Opinion
D040307/D40308.
7-22-2003
THE PEOPLE, Plaintiff and Respondent, v. PHILLIP CRAIG NYCHAY, Defendant and Appellant.
This is the third time this case has come before this court, arising out of the same set of charges. The charges and the various sentencing problems this case has presented arise out of two separate criminal complaints, SCD147200 and SCD149136.
On December 3, 1999, a second amended complaint was filed in case SCD147200, charging various drug-related offenses including count 5, transportation of a controlled substance.
Also on December 3, 1999, the prosecution filed a separate criminal complaint in SCD149136, charging Nychay with three additional drug offenses and an allegation of committing an offense (count 5 of the prior case) while on bail (Pen. Code, § 12022.1, subd. (d)).
Nychay pled guilty to possession of methamphetamine as a lesser offense of count 5 of SCD147200, and admitted the pending bail enhancement. The remaining charges were dismissed. In SCD149136, Nychay pled guilty to possession of methamphetamine for sale and admitted the on-bail enhancement.
Nychay was granted probation at the first sentencing. On February 3, 2000, probation was revoked and Nychay was sentenced to a term of five years, eight months.
In an unpublished opinion, this court reversed the probation revocation and remanded for further proceedings.
In September 2001, Nychays probation was again revoked and he was sentenced to a total term of four years, eight months in the two charged cases. The court suspended the execution of sentence and again granted probation.
On June 3, 2002, Nychays probation was again revoked, and he was sentenced to a term of six years, eight months for the two cases.
In an unpublished opinion filed December 16, 2002, this court granted Nychays petition for habeas corpus and ordered his sentence reduced to a total term of four years, eight months.
While Nychays petition for habeas corpus was pending, he also filed the above appeals. This court resolved the sentencing issues by writ given the extensive custody credits Nychay had accumulated and did not address the appeals.
Nychays present appeals (consolidated on Feb. 21, 2003) contend his probation revocation and prison sentence should be set aside. He contends his admission of probation violation should be vacated because the prosecutor at sentencing recommended an additional two years, which she said she would not recommend if Nychay admitted probation violation. To the extent we understand Nychays arguments, we reject them. We find the issue is first moot because of this courts action on habeas corpus. Second, we find the contention wholly unsupported by the record. We will affirm.
DISCUSSION
The only disputed issue regarding the sentence imposed in September 2001, was whether the on-bail enhancement could be applied in this case. In D040441 we fully resolved that issue in Nychays favor. His sentence was reduced to its undisputed term of four years, eight months. The current issue raised by Nychay is moot. To the extent he seeks to raise a different issue, he could have raised it in his writ petition but did not do so. (See People v. Munoz (1975) 51 Cal. App. 3d 559, 563, 124 Cal. Rptr. 322; People v. Wright (1969) 275 Cal. App. 2d 738, 739, 80 Cal. Rptr. 335.)
Even if we address the issue presented we find no support for it in the record. The entire dispute arises from the March 20, 2002 hearing. At that hearing Nychays regular counsel was unavailable and substitute counsel appeared. The transcript contains a long, rambling discussion of what to do; whether to proceed without counsel, to admit the violation or to wait for counsels return. Nychay spoke to the court at great length. He argued Proposition 36 covered his case, and if the court would follow that he would admit the violation immediately. The prosecutor objected and the court ruled Proposition 36 did not apply. Then Nychay argued about credits and continued to express conflicting views about the wisdom of proceeding, his credits, the length of the probable sentence and whether to wait for counsel. The trial judge and substitute counsel all urged him to wait.
During the discussion, the prosecutor observed: "There is one other issue that Mr. Nychay should consider when making his decision. If the court looks at the original probation report the actual recommendation was six years eight months. . . . I think the judge who stayed the time incorrectly stayed the time ignoring what Mr. Nychay had pled to. [P] If he wants to take the deal today for four years eight months, Im obviously not prepared to litigate that today. If I have to go forward with this I would like the court to relitigate the issue and argue for six years eight months which is consistent with the plea bargain."
It is from the last paragraph of this passage that Nychay conjures up a plea bargain with the prosecutor for a term of four years, eight months if he admitted a violation that day. First, we find that an illogical reading of the prosecutors remarks. She said there was a dispute about the proper term, which she was not prepared to litigate at that time. If she had to go forward she would argue for the six year, eight month term. In short, she was not making any promises whatever to Nychay. She was merely informing the court that there was a dispute, the merits of which she had not researched, but if pushed would argue for the greater sentence. Those statements cannot rationally be construed to be a promise in return for an admission.
In any event, Nychay finally listened to the trial judges advice and postponed any decision until he could get full advice from his counsel. At a later time, with the advice of counsel, Nychay admitted the probation violation. We have searched the record for any hint of the admission being in return for a promise. There is absolutely nothing in this record to support such a claim. Nychays decision to admit the violation was his own, after being fully informed of his options. The courts decision on sentencing, albeit incorrect in its final calculation, was not related to any "deals" with the prosecutor. Simply put, the trial court made a sentencing error, which this court has corrected.
There is nothing in the record of this case to support any further challenges to the finding of probation violation or regarding the sentencing.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, J., McINTYRE, J.