Opinion
A167340
06-25-2024
THE PEOPLE, Plaintiff and Respondent, v. SIONE KEALOHA MOTUAPUAKA, Defendant and Appellant.
NOT TO BE PUBLISHED
(San Mateo County Super. Ct. No. SC068620A)
TUCHER, P.J.
Defendant Sione Kealoha Motuapuaka appeals an order resentencing him for the second time after the trial court was informed of errors in his original sentence. His counsel filed an opening brief raising no issues and asking this court for an independent review of the record. (People v. Wende (1979) 25 Cal.3d 436.) Defendant has personally filed a supplemental brief. We find no merit in the issues defendant raises.
BACKGROUND
We are familiar with the background of this case through our review of a prior appeal, People v. Motuapuaka (Mar. 28, 2022, A161306) [nonpub. opn.] (No. A161306), from which we quote at length:
"This case arises out of a plea agreement defendant made in 2010. He was charged with seven counts of second degree burglary, one count of attempted robbery, four counts of second degree robbery, five counts of possession of a firearm by a felon, one count of theft, one count of false imprisonment, one count of kidnapping, one count of kidnapping for purposes of robbery, two counts of oral copulation by force or fear, and one count of assault with a firearm, along with numerous enhancement and prior conviction allegations.
"Defendant entered into a negotiated disposition whereby he pled guilty to two counts of second degree burglary (Pen. Code, § 460, subd. (b); counts 1 and 4), four counts of second degree robbery (§ 212.5, subd. (c); counts 7, 11, 14, and 18); false imprisonment (§ 236; count 8); kidnapping (§ 207, subd. (a); count 23), and assault with a firearm (§245, subd. (a)(2); count 24). He also admitted, among other allegations, three firearm enhancements under section 12022.53, subdivision (b) (§ 12022.53(b)) and one under section 12022, subdivision (a)(1). The plea form indicated that the maximum possible sentence for these offenses was 66 years but that the parties stipulated defendant would receive a term of 60 years. The trial court imposed the negotiated prison sentence on March 5, 2010.
All undesignated statutory references are to the Penal Code.
Defendant appealed, and a different panel of this division reversed the requirement that defendant register as a sex offender, remanded for the trial court to exercise its discretion on that issue under the correct legal standard, and otherwise affirmed the judgment. (People v. Motuapuaka (Dec. 27, 2010, A127998) [nonpub. opn.].) ....
"Ten years later, the CDCR notified the trial court of a possible error in the sentence, in that the sentence included three full 10-year terms for the section 12022.53(b) firearm enhancements, and two of them, which were attached to subordinate terms for the substantive offenses (counts 7 and 14), should have been instead one-third the middle term, or three years and four months each. (§ 1170.1, subd. (a).)
"Defendant filed a motion to correct the sentence, asking the court to reduce the two ten-year enhancements for counts 7 and 14 to three years and four months each, for a total prison term of 46 years and eight months. In response, the People acknowledged the sentence must be corrected to reduce those subordinate enhancements to one-third the middle term, and they further explained that the one-year firearm enhancement under section 12022, subdivision (a)(1) should be reduced to four months, for the same reason. If there were no further changes to the sentence, it would then be 46 years. But the People also noted that when resentencing, the court had discretion to reconsider all aspects of the sentence, as long as the new sentence did not exceed the initial aggregate sentence. (See People v. Hill (1986) 185 Cal.App.3d 831, 833-835.) The People asked the court to resentence defendant to a term as close [as possible] to the originally agreed-upon 60 years . . . by imposing for the principal term, count 23, the aggravated term of eight years (doubled for a strike prior) rather than the middle term of five years that had been included in the original sentence, for a total term of 52 years after the terms for the firearm enhancements were reduced.
"[Defendant was not present at the September 24, 2020 resentencing hearing. At the hearing,] [t]he prosecutor set forth the factual basis for the plea, which was part of the record of the 2010 proceedings: '[T]he defendant had previously been convicted of a strike offense, that being an attempted robbery, in 1994. And then in this case, between January 3rd of 2009 and February 8th of 2009, the defendant committed five armed robberies, a burglary, a kidnapping, and a sexual assault against one of those robbery victims, all in San Mateo County."
The trial court resentenced defendant, as the People requested, to a total term of 52 years. In case No. A161306 we reversed the order and remanded the matter for a new resentencing hearing because defendant had been deprived of his right to be personally present at the resentencing hearing, and the error was not harmless beyond a reasonable doubt. We also instructed the trial court to calculate credits for the time defendant had served in custody.
Defendant filed a new motion to correct the sentence. He asked the court to correct the void sentence by retaining the original principal term of 20 years for kidnapping (§ 207), and imposing subordinate terms of one-third the full term in place of the original unlawful sentences for enhancements.The People responded as they had to the prior motion, urging the trial court to reconsider all aspects of the sentence to bring the new sentence as close as possible to the originally agreed-upon term. The People proposed the same 52-year sentence they had successfully sought at the prior hearing.
It appears that, with the addition of the remaining counts, the total term defendant sought was approximately 42 years.
At the January 27, 2023 resentencing hearing, defendant was present and addressed the court. He also, through counsel, told the court he was not seeking a full resentencing but asking that the court correct the sentence as to only the unlawful enhancement terms without increasing the principal term. Counsel indicated that at a later date he would move for a full resentencing on other grounds.
Counsel told the court defendant was reserving the right to seek resentencing under "1170(d)." Section 1170, subdivision (d) authorizes a defendant who was under the age of 18 at the time of a crime for which the defendant was sentenced to life imprisonment without the possibility of parole to petition for recall and resentencing after 15 years of incarceration. This provision does not seem to apply to defendant. It is unclear whether counsel misspoke or whether there was a transcription error.
The trial court imposed the 52-year term requested by the People, calculated as the upper term of eight years for kidnapping (§§ 207, subd. (a), 208, subd. (a)), doubled for a strike (§ 1170.12, subd. (c)(1); count 23), with an additional 10 years for a firearm enhancement (§ 12022.53, subd. (b)); one year for each of four counts of second degree robbery (§§ 212.5, subd. (c), 213, subd. (a)(2); counts 7, 11, 14, &18), doubled for the strike, with an additional 3 years, four months for two of those counts (§ 12022.53, subd. (b)); one year for assault with a firearm (§ 245, subd. (a)(2); count 24), doubled for the strike; eight months for each of two counts of second degree burglary (§§ 460, subd. (b), 461, subd. (b), 1170, subd. (h); counts 1 &4), doubled for the strike, with an additional four months for a firearm enhancement as to one of those counts (§ 12022, subd. (a)(1)); eight months for false imprisonment by violence (§§ 236 &237, subd. (a); count 8), doubled for the strike; and an additional five years for a prior prison term enhancement (§ 667, subd. (a)). The trial court declined to calculate custody credits, stating the CDCR could do so.
Defendant initially filed an opening brief that raised only the trial court's failure to calculate custody credits. Defendant later informed us the issue was moot because the trial court had subsequently corrected and awarded appellant's presentence credits and amended the abstract of judgment accordingly. We granted defendant's request to strike his original brief, and his counsel filed a Wende brief in its place.
Defendant has personally filed a supplemental brief. He argues the new sentence constituted a breach of his plea bargain because the originally agreed-upon 10-year term for kidnapping was increased to 16 years; that his trial counsel rendered ineffective assistance in failing to argue that the plea agreement had been breached, that the trial court had discretion to strike a prior prison term enhancement, and that defendant was entitled to a full resentencing; and that his appellate counsel rendered ineffective assistance in failing to argue these points. None of these contentions has merit.
As to the first point, defendant is correct that a negotiated plea agreement is a form of contract, and when a guilty plea"' "is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement." '" (People v. Segura (2008) 44 Cal.4th 921, 930-931.) But it is also true that a defendant who has pleaded guilty in return for a specified sentence is not entitled to more than the bargained-for benefits. (See People v. Nguyen (1993) 13 Cal.App.4th 114, 122-123.) Rather, "[f]or a sentence to violate a plea bargain, it must impose a 'punishment more severe' than whatever the defendant agreed to." (People v. Kim (2011) 193 Cal.App.4th 1355, 1359.)
Here, defendant agreed to plead guilty in return for a stipulated sentence of 60 years. Although the sentence the trial court imposed on resentencing is structured differently than that contemplated by the parties when entering into the plea agreement, defendant has in fact received more than the benefit of his bargain, as his total sentence has been reduced by eight years. He has shown neither that the trial court erred nor that his counsel rendered ineffective assistance in failing to argue this point.
In fact, his counsel did ask the trial court to retain the original 10-year term for kidnapping.
Nor has defendant shown his counsel rendered ineffective assistance by not arguing the trial court had discretion to strike a prior prison term enhancement under an amendment to section 1385 directing trial courts to consider and "afford great weight" to various factors-including whether multiple enhancements were alleged and whether an enhancement is based on a conviction that is more than five years old-when deciding whether to dismiss an enhancement. (§ 1385, subd. (c); Stats. 2021 ch. 721, § 1), and in failing to argue he was entitled to a full resentencing under recent legislative amendments.
To show ineffective assistance of counsel, defendant must show that counsel's performance fell below an objective standard of reasonableness under professional norms, and that there is a reasonable probability that he would have achieved a more favorable result absent counsel's deficient performance. (People v. Brand (2021) 59 Cal.App.5th 861, 872.) Where such a claim is brought on direct appeal, we reverse "only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation." (Ibid.)
This record does not show that there was, or could be, no rational tactical purpose for counsel's actions. Counsel's goal at the hearing was to persuade the court to stick to the original structure of the plea agreement as much as possible by keeping the same primary term, while reducing the unlawful terms for the enhancements. While this approach was not successful in persuading the court to impose a total sentence of less than 52 years, we cannot say it was irrational for counsel to seek to focus the hearing entirely on correcting the unlawful portions of the sentence. Counsel had reason to believe, based on the outcome of the previous resentencing hearing, that a full resentencing might not be in defendant's interest, since it would enable the court to reimpose the aggravated term for count 23.
Balanced against the risk of an aggravated term was a potential benefit, if defendant could persuade the trial court to exercise its discretion to strike defendant's five-year prison prior or any of the firearm enhancements. (See § 1385, subds. (c)(2)(C) &(H) [in exercising discretion to strike enhancements, "court shall consider and afford great weight to evidence" that resulting sentence exceeds 20 years or that prior conviction is more than five years old].) But any such relief would have been at the court's discretion.And there was a risk associated with the potential benefit, namely that if the court exercised its discretion under section 1385, the People could seek to withdraw from the plea agreement. (See People v. Stamps (2020) 9 Cal.5th 685, 700 ["section 1385 ordinarily does not authorize a trial court to exercise its discretion to strike in contravention of a plea bargain for a specified term"]; People v. Prudholme (2023) 14 Cal.5th 961, 971 [same].) Counsel could reasonably have assessed that his stronger and safer argument was to advocate against imposing an aggravated term on count 23 by adopting, to the extent possible, all of the components of the originally negotiated sentence. Defendant has not shown ineffective assistance under the standards applicable to direct appeals.
Defendant mentions a provision of Senate Bill No. 483 (2021-2022 Reg. Sess.) that renders invalid enhancements imposed under section 667.5, subdivision (b) that are unrelated to a prior sex offense. (See § 1172.75, subd. (a).) Relief under this provision would not have been discretionary, but no such enhancement was imposed in this case.
Having reached these conclusions, we necessarily reject defendant's claim that his appellate counsel rendered ineffective assistance by filing a brief that did not raise those issues.
Finally, defendant urges that we "must recognize[] his exemplary behavior regarding rehabilitation." We applaud the progress defendant reports in understanding and addressing the causes of his prior criminality, and we previously vacated the court's resentencing order so that defendant could be present in court to share this information. But we cannot say that it was legal error for the trial court to impose the 52-year sentence here, in spite of this progress.
We note that this is an appeal from an order denying postconviction relief, not a first appeal as of right from a criminal conviction. As a result, defendant is not entitled to independent review of the record under Wende. (See People v. Delgadillo (2022) 14 Cal.5th 216, 226; People v. Hodges (2023) 92 Cal.App.5th 186, 188-189.) However, in the course of examining the issues defendant raises we have carefully reviewed the record, and we find no meritorious issues.
DISPOSITION
The judgment is affirmed.
WE CONCUR: FUJISAKI, J. RODRÍGUEZ, J.