Opinion
F054366
9-8-2008
THE PEOPLE, Plaintiff and Respondent, v. MANUEL CABRERA-GARCIA, Defendant and Appellant.
William I. Parks, 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, Senior Assistant Attorney General, David A. Rhodes and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
OPINION
THE COURT
Before Wiseman, Acting P.J., Cornell, J., and Kane, J.
We use the term "strike" as a synonym for "prior felony conviction" within the meaning of the "three strikes" law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
Appellant Manual Cabrera-Garcia, pursuant to a plea agreement, pled no contest to possession of methamphetamine for purposes of sale (Health & Saf. Code, § 11378) and admitted he had suffered a "strike"1 and five prior convictions of drug-related offenses within the meaning of Health and Safety Code section 11370.2. The court imposed a prison term of 21 years, consisting of the three-year upper term on the substantive offense, doubled pursuant to the three strikes law (Pen. Code, §§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), and three years on each of the five prior-drug-crime enhancements.
We refer to any enhancement imposed under Health and Safety Code section 11372 as a prior-drug-crime enhancement.
Except as otherwise indicated, all statutory references are to the Penal Code.
The prior-drug-crime enhancements were imposed pursuant to subdivision (c) of Health and Safety Code section 11370.2, which provides: "Any person convicted of a violation of, or of a conspiracy to violate, Section 11378 or 11379 with respect to any substance containing a controlled substance specified in paragraph (1) or (2) of subdivision (d) of Section 11055 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment."
On appeal, appellant argues that (1) imposition of sentence on all five prior-drug-crime enhancements may have violated the section 654 proscription against double punishment, and (2) his trial counsel failed to properly raise this section 654 claim in the trial court, thereby depriving appellant of his constitutional right to the effective assistance of counsel. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The following was alleged in the information filed June 19, 2007: appellant was guilty of possession of methamphetamine for purposes of sale; he had served four separate prison terms for prior felony convictions (§ 667.5, subd. (b)); and he had suffered a strike, multiple convictions of the drug-related offenses listed in section 1203.07, subdivision (a)(11), two prior felony convictions within the meaning of section 1203, subdivision (e)(4) and seven prior convictions for drug-related offenses within the meaning of Health and Safety Code section 11370.2.
Six of the seven prior-drug-crime enhancement allegations were based on convictions of the following offenses, suffered on July 3, 1996, in Stanislaus Superior Court in a case designated "Dkt. #54139" (hereafter case No. 54139): two counts of "transport/sell controlled substance/narcotic" (Health & Saf. Code, § 11352), and individual counts of "possess/sell controlled substance/narcotic" (Health & Saf. Code, § 11351), "possess/sell methamphetamine" (Health & Saf. Code, § 11378), "transport/sell etc controlled substance" (Health & Saf. Code, § 11379) and "possession for sale of a controlled substance" (Health & Saf. Code, § 11351). The seventh prior-drug-crime enhancement allegation was based on a June 27, 2006, conviction of possession of methamphetamine for purposes of sale (Health & Saf. Code, § 11378) in a different case.
On October 12, 2007, appellant entered into a plea agreement, the terms of which were recited on the record and included the following: he would plead no contest to the substantive offense and admit the strike and five of the prior-drug-crime enhancement allegations, and in exchange for his plea and admissions the court would strike the two remaining prior-drug-crime allegations, all of the prior prison term enhancement allegations and the special allegations under sections 1203.07, subdivision (a)(11) and 1203, subdivision (e)(4), and appellant would be sentenced to 21 years in prison. Thereafter, in keeping with the plea agreement, appellant pled no contest to the instant offense and admitted the strike and five prior-drug-crime enhancement allegations, and the court dismissed the remaining allegations and imposed the 21-year prison sentence.
On November 5, 2007, at the outset of the sentencing hearing, defense counsel noted that six of the prior-drug-crime enhancement allegations were based on convictions arising "from one case," and stated she had come to "think that perhaps [she] had looked at the sentencing issue incorrectly with respect to the 11370.2 priors."
After telling the court she had researched the issue of whether multiple enhancements could be based on multiple convictions arising out of the same case, she stated further: "[I]t bothered me, at the time, although I couldnt find any authority at the time, one way or the other, [as to] the possibility of imposing six priors from that one case. [¶]...[¶] ... [It] seems to me ... its more just and more appropriate to only have one 11370.2 prior that would attach subsequently. [¶] I wanted to raise these objections to the sentence before the Court today, and basically, ... I know it was an agreed upon disposition, but Im not sure that it was the proper — that, in fact, all of that is proper or legal to use those priors even ... if I or my client agree. So I wanted to bring that to the Courts attention, basically, kind of throw it up there. ... I have talked to people in my office who have far more experience with sentencing matters, and ... it strikes us as wrong to use that many priors. [¶] ... I cant really find an answer."
The prosecutor then argued that the prior-drug-crime enhancements were lawfully imposed, at which point the court asked defense counsel, "Youre not requesting to have the plea withdrawn, at this point? Thats not the point of the request, I take it?" Counsel responded that appellant did not wish to withdraw his plea, and the colloquy continued as follows:
"THE COURT: What I understand though, is that the original intention wasnt to stipulate that the Court could use multiple enhancements from one proceeding if thats not legally allowed by law, but by the same token you can get whatever appeal rights he had to appeal the sentence he would still have, in regards of the plea bargain; is that accurate?
"MS. SMITH [defense counsel]: Well, I think thats
"THE COURT: So he can still appeal, but you cant have multiple enhancements from one proceeding. But if the Court were to agree with you that that isnt correct, it wouldnt result in the plea being withdrawn, just sent back for re-sentencing?
"MS. SMITH: Thats right, Your Honor.
"THE COURT: Thats everyones understanding then, I dont see any problem with this proceeding, at this point. If you want to submit briefs on that issue, Im more than happy to do that. Im not requiring any party to do that. My understanding of the law, at this point, it is permissible to do that, but if [an] appellate court reviews it and says, `No, this is one proceeding, regardless of how many separate counts, or offenses, or convictions in that proceeding, you can only enhance it once, thats fine. [¶] Well re-sentence him to that, and go on. We dont have to renegotiate the plea, or withdraw the plea. And if they say, `No, you can have multiple enhancements, then the 21 years, essentially, would stick.
"MS. SMITH: Right, Your Honor.
"THE COURT: Everybody pretty much agrees with that posture, then?
"MR. HUNG [prosecutor]: Yes.
"THE COURT: Okay. On that basis, then, the objections are noted. I am going to go ahead and confirm the original sentence, at this point. ... [T]hats without prejudice to you filing any appeal you might want to, based upon any sentencing errors."
DISCUSSION
Section 654Section 654, subdivision (a) provides, in relevant part: "An act or omission that is 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." The statute "prohibits multiple punishment if the defendant commits more than one act in violation of different statutes when the acts comprise an indivisible course of conduct having a single intent and objective." (In re Jose P. (2003) 106 Cal.App.4th 458, 469.) "If, on the other hand, defendant harbored `multiple criminal objectives, which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, `even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 335.)
Appellant, while acknowledging that the record "does not elucidate the facts" of the offenses underlying the prior-drug-crime enhancements and therefore "does not permit this Court to make an informed determination as to whether the prior drug convictions were properly relied upon as enhancements," contends "it may reasonably be presumed" that in committing those offenses he acted with "some commonality in intent or objective," and that therefore, imposition of the prior-drug-crime enhancements may have violated the section 654 prohibition of multiple punishment for the same act. The matter should be remanded, appellant argues, to allow the trial court "to determine whether the convictions at issue were properly considered as a basis for separate enhancements in the present proceeding." However, we need not reach the merits of these claims.
California Rules of Court, rule 4.412(b) (hereafter rule 4.412(b)) provides: "By agreeing to a specified prison term personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654s prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record."
At the time he entered his plea and admissions, on October 12, 2007, appellant agreed personally and through counsel to a specified prison term of 21 years; he was sentenced in accordance with the plea agreement; and neither he nor defense counsel challenged the imposition of any component of the sentence on section 654 grounds or any other basis. Therefore, under rule 4.412(b) he has abandoned his section 654-based argument.
Appellant argues his section 654-based claim is properly before this court, notwithstanding his failure to raise it at the time the plea agreement was recited on the record as required by rule 4.412(b), for the following reasons: defense counsel did not become "concerned" about the applicability of section 654 until after the plea was entered and thereafter raised the claim "at the first opportunity"; the trial court "specifically acknowledged the objection and recognized that it would be appropriately considered on appeal"; appellant seeks only a remand "to assure that his sentence was properly determined and imposed according to law," and does not seek to withdraw his plea; claims under section 654 are "excepted from the waiver doctrine" and because "the issue of appellants plea was essentially revisited and the prior disposition then confirmed at the time of sentencing, it may reasonably be construed that appellants objection was timely made, consistent with rule 4.412(b)."
With regards to appellants claim that the trial court "recognized" that appellants challenge to the imposition of multiple prior-drug-crime enhancements "would be appropriately considered on appeal," we note that it appears, as appellants suggests, that the court anticipated that appellant could challenge the sentence on appeal and, if successful, return to the trial court for resentencing, but that he would not be allowed to withdraw his plea. And appellant emphasizes that he is not seeking to withdraw his plea, and that the only purpose of the remand he seeks is to "assure that his sentence was properly determined and imposed according to law."
However, the plea agreement specified a prison term of 21 years, and if appellant is resentenced on remand and it is determined section 654 precludes the use of one or more prior-drug-crime enhancements, the court would have to attempt to reach the 21-year specified term by imposing prior prison term enhancements which were dismissed pursuant to the plea agreement, thus necessitating the withdrawal of the plea agreement.
Moreover, if, as appellant suggests, all of the prior drug-crime convictions in case No. 54139 were part of an indivisible course of action, those convictions could justify only one prior-drug-crime enhancement. Under those circumstances, appellants maximum exposure would be 16 years, consisting of the three-year upper term, doubled; one three-year prior-drug-crime enhancement for the convictions suffered in case No. 54139; a second prior-drug-crime enhancement for the 2006 drug-crime conviction; and four one-year prior prison term enhancements. (See People v. Ellis (1987) 195 Cal.App.3d 334, 342-343, 347 [defendant who pled guilty in return for a specified sentence was estopped to attack imposition of sentence on a prior serious felony enhancement based on policy that defendants who have received the benefit of their plea bargain should not be allowed to "`"trifle with the courts"" by attempting to better the bargain through the appellate process, even though imposing the enhancement was an unlawful act in excess of courts jurisdiction], disapproved on other grounds in People v. Guzman (1991) 226 Cal.App.3d 1060, 1066, fn. 4.)
But more fundamentally, implicit in appellants argument is the claim that the trial court could, in effect, dictate procedure on appeal and direct this court ignore rule 4.412(b). Appellant cites no authority, and we are aware of none, for such a claim, and we reject it.
None of the factors urged by appellant provide any basis to ignore the plain language of rule 4.412(b). As demonstrated above, appellant may not challenge his sentence on section 654 grounds on appeal.
Moreover, assuming arguendo (1) that appellant has not abandoned his section 654 argument, and (2) the validity of the legal premise of his argument, i.e., that section 654 prohibits the imposition of multiple prior-drug-crime enhancements based on the same act or on multiple acts comprising an indivisible course of conduct, his argument fails. Appellant has not met his burden of establishing the factual premise of his argument: that, in fact, two or more convictions underlying the prior-drug-crime enhancements arose from an indivisible course of conduct or were based on the same act within the meaning of section 654.
"The very settled rule of appellate review is a trial courts order/judgment is presumed to be correct, error is never presumed, and the appealing party must affirmatively demonstrate error on the face of the record. [Citations.]" (People v. Davis (1996) 50 Cal.App.4th 168, 172; see also People v. Nitschmann (1995) 35 Cal.App.4th 677, 684 ["Error is never presumed and appellant has the burden to show error"].)
It is certainly possible, insofar as the record reveals, that two, or even all, of the convictions underlying the prior drug enhancements arose from an "indivisible course of conduct." (In re Jose P., supra, 106 Cal.App.4th at p. 469.) But the record also admits of the possibility that appellant committed those offenses at different times, albeit on the same day, and acted with a different criminal intent and objective in committing each one, in which case imposition of sentence on the multiple prior-drug-crime enhancements would not violate section 654. Indeed, appellant concedes that "the record on appeal does [not] permit this Court to make an informed determination as to whether the prior drug convictions were properly relied upon as enhancements." Thus, appellant has not met his burden of demonstrating error.
Ineffective Assistance of Counsel
Appellant contends he was denied his right to the effective assistance of counsel because, he asserts, trial counsel did not provide the court with enough information about the law and the offenses upon which the prior-drug-conviction enhancement were based to enable the court to determine whether imposition of those enhancements violated section 654.
We again assume without deciding that section 654 prohibits the imposition of multiple prior-drug-crime enhancements based on the same act or on an indivisible course of conduct. Even so, there is no merit to appellants contention.
"The burden of proving ineffective assistance of counsel is on the defendant." (People v. Babbitt (1988) 45 Cal.3d 660, 707.) To meet this burden, "a defendant must show both that his counsels performance was deficient when measured against the standard of a reasonably competent attorney and that counsels deficient performance resulted in prejudice to defendant ...." (People v. Lewis (2001) 25 Cal.4th 610, 674.) "... We presume `counsels conduct falls within the wide range of reasonable professional assistance [citations], and accord great deference to counsels tactical decisions. [Citation.] Because it is inappropriate for a reviewing court to speculate about the tactical bases for counsels conduct at trial [citation], when the reasons for counsels actions are not readily apparent in the record, we will not assume constitutionally inadequate representation and reverse a conviction unless the appellate record discloses `"no conceivable tactical purpose" for counsels act or omission." (Id. at pp. 674-675.) Thus a claim of ineffective assistance of counsel must be rejected if "`"the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] ... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation."" (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) "[T]his court is, of course, limited to the record on appeal and may not speculate about matters outside that record." (People v. Moreno (1987) 188 Cal.App.3d 1179, 1185.)
As demonstrated above, it is conceivable that the convictions underlying the prior-drug-crime enhancements were based on separate acts committed, in each case, pursuant to a separate criminal intent and objective. And insofar as the record reveals, trial counsel could have realized this; she could have further realized that section 654 did not apply; and she might have made her argument based on no more than some general notion that, as she stated, it was simply "wrong to use that many priors." We note that counsel stated she "couldnt find any authority ..., one way or the other," and she never mentioned section 654. Thus, on this record, we cannot conclude there was no conceivable tactical purpose for counsels failure to present more information supporting a section 654 claim because it is conceivable no such information existed. Accordingly, appellants ineffective-assistance-of-counsel claim must be rejected on direct appeal and is more properly raised in a petition for habeas corpus. (People v. Mayfield (1993) 5 Cal.4th 142, 188 ["tactical choices presented ... on a silent record" are "better evaluated by way of a petition for writ of habeas corpus" and will be rejected on direct appeal].)
DISPOSITION
The judgment is affirmed.