Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. RIF118655. Charles W. Hayden, Judge. (Retired judge of the Santa Clara Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Paul R. Ward, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting, Felicity Senoski and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
INTRODUCTION
Manuel Moreno Sanchez (defendant) appeals the judgment and sentence for his “third strike” offense.
On September 10, 2008, we granted the People’s request for judicial notice of our opinion and the appellate record in case No. E037741. We take some of the facts and procedural history from those documents.
On June 11, 2004, defendant went into Money Mart, a check cashing establishment in Riverside, and tried to cash a fraudulent check for $900. A two-count information filed by the Riverside County District Attorney on July 19, 2004, charged him with burglary and possession of a completed check with intent to defraud. (Pen. Code, § 459, count 1; § 475, subd. (c), count 2.) The information also alleged that defendant had three prior serious and violent felonies or “strikes.” (§§ 667, subds. (c), (e)(2)(a), 1170.12, subd. (c)(2)(A).) These included: a 1982 conviction for attempted murder (§§ 664, 187); a 1986 conviction for robbery (§ 211); and a 1991 conviction for voluntary manslaughter (§ 192, subd. (a)).
The respondent’s brief, no doubt inadvertently, attributes the filing to the Orange County District Attorney.
All further statutory references are to the Penal Code unless otherwise indicated.
The information further alleged that defendant had served a prison term for a 2002 vehicle theft and had not remained free of custody for five years after his release. (Veh. Code, § 10851, subd. (a); Pen. Code, § 667.5, subd. (b).)
On the day of trial, January 19, 2005, defendant made a deal with the court. He pled guilty to the burglary and check fraud charges and admitted one prior “strike” and the prison prior. Over the People’s objection and without detailed explanation, the court then struck the remaining two “strike” convictions “in the interest of justice... within the confines of Williams and its progeny.” The court then sentenced defendant to a total of seven years in state prison: the upper term of three years for the burglary, doubled because of the remaining “strike,” plus one year for the prison prior. A six-year sentence for the fraudulent check offense was stayed pursuant to section 654.
People v. Williams (1998) 17 Cal.4th 148.
The People appealed, arguing that both the plea bargain and the sentence were illegal. In an opinion filed January 20, 2006, we agreed that the sentence was illegal. In view of our determination that the trial court had abused its discretion by dismissing the priors without stating on the record any reasons for finding that defendant fell outside the spirit of the “three strikes” law, we declined to specifically address the lawfulness of the plea bargain. Our opinion directed the trial court to proceed in accordance with one of two options: (1) to allow defendant to withdraw his plea and proceed to trial; or (2) to allow him to enter into a new plea agreement and be sentenced in conformity with controlling statutory and case authority.
According to the clerk’s minutes of a hearing on May 5, 2006, “Court and Counsel” conferred regarding our remittitur. Again according to the minutes, after his previous sentence was vacated and he was ordered resentenced on his two admitted felonies, defendant withdrew his guilty pleas and his admission of the prior “strike” and pled not guilty to all charges. Jury trial was set for July 27, 2006. The single-page reporter’s transcript of the May 5 hearing shows that when the court informed defendant that he had a right to go to trial within 60 days of the receipt of the remittitur and asked if the later date was acceptable to him, defendant replied, “Yes, sir.” The reporter’s transcript contains no details of the conference between the court and counsel and no dialog memorializing defendant’s plea.
A year later defendant sought to change attorneys. On April 20, 2007, the trial court conducted a Marsden hearing. (People v. Marsden (1970) 2 Cal.3d 118.)
Three days after the Marsden hearing, on April 23, 2007, the district attorney filed an amended information. The amended information reiterated all the original charges and allegations and added an additional prior offense, a 1989 conviction for carrying a concealed firearm. (§ 12025, subd. (a).) The amended information also added prison allegations as to all five of defendant’s priors. (§ 667.5, subd. (b).) Trial began on April 23, 2007.
On April 25, 2007, while the jury was deliberating, the court held a separate trial on the prison priors and “strike” allegations and found them all true. On April 26, the jury acquitted defendant of burglary (count 1), but split evenly on the fraudulent check possession charge (count 2).
As retrial on count 2 began on September 20, 2007, the parties stipulated their acceptance of results of the earlier trial on the priors. On September 24, 2007, the new jury convicted defendant of count 2.
On October 18, 2007, defendant filed a Romero motion seeking dismissal of his prior “strike” convictions. At the sentencing hearing on October 26, the court denied the Romero motion, pointing out that the purpose of the “three strikes” law is not just to punish an offender for his most recent crime, but for his ongoing record of criminal behavior. Defendant’s current crime was “relatively minor,” said the court, but he had been out of prison for only about three years of his adult life. “[T]here comes a time when people have, in effect, forfeited their right to walk around free.”
People v. Romero (1994) 8 Cal.4th 728.
The court sentenced defendant to an indeterminate term of 25 years to life, plus one concurrent year for each of the prison priors.
This appeal followed.
DISCUSSION
Defendant’s primary argument is that the trial court did not follow our directions in the remittitur and, therefore, had no jurisdiction to conduct any of the subsequent proceedings. If we find that the trial court did follow our directions, defendant suggests that he received ineffective assistance of counsel because his attorney failed to “remind[] the trial court that [his] plea was still in effect” and seek reinstatement of his original seven-year sentence. The record supports neither of defendant’s arguments.
Incomplete Reporter’s Transcript:
Defendant’s contention that the trial court did not follow our directions is based first on the incompleteness of the reporter’s transcript. We agree with his observation that the transcript is incomplete in that it does not record the content of the conference between court and counsel, but not with his conclusion that because the conference was not transcribed it must not have taken place.
The situation here is similar to that described by the trial court in People v. Malabag (1997) 51 Cal.App.4th 1419 (Malabag), cited by both parties. In Malabag, the clerk’s minutes, but not the “truncated” reporter’s transcript, reflected the defendant’s waivers to formal arraignment and his right to a revocation hearing. The silence of the transcript, he contended on appeal, established that no waivers had occurred. (Id. at pp. 1421-1422.) The appellate court denied his requests for reversal of orders revoking probation and executing a suspended sentence, noting first that in the face of a silent record the judgment of the trial court is presumed correct. To prevail on appeal, error must be affirmatively shown. (Id. at pp. 1422-1423, citing Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The court further noted that while the reporter’s transcript was incomplete, it did not contradict the minutes. (Malabag, at p. 1422.) Similarly here, the reporter’s transcript is admittedly incomplete, but it in no way contradictsthe minutes, which clearly state that defendant withdrew his earlier guilty pleas. Defendant has made no affirmative showing of error.
The Malabag court further noted that “[i]n the case before us, there is at least an inference the waivers were taken in proceedings unattended by the reporter.” (Malabag, supra, 51 Cal.App.4th at p. 1424.) Again, this is similar to the situation in our case. The minutes specifically state that court and counsel “confer[red]” regarding our remittitur. The very next entry indicates that defendant’s previous sentence was vacated and that he was to be resentenced as to both counts, presumably in accordance with controlling statutory and case law, as we had specified.
Defendant supplements his argument that the trial court did not follow our directions by suggesting that our opinion must be interpreted to contain a third option, implied by the fact that we did not expressly address the legality of his plea agreement. We agree with the People that defendant “creates this new third option out of whole cloth.” He does so by ignoring the words of the options we gave him as well as his own actions following receipt of the remittitur. We said he could withdraw his plea and proceed to trial or he could enter into a new plea agreement and be sentenced in conformity with controlling law. Neither of these options could have been exercised while keeping the old plea agreement in effect. Through his attorney, defendant first tried to exercise the second option but was apparently unable to do so on terms satisfactory to him, that is, the sentence contained in his original bargain. Once the benefit he expected from the bargain evaporated, defendant was (understandably) no longer interested in the agreement. So he chose the other option: he withdrew his guilty pleas and proceeded to trial. There is absolutely no support for his assertion that, “[o]n remand, [defendant] neither withdrew his plea nor entered into a new plea agreement. Instead he was simply tried.” He was not “simply tried.” Our failure to rule explicitly on the legality of the agreement did not mean that it remained in effect and that he could ignore the choices we gave him and make up one he liked better. It meant that an explicit ruling on the legality of the plea was unnecessary.
Ineffective Assistance of Counsel:
To establish ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that the deficiencies prejudiced his defense. (Strickland v. Washington (1984) 466 U.S. 668, 687.) Prejudice is shown when there is a reasonable possibility that the defendant would have obtained a more favorable outcome absent counsel’s alleged deficiency. (Ibid.) However, “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” (Id. at p. 697.)
Here, we find neither deficiency on counsel’s part nor prejudice to defendant by any of counsel’s actions or inactions. Counsel negotiated a light sentence for her “third-striker” client by initially persuading the trial court to dismiss two of his three prior “strike” offenses. After our opinion finding the dismissals, without a statement of reasons, an abuse of discretion, she was understandably unable to renegotiate that sentence and had no choice other than to go to trial. But then—despite the strength of the evidence against him—she managed to obtain an acquittal on one felony charge and a hung jury on the second one. Except for full acquittal, it is hard to imagine a more favorable outcome.
Defendant also argues that his counsel’s performance was deficient because she did not remind the court “that [his] plea was still in effect and that directions from this court required the trial court to offer [him] the options of withdrawing his plea, entering into a new plea agreement or simply being resentenced.” As we have explained, his original plea could not remain in effect under either of the options offered in our directions. And if he had simply been resentenced in conformity with controlling statutory and case authority, with two new admitted felonies and three prior “strikes” on his record, he would have received the 25 years-to-life sentence without further ado. In sum, there was nothing for counsel to draw to the court’s attention and no prejudice to defendant from counsel’s inaction. Defendant may be unhappy with the jury’s verdict after his retrial on the fraudulent check charge, but he certainly cannot fault his attorney’s efforts.
Ultimately, defendant’s problem was not with counsel’s performance but with his own criminal history. As the trial court explained when it rejected his Romero motion, his long record could not support a finding that he fell outside the spirit of the “three strikes” law: “[T]here comes a time when people have, in effect, forfeited their right to walk around free.”
Prison-prior Enhancement Errors:
As we reviewed defendant’s record, it became evident that the trial court had erroneously sentenced him to concurrent rather than consecutive terms for his prison-prior enhancements as required by section 667.5, subdivision (b). We requested supplemental briefing on the matter and will remand the case to the trial court for resentencing on this point only.
We misread the abstract of judgment and the reporter’s transcript and concluded that the court had only sentenced defendant to four one-year enhancements under section 667.5, subdivision (b). In fact, as both parties point out in their supplemental letter briefs, the court imposed five, not four, concurrent prison-prior enhancements. It is the abstract of judgment that is in error.
Under the provisions of section 667.5, subdivision (b), prison-prior enhancement terms must be imposed consecutively. However, as appellant’s counsel points out, under section 1385, the trial court has discretion to strike these priors for sentencing purposes. If, on remand, the court does choose to strike the prison priors, it must enter a statement of reasons for the decision. (People v. Bradley (1998) 64 Cal.App.4th 386, 392-396.)
The People note that the trial court declined to strike any of defendant’s prior serious convictions as requested in his Romero motion and imply that it therefore would also not have stricken any of his five prison priors for purposes of enhancements under section 667.5. We are not so certain of how the court would have chosen to proceed and will therefore allow it to exercise its discretion on this point. We express no opinion as to its choice.
DISPOSITION
That portion of the judgment imposing concurrent sentences for the enhancements under Penal Code section 667.5, subdivision (b), is reversed. The matter is remanded to the Superior Court of Riverside County with directions for it to hold a new sentencing hearing and to either impose the enhancements consecutively or to strike some or all of them in accordance with the provisions of Penal Code section 1385. The court is to order all related corrections to the abstract of judgment and to forward a corrected copy of the abstract to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
We concur: HOLLENHORST, J., KING, J.