Opinion
H050302
06-07-2023
THE PEOPLE, Plaintiff and Respondent, v. EVARISTO NAVA CHECCHIN, Defendant and Appellant.
NOT TO BE PUBLISHED
(Monterey County Super. Ct. No. 22CR001606)
WILSON, J.
Defendant Evaristo Nava Checchin appeals from a judgment entered after pleading no contest to charges of possessing drugs for sale and admitting a firearm enhancement. Appointed counsel for Checchin has filed an opening brief which provides the procedural and factual background of the case but raises no issues. Counsel asks this court to conduct an independent review of the record to determine whether there are any arguable issues. (See People v. Wende (1979) 25 Cal.3d 436.)
Checchin was advised of the right to file written arguments on his own behalf and he has submitted a letter in which he raises several concerns. We will provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (People v. Kelly (2006) 40 Cal.4th 106, 110 (Kelly).) After independent review of the record, we requested supplemental briefing on: (1) the basis for committing Checchin to state prison rather than county jail under Penal Code section 1170, subdivision (h); (2) whether the trial court erred in not further exploring the possible impact of Checchin's veteran status on its sentencing choices pursuant to, for example, Penal Code section 1170.91 or other applicable statutes; and (3) the calculation of custody and conduct credits to which Checchin was entitled.
Having reviewed the parties' supplemental briefing on these matters, we conclude that no reversible error has been shown, although we will order the correction of a clerical error in the minute order and abstract of judgment. As modified, we will affirm the judgment.
I. Factual and Procedural Background
Because no preliminary hearing was held and the probation report was limited to a calculation of credits, we derive the procedural history from the documents in the clerk's transcript and the reporter's transcripts from Checchin's sentencing and change of plea hearings. The record does not disclose the facts underlying the complaint.
On February 17, 2022, the Monterey County District Attorney filed a complaint charging Checchin with one count of possession of methamphetamine for sale (Health &Saf. Code, § 11378; count 1); one count of possession of heroin for sale (§ 11351; count 2); and one count of illegal possession of a firearm (Pen. Code, § 29800, subd. (a)(1); count 3). The complaint further alleged a weight enhancement in connection with count 1 (§ 11370.4, subd. (b)), and firearm enhancements in connection with counts 1 and 2 (Pen. Code, § 12022, subd. (c)).
Unspecified statutory references are to the Health and Safety Code.
Pursuant to a negotiated disposition, Checchin pleaded no contest to count 1 (possession of methamphetamine for sale) and admitted the associated firearm enhancement in exchange for an indicated sentence of eight years in prison and dismissal of the remaining counts and allegations. On March 30, 2022, the trial court sentenced Checchin to a total term of eight years, consisting of the upper term of three years on count 1, plus the upper term of five years on the firearm enhancement. The trial court awarded Checchin custody credits of 58 days, plus 58 days of conduct credits, and imposed the following fines and fees: a restitution fund fine of $300 (Pen. Code, § 1202.4); a parole revocation fund fine of $300, suspended pending successful completion of parole (Pen. Code, §§ 1202.44, 1202.45); a criminal laboratory analysis fee of $50 (§ 11372.5); a drug program fee of $50 (§ 11372.7); a court operations assessment of $40 (Pen. Code, § 1465.8, subd. (a)(1)); and a court facilities assessment of $30 (Gov. Code, § 70373).
Checchin appealed on June 13, 2022. Based on the events detailed below, Checchin subsequently withdrew his notice of appeal and we dismissed the appeal as premature on October 13, 2022. (People v. Checchin (H050127).)
In May 2022, the California Department of Corrections and Rehabilitation (CDCR) informed the trial court that, based on the commitment offense and pursuant to Penal Code section 1170, subdivision (h), Checchin should serve his sentence in county jail rather than state prison.
Based on the referral from the CDCR, the trial court permitted Checchin to withdraw his plea. He then entered a new plea, pleading no contest to count 1 (possession of methamphetamine for sale, § 11378) and count 3 (illegal possession of a firearm, Pen. Code, § 29800, subd. (a)(1)). Checchin again admitted the firearm enhancement associated with count 1. In exchange for his plea, Checchin would be sentenced to a term of eight years in state prison and the remaining charge and enhancements would be dismissed.
At the July 29, 2022 sentencing hearing, the trial court sentenced Checchin to a total term of eight years in prison, consisting of the upper term of three years on count 3 (illegal possession of a firearm), consecutive to a five-year term for the firearm enhancement attached to count 1 (possession of methamphetamine for sale), and a concurrent term of two years on count 1. The remaining allegations were dismissed. The trial court awarded custody credits of 179 days, plus conduct credits of 178 days for a total of 357 days. As to fines and fees, the trial court again imposed a restitution fund fine of $300 (Pen. Code, § 1202.4); a parole revocation fund fine of $300, suspended pending successful completion of parole (Pen. Code, §§ 1202.44, 1202.45); a criminal laboratory analysis fee of $50 (§ 11372.5); a drug program fee of $50 (§ 11372.7); a court operations assessment of $80 (Pen. Code, § 1465.8, subd. (a)(1)); and a court facilities assessment of $60 (Gov. Code, § 70373).
Checchin orally stipulated to the factor in aggravation supporting an upper term sentence. (Cal. Rules of Court, rule 4.421(a)(7).)
On November 10, 2022, the trial court "clarified" its sentence. First, the court sentenced Checchin to the upper term of three years on count 1, instead of count 3, with a consecutive five-year term on the firearm enhancement attached to count 1, along with a concurrent two-year term on count 3. The minute order from the hearing states that Checchin had custody credits of "179 Days" plus conduct credits of "179 Days" "for a total of 357 Days[] as was previously ordered on 7/29/2022." There was no discussion of Checchin's credits at the hearing itself, at least none that is reflected on the record.
On our own motion, we ordered the record augmented to include the transcript from this hearing.
However, at the July 29, 2022 sentencing, the trial court awarded custody credits of 179 days and conduct credits of 178 days for total credits of 357 days.
Checchin timely appealed.
In his letter brief, Checchin raises the following arguments: (1) he contends the five-year firearm enhancement is "not mandatory as [his] crime is not a violent crime nor was it a serious crime[;]" (2) he is "being denied actual days time credit plus the 50% day for day [credit][;]" (3) the CDCR has indicated his restitution owed is more than $4,000 rather than the approximately $500 imposed by the trial court; and (4) his trial counsel was ineffective for failing to inquire about a letter from the "Department of Veteran Affairs regarding the search of the house where the drugs and gun were found" and for failing to provide him with a copy of the police report.
We address Checchin's claims pursuant to Kelly, supra, 40 Cal.4th at pages 120 through 121. We will then turn to the issues raised in our request for supplemental briefing.
II. Discussion
A. Checchin's letter brief 1. Firearm enhancement
With respect to the firearm enhancement, at the June 24, 2022 hearing, Checchin expressly confirmed that he had gone over every line of the plea agreement with his attorney before he initialed and signed it. Checchin acknowledged that he would receive a sentence of eight years because of his plea, and thereafter admitted the violation of Penal Code section 12022, subdivision (c). Having admitted to a violation of Penal Code section 12022, subdivision (c), Checchin is deemed to have understood that the consequences of that admission included an additional consecutive term of five years.
Where a defendant "attacks an integral part of the plea, it is, in substance, a challenge to the validity of the plea, which requires compliance with the probable cause certificate requirements of [Penal Code] section 1237.5 and [California Rules of Court] [former] rule 31(d) [now rule 8.304(b)]." (People v. Panizzon (1996) 13 Cal.4th 68, 73.) Checchin failed to obtain a certificate of probable cause, and thus this claim is barred. (Ibid.)
2. Restitution and credit calculations
With respect to restitution and his credit calculations, the record discloses no arguable errors.
As to restitution, the abstract of judgment and minute orders accurately reflect the trial court's pronouncements regarding his restitution fines and fees. To the extent that the CDCR is informing Checchin that he owes a different amount or amounts, there is nothing in the record on appeal supporting his contention.
With respect to credits, the record does show an identical clerical error in both the November 10, 2022 minute order and the March 10, 2023 abstract of judgment. The reporter's transcript from the November 10, 2022 hearing does not disclose any discussion on the record regarding Checchin's credits. The corresponding minute order lists custody credits of 179 days plus conduct credits of 179 days, but notes this is "as was previously ordered on 7/29/2022." (Italics added.) The amended abstract of judgment, dated March 10, 2023, also notes that Checchin has custody credits of 179 days and conduct credits of 179 days for a total of 357 days.
At the July 29, 2022 sentencing hearing, the trial court stated that Checchin had custody credits of 179 days but conduct credits of 178 days for a total of 357 days. It is well-settled that"' ". . . [r]endition of judgment is an oral pronouncement." '" (People v. Morales (2014) 224 Cal.App.4th 1587, 1594.) "When there is a discrepancy between the oral pronouncement of judgment and the minute order, the oral pronouncement controls." (Ibid.) As it is clear that the November 10, 2022 minute order is incorrect, we will direct the trial court to correct the minute order and abstract of judgment to reflect that Checchin has 178, not 179, days of conduct credit.
3. Ineffective assistance of counsel
Checchin's contention that his trial counsel was ineffective for failing to ask about a letter from the Department of Veteran Affairs relating to a search of the house and for not providing him with a copy of the police report is not supported by the record.
"To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel's performance fell below a standard of reasonable competence, and that prejudice resulted. [Citations.] When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation." (People v. Anderson (2001) 25 Cal.4th 543, 569.) "On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).)
At the July 29, 2022 sentencing hearing, defense counsel informed the court that he had "received a letter from the VA, indicating that [Checchin]'s a veteran. And they had a program available pursuant to the plea agreement." Defense counsel continued, "That's not something the Court could do at this point. I explained that to him." The trial court agreed with defense counsel, noting "This is a stipulated sentence." The record does not contain a copy of this letter, any information about the "program" referenced therein, or how the letter is related to the search during which drugs and a gun were found, as Checchin asserts in his letter brief.
As to Checchin's claim that he was not provided a copy of the police report prior to accepting the plea agreement, that claim is not supported by the record. In both the March 16, 2022 and June 24, 2022 plea forms, he expressly agreed that "Police Report Number: M6 2101585" provided a factual basis for his plea.
The handwriting is unclear and it is possible that the police report number is actually "MC 2101585."
To the extent that Checchin believes he has evidence outside the record supporting his claims for ineffective assistance of counsel, he may petition for a writ of habeas corpus. (Mai, supra, 57 Cal.4th at p. 1009.)
B. Supplemental briefing 1. Checchin's prison commitment
Our request for supplemental briefing asked that the parties address the basis for committing Checchin to state prison rather than county jail under Penal Code section 1170, subdivision (h). In their responses, the parties agree that Checchin's state prison commitment was appropriate due to his conviction for illegal possession of a firearm (Pen. Code, § 29800, subd. (a)(1); count 3). We agree. Checchin was convicted of possessing methamphetamine for sale (§ 11378; count 1) and that conviction, by itself, would have required that he serve his sentence in county jail, pursuant to Penal Code section 1170, subdivision (h). His conviction for illegal possession of a firearm, however, does not reference Penal Code section 1170, subdivision (h) and, by operation of Penal Code section 1170.1, subdivision (a), Checchin's aggregate eight-year term must be served in state prison.
Section 11378 provides, in pertinent part, as follows: "[A] person who possesses for sale a controlled substance that meets any of the following criteria shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code."
"Whenever a court imposes a term of imprisonment in the state prison, whether the term is a principal or subordinate term, the aggregate term shall be served in the state prison, regardless as to whether or not one of the terms specifies imprisonment in a county jail pursuant to subdivision (h) of Section 1170." (Pen. Code, § 1170.1, subd. (a).)
2. Checchin's veteran status
Next, we requested the parties to brief whether the trial court erred in not further exploring the possible impact of Checchin's veteran status on its sentencing choices pursuant to Penal Code section 1170.91 or other applicable statutes. Having reviewed the parties' supplemental briefing on this question, we conclude that, as the Attorney General argues, Checchin has forfeited this claim by failing to obtain a certificate of probable cause.
The California Supreme Court has held that no certificate of probable cause is required when a defendant, who has entered a plea agreement "providing for a maximum sentence" as such a sentence "inherently reserves the parties' right to a sentencing proceeding in which . . . they may litigate the appropriate individualized sentence choice within the constraints of the bargain and the court's lawful discretion." (People v. Buttram (2003) 30 Cal.4th 773, 777 (Buttram), italics added.) Under those circumstances, "[a]n appellate challenge to the exercise of the discretion reserved under the bargain is . . . a postplea sentencing matter extraneous to the plea agreement." (Ibid.) However, the court was careful to point out "[w]hen the parties negotiate a maximum sentence, they obviously mean something different than if they had bargained for a specific or recommended sentence. By agreeing only to a maximum sentence, the parties leave unresolved between themselves the appropriate sentence within the maximum. That issue is left to the normal sentencing discretion of the trial court, to be exercised in a separate proceeding." (Id. at p. 785.) However, where a defendant has agreed to a specific sentence, his challenge" 'is properly viewed as a challenge to the validity of the plea itself' and thus requires a certificate of probable cause." (People v. Shelton (2006) 37 Cal.4th 759, 766.)
Because Checchin agreed to a specified term of eight years as part of his plea agreement, a challenge based on the trial court's failure to consider his veteran's status challenges the validity of the plea. The parties did not "leave unresolved between themselves the appropriate sentence" and thus a certificate of probable cause is required. (Buttram, supra, 30 Cal.4th at p. 785.)
We express no opinion on Checchin's eligibility for resentencing pursuant to recent amendments to Penal Code section 1170.91, subdivision (b)(1) and (3). (Stats. 2022, ch. 721, § 1, eff. Jan. 1, 2023.)
3. Credits
Finally, we requested that the parties address the custody and conduct credits to which Checchin was entitled due to discrepancies between the trial court's oral pronouncement and the numbers reflected in both the minute order and abstract of judgment. As discussed above, the November 10, 2022 minute order and March 10, 2023 abstract of judgment must be modified to reflect the trial court's July 29, 2022 oral pronouncement of Checchin's credits, i.e., that Checchin has 179 days of custody credit and 178 days of conduct credits, for a total of 357 days of credit.
III. Disposition
The judgment is modified to reflect 357 days of credits, consisting of 179 days of custody credit and 178 days of presentence conduct credit. As modified, the judgment is affirmed. The trial court is directed to prepare an amended minute order and abstract of judgment reflecting the modification and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: Danner, Acting P.J. Bromberg, J.