, it is unclear what documents appellant wanted the prosecution to produce or whether he wanted the informant produced for in camera questioning. (See People v. Estrada, supra, 105 Cal.App.4th at pp. 795-796.) When the court denied the motion to disclose on the basis the CI was not a material witness, appellant did not object or raise the issue of the existence of the CI. Rather than piece together such a request, which would be unfair to the trial court, we conclude that under these circumstances, appellant forfeited any right to an in camera hearing. (See People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.)
II. Sufficiency of the Evidence
Appellant contends there was insufficient evidence the firearm was available for immediate use in relation to his conviction for possession of a controlled substance with a firearm (count 2) and the firearm enhancement imposed on count 1. Being armed “under the sentence enhancement statutes does not require that a defendant utilize a firearm or even carry one on the body. A defendant is armed if the defendant has the specified weapon available for use, either offensively or defensively.” (Italics omitted.) (People v. Bland (1995) 10 Cal.4th 991, 997; see also People v. Singh (2004) 119 Cal.App.4th 905, 911-912 [same definition applied to a conviction for possession of a controlled substance while armed.].)
In Bland, the court noted that drug possession was a continuing offense that extended through time, and throughout the entire time the defendant asserted dominion and control over illegal drugs, the defendant was criminally liable for drug possession. (People v. Bland, supra, 10 Cal.4th at p. 999.)
In People v. Delgadillo (2005) 132 Cal.App.4th 1570, 1575, the court determined that: “Because the firearms were in defendant’s bedroom along with a significant sum of money, and in close proximity to cars in which defendant and his colleagues stored lab equipment and raw material, those firearms were available to defendant to use offensively or defensively at any time during the manufacturing process. Thus, the evidence was sufficient to support the jury’s true finding on the section 12022, subdivision (c) armed enhancement.”
Similarly, in the instant case, the drugs were in a locked toolbox located in the bathroom and the loaded gun was inside the dirt bag of a vacuum cleaner along with about $20,000 in cash about 12 to 15 feet away. Various paraphernalia related to the sale of drugs were found in different locations in the apartment. Scales, money, plastic baggies, a cell phone, a laptop computer, a razor blade were found in the kitchen. Thus, the gun was available for appellant to use when he was ready to sell his drugs.
III. Section 654
The applicability of the prohibition against multiple penalties for a single act which violates different statutes necessarily depends on whether the defendant harbored a single intent and objective during a continuous course of conduct. (People v. Meeks (2004) 123 Cal.App.4th 695, 704; see also People v. Arndt (1999) 76 Cal.App.4th 387, 394 [Section 654 “applies to a course of conduct violating more than one statute if the offenses were incident to one objective.”].) If all the offenses were incident to one objective, the defendant may be punished for any one offense, but not for more than one. (People v. Cleveland (2001) 87 Cal.App.4th 263, 267.) “A defendant’s criminal objective is ‘determined from all the circumstances and is primarily a question of fact for the trial court whose finding[] will be upheld on appeal if there is any substantial evidence to support it.’” (People v. Braz (1997) 57 Cal.App.4th 1, 10.)
The court enhanced the five year sentence on count 1 (possession for sale of cocaine base) by five years pursuant to the firearm enhancement of section 12022, subdivision (c) and imposed a one year sentence on count 2 (for possession of a controlled substance, cocaine base, with a firearm). The court found section 654 applied to count 3 (possession of firearm by a felon) and the firearm enhancements of counts 4 and 5 (possession for sale of methamphetamine and cocaine respectively). Although the court stated count 2 was a separate offense, it did not state appellant had more than one intent/objective with respect to the firearm.
Appellant contends it violated double jeopardy and section 654 to apply the firearm enhancement to count 1 and impose a one year sentence on count 2. Appellant argues that because the narcotics and the revolver were found in his apartment at the same time during the course of the same search, he harbored but one intent and objective with respect to the possession of the cocaine base for sale and the possession of narcotics while armed with a loaded and operable firearm. Thus, appellant asserts his intent and objective in possessing the drugs in the underlying offenses were the same as was the possession of the gun pursuant to both the enhancement and the offense of possessing drugs with a firearm.
In Arndt, the court noted the Courts of Appeal are split and the California Supreme Court has not decided whether section 654 applies to enhancements. (People v. Arndt, supra, 76 Cal.App.4th at pp. 394-395; see also People v. Palacios (2007) 41 Cal.4th 720, 728 [declining to address this issue]; People v. Rodriguez (Aug. 20, 2009, S159497) ____Cal.4th ____ [the trial court imposed two sentence enhancements for personal use of a firearm and for a violent felony to benefit a criminal street gang; the Court of Appeal struck one enhancement pursuant to section 654; but the Supreme Court instead determined the additional punishments violated section 1170.1, subd. (f)’s prohibition against imposing more than one enhancement for using a firearm in the commission of a single offense and remanded for resentencing.].)
“[T]here are at least two types of sentence enhancements: (1) those which go to the nature of the offender; and (2) those which go to the nature of the offense.” (People v. Coronado (1995) 12 Cal.4th 145, 156.) In People v. Rodriguez (1988) 206 Cal.App.3d 517, 519-520, the court held section 654’s prohibition against the dual use of a single criminal act did not proscribe sentence enhancements based on the fact of a defendant’s status.
Citing to Rodriguez, the Coronado court determined that because prior prison terms were attributable to a defendant’s status and because the repeat offender enhancement did not implicate multiple punishment of an act or omission, section 654 was inapplicable and the prior felony conviction could be used to elevate the current conviction to a felony and to enhance the sentence. (People v. Coronado, supra, 12 Cal.4th at pp. 156-158.)
Respondent urges this court to apply the reasoning of Rodriguez and find section 654 does not proscribe enhancements based on the offense. Respondent also notes the supreme court stated it had “never held that section 654 applies to weapon enhancements.” (People v. Masbruch (1996) 13 Cal.4th 1001, 1013.)
In People v. Palacios, supra, 41 Cal.4th at pages 725-733, the court held the Legislature intended section 12022.53 to create a sentencing scheme unfettered by section 654, reasoning that the statute’s language making imposition of a firearm use enhancement mandatory notwithstanding other sentencing laws and statutes meant it was error to apply section 654 to stay imposition of the enhancement. Section 12022, the relevant statute here, contains no such indication of Legislative intent.
In People v. Bradford (1976) 17 Cal.3d 8, 13, the defendant had been stopped by police, gotten out of his car, wrestled the officer’s gun from the officer and then fired several rounds at the officer. The defendant was convicted of and sentenced for being a felon in possession of a firearm and assault with a firearm upon a peace officer. (Ibid.) The court held the punishment for both offenses was barred by section 654 because the felon’s possession of the gun had not been separate from his use of it on the officer. (Id., at pp. 22-23.)
Accordingly, we conclude whether or not section 654 is applicable to offense-based enhancements in general, in the case at bar, as appellant’s possession of the firearm was the same for the enhancement and the offense because the narcotics and the firearm were found at the same time and, as discussed above, the definition of being armed was the same under both charging statutes. We will direct the court to stay the one-year sentence on count 2.
IV. Correction of Abstract
The April 25, 2008, minute order and abstract of judgment reflect the name of the prosecuting attorney as Ryan Erik Dibble. Carol Rose was the prosecutor. The court imposed the five-year enhancement on count 1 pursuant to section 12022, subdivision (c). The minute order for April 25 states the enhancement was imposed pursuant to section 1170.12, subdivisions (a) and (d). The abstract of judgment reflects the enhancement was imposed pursuant to section 667, subdivisions (b) through (i) or section 1170.12. The court is directed to correct the minute order and abstract of judgment to reflect the five-year enhancement on count one was imposed pursuant to section 12022, subdivision (c) and to enter the correct name of the prosecuting attorney (Carol Rose).
V. Ineffective Assistance of Counsel
Appellant contends he received ineffective assistance of counsel about his maximum exposure and was further misadvised by the court and the prosecutor regarding his maximum exposure.
A. Background
On December 11, 2007, after the court denied appellant’s motions to quash and disclose, appellant asked the court to resume negotiations over a plea agreement. Although the court and the parties agreed they had discussed a possible plea agreement before, the prior discussions do not appear in the record. The court reiterated the prosecution’s offer had been seven years in prison in exchange for a guilty plea. The court had offered six years in prison. The court stated appellant’s maximum potential sentence was “some 12 years in state prison.” Appellant wanted probation, which the court refused because of appellant’s “horrendous record.” The court again extended the offer of six years. Appellant urged the court to extend an offer of two years in prison. The court declined to do so, and appellant rejected the court’s plea offer.
On February 27, 2008, prior to trial, when appellant admitted the nature of his priors so the jury would not hear what the priors were, the court informed appellant each prior could add three years to any punishment he faced; appellant replied he understood.
While the jury was deliberating, the court asked appellant whether he wanted to have a trial on his prior convictions, which it had bifurcated. When the court explained the consequences of admitting the prior convictions, it pointed out that each of the two prior convictions carried an additional sentence of three years, meaning the priors would add six years to the maximum sentence. The court noted that for count 1, the maximum sentence was five years and the maximum sentence for the firearm enhancement was five years. Therefore, the aggregate maximum sentence on count 1 would be 16 years.
Appellant stated, “I was never informed of the 16 year maximum.” The court agreed with the prosecutor that was merely the maximum on count 1. The court suggested the firearm enhancements on the other counts might be subject to section 654. Appellant agreed to waive his jury trial on the prior convictions. A moment later, appellant reiterated, “I was under the impression that my maximum was 12 years.” The prosecutor replied, “It’s not. It’s a lot more.” The prosecutor stated the maximum sentence was 20 years and eight months. The court indicated it did not agree and discussed section 654 with the prosecutor. The court indicated they were jumping ahead and should wait and see what the jury found.
At the sentencing hearing, appellant asked the court for mercy for various reasons and stated that before the trial began, he thought his maximum sentence was 12 years. Appellant stated, “that was one of the reasons why I took my case to trial because I was told... it was a 12 year max at the time. And that was the reason why I took a chance of going to trial with it.” Appellant’s counsel argued for a reduced sentence noting that although he had not informed appellant he was facing 21 years, at the preliminary hearing, the prosecutor informed appellant his maximum was 12 years. Counsel stated: “Since then at various stages of pretrial in discussions... regarding his disposition of this case, I did inform him that his range, in my opinion, would be 12 to 16 years. And at one point, I believe the court even addressed [appellant] regarding his maximum exposure.”
Appellant insisted he thought the maximum sentence was 12 years, stating “I never knew it was more than 12 years. And that was the reason why I went – the deputy district attorney had mentioned it was 12 years. You and also the attorney, the deputy, had mentioned it was a 12 year ordeal. [¶] That was one of the main reasons why I took a chance of going to trial.”
Appellant also stated that before he went to trial, he thought the court would admit evidence regarding how the police obtained the search warrant, which he thought was questionable. Appellant was disappointed he could not introduce that evidence because he thought it favored him. The court sentenced appellant to prison for 18 years and eight months.
B. Effective Assistance of Counsel
In criminal proceedings, plea bargaining is a critical stage at which a defendant is entitled to effective assistance of counsel; the rendering of ineffective assistance at this stage constitutes a violation of the defendant’s constitutional right to counsel, which is not remedied by a fair trial. (In re Alvernaz (1992) 2 Cal.4th 924, 933, 936.) As always, in order to demonstrate constitutionally inadequate representation, a defendant must show (1) counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient performance subjected the defendant to prejudice, i.e., there is reasonable probability that, but for counsel’s failings, the result would have been more favorable to defendant. (Id., at pp. 936-937.) This court conducts an independent review of the record to determine if appellant met his burden. (Id., at pp. 944-945.)
Demonstrating prejudice in the context of rejecting a plea bargain, the defendant must prove there is a reasonable probability he would have accepted the plea bargain and the court would have approved the bargain. (In re Alvernaz, supra, 2 Cal.4th at p. 937.) “In determining whether a defendant, with effective assistance, would have accepted the offer, pertinent factors to be considered include: whether counsel actually and accurately communicated the offer to the defendant; the advice, if any, given by counsel; the disparity between the terms of the proposed plea bargain and the probable consequences of proceeding to trial, as viewed at the time of the offer; and whether the defendant indicated he or she was amenable to negotiating a plea bargain. In this context, a defendant’s self-serving statement -- after trial, conviction, and sentence -- that with competent advice he or she would have accepted a proffered plea bargain, is insufficient in and of itself to sustain the defendant’s burden of proof as to prejudice, and must be corroborated independently by objective evidence. A contrary holding would lead to an unchecked flow of easily fabricated claims.” (Id., at p. 938.)
From the record, it appears the only alleged advice counsel gave appellant in relation to the plea negotiations was about appellant’s maximum possible exposure on the charged offenses. The record does not show and appellant does not claim that he filed a petition for a writ of habeas corpus in the superior court asserting he was denied his right to the effective assistance of counsel in making his decision to reject the plea bargain. At the time of the plea negotiations, appellant did not state he was willing to plead guilty except for his understanding of the maximum sentence. (Compare People v. Goodwillie (2007) 147 Cal.App.4th 695, 736.) In addition, appellant neither filed a declaration stating he would have accepted the offered plea had he been competently counseled nor made such a claim in the superior court even though he repeatedly stated he thought his maximum exposure was 12 years.
At sentencing, appellant’s counsel stated he told appellant the range of his possible sentence was 12 to 16 years. Not all of the plea discussions were recorded. Prior to trial, when the court first mentioned the possible addition to appellant’s sentence of three years for each prior conviction, appellant did not make any claim about his understanding of his possible sentence. It was only after the matter was being deliberated by jury and the court noted the aggregate maximum sentence on count 1 would be 16 years that appellant stated he had never been informed about the 16 year maximum and was under the impression the maximum was 12 years. At the sentencing hearing, appellant repeated he thought his maximum sentence was 12 years. However, appellant also stated his belief about his maximum sentence was one of the reasons why he took a chance on going to trial. In addition, appellant also stated that before trial, he thought the court would admit evidence regarding how the police obtained the search warrant, which he thought was questionable and favorable to him. During plea negotiations, appellant attempted to get probation, which the court rejected because of his “horrendous record” and then suggested a 2 year sentence. Under these circumstances, appellant has not proved he would have accepted the plea.
The record shows the court informed appellant his maximum was some 12 years and later noted the priors would add three years each to the maximum. According to appellant’s counsel, at the preliminary hearing, the prosecutor stated the maximum was 12 years. Thus, appellant also claims the court and the district attorney misadvised him about his maximum exposure (See People v. Goodwillie, supra, 147 Cal.App.4th at pp. 734-737.) Such a claim is also without merit as appellant did not prove he would have accepted a more favorable offer. (People v. Miralrio (2008) 167 Cal.App.4th 448, 462-464 [disagreeing with Goodwillie that the People have the burden of proving the error was harmless beyond a reasonable doubt].)
DISPOSITION
The court is directed to correct the sentencing minute order and abstract of judgment to reflect the five year enhancement on count 1 was imposed pursuant to section 12022, subdivision (c), to stay the one-year sentence on count 2 pursuant to section 654 and to enter the correct name of the prosecuting attorney (Carol Rose). The court is further directed to prepare and file with the Department of Corrections an amended abstract of judgment reflecting those changes. In all other respects, the judgment is affirmed.
We concur: ZELON, J., JACKSON, J.