Opinion
F075635
06-28-2018
THE PEOPLE, Plaintiff and Respondent, v. GILIBALDO DELTORO, JR., Defendant and Appellant.
Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF51284)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tuolumne County. Donald I. Segerstrom, Jr., Judge. Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Detjen, J., and Peña, J.
-ooOoo-
Appellant Gilibaldo Deltoro, Jr., pled no contest to possession of marijuana in a prison (Pen. Code, § 4573.6/count 1), and bringing a weapon into a prison (§ 4574, subd. (a)/count 2). On appeal, Deltoro contends he was denied the effective assistance of counsel in entering his plea. We find merit to this contention, reverse the judgment, and remand for further proceedings.
All further statutory references are to the Penal Code, unless otherwise indicated.
FACTS
On August 27, 2016, at approximately 11:00 a.m., an officer at the main entrance gate to the Sierra Conservation Center noticed the smell of marijuana as he approached a vehicle driven by Deltoro, with Jesus Garcia as a passenger. After another officer informed Deltoro that there was an odor of marijuana coming from his car, Deltoro stated that he had medical marijuana and regularly smoked it in the car. During a consent search of Deltoro's car, officers found two plastic bags containing a total of 11.6 grams of marijuana, rolling papers, a plastic bottle containing numerous partially smoked marijuana cigarettes, a plastic bag containing a large sum of money, and a butterfly knife that was located under the driver's seat.
On September 8, 2016, the Tuolumne County District Attorney filed a complaint charging Deltoro with the two charges to which he pled.
On November 2, 2016, following a preliminary hearing, the magistrate ordered that the complaint be deemed an information.
At the beginning of a hearing on March 6, 2017, the following colloquy occurred:
"THE COURT: ... [Defense counsel] for the defense. [Prosecutor] for the People. It appears we have a resolution. The record will reflect there was an offer made to Mr. Deltoro to plead guilty to Count One for a promise of probation, and Mr. Deltoro wanted to do that but he also wanted to preserve his—he did not want to waive appeal because [defense counsel] believes there's an issue related to [section] 1170[, subd. ](h) of the Penal Code that may effect [sic] his view—Penal Code Section 17[, subd. ](b) and
the reach of Penal Code Section 17[, subd. ](b), and so the defendant wanted to preserve his appeal rights.
"The People were not willing to agree to the Court granting a certificate of probable cause. I indicated that if he [pled] guilty as charged, I would not sentence him. I would—that I will continue with the recommendation. I think this is a probation case that I would be willing—if there's an adverse ruling in this court, give [defense counsel] a certificate of probable cause.
"The way it shakes out, it looks like your client will be pleading as charged based on the Court's indication of probation.
"Is that basically where we are?
"[DEFENSE COUNSEL]: Yes, your Honor.
"THE COURT: [Prosecutor]?
"[PROSECUTOR]: Yes, your Honor."
In response to the court's inquiries, Deltoro stated that he had enough time to consult with defense counsel and defense counsel stated that he had enough time to consult with Deltoro and that he concurred in Deltoro's waiver of rights and the entry of his plea. The court then took Deltoro's guilty plea to the two charges.
On April 5, 2017, defense counsel filed a motion to reduce Deltoro's convictions to misdemeanors in which he argued that the Criminal Justice Realignment Act of 2011 (Realignment Act) "(Stats. 2011, chaps. 15, 39, 136, 1st Ex. Sess., chap. 12)" amended section 1170 to include subdivision (h) (section 1170(h)), which provided that certain low-level felonies could be punished with confinement in county jail instead of prison. Defense counsel also noted that the Realignment Act amended section 17, subdivision (b) (section 17(b)) to "include[ ] punishment pursuant to [section 1170(h)]" and sections 4573.6 and 4574, the sections under which Deltoro was convicted, so that they were punishable pursuant to section 1170(h). Thus, he argued, that because section 17(b) was amended to include punishment pursuant to section 1170(h), the court could deem both of Deltoro's convictions to be misdemeanors under the provision of section 17(b)(3), which provides that a conviction is a misdemeanor "When the court grants probation to a defendant without imposition of sentence and at the time of granting probation ... the court declares the offense to be a misdemeanor." According to defense counsel, by amending sections 4573.6 and 4574, subdivision (a) to allow a defendant to be sentenced to county jail time, rather than state prison, the Legislature showed its intent to treat these offenses as ones that can be deemed misdemeanors at sentencing.
On May 8, 2017, at Deltoro's sentencing hearing, the court denied his motion. In doing so, the court noted that section 1170(h) did not make the charges at issue punishable alternatively as misdemeanors. It reasoned that just because the Legislature changed the punishment for some felonies from a prison commitment to a local commitment pursuant to section 1170(h), it did not make "wobblers" of all felony charges punishable pursuant to that section.
The court then suspended imposition of sentence and placed Deltoro on probation for five years conditioned on him serving 90 days in local custody. It also signed the request for a certificate of probable cause contained in an executed notice of appeal provided by defense counsel and it ordered the clerk to file the appeal.
DISCUSSION
Deltoro contends defense counsel provided ineffective representation by advising him to forgo the prosecutor's plea offer and plead guilty to both felonies for the benefit of being able to litigate an "unsupportable and unwinnable legal theory." We agree that Deltoro was denied the effective assistance of counsel in entering his plea.
"The burden of proving ineffective assistance of counsel is on the defendant. [Citation.] To establish constitutionally inadequate representation, the defendant must show that (1) counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel's deficient representation subjected the defense to prejudice, i.e., there is a reasonable probability that but for counsel's failings the result would have been more favorable. [Citations.] When a defendant makes an ineffectiveness claim on appeal, the appellate court must look to see if the record contains any explanation for the challenged aspects of representation. If the record sheds no light on why counsel acted or failed to act in the manner challenged, 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation' [citation], the case is affirmed [citation]." (People v. Babbitt (1988) 45 Cal.3d 660, 707, italics added.)
"[A] defendant 'is entitled to representation at every step of the proceedings, including the aid of counsel to enable an intelligent decision as to his plea.' [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." (People v. McCary (1985) 166 Cal.App.3d 1, 7; see also In re Alvernaz (1992) 2 Cal.4th 924, 934 (Alvernaz).) Further, when a defendant demonstrates that ineffective representation at the pretrial stage of a criminal proceeding caused him or her to accept an indicated sentence by the court rather than accept a more favorable offer of a plea bargain that would have been approved by the court, the defendant has been deprived of the constitutional right to the effective assistance of counsel. (Cf. Alvernaz, at p. 928 [defendant denied effective assistance of counsel when defendant demonstrates that ineffective representation caused him or her to proceed to trial rather than accept favorable plea bargain that court would have approved].)
The court's comments quoted earlier indicate that prior to taking Deltoro's plea, the prosecutor offered to allow Deltoro to plead to only one count if he waived his right to appeal. Deltoro, however, wanted to preserve his right to appeal because defense counsel believed there was an issue "related to [section] 1170(h)" that might affect "the reach of [ ] section 17(b)." The court then indicated that if Deltoro pled guilty to both charges, it would place him on probation and, if it ruled adversely on his motion, it would issue a certificate of probable cause apparently because defense counsel believed he would need a certificate to appeal a denial of his motion. (See § 1237.5 [no appeal shall be taken from a plea of guilty or nolo contender unless the "trial court has executed and filed a certificate of probable cause for such appeal"].) It is clear from the court's comments as a whole, Deltoro's desire to accept the prosecutor's plea offer, and his acceptance of the court's less favorable indicated sentence, that Deltoro rejected the prosecutor's plea offer based on defense counsel's advice that the court had jurisdiction to reduce Deltoro's convictions to misdemeanors.
The court's comments are ambiguous with respect to whether the prosecutor would only accept a plea to one count if Deltoro waived his right to appeal. The comments can also be interpreted to mean that the court and the parties believed Deltoro could not appeal a denial of a motion to reduce his convictions to misdemeanors unless he had a certificate of probable cause and that the prosecutor had to agree to the issuance of the certificate. However, Deltoro did not need a certificate of probable cause to appeal the subsequent denial of his motion because it occurred after he entered his plea and did not challenge its validity. (People v. Myers (2009) 170 Cal.App.4th 512, 515 (Myers).) Further, section 1237.5, which, as noted below, authorizes the court to issue a certificate of probable cause, does not require the court to obtain the prosecutor's consent before it issues a certificate. Since the court is presumed to know the law (People v. Torres (1950) 98 Cal.App.2d 189, 192), we interpret the court's comments relating to Deltoro's desire not to waive his right to appeal to mean that the prosecutor's proffered plea bargain required Deltoro to waive his appellate rights.
As amended by the Realignment Act (Stats. 2011, ch. 15, § 1), section 1170, subdivision (h), as pertinent here, provides:
" ... a felony punishable pursuant to this subdivision shall be punishable by imprisonment in a county jail for the term described in the underlying offense...."
As amended by the Realignment Act, section 17 provides:
"(a) A felony is a crime that is punishable with death, by imprisonment in the state prison, or notwithstanding any other provision of law, by imprisonment in a county jail under the provisions of subdivision (h) of section 1170. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions. [¶] (b) When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following [specified] circumstances ...." (Italics added.)
"A 'wobbler' is an offense that, in the court's discretion, may be punished as either a felony or misdemeanor. [Citation.] However, unless an alternate punishment is authorized by statute, a trial court has no power to reduce a straight felony to a misdemeanor." (Myers, supra, 170 Cal.App.4th at p. 516, italics added; People v. Parks (2013) 56 Cal.4th 782, 790, citing People v. Superior Court (Alvarez) 14 Cal.4th 968, 974, fn. 4 ["Section 17(b) outlines the procedural mechanisms by which a trial court may classify an offense as a misdemeanor [citation], whereas the sentencing discretion itself derives from the various charging statutes that provide alternative felony or misdemeanor punishment."].)
"[Section 17(b)] does not confer upon the trial court the authority to reduce a straight felony to a misdemeanor. [Citations.] ... When the Legislature has classified an offense as a felony without providing for an alternate punishment, a trial court exceeds its jurisdiction 'in purporting to reduce the offense to a misdemeanor.' " (People v. Feyrer (2010) 48 Cal.4th 426, 441-442 (Feyrer).)
Generally speaking, section 4573.6, subdivision (a) prohibits the possession of certain controlled substances in a penal institution whereas section 4574 prohibits bringing firearms, deadly weapons and explosives into said institution. Violation of either section is, "punishable by imprisonment pursuant to subdivision (h) of section 1170 for two, three, or four years." (§§ 4573.6, subd. (a) & 4374, subd. (a), italics added.) As noted above, section 1170(h)(2) provides that "a felony punishable pursuant to this subdivision shall be punishable by imprisonment in a county jail for the term described in the underlying offense." Thus, pursuant to section 4573.6, 4574 and section 1170(h)(2), a violation of either section 4573.6 or 4574 is felony that is punishable pursuant to section 1170(h)(2) by a term of imprisonment in county jail of two, three, or four years. Further, since neither section 4573.6 or 4574 provides for alternate punishment, the court did not have discretion to reduce either of Deltoro's convictions to a misdemeanor. Thus, the court acted within its jurisdiction when it denied defense counsel's motion to reduce Deltoro's convictions to misdemeanors. (Feyrer, supra, 48 Cal.4th at pp. 441-442.)
Compare with second degree burglary which is a wobbler offense because it provides for alternate punishment: "Burglary is punishable as follows: [¶] ... [¶] (b) Burglary in the second degree: by imprisonment in the county jail not exceeding one year or imprisonment pursuant to subdivision (h) of section 1170." (§ 461, subd. (b), italics added.)
Defense counsel argued in his moving papers and at the hearing on the motion that the court had jurisdiction to reduce Deltoro's convictions to misdemeanors because his offenses were punishable in county jail pursuant to section 1170(h) and section 17(b), which were amended to apply to crimes requiring imprisonment in county jail pursuant to section 1170(h). The sum total of defense counsel's argument was that, "In amending Sections 4573.6 and 4574[, subd. ](a) to be sentenced to county jail, time rather than prison, the Legislature had shown its intent to treat these offenses as ones that can be deemed misdemeanors at sentencing."
However, it does not follow that simply because the Realignment Act allows some felonies to be punished in county jail pursuant to the provisions of section 1170(h) this indicates the Legislature intended to allow these felonies to be reduced to misdemeanors. Further, counsel's trial court argument did not address established case law, including Supreme Court precedent, that clearly holds that a trial court exceeds its jurisdiction "in purporting to reduce ... to a misdemeanor" a felony that does not provide for alternate punishment. (Feyrer, supra, 48 Cal.4th at pp. 441-442; Myers, supra, 170 Cal.App.4th at p. 516.) It also ignored the plain language of section 17(b), which authorizes the reduction of a felony to a misdemeanor only "[w]hen a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or in county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail[.]" (Italics added.) Defense counsel's argument and advice to Deltoro that the court had jurisdiction to reduce Deltoro's convictions to misdemeanors were clearly erroneous because they were contrary to established precedent and the unambiguous wording of the relevant statutes. Further, we can conceive of no tactical reason for defense counsel to advise Deltoro to forgo a favorable plea bargain in order to pursue a motion that had no realistic chance of success. Accordingly, we conclude that defense counsel provided Deltoro ineffective representation in entering his plea, which resulted in Deltoro rejecting the prosecutor's more favorable plea bargain.
Respondent cites People v. Scott (1997) 15 Cal.4th 1188 (Scott), to contend that defense counsel was not incompetent because he presented a motion that had little, if any, chance of being granted. Scott was a death penalty case in which the Supreme Court found that counsel was not incompetent for presenting a defense that the court assumed "was a forlorn hope." In reaching this conclusion the court stated: "Many defenses are hopeless, or nearly so. A defense attorney has to make do with the facts presented. On this record, in light of defendant's confession, we cannot say counsel had a better alternative available." (Id. at p. 1215, italics added.) Scott is inapposite because here, defense counsel had a better alternative available: he could have advised Deltoro to accept the prosecution's proffered plea bargain. --------
In Alvernaz, the Supreme Court held that when counsel's deficient representation results in the defendant rejecting a plea offer, "[t]o establish prejudice, a defendant must prove there is a reasonable probability that, but for counsel's deficient performance, the defendant would have accepted the proffered plea bargain and that in turn it would have been approved by the trial court." (Alvernaz, supra, 2 Cal.4th at p. 937.)
Since Deltoro did not have a prior record, his acceptance of the prosecutor's plea offer would have resulted in only one felony conviction on his record instead of two. It would also have limited his maximum exposure to four years instead of five years (§§ 4573.6, subd. (a), 4574, subd. (a), 1170(h), & 1170.1, subd. (a)) if he violated probation. In view of the foregoing, we find it is reasonably probable Deltoro would have accepted the prosecutor's plea offer if defense counsel had not erroneously advised him that the trial court had jurisdiction to reduce his convictions.
Further, it can be inferred from Deltoro's lack of a prior record and the court's failure to express any reservations about the prosecutor's proffered plea bargain that the court would have approved of that agreement if Deltoro had accepted it. Thus, we conclude that Deltoro was denied the effective assistance of counsel in entering his plea.
DISPOSITION
The judgment is vacated and the case is remanded to the trial court. On remand, the district attorney may elect, within 30 days of the issuance of the remittitur, to: (1) submit the previously offered plea bargain to the trial court for its approval; or (2) set the case for trial and, if the district attorney so chooses, resume the plea negotiation process. If the district attorney chooses to submit the previously offered plea bargain to the court and the court approves the plea bargain, the judgment shall be modified consistent with the terms of the plea bargain and as so modified, reinstated. (People v. Alvernaz (1992) 2 Cal.4th 924, 944.)