Opinion
Super. Ct. No. CRF 08-257
NOT TO BE PUBLISHED
BLEASE, Acting P. J.
After being misadvised of the consequences of his plea, defendant Laurence Eugene Williams pleaded no contest to dissuading a witness (Pen. Code, § 136.1, subd. (c)(1)) in exchange for dismissal of a prior prison term allegation (§ 667.5, subd. (b)) and another case.
Further undesignated references are to the Penal Code.
Defendant later was advised of the error in the probation report and by the trial court at sentencing. He did not, however, inform the trial court that he wished to withdraw his plea before sentence was imposed, and the trial court sentenced him to the middle term of three years in state prison. The court also imposed a criminal protective order and various fines and fees.
Having obtained a certificate of probable cause, defendant appeals, contending the trial court committed reversible error “when it refused to give [him] an opportunity to withdraw his guilty [sic] plea....” The People respond that defendant “waived any irregularity in the plea arrangement” by failing to object or move to withdraw his plea at or before sentencing. Defendant counters that his “trial counsel’s failure to bring a timely and effective motion to withdraw [his] plea” constituted ineffective assistance of counsel. Defendant also asserts, and the People concede, that the imposition of a criminal protective order constituted an unauthorized sentence and must be stricken.
We shall conclude that defendant was given an opportunity to withdraw his plea but failed to do so, thereby waiving the error in the advisement of the consequences of his plea. Because the record does not disclose why defendant’s trial counsel failed to move to withdraw defendant’s plea and there was a tactical reason for not bringing such a motion, we shall further conclude that defendant’s ineffective assistance claim lacks merit. Finally, we agree the criminal protective order constituted an unauthorized sentence. Accordingly, we shall strike the criminal protective order and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On May 30, 2008, defendant was in court awaiting a preliminary hearing in a domestic violence matter when two sheriff’s deputies overheard him tell the victim Katrina T., “Don’t listen to anything they say. Don’t talk to anybody.” Thereafter, Katrina T. began crying and left the courtroom.
At his change of plea hearing, defendant was erroneously advised that “[i]f probation is denied, you could be sentenced to state prison for either 16 months, two or three years” for violating section 136.1, subdivision (c)(1). When asked whether he had been promised anything other than the dismissal of the prior prison term allegation and another case in exchange for his plea, defendant stated in pertinent part: “16, two, three, open deal with half time....”
The correct sentencing triad for a violation of section 136.1, subdivision (c)(1) is two, three, or four years. (§ 136.1, subd. (c).)
The probation report prepared in anticipation of defendant’s sentencing indicated that defendant was misadvised as to the applicable sentencing triad, and that the applicable triad was two, three, or four years. The report also stated that “[d]efendant should be allowed an opportunity to withdraw his plea.” In the event defendant’s plea was not withdrawn, the report recommended he be sentenced to the upper term of four years.
At the sentencing hearing, the court indicated that it had read and considered the probation report and acknowledged that “[a]t the time... defendant entered his plea, he was misadvised as to the triad that applies to the offense he was pleading to. He was told it was a 16-2-3 rather than a 2-3-4.” The court then indicated that it was “prepared to receive [sic] the sentencing today capping any sentence at the mid-term of three years,” and asked defendant’s trial counsel if he “wish[ed] to address that....?” The following colloquy ensued:
“[DEFENDANT’S TRIAL COUNSEL]: I provided the court with a letter from Salvation Army San Francisco which has accepted ... defendant for his drug problem. I believe that the probation department sets out a basis that he does, in fact, have a drug problem, and I don’t believe that there’s any suggestion that he might not benefit from that program. I realize he went to two other programs. They were 90-day programs, however. For what it’s worth, my opinion is you go to a 90-day program you might as well stay home.
“He says he’s serious [about] wanting to do something about his drug problem, and he’s asking the court to seriously consider if he were to agree to the upper term of four years and ask the court to consider suspending that sentence and allowing him to enroll in the program in San Francisco with the understanding that if he falls off the program or violates it, that he knows he’s going to go to prison for four years rather than the court’s intended sentence of three years. I guess he’s asking the court to seriously give consideration to wanting to solve his drug problem.
“This was a case, Judge, where the public defender had one case and I had... this one and it got [to be] a big jumbled mess to be honest. They originally wanted, if [the deputy district attorney] will -- I think she will agree that they didn’t want him to plead to 136 in the first place. They wanted him to plead to the spousal battery, and one thing led to another, and the [district attorney] changed his opinion and agreed to the 16-2-3. He’s the person who brought up the erroneous time sentence in the first place. We went ahead and did that. I think... defendant entered a plea to that because he believed it to be 16-2-3 and not the two or three sentence, but originally I think the [district attorney] is going to tell you she didn’t want him to plead to this sentence in the first place.
“THE COURT: If it had been a [section] 136[, subdivision] (a), the 16-2-3 would have been correct, but he plead [sic] to [subdivision] (c).
“[DEFENDANT’S TRIAL COUNSEL]: I didn’t catch it either, Judge. In any event, he would like to go to the program and realizes if he didn’t [sic] make it, he would [sic] be in prison for four years instead of three. I don’t know that you’ve got anything to lose so I’ll submit it.”
The deputy district attorney responded that it would be inappropriate to allow defendant to enter a program given his prior record and noted that he would have an opportunity to address his “alleged drug program” in prison. She also argued that defendant not be allowed to withdraw his plea. “[H]e was told that he was subject to a sentence of... 16 months, 2 years, or 3 years, and as long as the court gives him either two years or three years -- which is also part of the correct triad -- he essentially hasn’t been misinformed because the sentence is still in line with what he was advised of.”
The trial court then asked both parties if the matter was submitted, and defendant’s trial counsel and the deputy district attorney indicated that it was. The court declined defendant’s request to impose the upper term of four years, suspend execution of sentence and place him on probation, and sentenced him to the middle term of three years, which was within the erroneous sentencing triad of which he was advised at the time he entered his plea. The court also imposed a criminal protective order which prohibited defendant from having any contact with Katrina T. along with various fines and fees.
Defendant was given credit for 93 days.
When the trial court was finished imposing sentence, defendant’s trial counsel stated: “I’m just going to say, Judge, that... defendant wished to set aside his plea like the probation department suggested in their first sentence, and I know the court has already made a decision.”
DISCUSSION
I
In his opening brief, defendant contends the trial court committed reversible error by refusing to give him an opportunity to withdraw his no contest plea after it was shown that he was misadvised as to the potential sentence he was facing prior to entering the plea. The People do not dispute that defendant was misadvised as to the potential sentence he was facing or that the misadvisement constituted good cause for defendant to withdraw his plea; rather, they assert that defendant waived the error by failing to move to withdraw his plea or otherwise object at or before sentencing.
Defendant was advised of the error and the correct sentencing triad in the probation report and by the trial court. The probation report further advised defendant of his right to move to withdraw his plea. Moreover, at the outset of the sentencing hearing, the trial court told defendant that it was “prepared to receive [sic] the sentencing today capping any sentence at the mid-term of three years,” and asked defendant’s counsel if he “wish[ed] to address that....” Rather than move to withdraw his plea, defendant, through his counsel, indicated he was willing to stipulate to an upper term sentence of four years--the correct upper term sentence for a violation of section 136.1, subdivision (c)-- if the court would agree to suspend execution of sentence and place defendant on probation on the condition he participate in a drug treatment program. In response, the deputy district attorney argued, among other things, that defendant not be permitted to withdraw his plea. Thereafter, the trial court asked both parties if the matter was submitted. Again, rather than argue that he should be permitted to withdraw his plea, defendant submitted the matter. Thus, the trial court did provide defendant with an opportunity to move to withdraw his plea. Defendant’s failure to do so waived the error and any claim for relief, including any claim that trial counsel was ineffective in failing to accurately advise him of the consequences of his plea. (See People v. Walker (1991) 54 Cal.3d 1013, 1023; see also People v. Melton (1990) 218 Cal.App.3d 1406, 1408-1409.) Trial counsel’s statement, after sentence was imposed, that “defendant wished to set aside his plea like the probation department suggested” was too late. (See People v. Walker, supra, 54 Cal.3d at p. 1023.)
In his reply brief, defendant argues that “trial counsel’s failure to bring a timely and effective motion to withdraw [his] plea” in accordance with his wishes constituted ineffective assistance of counsel.
To prevail on a claim of ineffective assistance of counsel, defendant “must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice. [Citation.] Tactical errors are generally not deemed reversible, and counsel’s decision-making must be evaluated in the context of available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we 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....’ [Citation.].” (People v. Bolin (1998) 18 Cal.4th 297, 333.)
Here, the record on appeal does not disclose why defendant’s trial counsel failed to move to withdraw defendant’s plea. Nor was he asked to provide an explanation. And, as the People point out, there existed a tactical reason for not moving to withdraw the plea, i.e., defendant “faced much greater jeopardy than the indicated three year prison sentence--potentially two more years when the enhancement and the upper term sentence [are] factored in....” While defendant asserts that “he wished to move to withdraw his plea,” it is not clear from the record whether defendant’s trial counsel was timely advised of defendant’s wish, and thereafter, ignored it. For example, there is no evidence of any conversations between defendant and his trial counsel concerning the error or how to proceed in light of the applicable sentencing triad. At the sentencing hearing, defendant’s trial counsel initially indicated defendant was willing to stipulate to a suspended upper term sentence in exchange for probation, but after the trial court rejected the request and sentenced defendant to prison, counsel indicated “defendant wished to set aside his plea like the probation department suggested....” On this record, defendant cannot establish trial counsel’s performance was deficient. Therefore, his ineffective assistance claim must fail.
II
Defendant contends, and the People concede, that the trial court erroneously ordered defendant to have no contact with Katrina T. for 10 years from the date of sentencing. The “no contact order” is reflected on a Judicial Council form that cites sections 136.2 and 1203.097, subdivision (a)(2). Neither section authorizes such an order. Section 136.2 applies to protect victims, witnesses and immediate family members living in the household but only during the pendency of the criminal proceedings. (People v. Stone (2004) 123 Cal.App.4th 153, 159-160.) The criminal action concluded upon defendant's sentence to state prison. Section 1203.097, subdivision (a)(2) applies when probation is granted in a domestic violence case. Here, defendant was sentenced to state prison. We will strike the “no contact order.”
DISPOSITION
The trial court’s order that defendant have no contact with Katrina T. is stricken. The judgment is otherwise affirmed.
We concur: SIMS, J., BUTZ, J.