Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR254468
Siggins, J.
George Cole entered a no contest plea to an agreed charge of felony vandalism under Penal Code section 594, subdivision (a). The trial court accepted the plea and found him guilty. Cole was sentenced to three years’ probation with a condition of 270 days in county jail. Cole timely appeals to claim that the jail sentence was not in accord with the terms of his plea bargain. In the alternative, Cole petitions for a writ of habeas corpus, claiming that ineffective assistance of counsel led to his plea. We find that the trial court sentenced Cole in accord with the terms of his plea bargain and affirm. Cole fails to make a prima facie case of ineffective assistance of counsel and so we deny the writ.
All further statutory references are to the Penal Code unless otherwise indicated.
I. BACKGROUND
Victim D.K. contacted police on April 20, 2008, regarding a possible criminal threat and vandalism. She and Cole had been dating but had broken up. Cole was to leave D.K.’s home after collecting his belongings. Before D.K. left for work, she noticed that Cole was drinking and becoming belligerent. D.K. reported to a law enforcement officer that Cole made threatening phone calls to her and threatened to destroy some of her property. When D.K. returned home from work, she found that some of her property had been damaged, and Cole was gone. The police arrested Cole when he returned to D.K.’s home. D.K. reported that Cole had threatened to kill her by slitting her throat. During and after his arrest, Cole was uncooperative and belligerent.
Cole was charged with making felony criminal threats under section 422, felony vandalism under section 594, subdivision (a), enhancements for each due to his prior prison terms as provided under section 667.5, subdivision (b), and resisting arrest under section 148, subdivision (a)(1). Cole entered a no contest plea to the vandalism charge pursuant to a plea bargain, and the other charges were dismissed. Cole executed a “waiver of constitutional rights and declarations in support of defendant’s motion to change plea” form where he acknowledged “3 year state prison” as the maximum punishment for the felony vandalism charge. Cole also acknowledged the terms of his plea bargain as follows: “No initial state prison[;] dismiss remainder of charges[;] DA does not oppose Interstate Compact Agreement with Oregon[.]” He appears to have written under “ADDITIONAL MATTERS,” “Probation to start interstate process immediately[.]” The trial court approved and accepted Cole’s waiver form. Cole was found guilty of felony vandalism based on his plea of no contest. The other charges were dismissed with Harvey waivers and the court struck the enhancement. The court ordered a presentencing report and directed the probation department to initiate the interstate compact process.
The presentencing report recommended that Cole be sentenced to state prison, but if probation were granted, it recommended three years of probation with 270 days in county jail as a condition of probation. At the sentencing hearing, Cole’s new counsel moved to withdraw his guilty plea. Cole alleged his prior counsel was ineffective, and that he did not know that the sentence on his plea could include time in county jail. The trial court denied the motion.
The trial court sentenced Cole to three years’ probation. As a condition of probation, Cole was required to serve 270 days in county jail with credit for 150 days served to the date of sentencing. The court also imposed fines and a surcharge. The court observed that Cole could not serve his jail time in Oregon, but advised Cole’s attorney to check with the probation department to ensure that the interstate compact process was underway. The court ordered Cole to appear at the probation department to sign the interstate compact within two days of his release.
II. THE APPEAL
Cole timely appeals and argues that by requiring him to serve time in county jail, the trial court failed to sentence him in accord with the terms of his plea bargain and denied him the benefit of his bargain. The court denied a certificate of probable cause. Cole now seeks specific performance of his plea bargain. In the alternative to specific performance, Cole asks us to vacate his guilty plea. We conclude that the trial court sentenced Cole in accord with the terms of the plea bargain and affirm.
A. Cole’s Appeal Does Not Require Certification by the Trial Court
Section 1237.5 prohibits a defendant from appealing a judgment following a conviction upon a plea of guilty or of no contest unless (a) the defendant has shown to the trial court reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings; and (b) the trial court has granted a certificate of probable cause. The section does not apply, however, to appeals seeking review of proceedings that occur subsequent to the plea. (In re Harrell (1970) 2 Cal.3d 675, 706.)
The Attorney General contends that Cole’s claim should be dismissed because the trial court denied a certificate of probable cause. The Attorney General argues that Cole’s claim “is, in substance, a challenge to the validity of his plea” and cites People v. Panizzon (1996) 13 Cal.4th 68, 71 for support. But in Panizzon, the defendant did not raise a claim that the trial court had sentenced him contrary to the terms of his plea bargain. There, the defendant claimed that the sentence incorporated in the plea bargain violated federal and state constitutional prohibitions against cruel and unusual punishment. The Panizzon court held that such a claim was a challenge to the validity of the plea and thus required a section 1237.5 certification. (Panizzon, supra, at pp. 78-79; 89-90.) Here, unlike Panizzon, Cole does not claim that the imposed sentence or his plea is legally invalid. Instead, he claims that the sentence is not in accord with the plea bargain.
An appeal seeking review to consider whether an imposed sentence is in accord with the terms of a plea bargain does not require certification by the trial court. (In re Harrell, supra, 2 Cal.3d at p. 706.) Here, as in Harrell, the appellant contends that the trial court imposed a sentence outside the terms of his plea bargain. Because Cole seeks review of sentencing proceedings subsequent to the entry of his plea, a certificate is not necessary for his appeal to go forward.
B. The Trial Court Sentenced in Accord with the Terms of the Plea Bargain
As a matter of due process, a defendant is entitled to the benefit of a valid plea bargain. (People v. Walker (1991) 54 Cal.3d 1013, 1024.) Accordingly, a trial court must sentence in accord with the negotiated terms of an agreed plea. (Ibid.) In challenging a sentence for exceeding the terms of a plea bargain, the challenger must show that the sentence significantly varied from the terms of the plea bargain as a whole. (Ibid.) If the sentence did so vary, then the variance is not subject to harmless error analysis. (Id. at p. 1026.)
The record shows that Cole and the district attorney entered into a plea bargain and the trial court accepted it. The terms of the plea agreement were that, in exchange for Cole’s plea of no contest to felony vandalism, the trial court would impose no initial state prison time, would dismiss the other charges, and the prosecutor would not oppose an interstate compact transfer that would allow Cole to serve his probation in Oregon. Cole also seems to have understood the agreement to mean that the imposition of probation would trigger the process with Oregon.
The trial court imposed three years of probation for felony vandalism. It did not impose any state prison time. As a condition of probation, it imposed a 270-day county jail sentence, with credit for time served. The trial court dismissed the other charges and struck the enhancement charged due to Cole’s prior conviction. The trial court ordered that the processing of an interstate compact transfer with Oregon commence, although such a transfer apparently could not be effectuated while Cole was in custody. Thus, the trial court adhered to every term of the plea bargain. In receiving probation, Cole avoided state prison. His prior conviction for two felonies was stricken, and his other charges were dismissed. He was allowed to serve his probation in Oregon. Cole received the benefit of his plea bargain.
Cole’s contention that the county jail time imposed as a condition of probation is outside the terms of the plea bargain is without merit. Cole relies on People v. Walker, supra, 54 Cal.3d at pages 1018-1019, for the proposition that every possible punishment must be revealed in the plea bargain. Walker requires that a trial court advise a defendant of a statutory punishment when it is a direct consequence of his guilty plea, and that the court not impose such a punishment when it is foreclosed by a plea bargain. In Walker, pursuant to a plea agreement, the defendant admitted to the use of a destructive device with the intent to injure or intimidate. The Court of Appeal found that a restitution fine was imposed in violation of the plea bargain, reversed the judgment, and remanded to allow the defendant to withdraw his guilty plea. (Id. at p. 1019.) The California Supreme Court reversed the Court of Appeal to require specific performance of the plea bargain. (Id. at p. 1031.)
In Walker, the defendant was subject to two statutory fines for the offense, a discretionary penal fine and a mandatory restitution fine. (People v. Walker, supra, 54 Cal.3d at p. 1019.) The maximum penal fine was $10,000, while the restitution fine could be between $100 and $10,000. (Ibid.) In explaining to the defendant the consequences of his plea, the trial court informed the defendant of a maximum possible penal fine of $10,000, but said nothing of the restitution fine. (Id. at p. 1029.) The plea bargain did not mention any fine. (Id. at pp. 1018-1019.) But, the probation report recommended a restitution fine, and such a fine was imposed by the trial court. (Id. at p. 1019.) The Supreme Court agreed with the Court of Appeal that imposition of the restitution fine violated the plea bargain because it was a significant variance from the bargain’s terms. (Id. at p. 1027.) The court reversed and remanded to require specific performance of the plea bargain while complying with the statute by reducing the restitution fine to the $100 statutory minimum, an insignificant amount. (Id. at p. 1031.) In holding that a significant variance from the terms of a plea bargain violates a defendant’s rights, the court observed that a trial court may impose “a standard condition of probation” even if it does not expressly appear in the plea bargain. (Id. at p. 1024.)
Here, the trial court did not impose county jail time as a statutorily prescribed sentence. It imposed county jail time as a “condition of probation.” Unlike Walker, the trial court did not fail to disclose any statutory punishment. Further, Cole’s counsel declared that she thoroughly discussed the plea and its consequences with Cole. Here, a sentence to state prison was expressly foreclosed by the plea bargain, and the trial court adhered to the plea bargain by granting probation instead of state prison time. There was no significant departure from the terms of the plea bargain. Accordingly, we affirm the judgment.
III. PETITION FOR WRIT OF HABEAS CORPUS
Cole petitions us for an order to the trial court for the prosecutor to show cause why his probation should not be vacated; for an evidentiary hearing; and for an issuance of a writ of habeas corpus vacating the probation order and withdrawing his no contest plea. Cole alleges relief is warranted because his counsel was ineffective. He claims that his original trial counsel refused to investigate his case, mount a defense, and fully inform him of the terms of the plea bargain. Because Cole fails to make a prima facie case of ineffective assistance of counsel, we deny relief.
A. Requirements for Relief by Writ of Habeas Corpus
A criminal defendant has a right under the federal and California Constitutions to effective assistance of counsel. (Hill v. Lockhart (1985) 474 U.S. 52, 57; In re Alvernaz (1992) 2 Cal.4th 924, 933-934; People v. Pope (1979) 23 Cal.3d 412, 422; In re Hawley (1967) 67 Cal.2d 824, 828.) Where ineffective assistance is alleged, the defendant bears the burden of proving unconstitutionally inadequate representation. (People v. Jackson (1989) 49 Cal.3d 1170, 1188.) To be entitled to a writ, or to an order to show cause, defendant must establish a prima facie case for relief in his habeas corpus petition. (People v. Duvall (1995) 9 Cal.4th 464, 474-475; People v. Madaris (1981) 122 Cal.App.3d 234, 241.) When a defendant alleges ineffective assistance of counsel, the defendant must show that he received assistance that was deficient, i.e., that fell below an objective standard of reasonableness under prevailing professional norms, and that such deficient assistance was prejudicial to him. (In re Alvernaz, supra, at p. 936.) To show prejudice in the context of a challenge to an accepted plea bargain, the defendant must show there was a reasonable probability that, but for his counsel’s deficient assistance, he would not have pleaded guilty or no contest and that he would have gone to trial. (Hill v. Lockhart, supra, at p. 59.)
We presume the trial court proceedings and judgment of conviction are valid. (People v. Duvall, supra, 9 Cal.4th at p. 474; Hill v. Lockhart, supra, 474 U.S. at p. 58.) Accordingly, to make a prima facie case for relief, a defendant must offer more than his own self-serving conclusory statements. He must make a plausible and specific showing of counsel’s inadequacy, which may require independent evidence in the record, affidavits or declarations that demonstrate the inadequacy of the advice he received and that with competent advice he would have proceeded differently and received a more favorable disposition. (People v. Duvall, supra, at p. 474; see also In re Alvernaz, supra, 2 Cal.4th at p. 938; People v. Madaris, supra, 122 Cal.App.3d at p. 241.)
B. Cole Fails to Make a Prima Facie Case of Ineffective Assistance of Counsel
Cole alleges that he had an alibi defense to the charges against him and that he had witnesses and documentary evidence for his defense. Cole claims that his original counsel, Ms. Garcia, refused to investigate his alibi and that she focused on Cole’s record or prior conviction to convince him to accept the plea bargain. If Cole had a viable defense, Ms. Garcia had a professional obligation to assess it. (People v. Pope, supra, 23 Cal.3d at p. 425.) But Cole does not offer any written declarations by his alibi witnesses, nor does he produce any of the supportive documentation that he claims to possess. Cole’s second counsel, in a sworn declaration attached to his motion to withdraw the no contest plea, stated that she interviewed two of the witnesses and that they were available to supply exculpatory evidence. But, a sworn statement by a defense attorney about what a witness was willing to offer in evidence is hearsay, and does not satisfy Cole’s burden to produce evidence to show his prima facie case. (People v. Madaris, supra, 122 Cal.3d at p. 242.) With no independent evidence that Cole had a viable alibi defense, or that Ms. Garcia ignored a possible defense, Cole has not shown a prima facie case.
Cole also claims that Ms. Garcia did not explain the terms of the plea bargain to him; in particular, that he was eligible under the agreement to receive county jail time. It was Ms. Garcia’s professional duty to explain the plea bargain to her client. (In re Alvernaz, supra, 2 Cal.4th at p. 937.) But Cole’s second trial counsel reported that Ms. Garcia said she thoroughly discussed the offer and plea with Cole. Cole does not offer a written declaration from Ms. Garcia, nor does he allege that Ms. Garcia refused to cooperate in preparing a record to support his petition. In his own declaration supporting the habeas corpus petition, Cole does not say that Garcia told him he would not receive any additional jail time as a condition of probation, that probation would be conditioned on no more than time served, or that he would be released from custody immediately upon sentencing. His declaration states only, “Garcia said she had spoken to the prosecutor and that I could get a plea bargain for time served....” This statement tacitly acknowledges that from Garcia’s explanation he was also aware that probation might not be conditioned on time served. The waiver form that Cole signed was explicit that there would be no “state prison.” It said nothing about no time in county jail as a condition of probation and Cole, having previously been convicted of two felonies and served time in both prison and county jail, does not suggest that he was unaware of the difference. Putting aside the absence of corroboration (cf. In re Alvernaz, supra, at p. 938), Cole has failed to make a showing with sufficient specificity of deficient performance by his trial counsel. Without evidence showing that his counsel’s assistance was deficient, we do not reach the issue of prejudice. Cole has failed to make a prima facie case for habeas corpus relief.
IV. DISPOSITION
The judgment is affirmed. The writ of habeas corpus is denied.
We concur: McGuiness, P.J., Pollak, J.