Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. Super. Ct. No. VCF148471C Joseph Kalashian, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Attorney General, Dana R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Kelly C. Fincher, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Kane, J.
INTRODUCTION
Appellant, Joe Loredo, and four codefendants were charged in an information filed on February 7, 2006 with a series of counts and enhancements related to the kidnapping, assault, robbery, mayhem, and further kidnapping of Jason H. Appellant was charged as follows: count one, conspiracy to kidnap for robbery (Pen. Code, §§ 182, subd. (a)(1) and 209, subd. (b)(1)); count two, conspiracy to kidnap (§§ 182, subd. (a)(1) & 207, subd. (a)); count three, kidnapping for robbery (§ 209, subd. (b)(1)); count four, kidnapping (§ 207, subd. (a)); count five, mayhem (§ 203); count 6, second degree robbery (§ 211); count seven, assault with a firearm (§ 245, subd. (a)(2)); count eight, assault with force likely to cause great bodily injury (§ 245, subd. (a)(1)), count nine, false imprisonment by violence (§ 236); count ten, making criminal threats (§ 422); and count eleven, possession of a firearm by a felon (§ 12021, subd. (a)(1)). Count seven alleged that appellant personally used a firearm (§ 12022.5, subd. (a)). Counts one through ten alleged appellant had served three prior prison terms (§ 667.5, subd. (b)) and used a firearm during the commission of the offenses (§ 12022.53, subd. (b)).
Unless otherwise noted, all statutory references are to the Penal Code.
On July 18, 2006, appellant and all codefendants entered into a joint plea agreement whereby appellant would admit count two, conspiracy to kidnap (§§ 182, subd. (a)(1) & 207, subd. (a)), and the section 12022.53, subdivision (b) enhancement. When asked by the court if he had enough time to talk to his attorney concerning resolution of his case and any possible defenses he might have, appellant replied, “Yes, sir.” Appellant was informed that the maximum sentence he could receive for these admissions was 18 years in prison. Appellant was informed by the court that “there is an agreement that the stipulated sentence is going to be 13 years in state prison.” When asked by the court if he understood this, appellant replied, “Yes, sir.”
The plea agreement was described by the trial court as a “package deal” resolving the case against all five defendants. After reaching an agreement, some of the defendants, including appellant, sought more time to discuss the plea agreement with counsel. The court took a recess to allow the defendant’s additional time to review the agreement with counsel.
The court proceeded to give, and the appellant waived, his constitutional rights pursuant to Boykin/Tahl. The court advised appellant of the consequences of his plea including the effect of a prior serious felony conviction under the three strikes law, the effect of a felony conviction on citizenship, and the penalty appellant faced. Appellant pled no contest to count two, conspiracy to kidnap, and admitted the section 12022.53, subdivision (b) allegation. The court dismissed an unrelated pending misdemeanor action against appellant.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
On September 7, 2006, appellant’s counsel informed the court that appellant wished to withdraw his plea. Counsel told the court that he had not finished appellant’s declaration and sought a continuance of two weeks. The court set September 28, 2006, as the date for appellant’s motion to withdraw his plea and his sentencing hearing.
On September 28, 2006, appellant’s counsel informed the court that after receiving information from appellant and researching “the issue,” counsel did “not believe it would have merit.” The court asked appellant if he was withdrawing his motion. Appellant replied, “Yes, sir.” The court proceeded to sentence appellant to prison for 3 years for conspiracy to kidnap and to a consecutive term of 10 years for the section 12022.53, subdivision (b) allegation. The court imposed a restitution fine and granted appellant applicable custody credits. Appellant obtained a certificate of probable cause on April 19, 2007.
Appellant contends the trial court erred in failing to advise him of the parole consequences of his plea, not appointing substitute counsel to investigate a motion to withdraw his plea, imposing an unauthorized sentence because conspiracy is not an enumerated trigger offense under section 12022.53, subdivision (a), and imposing a sentence in violation of Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham).
FACTS
On the evening of July 11, 2005, Jason H. was staying at Motel 6 in Porterville when he received a call from someone named Valerie, who invited Jason to the Palm Tree Inn. When Jason arrived, Valerie was with friends. The group were watching television when other people arrived in a black Lincoln Continental Town Car. There were two males and one female in the car. Valerie opened the door and the people from the car entered the room. Jason identified appellant and codefendants Carlos Pizano and Crystal Aguirre as the people who arrived in the Lincoln.
The facts are derived from the preliminary hearing and the probation report.
Jason had met appellant a few days earlier, but did not know Pizano. Appellant and Pizano pulled out guns and told Jason he was going with them. Jason said both guns appeared to be .357 caliber revolvers. Jason had no idea why the men wanted him to leave with them. They led him to the Lincoln. Aguirre drove. Appellant sat in the front passenger seat, Pizano in the back seat with Jason. Both men kept their guns pointed at Jason the whole time.
They stopped at Juan Aldaco’s home. Jason knew Aldaco and had been to his home prior to this incident. Jason was directed to the garage, followed by the three people in the car. Neal McCoy was in the garage. Jason was directed to sit in a chair. Jason was then strapped to the chair with duct tape. The others were waiting for Aldaco to enter the garage. When he arrived, Aldaco was angry and starting hitting Jason with his fists. Jason fell to the ground strapped to the chair. Because his hands were strapped, Jason could not protect his face as he was being hit.
Pizano struck Jason’s face with the butt of his gun. Jason was also hit with a pool stick. The beating lasted about 10 minutes. Jason remained in the garage about 45 minutes. Jason was accused of taking Aldaco’s dirt bike. Jason had earlier told Aldaco that he took the bike. After a few days, McCoy came and took the bike from Jason. Pizano and appellant kept their guns pointed at Jason the entire time, except when they were hitting him. Pizano and appellant took Jason’s wallet out of his pocket. Jason had money in his wallet, but could not remember the exact amount at the preliminary hearing. Pizano and appellant flipped through Jason’s wallet. It was the last time Jason saw his wallet.
Jason told police officers he had $62 in his wallet.
Aldaco took two knives from a cupboard in the garage and handed them to Pizano and appellant. Appellant put his knife in his pocket. Pizano opened the blade to his knife and told Jason to quit lying. Pizano asked Jason questions about gang affiliation. Pizano proceeded to slit Jason’s face with his knife. Jason was still strapped to the chair. Appellant was still pointing his gun at Jason. Pizano slashed Jason’s right cheek. Jason has a scar three or four inches long on his right cheek. Pizano told Jason to remember Pizano’s face, his name, and his gang every time Jason looked in the mirror.
When Jason saw a doctor, he received numerous stitches.
Pizano and appellant discussed taking Jason to an enemy’s house in Poplar so the enemy could “get his digs in.” Appellant demanded about $3,000 from Jason for the dirt bike. Jason was handed a towel to clean off the blood. Jason’s arms had been freed. Jason walked out of the garage with Pizano and appellant still pointing their guns at Jason. Jason left Aldaco’s garage in the back seat of the Lincoln. Aguirre drove the car. After getting fuel at a gas station, Jason was transferred to the trunk of the car after the kidnappers saw a police car. Jason remained in the trunk between 5 and 10 minutes.
The kidnappers took Jason to a residence in Poplar. Jason was left in a room where he was lying down, holding his face. Pizano took a picture of Jason’s face with a cell phone. The kidnappers became concerned about Jason’s health because he appeared to be going into shock. Jason was in the Poplar residence between an hour and an hour and a half.
The kidnappers took Jason for another car ride. Jason was seated in the backseat. Appellant pointed a gun at Jason the entire time. Pizano and appellant began threatening to kill Jason’s family if he decided to go to the police. The kidnappers released Jason at a car wash that was no longer in business. Jason went to a nearby apartment of an acquaintance for help. Jason called the mother of a friend to pick him up. Fearing for the safety of family members, Jason went to Motel 6 and to a residence to have his family taken to a safer location. Jason then went to the hospital for treatment.
Jason estimated he was hit about 100 times at Aldaco’s home. The police arrived at the hospital while Jason was being treated.
DIRECT CONSEQUENCES OF PLEA
Appellant contends the trial court erred in failing to advise him of the direct consequences of his plea that he would be subject to terms of parole for a particular length of time or that he could be sentenced to additional time for a parole violation.
The record does not reflect that either the court or defense counsel advised appellant that, following completion of his sentence, he would be required to serve a mandatory period of parole (§ 3000). “In all guilty [and no contest] pleas, whether or not bargained for, the trial court must admonish the defendant of both the constitutional … rights that are being waived and the direct consequences of the plea. [Citation.]” (People v. Victorian (1992) 2 Cal.App.4th 954, 957-958 (Victorian).) “[W]here the trial court fails to advise a defendant of the mandatory parole consequences of his or her guilty plea …, error has occurred.” (In re Moser (1993) 6 Cal.4th 342, 352 (Moser).) Because “[i]n California the requirement that a trial court advise a defendant of the direct consequences of a guilty plea is regarded as a ‘judicially declared rule of criminal procedure,’ not a constitutionally compelled rule of due process” (People v. McMillion (1992) 2 Cal.App.4th 1363, 1370), “a defendant … is entitled to relief based upon a trial court’s misadvisement only if the defendant establishes that he or she was prejudiced by the misadvisement, i.e., that the defendant would not have entered the plea of guilty had the trial court given a proper advisement. [Citation.]” (Moser, supra, 6 Cal.4th at p. 352.)
Here, the parole requirement was mentioned in the probation officer’s report. Despite this fact, appellant neither objected at sentencing nor sought to withdraw his plea on this basis. Appellant has failed to demonstrate that he would not have entered the plea had the court given him the proper advisement. Accordingly, we find no prejudice. (People v. Walker (1991) 54 Cal.3d 1013, 1023, 1025; Victorian, supra, 2 Cal.App.4th at p. 958.)
MOTION TO WITHDRAW PLEA
Appellant contends the trial court erred in denying his motion to withdraw his plea given all the errors that occurred, including the misapplication of section 12022.53 and the court’s failure to inform him of direct consequences of his plea. Appellant argues he made a colorable basis to withdraw his plea. We do not agree.
We initially note that appellant never complained about the quality of his counsel’s representation. Appellant’s counsel never indicated to the court that appellant complained about his representation and appellant never expressed discontent over trial counsel’s representation. We therefore find this case distinguishable from our recent opinion in People v. Eastman (2007) 146 Cal.App.4th 688, 695-699 (Eastman), in which we found error when the trial court failed to conduct a proper hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) when the defendant made numerous complaints concerning his counsel’s representation, including a written motion detailing counsel’s alleged shortcomings.
“A trial court should grant a defendant’s Marsden motion only when the defendant has made ‘a substantial showing that failure to order substitution is likely to result in constitutionally inadequate representation’ (People v. Crandell (1988) 46 Cal.3d 833, 859 [questioned on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365]), or stated slightly differently, ‘if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result’ (People v. Smith [1993] 6 Cal.4th [684, 696]).” (People v. Hines (1997) 15 Cal.4th 997, 1025-1026.) Where, as here, a defendant fails to make such a showing, the trial court does not need to replace defendant’s counsel. (See, id. at p. 1026.)
Next, we note that to be entitled to independent counsel to investigate grounds to withdraw from a plea agreement, a defendant has to first make a colorable claim that he or she has a basis to withdraw a guilty plea. (People v. Osorio (1987) 194 Cal.App.3d 183, 188-189; People v. Brown (1986) 179 Cal.App.3d 207, 216 [motion cannot be frivolous].)
Appellant expressly told the court that he was abandoning his motion to withdraw his plea. Counsel initially told the court he was researching “an issue,” but never elaborated on what the issue was. Appellant abandoned his motion to withdraw his plea after the court granted a continuance for counsel to prepare the motion. Though there is arguably legal error in the application of the penalty imposed pursuant to section 12022.53, we discuss below that appellant received a sentence far below the much longer term he faced had he been convicted of all of the counts alleged in the information and his attack on the application of that statute is trifling with the courts. Based on this record, appellant was not entitled to a Marsden hearing and failed to make a colorable showing for substitute counsel to investigate a motion to withdraw his plea.
Because counsel did not make a motion to withdraw appellant’s plea, there was no pending motion upon which the trial court could rule. Appellant did not object to this procedure. Even if the trial court should have made an independent finding that there was no basis for appellant to withdraw his plea, such a finding was implied from the court’s conduct. (See People v. Maury (2003) 30 Cal.4th 342, 406.)
APPLICATION OF GUN ENHANCEMENT TO CONSPIRACY
Appellant argues that the trial court’s sentence was unauthorized because it imposed a section 12022.53, subdivision (b) 10-year enhancement to a conviction for conspiracy. Conspiracy is not an enumerated target offense in subdivision (a) of section 12022.53. Appellant argues the court exceeded its authority in sentencing him to this enhancement and should have sentenced him to a violation of section 12022.5, subd. (a) instead. Respondent concedes that conspiracy is not an enumerated offense in section 12022.53, subdivision (a) but contends the trial court did not lack fundamental jurisdiction and that in attempting to undo his plea, appellant is trifling with the courts.
Section 12022.53 provides in relevant part:
Appellant was informed prior to admitting count two and the gun use enhancement that “there is an agreement that the stipulated sentence is going to be 13 years in state prison.” Thus, appellant knew he was agreeing to a specific sentence.
The California Supreme Court explained the concept of trifling with the courts as follows:
“The rule that defendants may challenge an unauthorized sentence on appeal even if they failed to object below is itself subject to an exception: Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process. (People v. Couch (1996) 48 Cal.App.4th 1053, 1056-1057; People v. Nguyen (1993) 13 Cal.App.4th 114, 122-123; see In re Griffin (1967) 67 Cal.2d 343, 347-348.) While failure to object is not an implicit waiver of section 654 rights, acceptance of the plea bargain here was. ‘When a defendant maintains that the trial court’s sentence violates rules which would have required the imposition of a more lenient sentence, yet the defendant avoided a potentially harsher sentence by entering into the plea bargain, it may be implied that the defendant waived any rights under such rules by choosing to accept the plea bargain.’ (People v. Couch, supra, 48 Cal.App.4th at p. 1057.)” (People v. Hester (2000) 22 Cal.4th 290, 295.)
The trial court here did not lack fundamental jurisdiction. Appellant faced a potential sentence of life with the possibility of parole had he been convicted of count one of conspiracy to kidnap for the purpose of robbery or had he been convicted of count three of kidnapping for the purpose of robbery. A 10-year term under section 12022.53, subdivision (b) was applicable to count three, kidnapping for the purpose of robbery (§ 209, subd. (b)(1)), count four, kidnapping (§ 207, subd. (a)), and count five, the mayhem (§ 203) allegation. Because there were two distinct and independent kidnappings, with appellant using a gun the entire time, as well as a separate act of mayhem during the middle of the first kidnapping, section 12022.53, subdivision (b) could have been applied separately to counts three, four, and five without violating section 654 because these crimes were committed with multiple criminal objectives. Appellant also had three prior prison term enhancements. These potential determinate sentences would be in addition to appellant’s potential indeterminate sentence of life with the possibility of parole for a conviction of count one or count three. Such a sentence would be considerably longer than the 13-year term appellant received.
Because section 654 is intended to ensure a defendant is punished commensurate with his or her culpability, its protection has been extended to cases in which there are several offenses committed during a single course of conduct deemed to be temporally indivisible. It is, however, the defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. (People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison).)
Also, the overt acts alleged in count two alleged that appellant, as part of the conspiracy, actually accomplished kidnapping using a gun. Overt act three in the information states appellant possessed a gun. Overt act five states appellant transported the victim to McCoy. Overt act eight states appellant transported the victim to Poplar. Appellant admitted these facts when he pled no contest to count two. It could be argued that appellant’s admission of overt acts constituting a kidnapping, or kidnappings, would qualify appellant for sentencing pursuant to section 12022.53, subdivision (b) because he has admitted a target offense enumerated in section 12022.53, subdivision (a)(3). This issue has not been raised or briefed by the parties and we do not decide it now because appellant has trifled with the courts in attempting to reduce his sentence.
A guilty plea is, for most purposes, the legal equivalent of a jury’s guilty verdict. (People v. Valladoli (1996) 13 Cal.4th 590, 601.) A guilty plea serves as a stipulation that the People need not introduce proof to support the accusation. The plea ipso facto supplies both evidence and verdict and is deemed to constitute an admission of every element of the charged offense. (People v. Alfaro (1986) 42 Cal.3d 627, 636 [overruled on another ground in People v. Guerrero (1988) 44 Cal.3d 343]; People v. Chadd (1981) 28 Cal.3d 739, 748.) A plea of nolo contendere is legally equivalent to a guilty plea and also constitutes an admission of every element of the offense pled. (People v. Warburton (1970) 7 Cal.App.3d 815, 820-821.)
At page two of his reply brief, appellant argues that he only seeks to withdraw his plea, not to reduce his sentence. At page three of his reply brief, however, appellant argues “it is not unreasonable to assume that, had his lawyer objected to the 10-year enhancement under section 12022.53, a lesser term would have been imposed.” Appellant further argues that it is not inconceivable that a term of less than 10 years would have been imposed had the trial court not sentenced him pursuant to section 12022.53. We read this argument, as well as appellant’s argument that the trial court committed Cunningham error, to mean that appellant is attempting to use the appellate process to better his plea agreement.
We note the respondent’s argument that appellant is trifling with the courts is all the more persuasive precisely because appellant faced a potential sentence of life with the possibility of parole plus a lengthy determinate sentence. In entering into the plea agreement, appellant significantly reduced the potential sentence he faced had he been convicted of all of the counts and enhancements.
Furthermore, we agree with respondent that where a trial court does not lack fundamental jurisdiction, the defendant can be estopped on appeal from complaining about a conviction later shown to be statutorily unauthorized. (People v. Jones (1989) 210 Cal.App.3d 124, 136-137; People v. Ellis (1987) 195 Cal.App.3d 334, 342-348.)
ALLEGED CUNNINGHAM ERROR
Appellant argues that the trial court committed Cunningham error setting forth the following theory. The offense of conspiracy to kidnap in violation of section 207 is punishable by a term of three, five, or eight years. (§ 208, subd. (a).) Five years is the midterm for conspiracy and, according to appellant, the only properly applicable gun enhancement statute to his conduct is section 12022.5, subdivision (a) which has a triad of penalties of 3, 4, or 10 years. Appellant reasons that the only way he could receive the upper term penalty for section 12022.5, subdivision (a) is for a jury to make a finding of truth beyond a reasonable doubt. Because the presumed statutory sentence is the midterm, the upper term could not be imposed without violating appellant’s right to a jury trial on the facts necessary to impose that upper term.
We reject this argument. First, appellant expressly waived the right to a jury when he entered his no contest plea. Second, when appellant and his counsel negotiated the plea agreement, it was for a specified term and the court was not to reserve sentencing discretion in imposing sentence. Third, section 12022.53, subdivision (b) does not impose a triad system of penalties with a presumptive midterm sentence, but a straight 10-year prison term for simple use of a firearm in the commission of a crime. The right to a jury finding for an upper term sentence under Cunningham is not applicable to the sentence appellant received pursuant to section 12022.53, subdivision (b). Although the court’s sentence is arguably unauthorized, as discussed above, the court did not lack fundamental jurisdiction where, as here, appellant agreed to a specified sentence.
ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL
Appellant argues his trial counsel was ineffective for failing to object to the imposition of sentence pursuant to section 12022.53, subdivision (b) and there is no satisfactory explanation or tactical reason in the record as to why counsel did not raise this issue with the trial court.
The defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsel’s decision making is evaluated in the context of the available facts. To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or, unless there simply could be no satisfactory explanation. Prejudice must be affirmatively proved. The record must affirmatively demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389.) Attorneys are not expected to engage in tactics or to file motions which are futile. (Id. at p. 390; also see People v. Mendoza (2000) 24 Cal.4th 130, 166.)
Appellant has failed to show that he would have withdrawn his plea in light of the alleged errors of counsel. Appellant was facing an indeterminate sentence of life with the possibility of parole as well as an additional determinate sentence. The record is silent as to what issue appellant’s trial counsel was researching prior to deciding not to file a motion to withdraw appellant’s plea. One possible explanation is that counsel discovered the issue of conspiracy not being a enumerated offense in section 12022.53, subdivision (a) but determined that appellant faced a far less certain future by withdrawing his plea. Appellant has failed to demonstrate prejudice. We therefore reject this contention.
DISPOSITION
The judgment is affirmed.
“(a) This section applies to the following felonies: “(1) Section 187 (murder). “(2) Section 203 or 205 (mayhem). “(3) Section 207, 209, or 209.5 (kidnapping). “(4) Section 211 (robbery). “(5) Section 215 (carjacking). “(6) Section 220 (assault with intent to commit a specified felony). “(7) Subdivision (d) of Section 245 (assault with a firearm on a peace officer or firefighter). “(8) Section 261 or 262 (rape). “(9) Section 264.1 (rape or sexual penetration in concert). “(10) Section 286 (sodomy). “(11) Section 288 or 288.5 (lewd act on a child). “(12) Section 288a (oral copulation). “(13) Section 289 (sexual penetration). “(14) Section 4500 (assault by a life prisoner). “(15) Section 4501 (assault by a prisoner). “(16) Section 4503 (holding a hostage by a prisoner). “(17) Any felony punishable by death or imprisonment in the state prison for life. “(18) Any attempt to commit a crime listed in this subdivision other than an assault.”
Our Supreme Court has traditionally observed that if all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, the defendant may be found to have harbored a single intent. On the other hand, if the defendant harbored multiple criminal objectives, which were independent of and not incidental to each other, he or she may be punished for each statutory violation committed in pursuit of each objective. This is so even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. (Harrison, supra, 48 Cal.3d at p. 335.)
Where multiple offenses occur in one course of conduct, it is the defendant’s intent to commit a number of separate base criminal acts upon his or her victim, not the precise code section under which he or she is thereafter convicted, which makes section 654 inapplicable. Section 654, therefore, does not preclude punishment for each of the offenses committed by appellant as long as there were multiple criminal objectives. (See Harrison, supra, 48 Cal.3d at pp. 337-338.)