Opinion
B227045
09-22-2011
THE PEOPLE, Plaintiff and Respondent, v. JON GARY HOWE, Defendant and Appellant.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. NA084482)
APPEAL from a judgment of the Superior Court of Los Angeles County, Judith L. Meyer and Arthur Jean, Judges. Affirmed.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
BACKGROUND
Defendant Jon Gary Howe periodically stayed at Claudette Good's home. The last time Howe stayed at Good's home was in late August 2009. After Howe left on that occasion, Good noticed she was missing gold jewelry valued well in excess of $400. Over the course of the next few months, Howe left messages with Good that he would destroy her jewelry if she did not pay him for it. In October 2009, Good filed a police report that Howe had stolen her jewelry. In December 2009, Good reported to police that Howe had called her numerous times telling her to drop the case against him.
Because Howe's case was resolved by plea prior to a preliminary hearing, the record discloses no evidence in the form of testimony establishing the facts of Howe's offenses. We have summarized the facts from information found in the probation report.
In January 2010, the People filed a felony complaint for an arrest warrant. The complaint charged Howe with the following offenses: grand theft personal property (count 1; Pen. Code, § 487, subd. (a)); criminal threats (count 2; § 422); dissuading a witness from reporting a crime (count 3; § 136.1, subd. (b)(1)); attempting to dissuade a witness (count 4; § 136.1, subd. (a)(2)); and misdemeanor annoying telephone calls (count 5; § 653m, subd. (b)). The complaint further alleged that Howe had a prior conviction for which he had served a prison term. (§ 667.5, subd. (b).)
All section references are to the Penal Code.
On April 23, 2010, the trial court, the Honorable Arthur Jean, appointed the Public Defender and started to discuss entering a plea and setting a preliminary hearing. Before this was done, Howe's counsel interrupted and informed the court that Howe had "filed a demand because he [was] doing some time on another matter" and that he might "want to resolve" the case if he could be sentenced to "concurrent time with the time he is [already] doing." Judge Jean gave an indicated sentence of two years to be served "concurrent with whatever time [he was then already] serving." Judge Jean said such a sentence would be "over the D.A.'s objection." Howe refused the offer because he was concerned about pleading to a "strike" conviction. Judge Jean explained that a conviction at trial would also likely involve a strike. Howe remained steadfast; he did not want to plead. At that point, Judge Jean set a preliminary hearing for May 7, 2010.
On May 7, 2010, Howe changed his mind and entered a plea. At this point, the trial judge overseeing his matter was the Honorable Judith Meyer. She advised Howe of his constitutional trial rights, which Howe expressly waived. Howe then entered an open guilty plea to all counts and admitted the prior prison term allegation. At Howe's urging, and with Howe's consent given on the record, Judge Meyer transferred the matter back to Judge Jean for sentencing.
On June 15, 2010, Howe's counsel requested Judge Jean to impose the two-year sentence he previously indicated at the hearing on April 23, 2010. Judge Jean declined. Instead, he sentenced Howe to an aggregate term of four years as follows: A three-year upper term as to the grand theft in count 1 and concurrent upper term three-year sentences on counts 2 through 4. On count 5, Howe was sentenced to a concurrent six months term in the county jail, which the court indicated could be served in state prison. Judge Jean also imposed a one-year term for the prior conviction with a prison term.
On a date and in a manner not clearly disclosed by the record, Howe made a motion to Judge Meyer to "reconsider whether [she would] withdraw [Howe's] plea."On August 24, 2010, Judge Meyer heard Howe's motion. The hearing at one point morphed into a hearing to determine whether to appoint new counsel for Howe pursuant to People v. Marsden (1970) 2 Cal.3d 118. At the end of the hearing, Judge Meyer denied Howe's Marsden motion and Howe's motion to withdraw his plea.
The record on appeal does not include a copy of a written motion; at the hearing on August 24, 2010, Howe spoke from notes he held in his hands. The record suggests to us that the motion to withdraw the plea was heard without a formal written motion supported by an evidentiary record.
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DISCUSSION
Howe filed a timely notice of appeal. We appointed counsel to represent Howe on appeal. Howe's appointed counsel filed an opening brief raising no issues. We mailed a letter to Howe advising him that he could submit any argument or contention he wished this court to consider. Howe filed a letter brief.
Howe tells us he was represented "by really no one" at the time of his first hearing in the trial court in Judge Jean's courtroom, when Howe was offered the two-year concurrent deal. He gives us his perspective of the circumstances leading to his decision to plead guilty in Judge Meyer's courtroom on May 7, 2010. According to Howe, Judge Meyer made a comment during the May 7 hearing to the effect that Judge Jean would "probably" still offer a two-year sentence once Howe had entered an open plea to all counts, and that he relied on this representation. Howe claims his public defender at the May 7 hearing was ineffective because he did not "make sure" with the prosecutor that Howe would receive a two-year sentence as was originally offered and did not explain to Howe that such a sentence was not assured. According to Howe, he "couldn't believe it" when, after returning to Judge Jean's courtroom for sentencing, Judge Jean imposed a four-year sentence. Howe further argues that his public defender failed to review certain evidence before advising him to enter the open plea at the hearing in Judge Meyer's courtroom on May 7.
A claim of ineffective assistance of counsel requires a defendant to show both deficient performance by counsel and prejudice. (Strickland v. Washington (1984) 466 U.S. 668; see, e.g., People v. Ledesma (1987) 43 Cal.3d 171, 216.) We find no reversible error in the context of Howe's current appeal. Even if counsel could have ascertained the length of the sentence Judge Jean would have imposed after Howe finally decided to plea, there was no prejudice because Howe explicitly decided to plead in the face of an uncertain sentence. Judge Meyer thoroughly explained to Howe that she did not know what, if anything, had previously occurred in another courtroom on another day, and she further explained that she could not ensure that Judge Jean would impose a particular sentence. More importantly, the record demonstrates that at the time Howe entered his plea Judge Meyer was very explicit and careful in her explanations to Howe that he would be entering an open plea, and that she was making no promises or giving any assurances regarding the length of his sentence. The one passing comment that, "if"
Judge Jean had previously offered a two-year term, then Judge Jean "probably" would renew the offer after Howe's plea, was in the context of a discussion whose overall tenor was that a two-year deal was not a guarantee. Indeed, what the discussion was truly about was Howe's desire to return to Judge Jean for sentencing, a position to which Judge Meyer agreed. In summary, Howe knew at the time he entered his plea that he was not assured of a two-year sentence. There simply was no prejudice to him.
Nor is there any showing counsel failed to undertake an appropriate investigation. At the time of Howe's plea, the case was about to begin a preliminary hearing; Howe was pressing to have the proceedings move forward quickly and would not waive time, and discovery was not completed. The record does not show a failure to review evidence by Howe's counsel at that stage, and does not show prejudice in any event in that the burden of proof on the prosecution for a preliminary hearing was only probable cause. There is nothing in the record on appeal to show that the prosecution would not have met this burden, with or without a more thorough review of evidence by Howe's public defender.
Howe last claims he was improperly denied presentence credit. He admits that at the time he was sentenced in this case, he was serving prison time in a case out of Riverside County. The record does not include any information about the Riverside County case, except a letter penned by Judge Meyer indicating Howe was sentenced to state prison in the Riverside County case on January 18, 2010, before his May 7, 2010 plea in this case. For purposes of this appeal, we find Howe has not provided an adequate record to demonstrate error in denying him presentence custody credit. (Gee v. American Realty & Const., Inc. (2002) 99 Cal.App.4th 1412, 1416.) When multiple cases are involved, custody credits are calculated differently. The determination is based on a number of factors, including whether the two cases are sentenced concurrently or consecutively. (People v. Bruner (1995) 9 Cal.4th 1178, 1193-1194.) However, once a defendant begins serving a prison sentence in one case, no presentence credits are awarded in any other case as they are not a cause of the earlier restraint. (Ibid.) Because the only record on appeal indicates Howe was already sentenced to state prison on another case when he was sentenced on this case, it appears he was not entitled to any further presentence credit in the present case.
We have independently reviewed the record submitted for this appeal and find that Howe's appointed counsel has fulfilled his duty, and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.)
DISPOSITION
The judgment is affirmed.
BIGELOW, P. J.
We concur:
RUBIN, J.
GRIMES, J.