Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Madera County. David D. Minier and Jennifer R.S. Detjen, Judges. Super. Ct. No. MCR024918
Judge Minier presided over appellant’s change of plea hearing and heard her motion to strike a prior serious felony conviction. Judge Detjen sentenced appellant.
Rick Horowitz, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Stephanie A. Mitchell, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J, and Dawson, J.
INTRODUCTION
On May 17, 2007, appellant, Michelle Diane Bethel, pled guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). She also admitted a prior serious felony conviction within the meaning of the three strikes law. On October 15, 2007, the court denied appellant’s motion to strike the prior serious felony conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). On January 18, 2008, the trial court sentenced appellant to prison for the mitigated term of 16 months, which was doubled to 32 months pursuant to the three strikes law.
Appellant contends the trial court abused its discretion in denying her Romero motion. Appellant further contends that on remand, she should be permitted to make a motion to withdraw her plea.
FACTS AND PROCEEDINGS
Appellant’s Arrest
On December 14, 2005, Madera County Sheriff’s Deputy Tyson Pogue was working with the Madera County Narcotic Enforcement Team. Pogue went to an address on Road 222. A vehicle driven by appellant soon arrived. Pogue seized a baggy from appellant’s car containing a usable quantity of methamphetamine. Pogue also found an envelope in appellant’s car addressed to her with amounts written on it. The numbers were consistent with a pay-owe sheet used to keep track of narcotics transactions. Pogue gave appellant Miranda warnings. Appellant waived her right to remain silent and told Pogue that the methamphetamine belonged to her.
The facts are derived from the preliminary hearing transcript.
Miranda v. Arizona (1966) 384 U.S. 436.
Change of Plea Hearing
On May 17, 2007, appellant changed her plea, executing a declaration regarding guilty plea in which she agreed to plead guilty to one count of possession of methamphetamine and to admit a prior serious felony conviction. Under the terms of the agreement, appellant would receive the mitigated term and admit the strike prior for a sentence “exposure” of 32 months.
At the hearing, defense counsel stated he had an executed change of plea form. Counsel explained that under the agreement, appellant would enter a guilty plea to possession of methamphetamine, admit the strike prior, and receive the mitigated term. Defense counsel stated appellant was aware the sentence could be doubled to 32 months. The court advised appellant of, and appellant waived, her constitutional rights pursuant to Boykin/Tahl.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
The court advised appellant that she would receive the mitigated term of 16 months for the offense, but because of the strike prior her sentence would be doubled to 32 months. Appellant replied that she understood this term of the agreement. The court advised appellant of the other consequences of her plea and appellant admitted the factual basis for the plea came from the preliminary hearing transcript. Appellant pled guilty to possession of methamphetamine and admitted the prior serious felony conviction.
September 14, 2007, Hearing
The sentencing hearing in appellant’s case was continued several times. On September 14, 2007, defense counsel informed the court that the probation report contained an error because it incorrectly characterized appellant’s plea agreement as including a stipulated 32-month term. Defense counsel stated that he explained to appellant that he would be asking the court to consider exercising its discretion under Penal Code section 1385 to strike the prior serious felony conviction.
All further references are to the Penal Code unless otherwise indicated.
The prosecutor objected, stating that the plea bargain did not include the possibility of the court striking the prior serious felony conviction. The court observed that appellant may need to withdraw her plea. The prosecutor agreed that appellant may have grounds to withdraw her plea. Defense counsel stated that his grounds for appellant withdrawing her plea would be his representation to appellant that he would file a motion pursuant to Romero and the probation report indicates a stipulated sentence. Defense counsel explained that he did not sign his client up for a stipulated sentence of 32 months. The prosecutor, however, agreed that the plea agreement was not a stipulated term and that appellant could proceed with a request for the trial court to strike the prior serious felony conviction. The matter was continued for appellant to file a Romero request.
No motion was ever filed for appellant to withdraw her plea. Appellant never made a request on the record to the trial court to withdraw her plea.
Romero Hearing
On September 27, 2007, appellant filed an invitation to the trial court to dismiss her prior serious felony conviction on the basis that she had only one prior felony conviction and two misdemeanor convictions. Appellant characterized her criminal history as minimal.
The court conducted the hearing on appellant’s Romero request on October 15, 2007. Defense counsel argued that although there was no requirement under the three strikes law for the new offense to be serious or violent, his client had taken steps to address her problems by taking and completing an anger management class. Appellant was also seeing a counselor. The current offense occurred, according to defense counsel, because appellant was in an abusive relationship and began to self-medicate. Because appellant was the mother of small children, and was not asking the court to consider probation, defense counsel requested that the court strike the prior serious felony conviction.
Defense counsel further argued that because appellant had disentangled herself from an abusive relationship, he did not believe she would reoffend. Appellant was now married and was in a much more nurturing relationship.
The prosecutor argued that appellant was on parole and had numerous violations of her parole. Appellant had dirty drug tests. The prosecutor pointed out that appellant’s prior serious felony conviction was for a violation of section 245. Appellant also had a misdemeanor conviction for domestic violence under section 273.5. The prosecutor believed a 32-month sentence was appropriate.
The probation report noted appellant had a felony conviction in 1998 for section 245, subdivision (a)(1) and separate misdemeanor convictions in 2001 for drunk driving and domestic violence. Appellant violated her parole in 2002, 2005, 2006, and 2007.
The trial court noted there was much to be said for the rehabilitation efforts appellant had begun, but, whether one likes the three strikes law or not “the three strikes law is the law.” The court explained that the law is intended to act as a deterrent and to extend custody time for reoffenders. The court was aware that it could strike a strike, but explained this was to be done under rare circumstances. Merely being able to say something good about a person was not, in the court’s view, enough reason to strike a prior serious felony conviction. The court found that based on what had been presented, it could not find appellant fell outside the spirit of the three strikes law and it denied the Romero request.
After a lengthy discussion concerning custody credits, defense counsel stated appellant would waive time for sentencing and waive her right to have the judge who took her change of plea and denied her Romero request also sentence her. The court continued the matter for sentencing.
Prior to sentencing, a new attorney substituted in as appellant’s counsel.
Sentencing Hearing
On January 18, 2008, defense counsel noted to the court that the probation report inaccurately referred to the plea agreement as a stipulated plea. The court asked the prosecutor if he minded treating the plea agreement as a 32-month lid. The prosecutor noted that although that was not his understanding of the plea agreement, he conceded that the issue did not matter. The court stated it was treating the plea agreement as a lid. Defense counsel noted the Romero request had already been denied and asked the court to rethink a 32-month sentence and to consider a Proposition 36 drug treatment program. There was discussion concerning appellant’s custody credits. The prosecutor argued that appellant’s sentence should be 32 months.
The court observed that the probation report noted appellant’s violation of parole was for not reporting her change of address after a move, a positive drug test for methamphetamine, and delaying or resisting an officer. The court found appellant statutorily ineligible for probation pursuant to section 667, subdivision (c)(2). The court found the plea agreement was for a low term in prison and but for that agreement, appellant’s record would justify the upper term. The court imposed the mitigated term of 16 months doubled pursuant to the three strikes law to 32 months.
ROMERO DISCRETION
Appellant contends the trial court abused its discretion by failing to consider whether granting a request pursuant to Romero was in the interests of justice. Appellant argues the sentencing court should have reconsidered the Romero request. We disagree and will affirm the judgment.
In People v. Carmony (2004) 33 Cal.4th 367, 376 (Carmony), the California Supreme Court noted that section 1385 does not require a court to explain its decision not to exercise its power to dismiss a strike. The absence of such a requirement reflects a legislative presumption that a court acts properly when it sentences a defendant in accordance with the three strikes law. Review of a trial court’s failure to dismiss or strike a prior serious felony conviction, therefore, is subject to review for abuse of discretion. (Ibid.) Carmony further held that the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from that norm and requires the court to explicity justify its decision to do so. (Id. at p. 378.) In light of the presumption that any sentence that conforms to these norms is both rational and proper, a trial court only abuses its discretion in failing to strike a prior felony conviction allegation in limited circumstances such as unawareness that it has discretion to dismiss. (Ibid.; also see In re Large (2007) 41 Cal.4th 538, 550-551.)
The trial court here was clearly aware that it could strike appellant’s prior felony conviction, but should do so only under unusual circumstances. The court was aware of, and understood, its sentencing discretion under section 1385. Appellant argues in both her opening and reply briefs that the trial court failed to follow the furtherance of justice standard set forth in section 1385. The Supreme Court has adopted the proper standard of review. The trial court followed this standard. We are bound by the decisions of our high court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Appellant argues at page 11 of her opening brief that the court failed to consider the circumstances of her current and past conduct. We disagree. Before denying appellant’s Romero request, the court noted there was much to be said about appellant’s rehabilitation efforts. Ultimately, the court found that appellant’s case was not a strong case for dismissing the prior felony allegation. After her violent felony conviction in 1998, appellant had misdemeanor convictions in 2001 for drunk driving and domestic violence. Appellant violated her parole at least four times. Appellant violated parole even after she committed the current offense. We reject appellant’s assertion that the trial court failed to consider factors relevant to her current efforts to rehabilitate herself or that the court failed to properly interpret what appellant characterizes as “the disparate threads of law relative to one another.” The trial court did not abuse its broad sentencing discretion in denying appellant’s Romero request.
We further reject appellant’s argument that the sentencing court had an obligation to revisit her Romero request. The sentencing court did treat the plea agreement as a lid sentence, reserving for itself the option of giving appellant a lower sentence. Although the sentencing court did not expressly revisit appellant’s Romero request, it impliedly did so in treating the plea bargain as a lid rather than as a stipulated sentence. The court chose to give appellant the sentence for which she bargained.
We agree with respondent that generally, the power of a trial court judge to vacate the order of another is limited. (See People v. Goodwillie (2007) 147 Cal.App.4th 695, 713; In re Alberto (2002) 102 Cal.App.4th 421, 427.)
MOTION TO WITHDRAW PLEA
Appellant argues this case should be reversed for her to file a motion to withdraw her plea. Her claim fails procedurally and substantively.
The procedural flaw in appellant’s argument is that she has not obtained a certificate of probable cause. In attacking her original understanding of the plea agreement, appellant is mounting an attack on the plea bargain itself. If the defendant is challenging the validity of the plea agreement itself, a certificate of probable cause is required, including when a defendant claims that a plea was induced by misrepresentations of a fundamental nature. (People v. Panizzon (1996) 13 Cal.4th 68, 76.)
Substantively, appellant bases her claim on the assertion that she was misinformed by her first attorney concerning the nature of her plea agreement. Counsel believed appellant would receive a lid sentence of 32 months but that he could still make a Romero request. This is precisely how the parties treated the matter from the conclusion of the hearing on September 14, 2007, onward. Thus, even if defense counsel misinformed appellant concerning the nature or terms of the plea agreement, the error was harmless.
Appellant argues that there is a possibility that her counsel told her that the court would, not just that the court could, strike her prior serious felony conviction. There is nothing in the record to support such a claim. Defense counsel stated at the change of plea hearing that appellant was aware the sentence could be doubled to 32 months. Appellant did not respond to this representation. Furthermore, when the trial court accepted appellant’s change of plea, it informed her that she faced a prison term of 32 months. The gist of what defense counsel told the trial court during the September 14, 2007, hearing was that he did not sign his client up for a stipulated sentence of 32 months and that he sought to file a request pursuant to Romero. This was not equivalent to telling appellant that she would receive a sentence of only 16 months.
We further find this case factually inapposite to People v. Williams (1998) 17 Cal.4th 148, 162-165, a case relied upon by appellant for the proposition that a guilty plea may be withdrawn in the interests of justice. Because there is no substantive merit to appellant’s contention that her attorney misinformed her concerning the nature of the plea appearing on the face of the record, Williams has no application to the instant action.
DISPOSITION
The judgment is affirmed.