Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07HF2496, Richard F. Toohey, Judge.
Original proceedings; petition for writ of habeas corpus, after an order of the Superior Court of Orange County.
David L. Annicchiarico, under appointment by the Court of Appeal, for Defendant and Appellant and for Petitioner.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Kevin Vienna, Deputy Attorney General, for Plaintiff and Respondent and for Respondent.
OPINION
FYBEL, J.
Introduction
As part of an agreement, James Elwyn Fraser pleaded guilty to some 26 counts, including counts for residential burglary, grand theft, theft of a firearm, vehicular theft, receiving stolen property, and possession of a firearm by a felon. The trial court sentenced him to 19 years four months in prison. In this consolidated appeal and petition for writ of habeas corpus, Fraser argues (1) the trial court violated the terms of the plea agreement by imposing concurrent sentences on counts 12, 15, 17, 19, 20, 21, 24, and 25, instead of staying execution of sentence on those counts pursuant to Penal Code section 654; and (2) his trial counsel was ineffective by not seeking dismissal of, and by permitting him to plead guilty to, two counts of receiving stolen property.
Further code references are to the Penal Code unless otherwise indicated.
We conclude the plea agreement provided for staying execution of sentence on the eight counts identified by Fraser and specific performance of the agreement is the appropriate remedy. Thus, in the appeal, we modify the judgment to stay execution of sentence on counts 12, 15, 17, 19, 24, and 25. We also conclude, under section 496, subdivision (a), Fraser could not be convicted of the two counts of receiving stolen property because he was convicted of stealing the property received. We therefore grant the petition for writ of habeas corpus and reverse the conviction on counts 20 and 21, for receiving stolen property. In all other respects, we affirm.
Procedural History
An information charged Fraser with two counts of vehicle burglary in the second degree (§§ 459, 460, subd. (b) [counts 1 & 19]), 10 counts of residential burglary in the first degree (§§ 459, 460, subd. (a) [counts 2 5, 8 10, 14, 16, & 18]), one count of second degree burglary (§§ 459, 460, subd. (b) [count 6]), two counts of grand theft (§ 487, subd. (a) [counts 7 & 13]), one count of theft of a firearm (§ 487, subd. (d)(2) [count 11]), three counts of unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a) [counts 12, 15, & 17]), six counts of receiving stolen property (§ 496, subd. (a) [counts 20 & 23 27]), one count of receiving a stolen motor vehicle (§ 496d, subd. (a) [count 21]), and one count of possession of a firearm by a felon (§ 12021, subd. (a)(1) [count 22]). As to counts 10, 14, 16, and 18, the information alleged a person was present during the commission of the burglary (§ 667.5, subd. (c)(21)).
The information also alleged Fraser had a prior conviction for a serious and violent felony within the meaning of sections 667, subdivisions (a)(1) and (d), and 1192.7, and he had served three prior prison terms, under section 667.5, subdivision (b).
On February 16, 2010, Fraser pleaded guilty to each count and admitted each allegation in exchange for a negotiated prison term of 19 years four months. The trial court sentenced him to an aggregate prison term of 19 years four months.
The sentence was calculated as follows: a term of two years for count 2, which was doubled because of the prior strike (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)); a consecutive five year serious felony enhancement (§ 667, subd. (a)(1)); a one year enhancement for a 1997 prison prior (§ 667.5, subd. (b)); a consecutive term of one year four months for each of counts 3, 4, 5, 8, 9, 10, and 14; and a concurrent, midterm sentence for each of the remaining counts. In the interests of justice, the court struck for sentencing purposes the two remaining prison priors, and also struck the prior strike allegation as to counts 1 and 3 through 27.
Fraser filed a timely notice of appeal, and his appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Ca1.3d 436 (Wende). Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), appointed counsel provided information about several suggested issues and raised the question whether each issue was appealable “despite the fact that Mr. Fraser ultimately initialed the appeal-waiver line of the guilty plea form.”
We reviewed the guilty plea form and discovered Fraser had not initialed the appeal waiver line. For that reason, we issued an order permitting Fraser to file a supplemental opening brief and setting a briefing schedule pursuant to rule 8.212 of the California Rules of Court.
In January 2011, Fraser filed a petition for writ of habeas corpus, asserting ineffective assistance of counsel. We subsequently ordered Fraser’s appeal and writ petition to be consolidated.
Facts
Because Fraser pleaded guilty, the facts underlying his convictions are taken from the statement of the factual basis supporting the plea.
Fraser admitted that between June 19, 2007 and December 16, 2007, he unlawfully entered the inhabited dwelling houses of the following persons, with the intent to commit larceny: Hemjo Klein, Colleen Holthouse, Julie Sandler, Paolo Sassone Corsi, Gina Caviar, Ronald Gill, David Hansen, Monte Koch, Michael Ghourdjian, and Darren Foster. Hansen, Koch, Ghourdjian, and Foster were present during the burglaries of their homes.
On or between July 1, 2007 and July 30, 2007, and on or between December 15 and 16, 2007, Fraser unlawfully entered two locked motor vehicles with the intent to commit larceny. On or between September 15, 2007 and October 15, 2007, Fraser unlawfully entered a detached garage, owned by Jean Harris, with the intent to commit larceny. On or between October 10 and 11, 2007, and on or between November 12 and 13, 2007, Fraser took and carried away money and personal property of more than $400 in value from Robert McKray and Antonio Duarte.
On or between October 22 and 23, 2007, Fraser unlawfully took and carried away a firearm belonging to David Hansen. On or between November 12 and 13, 2007, on or between November 18 and 19, 2007, and on or between November 30, 2007 and December 1, 2007, Fraser unlawfully took and drove three motor vehicles without their owners’ consent and with the intent to permanently deprive their owners of possession.
On December 18, 2007, Fraser, a convicted felon, unlawfully possessed a firearm, and, on the same day, knowingly possessed and concealed the personal property obtained by theft from Antonio Duarte, Karen Montgomery, Jon McMaster, Jean Harris, Edward Warmington, and Edward Stapleton.
Discussion
I.
Fraser’s Appeal
A. Enforcing the Plea Agreement
In the appeal, Fraser argues the trial court erred by imposing concurrent sentences on counts 12, 15, 17, 19, 20, 21, 24, and 25, rather than staying execution of sentence on those counts pursuant to section 654. The Attorney General agrees with Fraser.
First, we address whether Fraser’s appeal is operative. As the Attorney General points out, Fraser did not obtain a certificate of probable cause permitting a challenge to the sentence, and the notice of appeal identified only the denial of his suppression motion as the ground of his appeal. A certificate of probable cause is not required to challenge a violation of a plea agreement occurring after entry of the plea. (People v. Rabanales (2008) 168 Cal.App.4th 494, 501; Cal. Rules of Court, rule 8.304(b)(4).) On the notice of appeal form, Fraser should have checked the box stating, “[t]his appeal is based on the sentence or other matters occurring after the plea, ” but the mistake is of no consequence. The purpose for checking one of the grounds for appeal following a guilty plea is to alert the court clerk whether a certificate of probable cause is required. (Cal. Rules of Court, rule 8.304(b)(3).) If the defendant’s notice identifies as the basis for the appeal either denial of a suppression motion or a ground arising after entry of the plea and not affecting its validity, then the reviewing court will not consider any issue affecting the validity of the plea unless the defendant obtains a certificate of probable cause. (Id., rule 8.304(b)(5).) Regardless whether Fraser checked the box for denial of a suppression motion or the box for matters occurring after the plea, he was not required to obtain a certificate of probable cause, and he is not challenging the validity of the plea.
A negotiated plea agreement is a form of contract interpreted according to general contract principles. (People v. Shelton (2006) 37 Cal.4th 759, 767.) “The usual remedies for violation of a plea bargain are to allow defendant to withdraw the plea and go to trial on the original charges, or to specifically enforce the plea bargain. Courts find withdrawal of the plea to be the appropriate remedy when specifically enforcing the bargain would have limited the judge’s sentencing discretion in light of the development of additional information or changed circumstances between acceptance of the plea and sentencing. Specific enforcement is appropriate when it will implement the reasonable expectations of the parties without binding the trial judge to a disposition that he or she considers unsuitable under all the circumstances.” (People v. Mancheno (1982) 32 Cal.3d 855, 860 861.)
The Tahl form shows the parties intended the trial court to stay sentence on counts 12, 15, 17, 19, 20, 21, 24, and 25, pursuant to section 654. On the Tahl form, “654” is written next to each of those counts under the category “Total Penalty Years.” Specific enforcement will implement the parties’ reasonable expectations and will not bind the trial court to a disposition the trial court considers unsuitable because staying sentence on counts 12, 15, 17, 19, 20, 21, 24, and 25 will not change the aggregate sentence of 19 years four months in prison. We therefore order the judgment modified to stay execution of sentence on counts 12, 15, 17, 19, 24, and 25 pursuant to section 654. We do not stay execution of sentence on counts 20 and 21 because, as explained in part II of the Discussion section, we are granting Fraser’s petition for writ of habeas corpus and reversing the convictions on those two counts.
In re Tahl (1969) 1 Cal.3d 122.
B. Potential Issues Pursuant to Anders
In the Wende/Anders brief, appointed counsel suggested five potential issues: (1) whether the trial court erred by denying Fraser’s motion to suppress; (2) whether the trial court erred by denying Fraser’s motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531; (3) whether concurrent sentences for counts 12, 15, 17, 19, 20, 24, and 25 constitute multiple punishment in violation of section 654; (4) whether the trial court violated the terms of the plea agreement by not staying execution of sentence on counts 12, 15, 17, 19, 20, 24, and 25; and (5) whether Fraser’s trial counsel was ineffective by permitting him to plead guilty to counts for which multiple conviction is not permitted.
We have addressed potential issues (3) and (4) in part I.A of the Discussion section, and address potential issue (5) in part II of the Discussion section. As to potential issues (1) and (2), we have examined the entire record and counsel’s argument and find no reasonably arguable issue. (Wende, supra, 25 Cal.3d 436.)
II.
Fraser’s Petition for Writ of Habeas Corpus
In the petition for writ of habeas corpus, Fraser alleges his trial counsel was ineffective by failing to seek dismissal of two counts of receiving stolen property and by permitting him to plead guilty to those counts. The Attorney General agrees Fraser could not be convicted on the two counts of receiving stolen property.
A defendant may not be convicted of stealing and receiving the same property. (§ 496, subd. (a); see People v. Ceja (2010) 49 Cal.4th 1, 3; People v. Allen (1999) 21 Cal.4th 846, 854.) Count 12 charged Fraser with stealing a motorcycle, and count 21 charged him with receiving the same stolen property. Count 13 charged Fraser with stealing money and personal property from Antonio Duarte, and count 20 charged him with receiving the same stolen property. Fraser therefore could not be convicted on counts 20 and 21 once he pleaded guilty to and was convicted on counts 12 and 13.
Fraser’s petition for writ of habeas corpus included a declaration from his trial counsel, who stated: “During plea negotiations, and at the time of [Fraser]’s sentencing, it did not occur to me that [Fraser] was pleading guilty to counts 20 and 21, in contravention of Penal Code section 496, subdivision (a)’s prohibition of dual convictions for theft and receiving the same stolen property. If I had noticed this error, I would have sought dismissal of both counts. I had no strategic reason for not moving for dismissal. The dismissal of these counts would not have affected the negotiated prison sentence of 19 years and 4 months.”
We therefore grant Fraser’s petition for writ of habeas corpus and reverse the convictions on counts 20 and 21.
Disposition
The judgment is ordered modified to stay execution of sentence on counts 12, 15, 17, 19, 24, and 25. Fraser’s petition for writ of habeas corpus is granted. The convictions on counts 20 and 21 are reversed. We direct the trial court to prepare an amended abstract of judgment and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, we affirm the judgment.
This court finds that Sonya K. Singh, State Bar No. 217816, provided incompetent representation to Fraser in Orange County Superior Court case No. 07HF2496, resulting in the reversal of his convictions on two counts in that matter. Therefore, pursuant to Business and Professions Code section 6086.7, subdivision (a)(2), the clerk of this court is ordered to forward a copy of this opinion to the State Bar upon return of the remittitur. At the same time, also pursuant to Business and Professions Code section 6086.7, subdivision (b), the clerk of this court shall notify Ms. Singh the matter has been referred to the State Bar.
WE CONCUR: O’LEARY, ACTING P. J., IKOLA, J.