Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC074263.
Premo, J.
In May 2002, defendant Miguel Angel Barajas pled no contest to seven felonies and admitted all enhancements in a four-year-old manufacturing methamphetamine case and received a prison sentence of nine years, four months. On appeal, he challenges the substitution of the public defender for private counsel on the day of sentencing without allowing a continuance for the public defender to prepare for sentencing or file a motion to withdraw the plea.
FACTUAL AND PROCEDURAL BACKGROUND
On January 13, 2000, Los Gatos/Monte Sereno police found a three-room drug lab in an abandoned religious college on Foster Road. The lab contained manufactured methamphetamine nearly ready for distribution, and chemicals, liquids, and equipment used in the manufacturing process. If the manufacturing process had been completed, there would have been more than 50 pounds of methamphetamine with a street value of over $1 million.
The San Jose Bureau of Narcotic Enforcement Clandestine Lab crew took samples of all liquids and “substances” and lifted latent prints which were identified as defendant’s. San Jose police officers had already found defendant’s fingerprints at a drug lab on Idlewood Drive in December of 1998 and defendant had been seen selling drugs there.
On June 6, 2000, police were surveilling a residence linked to defendant on Santa Teresa Boulevard. When defendant came outside, an officer tried to contact him but he fled in his vehicle. Going over 90 miles per hour in a posted 35 mile per hour zone, 70 miles per hour as he rounded a corner, and 85 miles per hour as he ran two red lights until bogged down by heavy traffic, he finally fled on foot, leaving his infant daughter in the back seat. Police caught him and tried to take him into custody, during which he flailed his arms and kicked his legs as he tried to break free from the officer’s hold. An open bottle of 1,000 ephedrine tablets and a sealed bottle of “Ephedrine Release” were found in the residence. The next day, police learned that defendant bought 25 pounds of iodine under an alias on July 13, 1999. They searched his car and found a May 4, 2000, invoice for shipment of five cylinders of hydrogen chloride gas from Ohio to a company in southern California.
Defendant was charged with conspiracy to manufacture methamphetamine, count 1 (Health & Saf. Code, § 11379.6, subd. (a)), with seven overt acts alleged and with the allegation that the controlled substance exceeded 10 pounds of solid substance by weight and 25 gallons of liquid by volume; possession of ephedrine and pseudoephedrine with intent to manufacture methamphetamine, counts 2 and 8 (id., § 11383, now § 11383.5, Stats. 2006, ch. 464 (Sen. Bill 1299) §§ 2, 3); reckless driving while fleeing from a peace officer, count 3 (Veh. Code, § 2800.2, subd. (a)); endangering the health of a child, count 4 (Pen. Code, § 273a, subd. (a)); resisting arrest, a misdemeanor, count 5 (§ 148, subd. (a)(1)); manufacturing methamphetamine, count 6 (Health & Saf. Code, § 11379.6, subd. (a)) with the allegation that the substance exceeded 25 gallons of liquid by volume; and submitting a false application for a driver’s license, count 7 (§ 118).
Further statutory references are to the Penal Code unless otherwise stated.
It was also alleged that defendant had suffered two prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (b), and that he had served two prior prison terms pursuant to section 667.5, subdivision (b).
On May 20, 2002, defendant admitted all counts, enhancements, and prior convictions for which the maximum exposure was 32 years with the understanding he would receive a sentence of five years, four months as indicated by the court. The court also required a “Cruz waiver.” It informed defendant that if he failed to appear for sentencing, the court could impose “any term” it found appropriate and that although seven years, eight months, had previously been mentioned, “it certainly could be higher than that.” Defendant stated he understood. The court did not advise defendant pursuant to section 1192.5 prior to taking the plea that “(1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so.” Defendant failed to appear for sentencing on June 30, 2004.
People v. Cruz (1988) 44 Cal.3d 1247 (Cruz). A Cruz waiver allows a defendant who has been advised of his or her rights under section 1192.5 to expressly waive those rights, such that if the defendant willfully fails to appear for sentencing the trial court may withdraw its approval of the defendant’s plea and impose a sentence in excess of the bargained-for term. Any such waiver, of course, would have to be obtained at the time of the trial court’s initial acceptance of the plea, and it must be knowing and intelligent. (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5.)
The second paragraph of section 1192.5 provides, “[w]here the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea.”
On December 13, 2005, defendant was returned to court. He was still represented in the instant case by attorney Robert Lyons. On March 30, 2006, Mr. Lyons moved to withdraw as counsel so that the public defender could be appointed to make a motion to withdraw the plea. The court stated that the public defender was assigned to represent defendant on two other cases, and the deputy public defender present in the courtroom, Ashu Kalra, declared, “for the sole purpose of filing a motion to withdraw the plea, public defender’s [sic] office requests an appointment in line four for that purpose even if Mr. Lyons is not relieved for other purposes. [¶] And in regards to that issue, as far as filing a motion to withdraw plea [sic], public defender’s office [sic] requests a continuance for two weeks in order to file that motion to withdraw plea [sic], review the transcripts as well as discuss with Mr. Barajas any potential motion regarding ineffectiveness of counsel with Mr. Lyons prior to, during and after the plea was entered into.”
The record of representation in this case is murky. The clerk’s transcript shows that the matter was set for a hearing on a motion to withdraw the plea on March 27, 2003. The attorney was Mr. Lyons; no written motion appears in the clerk’s transcript; the matter was continued to April 30 for a motion to withdraw the plea, and after interim continuances for the same purpose, to December 10, 2003. Reference to a motion to withdraw the plea disappeared in the minute order for the next continuance, to January 7, 2004. That hearing was for “probation and sentencing.” No further mention was made of a motion to withdraw the plea in subsequent minute orders.
Those cases were before this court in case No. H030643, affirmed August 10, 2007. We take judicial notice of the court files.
Mr. Lyons “ha[d] no problem with that” and stated defendant “should be afforded that opportunity, though I believe that I got him an incredible disposition in the case and I believe the People were reasonable and realistic about it. The court was too.” The court allowed Mr. Lyons to withdraw, appointed the public defender on the case, and allowed the district attorney to protest further delay.
The People asked the court for immediate sentencing. Mr. Kalra protested that he had not seen the transcript, stated that defendant was entitled to file a motion to withdraw the plea based on ineffective representation by counsel before sentencing, and that defendant had a right to file a motion on the issue whether the promised indicated sentence was abrogated by his failure to appear.
The trial court responded, “I am gonna [sic] say a number of things for the record and then let Mr. Barajas know that he can file an appeal within thirty days of his sentencing.” The court pointed out that the case was at least four years old; there had been 23 continuances for negotiations in which the sentence had been bargained down from 22 years to five years, four months; and that by the time the plea was taken, “Mr. Barajas understood what he was doing, that he was properly advised by Mr. Lyons of all the consequences. [¶] The offer that was made at that time was--I am not gonna [sic] say incredible, but . . . he ended up with a fabulous offer in light of what the maximum sentence could have been.”
The court stated it had advised defendant of the consequences of a failure to appear for sentencing and received a Cruz waiver (see fn. 2 ante), that it had never indicated that it would impose a maximum sentence; that the court was imposing an appropriate sentence in light of the facts of the case; that another attorney, Mark Arnold, had been “retained to review what had occurred in this case” at some unspecified earlier time and that Arnold “did not file an appeal when asked for a withdrawal of plea because he was satisfied that, in fact, what had occurred in this case was appropriate.” In addition, the court stated that if it allowed withdrawal of the plea, defendant would “open[] the door for the district attorney’s office to then seek a preliminary hearing or a trial and in fact get more time on the case. . . . And again, that could be subject to appeal and calling Mr. Lyons or Mr. Arnold. . . . [¶] And I fully recall Mr. Arnold coming in, saying there was no intention to file an appeal in this case.”
The court stated that further continuances were unwarranted, that defendant could file an appeal after sentencing, and that, over the public defender’s objection, the court was going to proceed with sentencing. The court noted that defendant’s other two cases (see fn. 4, ante) were pending preliminary hearing. Mr. Kalra asked for a continuance so the cases could be resolved together before the preliminary hearing; the People objected; the court started to impose sentence; Mr. Kalra objected that he was unprepared to represent defendant for sentencing because he did not have the probation report, police reports, interview with Mr. Barajas “or anything”; the prosecutor objected that in the “at least four court appearances that we have made and discussed all of the three matters in chambers, both Mr. Lyons and . . . Mr. Kalra, ha[ve] been present [and] we have discussed all three cases . . . as a unit. Mr. Lyons and Mr. Kalra have discussed the cases numerous times together and it has essentially been treated as if [defendant] [has] had two defense counsel on three cases.”
The court stated that all counsel were present for discussions on February 3, March 2, March 16, and January 20. Mr. Kalra stated Mr. Lyons was not there for some court appearances; defendant interjected that “[h]e never even spoke to me.” The court said, “[y]ou are not on the record. Don’t talk about he didn’t speak to you. I saw him speak to you virtually every court appearance.” Defendant insisted, “[h]e never did,” and the court imposed nine years, four months in state prison. This appeal ensued.
ISSUES ON APPEAL
Defendant complains that the trial court erred by (1) substituting the public defender as his counsel moments before the sentencing hearing and denying counsel the opportunity to prepare for the sentencing hearing; (2) refusing to allow defendant to move to withdraw his plea; (3) failing to grant a continuance so new counsel could prepare the withdrawal motion and for sentencing; (4) imposing multiple punishments in violation of section 654 for the manufacture of methamphetamine and possession of ephedrine with intent to manufacture methamphetamine and for reckless driving while evading a police officer and child endangerment; and (5) asking the probation officer to set the amount of the restitution fine. Finally, (6) trial counsel was ineffective for accepting appointment on the date of sentencing without being prepared to go forward immediately.
MOTION TO WITHDRAW THE PLEA
Defendant asserts that he was denied a postplea procedural right: the opportunity to challenge the plea through a motion to withdraw it. He claims the trial court violated his constitutional rights to due process and to the assistance of counsel by ruling on the motion moments after appointing new, unprepared counsel.
A defendant has the right to the effective assistance of counsel at all stages of trial, including when he seeks to withdraw a guilty plea. (People v. Brown (1986) 179 Cal.App.3d 207, 214.) “On application of the defendant at any time before judgment . . ., the court may, . . . for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.” (§ 1018.) A plea of guilty or nolo contendere may be withdrawn for mistake, ignorance, or inadvertence or any other factor overreaching defendant’s free and clear judgment. The facts of such grounds must be established by clear and convincing evidence. (People v. Cruz (1974) 12 Cal.3d 562, 566.)
Mr. Kalra timely informed the court of two possible issues for a motion to withdraw the plea: whether defendant’s failure to appear abrogated the sentence agreement and competence of counsel in the preplea and plea proceedings. The court and parties focused on the second issue, which the trial court rejected based on past proceedings that do not appear in the record filed in this court, that that ground had been investigated by attorney Mark Arnold who assured the court there was no basis for withdrawing the plea. We do not comment on this ruling. The first ground Mr. Kalra alluded to based on the consequences of defendant’s failure to appear, or, more artfully stated, whether the court’s withdrawal of approval of the indicated sentence based solely on defendant’s failure to appear entitled defendant to elect whether to withdraw the plea under section 1192.5, went unnoticed and unheard.
Mr. Kalra stated, “It was indicated that he will be facing the maximum. It was indicated that the court would have discretion to do what it wanted to. However, I think that in addition to the plea and whatever Mr. Barajas’ understanding of the plea or whatever would have happened if he did not show up for sentencing is, I think he has the right to at least file a motion in regards to what his understanding was and whether he was fully aware of what his rights were, what the consequences of his actions may be or what the court’s discretion would have been.”
We note in regard to the latter issue that in proceeding to immediate sentencing, the court stated it had taken a Cruz waiver. It had not. The transcript, which Mr. Kalra did not have, establishes that there was no waiver. The court advised defendant that the sentence was “contingent upon you appearing at the time of sentencing,” and added that if defendant failed to appear at that time, the court could “sentence you to any term . . . .” Defendant responded that he understood. However, the court did not ask defendant if he agreed to this, nor had the court advised defendant of his section 1192.5 rights and sought a waiver of them. The court’s intention to disapprove the indicated sentence if defendant failed to appear was not stated when the parties discussed their understandings of what defendant would plead to before the formal taking of the plea. It was a condition interjected by the court when the court was putting the consequences of the plea on the record.
Cruz, supra, 44 Cal.3d 1247, disapproved a line of cases “which had held that a defendant’s failure to appear for sentencing forfeited his or her right either to specific enforcement of the plea bargain or to withdraw the guilty plea. [Citation.] The Supreme Court in Cruz refused to deny section 1192.5 protection to ‘defendants who plea-bargain in bad faith or “breach the bargain” through illegal acts.’ [Citation.] The court said this rationale ‘errs . . . in characterizing as a “breach” of the plea bargain what is really a separate offense of failure to appear. (See §§ 1320 and 1320.5.) [¶] The imposition of an additional or enhanced sentence for a separately chargeable offense without the benefit of a trial on that charge, and in the absence of a knowing and intelligent waiver, is clearly offensive to the principles of due process.’ ” (People v. Casillas (1997) 60 Cal.App.4th 445, 449.)
Substituted counsel’s inability to present this motion to the court before sentencing denied defendant the assistance of counsel at a critical stage of the proceedings and requires reversal.
MULTIPLE PUNISHMENT
In the event defendant elects not to withdraw his no contest pleas, we address defendant’s sentencing complaints that the trial court failed to stay multiple punishments for a single act or course of conduct with a single intent as required by section 654. First, the trial court imposed a five year sentence for count 6, manufacturing methamphetamine, and a concurrent four year sentence for count 8, possession of ephedrine or pseudoephedrine with the intent to manufacture methamphetamine. According to defendant, sentence for count 8 should have been stayed pursuant to section 654. Second, the court should have stayed the 16 month sentence for count 3, reckless driving while evading arrest (ordered to run concurrent with the five-year sentence on count 6, manufacturing methamphetamine), because of the consecutive sentence of one year, four months, which it imposed for child endangerment, count 4, which arose out of the same act with the same objective.
Under section 654, an act “punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Section 654 “prohibits punishment for two crimes arising from a single, indivisible course of conduct. [Citation.] If all the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. [Citation.] If, however, a defendant had several independent criminal objectives, he may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct.” (In re David H. (2003) 106 Cal.App.4th 1131, 1134.) Thus, section 654 precludes multiple punishments not only for a single act, but for an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.) “The multiple and independent criminal objectives test applies only to cases in which the defendant’s conviction was based on an indivisible course of conduct.” (People v. Vu (2006) 143 Cal.App.4th 1009, 1033.) Section 654 does not allow any multiple punishments, either concurrent or consecutive sentences. (People v. Deloza (1998) 18 Cal.4th 585, 592.)
Defendant argues that pseudoephedrine or ephedrine is a necessary ingredient in producing methamphetamine, therefore, the possession of pseudoephedrine or ephedrine (charged in count 8) is necessary to the manufacture of methamphetamine and therefore cannot be punished separately from count 6, the manufacture of methamphetamine. The People respond that in the three rooms which were used for manufacturing methamphetamine, “ ‘manufactured methamphetamine [was] nearly ready for distribution,’ which indicates that the manufacturing process was almost complete and was not at the beginning stages.” There were also items that “presumptively tested positive for methamphetamine and substances that could be used in the manufacture of methamphetamine. The only logical conclusion that can be reached from the facts of this case is that there was more than one manufacturing process, and [defendant] had multiple intents and objectives.”
The People’s position is supported by People v. Goodall (1982) 131 Cal.App.3d 129. Goodall was sentenced to consecutive terms on each count and argued a section 654 violation. The appellate court stated, “the trial court could reasonably conclude that appellants intended (1) to manufacture PCP; (2) to sell the PCP they had manufactured, if they could find a buyer; and (3) to manufacture more PCP with the ingredients not used in step (1). . . . The two counts involving manufacturing PCP and possessing piperdine and cyclohexanone [which when combined make an essential ingredient of PCP] may also be separately punished by analogy to the drug seller cases, in circumstances where the court could reasonably conclude that the remaining inventory of chemicals is possessed with intent to manufacture more PCP.” (People v. Goodall, supra, 131 Cal.App.3d at pp. 147-148.) Other evidence at the crime scene demonstrated that the manufacturing process recently had been completed. Since the manufacturing process was complete, the only use Goodall had for the piperdine and cyclohexanone was for future manufacturing activities.
In this case, the trial court could reasonably conclude that there was more than one manufacturing process and that defendant had multiple intents and objectives. Accordingly, section 654 does not require that the concurrent sentence imposed on count 8 be stayed.
Defendant also claims that the punishment for count 3, reckless driving while evading arrest, must be stayed pursuant to section 654 “because that conviction and his conviction for child endangerment [count 4] arose from ‘the same car chase.’ ” The People concede this point.
RESTITUTION FUND FINE
Defendant also complains that when the trial court asked, “Madam Probation Officer, do you have the restitution fund fine,” received the answer “It will be $10,000,” and ordered a $10,000 restitution fund fine and an equal fine imposed and suspended pursuant to section 1202.45, the trial court “abused its discretion when it asked the probation officer to set the amount of the restitution fines.”
The court did not err in ordering a $10,000 fine. Section 1202.4, subdivision (b)(1) provides that the restitution fine shall be set “at the discretion of the court.” Subdivision (b)(2) of that section includes a formula that the court may use in calculating the fine. The exercise of discretion is the court’s decision to employ the statutory formula. There is no abuse of discretion when the court delegates the arithmetic to someone else. Whether it was calculated by the judge, delegated to the probation officer or another staff member, or figured by a computer program, the fine imposed here was consistent with the statutory formula. The number of years of imprisonment (9) was multiplied by $200, and that result was multiplied by the number of felony convictions (7), which totaled $12,600. The statutory maximum was $10,000. (§ 1202.4, subd. (b).) Assuming that count 3 was improperly included because it should have been stayed pursuant to section 654 (see People v. Le (2006) 136 Cal.App.4th 925, 933), the calculation of the restitution fine would be reduced to $10,800. The further reduction to $10,000 complied with the statutory maximum. There was no abuse of discretion.
We need not discuss the other issues in light of the outcome.
DISPOSITION
The judgment is reversed and the cause remanded to the trial court with instructions that defendant be permitted to withdraw his guilty plea if he so chooses and further proceedings be conducted as may be appropriate. If defendant does not elect to withdraw the guilty plea and the judgment is reinstated, the clerk of the court is instructed to correct the abstract of judgment to show that the sentence on count 3 is stayed, and to forward a corrected abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR:
Rushing, P.J., Elia, J.
Defendant’s last appearance was at one of the many continuances of sentencing that took place before June 30, 2004, when he failed to appear. Defendant was brought back to court on December 13, 2005. The matter was on calendar for “Order of Court” followed by the handwritten “SENTG. ([Department] 061).” Mr. Lyons was listed as the attorney, but “Appt. PD” was encircled on the form and a box was checked below “Appt PD” and “AR,” apparently, Attorney of Record. The “Atty Present” box was followed by the name “M. Steel” with an encircled “PD” indicating M. Steel was from the public defender’s office. M. Steel continued as defendant’s attorney of record on the January 5, 2006 minutes.
The January 20, 2006 minutes list M. Steel as attorney of record and state that Mr. Lyons was making a special appearance. The case was continued until February 3, when again, M. Steel appeared as defendant’s attorney, with the notation that the public defender was “relieved.” Mr. Lyons’s name was written on the “Atty Present” line, and again on that line in the minutes for March 16, 2006. On March 30, Mr. Lyons was relieved and the public defender reappointed.
The facts, which are taken from the opinion in case No. H030643, are similar to those in the instant case. On June 24, 2004, defendant fled Santa Clara police officers who were attempting to stop him during which pursuit he sped up, made an unsafe lane change, drove 60 miles per hour in a 35 mile per hour zone, dumped white powder onto the street and threw a baggie with white powder out of the window. Defendant then stopped, but when the police unit pulled in front of his car, he made a u-turn, swerving around another police van and threw cash out the car window. He then stopped at a gas station. Defendant’s 16-year-old son, Carlos M., was in the passenger seat. When defendant’s car was searched, a gram of crystal methamphetamine was found scattered on the floor. Along the road where defendant had thrown objects out of his car, a cell phone, a baggie without any white powder, and $3,400 in cash were found. While out on bail, defendant failed to appear for sentencing in the instant case. He was arrested 18 months later.