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People v. Cole

Court of Appeals of California, First Appellate District, Division Four.
Nov 24, 2003
A103018 (Cal. Ct. App. Nov. 24, 2003)

Opinion

A103018.

11-24-2003

THE PEOPLE, Plaintiff and Respondent, v. GEORGE CURTIS COLE, Defendant and Appellant.


The sole issue on this appeal is whether the trial court was authorized to impose a three-year prison sentence after defendant pled guilty, thinking he would get no more than two years and eight months.

On March 28, 2003, defendant George Curtis Cole entered a plea of guilty to a charge of injuring his wife (Pen. Code, § 273.5), and a plea of no contest to a charge of injuring his wifes son (§ 273a). He did so in the belief that the maximum possible sentence would be no more than two years and eight months—two years for the charge of injuring his wife as the principal term, and a subordinate consecutive term of eight months (one-third of the middle term) for injuring her son.

On April 22, prior to the date set for sentencing, the court and parties became aware that one-third of the middle term for the subordinate term would be one year, not eight months as everyone had assumed. The court initially stated, "I think I need to retake the plea or re-advise him and ask him if he wants to stay with his plea . . . ." "[H]e needs to be advised of what the potential consequences were. Apparently the court misadvised him. I need to tell him that if he is sentenced to state prison . . . that could be up to three years." Defendants counsel took the position that all of this was "premature" before the time for sentencing. "The court has discretion anywhere from zero to two years and eight months. The court could grant a section 17 motion as to both counts and reduce them to misdemeanors. The court could place Mr. Cole on probation. The court has discretion . . . if he is sent to prison, whether the terms would be imposed consecutively or concurrently." The court set a hearing "for briefing and argument" three days later.

After receiving the written briefing from both sides, the court held the hearing as scheduled. In response to defense counsels argument that imposition of an aggregate sentence of two years and eight months would not be unauthorized because defendant agreed to it, the prosecutor advised as follows: "I think what the court is bound to do in this situation is to advise him that under his plea his maximum exposure is three years. And defense counsel can talk to him about that, and we can see whether or not hes willing to accept that at this point and re-enter his plea—which I think would be ideal under the circumstances—or he can just stipulate that hes willing to accept that as a potential consequence of his pleas . . . . Otherwise, the burdens placed upon defense counsel to file a motion to withdraw the plea pursuant to [section] 1018. [¶] . . . [¶] [Y]ou cannot specifically perform that which is illegal. And two [years], eight [months] is illegal." The court took the matter under submission until May 1, the date set for sentencing.

After hearing extensive argument, the court denied defendants application for probation and sentenced him to state prison for three years; two years for Count Two, the violation of section 273a, and an additional one-year term, to be served consecutively, for Count One, the violation of section 273.5. The court then heard further argument from counsel concerning what the court called the "advisement" issue. When argument was completed, the court stated:

"[W]hat the court finds, under the circumstances is that; one, the defendant was correctly advised of the triad involving each count including the mitigated, middle and high term. [¶] That the discussions involved imposition or sentencing range between the low term and consecutive term of one-third the mid term and he was advised of that. [¶] There was a miscalculation and misstatement regarding the actual punishment that could be imposed. [¶] I find theres an ambiguity in terms of the agreement made by the parties. And looking at the totality of the agreement, I find that the intent of the parties was to impose the low term and one-third the mid term. Thats the courts finding. [¶] If he wants to withdraw his plea, I would permit that because of the ambiguity."

After consulting with defendant, defense counsel told the court "Ive discussed the matter with Mr. Cole. He does not want to withdraw his plea."

"[B]efore taking a guilty plea the trial court must admonish the defendant of both the constitutional rights that are being waived and the direct consequences of the plea. . . . [¶] Unlike the admonition of constitutional rights, however, advisement as to the consequences of a plea is not constitutionally mandated. Rather, the rule compelling such advisement is `a judicially declared rule of criminal procedure. [Citation.] The nonconstitutional basis of the rule has two consequences . . . . [¶] First, `Unlike an uninformed waiver of the specified constitutional rights which renders a plea or admission involuntary and requires that it be set aside, an uninformed waiver based on the failure of the court to advise an accused of the consequences of an admission constitutes error which requires that the admission be set aside only if the error is prejudicial to the accused. [Citation.] `A showing of prejudice requires the appellant to demonstrate that it is reasonably probable he would not have entered his plea if he had been [correctly advised.] [Citations.] [¶] Second, the error is waived absent a timely objection. . . . [¶] Thus, when the only error is a failure to advise of the consequences of the plea, the error is waived if not raised at or before sentencing." (People v. Walker (1991) 54 Cal.3d 1013, 1022-1023.)

"Whether or not a defendant waives an objection to punishment exceeding the terms of the bargain by the failure to raise the point in some fashion at sentencing depends upon whether the trial court followed the requirements of section 1192.5. That section provides in pertinent part that . . . [t]he court `shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in such case, the defendant shall be permitted to withdraw his plea if he desires to do so. [Citation.] [¶] Absent compliance with the section 1192.5 procedure, the defendants constitutional right to the benefit of his bargain is not waived by a mere failure to object at sentencing. . . . [¶] When, however, the section 1192.5 admonition is given . . . the situation is quite different." (People v. Walker , supra, 54 Cal.3d 1013, 1024-1025.) "Absent a section 1192.5 admonition, we cannot assume the defendant knew he had a right to withdraw his plea. But when the admonition is given, and the defendant does not ask to withdraw the plea or otherwise object to the sentence, he has waived the right to complain of the sentence later." (Id. at p. 1026.)

Application of these principles are fatal to defendants claim that he is entitled to specific enforcement of the plea bargain as originally formulated, i.e., a prison sentence of no more than two years and eight months. In compliance with section 1192.5, defendant was clearly told that if he found the three-year sentence unacceptable, he would be allowed to withdraw his guilty pleas. He did not do so. The conclusion of waiver in these circumstances is irresistible. (People v. Walker, supra, 54 Cal.3d 1013, 1023, 1026.) Moreover, because defendant did not move to withdraw his plea, he cannot establish that he was prejudiced by the misadvisement. (Id. at pp. 1022-1023.) The trial courts findings—which defendant does not challenge—furnish additional support for the absence of prejudice. Those findings also provide a basis for concluding the three-year sentence was not in violation of the plea bargain, because defendant agreed to be sentenced according to a formula of two years for the principal term plus one-third of the middle term for the subordinate term.

The judgment of conviction is affirmed.

We concur: Reardon, J., Sepulveda, J. --------------- Notes: All further statutory references are to the Penal Code.


Summaries of

People v. Cole

Court of Appeals of California, First Appellate District, Division Four.
Nov 24, 2003
A103018 (Cal. Ct. App. Nov. 24, 2003)
Case details for

People v. Cole

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GEORGE CURTIS COLE, Defendant and…

Court:Court of Appeals of California, First Appellate District, Division Four.

Date published: Nov 24, 2003

Citations

A103018 (Cal. Ct. App. Nov. 24, 2003)