Opinion
E042799
7-30-2008
THE PEOPLE, Plaintiff and Respondent, v. BRENT TERRELL COWAN, Defendant and Appellant.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Lynne McGinnis and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
In two separate cases (Nos. RIF130449 & RIF131191), defendant Brent Terrell Cowan pled guilty to robbery (Pen. Code, § 211; count 1) and admitted the enhancement allegation that he personally used a firearm within the meaning of sections 12022.53, subdivision (b), and 1192.7, subdivision (c)(8). The trial court imposed a total sentence of 15 years in state prison, pursuant to the plea agreements defendant signed.
All further statutory references will be to the Penal Code, unless otherwise noted.
On appeal, defendant contends: 1) his guilty pleas were not valid since they were based on incorrect information as to the maximum possible custody commitment for both cases; 2) his upper-term sentences violated his Sixth Amendment right to a jury trial under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L. Ed.2d 856] (Cunningham); and 3) there was an insufficient factual basis for the plea in case number RIF130449. We affirm.
PROCEDURAL BACKGROUND
On January 2, 2007, defendant entered a plea agreement in case number RIF130449. He agreed to plead guilty to one count of robbery (§ 211) and admit that he personally used a firearm. (§§ 12022.53, subd. (b), 1192.7, subd. (c)(8).) The plea agreement stated that the maximum possible custody commitment for the admitted charge and enhancement was 26 years. It further stated: "Court indicates 15 years concurrent with RIF 131191." The plea agreement also stated that defendant was waiving any right to appeal, and that, with regard to a factual basis for the plea, he "did the things that [were] stated in the charges that [he was] admitting."
That same day, defendant entered a plea agreement in case number RIF131191. In that case, defendant was also charged with one count of robbery (§ 211) and personally using a firearm. (§§ 12022.53, subd. (b), 1192.7, subd. (c)(8).) The terms of the plea agreement were the same as the other one, except this plea agreement stated that the maximum possible custody commitment was 15 years. It also stated: "Court indicates 15 years concurrent with RIF 130449."
At the sentencing hearing, the trial court imposed the following: In case number RIF130449, the upper term of five years on count 1, plus a consecutive term of 10 years on the enhancement; in case number RIF131191, the upper term of five years on count 1, plus a consecutive 10 years on the enhancement. The court ordered the sentences in the two cases to run concurrent, pursuant to the plea agreements. Thus, the total term of imprisonment imposed was 15 years.
ANALYSIS
I. Defendant Has Failed to Demonstrate Prejudice From the Miscalculation of the Maximum Term of Confinement
Defendant argues that he received ineffective assistance of counsel since his attorney improperly advised him as to the maximum possible custody commitment for the admitted charges and enhancements as to both cases. Defendant asserts that the maximum possible sentence was 19 years 4 months, not 41 years, as provided in the plea agreements. He claims that "it is reasonable to assume [he] would have risked going to trial had he known the true nature of his maximum commitment was substantially less than represented." Thus, he argues that the matter requires a remand for the trial court to permit him to withdraw his guilty pleas in both cases. The People initially argue that defendant waived his right to appeal since his plea agreements included provisions stating that he waived his right to appeal. Notwithstanding the waiver, we conclude that defendant has failed to show he was prejudiced by the error.
In case number RIF131191, the maximum possible commitment was set forth as 15 years, representing the upper term of five years for the second degree robbery, and 10 years for the personal firearm-use enhancement. Despite being charged with the same crime and enhancement in case number RIF130449, the maximum possible commitment indicated on the plea form in case number RIF130449 was 26 years. As stated, the combined maximum possible custody commitment for both cases was 41 years. The People concede that this calculation was incorrect. The maximum possible custody commitment for the two admitted charges, assuming defendant was consecutively sentenced on both counts, was 19 years 4 months. The sentence would consist of the upper term of five years for one count of robbery, and an additional 10 years for one of the personal firearm-use enhancements, plus, pursuant to section 1170.1, subdivision (a), one-third the midterm, or one year, for the second count of robbery, and one-third the 10-year term, or three years four months, for the second firearm-use enhancement.
"In order to establish ineffective assistance of counsel, a defendant must not only show his or her counsel failed to act in a manner to be expected of a reasonably competent attorney acting as a diligent advocate but also that he or she was prejudiced thereby. [Citations.] `Where a defendant has been denied the effective assistance of counsel in entering a plea of guilty, he is entitled to reversal and an opportunity to withdraw his plea if he so desires. [Citations.] [Citation.] `To be valid, guilty pleas must be based upon a defendants full awareness of the relevant circumstances and the likely consequences of his action. [Citation.] [Citation.]" (People v. Johnson (1995) 36 Cal.App.4th 1351, 1356.) When a defendant claims he received ineffective assistance of counsel at the plea bargain stage, he must establish "a reasonable probability that, but for counsels incompetence, [he] would not have pleaded guilty and would have insisted on proceeding to trial. [Citation.]" (In re Alvernaz (1992) 2 Cal.4th 924, 934.) "A defendants statement to that effect is not sufficient. Rather, there must be some objective showing. [Citation.]" (In re Vargas (2000) 83 Cal.App.4th 1125, 1140 (Vargas).)
In Vargas, the defendant argued that he accepted a plea bargain because his attorney misadvised him. (Vargas, supra, 83 Cal.App.4th at p. 1139.) The court found that "a lack of credible evidence to establish that [the defendant] was provided with sufficient information upon which an informed decision could have been made." (Id. at p. 1140.) The court stated that an evidentiary hearing was required to ascertain if the defendant was fully informed before he accepted the plea agreement. (Ibid.) The People argued that, even if it was shown that the attorney failed to provide the defendant with competent advice, the defendant had not shown prejudice. (Ibid.) The court disagreed, finding that the evidence before it suggested that had the defendant been fully informed, he would not have accepted the plea agreement. Specifically, the court found that the defendant "presented credible evidence supporting his statements that his motivation in accepting the plea agreement was based upon [his attorneys] misrepresentations and coercive statements, as well as [the defendants] well-founded belief that he had no alternative since [his attorney] was not prepared to proceed. Further, [the] defendant ha[d] insisted he [was] innocent, he wanted to proceed to trial, and the charges were fabricated." (Id. at p. 1141.)
Here, defendant has failed to establish a reasonable probability that, had he been accurately informed of his maximum potential sentence of 19 years 4 months, he would have rejected the plea bargains offered. The meager statement in his opening brief, that "it is reasonable to assume [he] would have risked going to trial had he known the true nature of his maximum commitment was substantially less than represented," is self-serving and insufficient in and of itself to establish prejudice. (See In re Alvernaz, supra, 2 Cal.4th at p. 945.) In order to establish ineffective assistance of counsel, a defendant will ordinarily need to bring in evidence outside the appellate record through a petition for writ of habeas corpus. (See People v. Johnson, supra, 36 Cal.App.4th 1351.) Defendant apparently has not filed such petition.
Moreover, in contrast to Vargas, defendant has not stated that he was innocent. Rather, he admitted to the police that he committed the robbery in case number RIF131191, as well as at least 10 other similar offenses. Furthermore, defendant never indicated that he wanted to proceed to trial. In addition, pursuant to the plea agreements, he received 15 years in state prison, which was more than four years below the maximum potential sentence for both cases.
Therefore, because the evidence before us does not suggest that, had defendant been correctly informed of his maximum potential custody commitment, he would not have accepted the plea agreements, defendants ineffective assistance of counsel claim fails.
II. The Court Properly Imposed the Upper Term
Defendant argues that the courts imposition of the upper term in both cases violated his Sixth Amendment right to a jury trial, under Blakely and Cunningham. Thus, he contends that the matter must be remanded for resentencing. We disagree.
A. The Sentencing Hearing
At the sentencing hearing on February 6, 2007, the court had the following discussion with defendant with regard to imposing the upper term:
"The Court: Im sure your counsels had a chance to speak with you about the change in the law since the time you entered your plea and now.
"The Defendant: Yes, maam.
"The Court: All right. And you understand that its my opinion, and only my opinion—because theres been no definitive answer on that—I cannot impose the upper term on you which was the agreement; I was going to do that, absent a jury finding. However, its also my opinion that you can agree to do that. You can stipulate to that and waive your right to a jury trial to the aggravating factors. Did you understand all that
"The Defendant: Yes, maam.
"The Court: —with your counsel? Is that something that you want to do?
"The Defendant: Yes, maam.
"The Court: And you are doing that because you want to go forward with the indicated sentence that I gave you as opposed to face more time in custody
"The Defendant: Yes, maam.
"The Court: —is that right? Okay. And also the District Attorney is going to be asking that you . . . admit an aggravating factor so I can impose the upper term; is that also something you are also willing to do?
"The Defendant: Uh-huh. [¶] . . . [¶]
"The Court: . . . Sir, are you admitting—[defense counsel], correct me if Im wrong, the victim was vulnerable in both of these cases?
"The Defendant: Yes, maam.
"The Court: Court finds, based on the admission of that aggravating [factor] that [the aggravating factors] outweighs [sic] the mitigating. And in this case, the upper term will be imposed." (Italics added.)
B. Defendant Admitted an Aggravating Factor
In Cunningham, the United States Supreme Court held that Californias determinate sentencing law violates a defendants rights to a jury trial and to proof beyond a reasonable doubt to the extent the law allows a judge to impose an upper-term sentence based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. (Cunningham, supra, 127 S.Ct. at pp. 860, 871.)
Here, the record shows that defendant expressly admitted the aggravating factor that the victims were vulnerable, for the purpose of allowing the court to impose the upper term. Consequently, there was no Cunningham error here.
Defendant argues that the upper term cannot stand since he did not admit the aggravating factor at the time of his plea, as required by Cunningham, supra, 127 S.Ct. at page 868. There is no such requirement stated in Cunningham.
Defendant also asserts that his "true awareness" of the Cunningham decision was questionable, since Cunningham was decided approximately two weeks prior to his sentencing hearing. He further claims that he did not waive his right to a jury trial on the victim vulnerability factor. Regardless of the extent of his "true awareness" of Cunningham at that time, the record demonstrates that the court clearly asked him if he wanted to waive his jury trial right as to the aggravating factors. He agreed to do so.
Contrary to defendants contention, there is no reason to remand the matter for resentencing.
III. Any Error With Regard to Finding a Factual Basis for the Plea Was Harmless
Defendant argues that the court failed to find a factual his plea in case number RIF130449. We find any error harmless.
Section 1192.5 provides that, upon a defendants plea of guilty, the court must "cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea." "The purpose behind the inquiry is to `"protect against the situation where the defendant, although he realizes what he has done, is not sufficiently skilled in law to recognize that his acts do not constitute the offense with which he is charged." [Citations.] [¶] The extent of the inquiry must be left to the discretion of the trial court, but it should develop the factual basis on the record. [Citation.] The trial court should ask the accused to describe the conduct that gave rise to the charge, make specific reference to those portions of the record providing a factual basis for the plea, or elicit information from either counsel. [Citation.] If the trial court fails to make an on-the-record inquiry as to the factual basis for the plea, the appellate court is free to review the record and determine whether the error is harmless, i.e., whether the record contains sufficient information to ensure the defendant committed the acts to which the plea was entered. [Citation.]" (People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1576.)
Here, the court did not make an on-the-record inquiry as to the factual basis for the plea. However, the error was harmless. At the time of the plea, the court asked defendant whether he went over the plea agreements with his attorney and whether he signed the forms. Defendant said, "Yes." One of the provisions that defendant initialed in the plea agreements stated: "Factual Basis: I agree that I did the things that are stated in the charges that I am admitting." Furthermore, in the probation officers report prepared for case number RIF131191, defendant admitted to committing that particular robbery, which occurred on May 25, 2006, and also told the police that he had been committing robberies and other similar crimes since late March or early April 2006. He estimated that he had committed at least 10 separate offenses during that time. Defendant explained that most of the offenses were committed in the areas of Riverside and Moreno Valley, and that he and his cohorts set up the same kind of victims and used the same method of operation. He went into extensive detail regarding burglaries and another robbery that he had committed.
The robbery defendant was charged with and pled guilty to in case number RIF130449 occurred on May 9, 2006. This date falls squarely within the timeframe identified by defendant in the probation report in case number RIF131191, during which he committed multiple crimes. At the time of sentencing, the court stated that it had an opportunity to read the probation officers report, and then it expressly stated that it found a factual basis existed for the pleas. Thus, the court must have satisfied itself that there was a factual basis for the plea. (§ 1192.5.)
The court stated that it had "an opportunity in both cases ending in 49 and 91, to read the probation officers report." Although this statement implies that the court read a probation officers report for each case, there was apparently no probation report prepared in case number RIF130449.
In view of defendants statement in the plea agreement that he "did the things" he was charged with in case number RIF130449, and his admissions to the police contained in the probation officers report, we conclude that any error in the courts failure to make an on-the-record inquiry as to the factual basis for the plea was harmless.
DISPOSITION
The judgment is affirmed.
We concur:
RAMIREZ, P. J.
KING, J.