Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. YA064188, Mark Arnold, Judge.
Christopher A. Darden, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant Aaron Franklin pled guilty to three counts of second-degree robbery in violation of Penal Code section 211 and three counts of attempted second degree robbery in exchange for a sentence of 13 years in state prison. The plea agreement required appellant to appear for sentencing on March 12, 2007. The agreement specified that if appellant did not appear, he would receive the maximum sentence for his offenses of 24 years, 8 months in state prison. He did not appear. When appellant was eventually apprehended, the trial court sentenced him to 18 years, 4 months in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appeals from the judgment of conviction, contending that the trial court violated the plea agreement and denied him a hearing on whether his failure to appear was willful. He further contends that his counsel's failure to seek a withdrawal of the plea agreement constituted ineffective assistance of counsel. Respondent contends that the trial court erred in failing to impose section 1465.8 security fees on each conviction. We agree with respondent, and modify the judgment to add those fees. We affirm the judgment of conviction in all other respects.
Facts
On February 21, 2006, appellant and co-defendant Edward Kelsey committed three armed robberies and attempted to commit three additional armed robberies in Los Angeles, Torrance and Redondo Beach. Appellant and Kelsey used Kelsey's Lexus SUV, then appellant's BMW SUV to commit the robberies. The two pulled up to pedestrians, pointed a gun, and demanded money. The robberies began about 8:30 p.m. Appellant and Kelsey were stopped by police about 10:30 p.m., in Torrance, not far from the site of their two most recent robberies. Appellant was driving the BMW. Police found a loaded revolver in the car. Appellant had a cell phone belonging to one of the victims in his pocket.
Appellant was seventeen and a half years old at the time of the robberies.
On January 30, 2007, appellant entered into a plea agreement in this case. The agreement provided that if appellant appeared for sentencing on March 12, 2007, he would be sentenced to 13 years in state prison. If he failed to appear on that date, he would receive the maximum term of 24 years, 8 months in state prison. In the period between January 30 and March 12, appellant would be free on bail.
On February 14, 2007, the prosecutor filed a Motion for Reconsideration of Defendant's Bail Status. This motion was based on information obtained by police when they contacted appellant's bail bondsman to retrieve appellant's expired passport. A hearing was held on the motion on February 16. Appellant's counsel appeared and asked that the hearing be continued until February 20, so that he could contact appellant and have him present in court. The trial court agreed. The court initially stated that it was revoking bail. Appellant's counsel asked the court to wait until February 20 to make a bail determination. The court agreed. The court's final statement at the hearing was: "See you on Tuesday. Bail remains intact. Bail up to stand." The minute order for February 16 states in part: "Custody status: Bail to stand."
There is nothing in the record to indicate what, if anything, transpired on February 20. Appellant did not appear in court on March 12, 2007. He was eventually located by law enforcement officials on May 1, 2007. On May 2, appellant was sentenced to 18 years, 4 months in prison.
Discussion
1. Violation of plea agreement
Appellant contends that the trial court violated the terms of his plea agreement by issuing a bench warrant for appellant's arrest on February 16, 2007. We do not agree.
"A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound." (People v. Vargas (2001) 91 Cal.App.4th 506, 533.)
Appellant contends that the terms of his plea agreement required the court to allow him to remain free until his sentencing hearing on March 12, 2007. He contends that he was required to appear on March 12, and that in the interim, he could not go to the airport, obtain a new passport, or leave Los Angeles County.
Appellant omits at least one explicit term from the conditions of his plea agreement: he could not attempt to leave the United States.
The People made a motion to revoke appellant's bail because of new information suggesting that appellant was a flight risk. The circumstances suggested that the flight, if any, would be to Belize, where appellant had numerous family members. Thus, when the trial court held a hearing on February 16, the court was, in effect, investigating whether appellant was planning to leave the United States. There was no violation of the plea agreement in requiring appellant to appear and explain the possible violation of the plea agreement to the court.
Further, if the court did in fact issue a bench warrant at the February 16 hearing, the only reasonable understanding of the court's action was that it decided to hold any warrant until the next scheduled hearing on February 20. The trial court initially stated: "Consequently, the bail is revoked and a bench warrant is issued for his arrest. There's no bail." Appellant's trial counsel asked the court to reserve judgment until February 20, when counsel expected appellant to be present. The court replied: "That's exactly what I would do." The court concluded the hearing by stating: "Bail remains intact. Bail up to stand." Similarly, the minute order for February 16 refers to a warrant, but also expressly states: "Custody status: Bail to stand." We see no violation of appellant's plea agreement by the trial court's action of issuing, then holding, a bench warrant.
2. Ineffective assistance of counsel
Appellant contends that his trial counsel's failure to file a motion to withdraw appellant's guilty plea constituted ineffective assistance of counsel. We do not agree.
Appellant has the burden of proving ineffective assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, appellant must show that his counsel's performance fell below an objective standard of reasonableness, and that, but for counsel's error, a different result would have been reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.)
"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.)
The record does not show the reason for appellant's counsel's failure to file a motion to withdraw. The most obvious reason for his failure is a reasonable belief that the motion would not be successful. As we discuss, supra, the court's actions did not violate the plea agreement. "[A] [d]efense counsel is not required to advance unmeritorious arguments on [a] defendant's behalf." (People v. McPeters (1992) 2 Cal.4th 1148, 1173; see also People v. Grant (1988) 45 Cal.3d 829, 864-865 [to prevail on ineffectiveness claim based on counsel's failure to make a motion, defendant must show that such motion would have been successful].)
To the extent that appellant contends that section 1192.5 required the court to grant a motion to withdraw, appellant is mistaken. Section 1192.5 permits a defendant to withdraw his guilty plea if the trial court changes its mind and withdraws its approval of the plea agreement before pronouncement of judgment.
Appellant contends that the trial court's issuance of a warrant showed that the court had changed its minds, disapproved of the plea agreement and concluded that it could not go along with the agreed upon disposition. As we discuss, supra, investigating whether appellant was a flight risk was not a breach of the agreement. It did not signal a repudiation by the court of the agreement.
3. Hearing on failure to appear
Appellant contends that the trial court denied him a hearing on whether his failure to appear was willful.
Appellant did not request to call live witnesses on this issue, but instead chose to submit letters from his father and uncle explaining the reason for his failure to appear on March 12. The trial court indicated that it had read these materials, as well as an additional letter from a Chuck Kemplar which is not in the record on appeal. The court also considered argument from appellant's counsel in the form of a sentencing memorandum. Further, it appears that the trial court had an in-chambers discussion with counsel on this issue. We are not aware of any requirement that the trial court force a defendant to call live witnesses on this issue.
We do not agree with appellant that the court and the prosecutor were required to prove that appellant's failure to appear was willful. The court was certainly required to find that appellant's failure was willful, but could do so on any reasonable basis, including a failure by appellant to explain his absence. It was appellant who was required to provide an excuse for his failure to appear in court as he agreed and as the court ordered, that is to show that his failure was not willful. Here, appellant offered an excuse through family members. The court found that excuse insufficient. Nothing more was required.
4. Court security fee
Respondent contends that the trial court erred in failing to impose a section 1465.8 security fee on each count, and that the abstract of judgment must be amended to show these fees. We agree.
The trial court imposed only one $20 security fee. The court was required to impose this fee on each of the six counts to which appellant pled guilty, for a total of $120. (See People v. Alford (2007) 42 Cal.4th 749, 759, fn. 6; People v. Crittle (2007) 154 Cal.App.4th 368, 370-371.)
Disposition
A court security fee of $20 is imposed on all six counts pursuant to section 1465.8, subdivision (a)(1), for a total of $120. The clerk of the superior court is instructed to prepare an amended abstract of judgment reflecting these additional fines and to deliver a copy to the Department of Corrections and Rehabilitation. The judgment of conviction is affirmed in all other respects.
We concur: TURNER, P. J., MOSK, J.