Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Monterey County Super. Ct. Nos. SS063105 & SS032284
McAdams, J.
This appeal follows an admission of a probation violation and the subsequent imposition of a state prison sentence. Defendant contends his trial attorney rendered ineffective assistance of counsel by advocating for a longer sentence than the one which the prosecutor proposed to the court. He also contends, and the People concede, that the abstract of judgment must be corrected. We reverse and remand for resentencing, and we direct the trial court to correct the abstract of judgment.
PROCEDURAL AND FACTUAL BACKGROUND
The facts underlying defendant’s original pleas are not reflected in the supplemental probation report and, in any event, are not pertinent to the issues raised on appeal. Therefore, we do not summarize them. The factual allegations underlying the admitted probation violations are briefly summarized below.
SS032284
Defendant Chavez pleaded guilty to evading a police officer. (Veh. Code § 2800.2, subd. (a).) On September 3, 2003, he was placed on probation for that offense. On August 24, 2004, the probation department filed a revocation petition alleging that defendant had failed to report on two dates. On October 31, 2006, the district attorney filed a second revocation petition alleging a new arrest for violations of Health and Safety Code sections 11379 and 11352, as well as a violation of Vehicle Code section 12500.
On November 13, 2006, defendant admitted a probation violation for failure to obey all laws, based on his plea of guilty in case number SS063105. Probation was revoked, reinstated and extended until August 27, 2008.
On January 2, 2007, the probation department filed a petition to revoke probation for failure to report. A second petition to revoke was filed on February 9, 2007, for failure to obey all laws, based on defendant’s arrest two days earlier for drug possession in violation of Health and Safety Code section 11350, subdivision (a). On February 20, 2007, defendant admitted the allegations of both petitions. On March 29, 2007, the court sentenced defendant to the midterm of two years in state prison with credit for time served of 295 days.
SS063105
On October 31, 2006 (the same day on which the district attorney filed a probation violation in SS032284), a three-count complaint was filed charging defendant with transportation of methamphetamine, and heroin, and driving without a valid license. (Health & Saf. Code §§ 11379, subd. (a); 11352, subd. (a); Veh. Code § 12500, subd. (a).) On November 13, 2006 (the same day he admitted the probation violation in SS032284), defendant pleaded guilty to transportation of heroin (Health & Saf. Code § 11352, subd. (a)); the remaining counts were dismissed. Pursuant to the negotiated disposition, defendant was sentenced under Proposition 36 to probation for 18 months. (Pen. Code § 1210 et seq.)
On January 2, 2007, pursuant to Penal Code section 1210 et. seq., the probation department filed a first drug-related petition to notice a probation violation, for failure to submit to drug testing and failure to report as directed. The probation department recommended reinstatement of probation. On February 9, 2007, the district attorney filed a probation revocation petition based on defendant’s arrest two days earlier for a violation of Health and Safety Code section 11350, in action number SS070857. The probation department joined the district attorney, filing a notice of second violation petition pursuant to section 1210, based on the same grounds.
Pursuant to Penal Code section 1210.1, subdivision (f)(3)(B), following a second drug-related violation of probation, “[t]he trial court shall revoke probation if the alleged probation violation is proved and the state proves by a preponderance of the evidence either that the defendant poses a danger to the safety of others or is unamenable to drug treatment.” Here, the trial court found defendant unamenable to further drug treatment and defendant does not challenge that finding.
On February 20, 2007, defendant admitted the allegations of the petitions filed January 2 and February 9, 2007. The court found defendant in violation of his probation on the basis of his arrest in action number SS070857.
On March 29, 2007, the court revoked probation and sentenced defendant to the mitigated term of three years in state prison, to be served concurrently with the sentence in SS032284, with credit for time served of 97 days.
Case number SS070857 was dismissed in the interests of justice.
DISCUSSION
Ineffective Assistance of Counsel
Defendant argues that he was deprived of the effective assistance of counsel at sentencing when his attorney argued for the imposition of a mitigated concurrent sentence in case number SS063105, instead of joining the prosecutor in requesting a consecutive sentence, when a consecutive sentence would have been shorter than a concurrent one.
“ ‘In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Ledesma (1987) 43 Cal.3d 171, 217.)’ ” (People v. Carter (2005) 36 Cal.4th 1114, 1189.) “This determination generally must be made with deference to avoid the dual pitfalls of second-guessing counsel’s tactics and chilling vigorous advocacy.” (In re Cordero (1988) 46 Cal.3d 161, 180.) “Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. [Citation.] If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)” (People v. Carter, at p. 1189.)
With respect to counsel’s duties at sentencing, our Supreme Court has warned: “Although the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing.” (People v. Scott (1994) 9 Cal.4th 331, 353.) For this reason, “[u]nder existing law, a defense attorney who fails to adequately understand the available sentencing alternatives, promote their proper application, or pursue the most advantageous disposition for his client may be found incompetent. (See, e.g., People v. Cotton (1991) 230 Cal.App.3d 1072, 1085-1087; People v. Cropper (1979) 89 Cal.App.3d 716, 719-721.)” (Id. at p. 351.) With these principles in mind, we consider the record before us and the parties’ contentions.
The record demonstrates that at the March 29, 2007 hearing, the prosecutor argued in favor of state prison sentences in both of defendant’s cases. The court indicated that it was disinclined to grant defendant further probation. Despite defense counsel’s spirited attempt to change the court’s mind, the court declined to reinstate probation.
After denying probation and imposing the midterm state prison sentence in case number SS032284 with custody credits of 295 days, and finding defendant unamenable for further treatment in “his Prop 36 case,” the court inquired of the attorneys if they wished to make any “remarks about the sentencing in that matter [SS063105] and what the appropriate term should be[.]” The prosecutor recommended that the court impose a consecutive sentence on the grounds that it would be shorter than a concurrent sentence. Defense counsel, however, was clearly caught off guard, and argued instead that because of the very small amounts of drugs involved, the court should impose the mitigated term, to run concurrently with the previously imposed sentence in case number SS032284. Agreeing that the mitigated term was appropriate, the court imposed a three-year low term with credit for time served of 97 days and ordered that term to run concurrently with the sentence in SS032284.
Although the parties quibble about the actual number of days involved, defendant argues, and the People concede, that given defendant’s disparate sentences and credits in both cases, had he received a consecutive sentence, he would be serving less time.
We agree with the Attorney General’s method of calculation. Defendant was given a two-year (or 730-day) sentence in case number SS032284. Subtracting 295 days credit for time served left him with 435 days to serve in that case. Defendant was sentenced to three years (or 1,095 days) in SS063105, less 97 days credit for time served, for a total sentence of 998 days in that case. Thus, after serving his 435 days in SS032284, defendant would still have to serve an additional 563 days in SS063105. However, if he were serving consecutive a 16-month consecutive sentence in SS063105, after completing his 435 days in SS032284, he would still have to serve an additional 383 days. Adding 435 to 383 yields a total sentence of 818 days: 180 days, or six months, shorter than the concurrent sentences imposed.
However, the People do not agree that ineffective assistance of counsel has been shown. The People argue that Penal Code section 1170.1 requires that “if consecutive sentences are imposed, the longest term actually imposed must be designated the principle term.” Thus, the People conclude, had the court decided to impose consecutive sentences, it would have had to make the three-year mitigated term it imposed in SS063105 the principle term, and make SS032284 the subordinate consecutive term of eight months. Factoring in defendant’s credits, his sentence would have been the same 998 days.
As the Attorney General calculates it, the principle term in SS063105 would have been 1,095 days (365 x 3), minus 97 days credit (1,095 - 97 = 998). Since one-third the midterm of two years in SS032284 would have been only eight months (24 ÷ 3 =8; 30 days x 8 mos. =240 days), and defendant had 295 days credit for time served, his credits would have wiped out the subordinate term, leaving him with the 998 day principle term.
The People’s legal premise is incorrect. In People v. Miller (2006) 145 Cal.App.4th 206 (Miller), this court rejected a similar claim, holding that “Penal Code section 1170.1, subdivision (a), does not mandate the length of the terms selected….” (Id. at p. 216.) After careful review of the statutory language and discernible legislative intent, we concluded: “In pertinent part, subdivision (a) of section 1170.1 of the Penal Code provides, ‘The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements.’ (Italics added.) We emphasize the phrase ‘imposed by the court’ because that phrase is the key to our interpretation. In our view, Penal Code section 1170.1, subdivision (a), plainly and unambiguously provides that the trial court must designate as the principal term the longest term actually imposed by the court, which is not necessarily the longest term available under the applicable sentencing triads. [¶] We also observe that the Legislature knows how to express its intent that the trial court impose the longest possible term of imprisonment in structuring a sentence. For example, Penal Code section 654, subdivision (a), provides in pertinent 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….’ (Italics added.) Penal Code section 1170.1 does not include any comparable direction to the trial court.” (Id. at pp. 215-216.) On the basis of Miller, we conclude that the trial court here would not have been required to make the sentence in SS063105 the principle term if it had decided to impose consecutive sentences.
The People next argue that, even assuming trial counsel erred, defendant cannot show prejudice, because he cannot demonstrate a reasonable probability the court would have imposed a consecutive sentence if defense counsel had advocated for one. On this record, we disagree. Although the court was opposed to reinstatement of probation, nothing in the record suggests that the court sought to impose the longest sentence possible on defendant. For example, the court could have chosen the midterm sentence of four years but instead imposed the mitigated term of three years in SS063105, the term for which defense counsel’s argued. This strongly suggests that the court was inclined to follow defense counsel’s recommendation as to the appropriate state prison sentence. The court was entitled to conclude from the colloquy between itself and the attorneys that defense counsel had correctly “done the math” and concluded that his client would be best served by a concurrent sentence. In our view, if defense counsel had joined the prosecutor in arguing for a consecutive sentence, there is a reasonable probability that the court would have imposed it.
The People do not point to any tactical reason counsel may have had for advocating a concurrent sentence over a consecutive one, nor do we see one. We are convinced defense counsel had defendant’s best interests at heart. Further, we would not be the first court to observe that our penal laws have created “a sentencing scheme that continues to get more complex in design and convoluted in application” that can present the most conscientious trial court or trial lawyer with “a hidden trap at sentencing.” (People v. Bonnetta (2007) 156 Cal.App.4th 1315, ____ [*44].) Nevertheless, we are constrained to conclude that counsel, however well-intentioned, committed error, and that the error prejudiced defendant. Therefore, defendant is entitled to a new sentencing hearing at which defense counsel can advocate for the imposition of a lesser, consecutive sentence.
Lab and Drug Program Fees
Defendant argues that the abstract of judgment and clerk’s minutes incorrectly reflect that the court imposed a $50 lab fee and a $165 drug program fee in case number SS032284, the evading-a-police-officer case. He notes that the court did not include those fees when it orally pronounced judgment in SS032284, and that Health and Safety Code sections 11372.5 and 11372.7, the only statutory sources of the fees, authorize imposition of these fees in certain narcotics cases, and not in evading-the-police cases. The People concede the error and agree that the abstract of judgment should be modified accordingly. We accept the People’s concession. Health and Safety Code sections 11372.7 and 11372.5 do not apply to defendant’s Vehicle Code violation. The fees should be stricken from the abstract of judgment.
These fees were also imposed in SS063105, defendant’s conviction for drug possession, and defendant does not challenge the imposition of the lab and drug program fees with respect to that conviction.
CONCLUSION
Defense counsel incorrectly concluded that concurrent, rather than consecutive, sentences would result in a shorter overall sentence for defendant. The abstract of judgment incorrectly reflects imposition of lab and drug program fees for a Vehicle Code section 2800.2 conviction.
DISPOSITION
The judgment is reversed and the matter is remanded for resentencing. The trial court is directed to amend the abstract of judgment in case number SS032284 to delete the $50 lab fee and the $165 drug program fee.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.
“[PROSECUTOR]: I can’t tell, without doing a little more math, and I’m saying this, too, because I don’t want to be gratuitous.… [¶] … [¶] … [T]he middle term is four. I think Mr. Chavez would be better off with a one-third consec[utive], one year, 4 months to the 2-year middle term than a concurrent time, and I’d be willing to make that recommendation – if I’ve done my math correctly, because I don’t think he has any credits in the other case. “THE COURT: He has 97 days credits in the 11352 (a). “[THE PROSECUTOR]: I defer to counsel. Again, I’m not looking to create a larger term on him, and I defer to counsel, which of the two would benefit his client. “[DEFENSE COUNSEL]: Well, I – you’re referencing my previous remarks and my view of this case. I would ask the Court to run any other sentence concurrent with what the Court has just imposed. The 11352 is a Prop 36 case. It was – if I can just have a minute – involved .6 grams of suspected methamphetamine and another .7 grams of suspected methamphetamine. Both, I would suggest, are small amounts. That was after a search on a traffic stop. And so I think the lower term would be appropriate on that case.”