Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. Nos. SCR477469 & SCR489359
Kline, P. J.
Demetrie L. Simmons (appellant) was convicted, following pleas of guilty and no contest, of felony possession of cocaine, misdemeanor possession of drug paraphernalia, misdemeanor driving with a suspended license, felony failure to register as a sex offender, and misdemeanor failure to provide registration information. On appeal, he contends (1) at sentencing, the trial court failed to exercise its discretion to strike an on-bail enhancement, and (2) only one of two terms for a prior prison term enhancement was properly imposed.
Appellant also has filed a petition for writ of habeas corpus, which we have consolidated with the direct appeal, alleging that defense counsel provided ineffective assistance during plea negotiations and at sentencing.
We shall order that the duplicate term imposed for the prior prison term enhancement be stricken. We shall otherwise affirm the judgment and deny the petition for writ of habeas corpus.
Procedural Background
Appellant was charged by information in case No. SCR477469 with felony possession of cocaine (Health & Saf. Code, § 11350, subd. (a)); misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)); and misdemeanor driving with a suspended license (Veh. Code, § 14601.1, subd. (a)). It was further alleged that appellant had suffered two prior serious or violent felonies under the three strikes law (Pen. Code, § 1170.12), and two prior prison term convictions (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant was subsequently charged by amended information in case No. SCR489359 with felony failure to register a new change of address and location, as a sex offender (§ 290, former subd. (f)(1)(A)), with an on-bail enhancement allegation (§ 12022.1), and misdemeanor failure to provide registration information (§ 290, former subd. (e)(2)). The information further alleged the same two strike priors and one of the two prior prison terms as did the information in case No. SCR477469.
Pursuant to a plea agreement, appellant entered a negotiated plea of guilty in case No. SCR477469 to felony possession of cocaine, misdemeanor possession of drug paraphernalia, and misdemeanor driving with a suspended license. He also admitted one of the two charged prior strike allegations and one of the two prior prison term allegations.
Appellant also pleaded no contest in case No. SCR489359 to felony failure to register as a sex offender, and misdemeanor failure to provide registration information. He admitted the on-bail enhancement and the same prior strike and prior prison term allegations as in the earlier-charged case.
Pursuant to the plea bargain in each case, one of the prior strikes and one of the prior prison term allegations were taken under submission by the court, to be dismissed at the time of sentencing. There was an indicated sentence of six years total on both cases, including an agreement that the maximum prison term exposure would be seven years. A third case (case No. SCR464647) was to be dismissed with a Harvey waiver.
People v. Harvey (1979) 25 Cal.3d 754, 758.
On September 19, 2007, the trial court sentenced appellant to a total of six years in state prison, which included, in case No. SCR489359, a base term of 16 months (the mitigated term) on the felony failure to register count, doubled to 32 months (due to the strike prior); 60 days concurrent for the misdemeanor failure to register count; and two years consecutive for the on-bail enhancement. The court imposed and stayed the one-year term on the prior prison term enhancement. In case No. SCR477469, the court added a one-third the midterm eight-month term, doubled to 16 months consecutive (due again to the prior strike) for the cocaine possession count, and 30 days concurrent for the drug paraphernalia possession count. The court again imposed and stayed the one-year term on the prior prison term enhancement.
Appellant filed a timely notice of appeal on September 27, 2007.
Because the facts of this case are not relevant to the issues raised on appeal, we will not discuss them herein.
Discussion
I. On-Bail Enhancement
Appellant contends the trial court failed to exercise its discretion to strike the on-bail enhancement (§ 12022.1, subd. (b)) at sentencing. According to appellant, all parties to the plea agreement, including defense counsel, the prosecutor, and the trial court, mistakenly believed that the on-bail enhancement was mandatory and the trial court, therefore, did not strike that enhancement.
A. Trial Court Background
At the March 22, 2007, hearing at which the trial court, the prosecutor, and defense counsel discussed a possible plea agreement, the prosecutor said she believed an eight-year four-month sentence was “very reasonable,” given appellant’s serious record and his continuing commission of crimes. She said that term would include the midterm on appellant’s two felony cases, plus the on-bail enhancement, which she stated was a “mandatory two years.”
After further argument, the court stated, “I still feel comfortable with [defense counsel’s] five year offer.” Later, the prosecutor said the court could not give a five-year indicated sentence because the on-bail enhancement term of two years was “a mandatory consecutive,” which the court stated it could not stay, and which would push the indicated sentence up to six years. At that point defense counsel said she was going to research whether the on-bail enhancement required imposition of a two-year term, though she indicated that even if six years were the indicated sentence, she thought that would “still [be] a doable situation.”
That afternoon, the court stated that the indicated sentence would be six years. Thereafter, appellant proceeded to plead guilty/no contest pursuant to the plea agreements.
On May 16, 2007, the probation officer submitted his report, in which he recommended a total sentence of 10 years 4 months, based on appellant’s extensive criminal history.
At the September 19, 2007, sentencing hearing—at which both the prosecutor and defense counsel were new to the case—defense counsel argued for the court to exercise its discretion to strike the single remaining strike in each case, pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and to place appellant on probation. The court noted that the case had started as a third-strike case and that one strike had already been stricken. In light of appellant’s ongoing criminal conduct, the court denied the motion. The court also denied appellant’s motion to reduce the felony failure to register offense to a misdemeanor based on the fact that appellant “had 14 prior convictions as an adult, [and] five of those are felony convictions.”
During the discussion regarding the sentence to be imposed, the prosecutor said the People would not object to the court’s indicated sentence of six years, although she did “see some problems based on the sentencing scheme because he’s admitted the out-on-bail that adds two years.” The court responded, “I don’t have a problem with that,” and proceeded to outline a six-year sentence that included imposition of a consecutive two-year term for the on-bail enhancement, further stating, “that is the way I calculated what we negotiated in this case.”
B. Legal Analysis
Section 12022.1, subdivision (b), provides: “Any person arrested for a secondary offense which was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years in state prison which shall be served consecutive to any other term imposed by the court.” (Italics added.)
While the statute seems to make imposition of a two-year consecutive term mandatory in all cases, in People v. Meloney (2003) 30 Cal.4th 1145, 1155-1156, the California Supreme Court has concluded that, despite the use of the word “shall” in section 12022.1, the statute’s legislative history makes it “apparent that the Legislature views sentence enhancements under section 12022.1 as being subject to a trial court’s discretion to strike pursuant to section 1385.”
In the present case, appellant acknowledges that defense “counsel did not ask the trial court to exercise its discretion to strike the two-year on-bail enhancement or even to point out that the court had such discretion.” Accordingly, the claim is waived on appeal. (See People v. Scott (1994) 9 Cal.4th 331, 353 [waiver doctrine applies to claims involving the trial court’s “failure to properly make or articulate its discretionary sentencing choices”].)
In any event, while the record reflects, first, that at the hearing on appellant’s plea, the court seemed to be unaware of its discretion to strike the on-bail enhancement, defense counsel expressed uncertainty regarding the mandatory nature of section 12022.1, and stated that she would research the question. At the subsequent sentencing hearing, there is no indication in the record that the court remained unaware of its discretion. Rather, the court merely noted that it intended to impose the two-year term on the enhancement. The court made clear that it believed appellant had been treated leniently, with the striking of one of his two prior strikes in spite of his extensive criminal record, and simply stated that it would impose the indicated six-year sentence, which included the two-year term for the on-bail enhancement. There is no support in the record for appellant’s claim that the court believed, at the time of sentencing, that imposition of the two-year enhancement was mandatory. (See, e.g., People v. Carpenter (1999) 21 Cal.4th 1016, 1046 [“ ‘[a]n order is presumed correct; all intendments are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown’ ”]; see also People v. Davis (1996) 50 Cal.App.4th 168, 172 [where record is silent, appellant has not satisfied burden of affirmatively demonstrating that trial court misunderstood its sentencing discretion].)
On direct appeal, as well as in his habeas petition, appellant contends defense counsel was ineffective for failing to move to strike the on-bail enhancement at the sentencing hearing. Given that the record is silent as to the court’s understanding at the time it imposed sentence, appellant has filed with his habeas petition a declaration, dated February 7, 2008, by appellate counsel and two attached exhibits. The exhibits include a December 12, 2007, letter from appellate counsel to the trial court outlining the perceived misunderstanding about the discretionary nature of the on-bail enhancement, and requesting that the sentence be recalled pursuant to section 1170, subdivision (a), to allow for renegotiation of the sentence.
The second exhibit is a December 31, 2007, responsive letter to appellate counsel from the trial court, in which the court stated that, at the time of the plea negotiations, there were discussions regarding whether the court could stay the enhancement. “The [d]istrict [a]ttorney was objecting to the indicated sentence of five years and the court ultimately indicated a term of six years to settle the case. [Appellant] then entered his plea based on the court’s indicated sentence of six years. [¶] Shortly after the plea was entered, [defense counsel] e-mailed the court with copies to the [d]istrict [a]ttorney citing the Meloney case and indicating that the court could have stayed the enhancement under [section] 12022.1 if it had wished to do so. People v. Meloney[, supra,] 30 Cal.4th 1145.
“The court was aware of the Meloney case at the time of sentencing based on [defense counsel’s] prior communication and this court chose not to impose a stay on the enhancement pursuant to [section 12022.1]. [Appellant] received the negotiated sentence of six years to state prison, which was the agreement at the time of his plea. [¶] It is the court’s position that the six year prison sentence imposed on September 19, 2007, was proper.”
To prove ineffective assistance of counsel, a defendant must show that “counsel’s representation fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms.” (Strickland v. Washington (1984) 466 U.S. 668, 688.) In addition, the defendant must affirmatively establish prejudice by showing “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Id. at p. 694.) “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.” (Id. at p. 697.)
Appellant asserts in his writ petition that “[t]he only reasonable conclusion to be drawn from what transpired at sentencing is that, despite what the trial court wrote in his December 31, 2007, letter, just as during the plea negotiations, neither the new prosecutor, the new defense counsel, nor the trial court considered that the two year on-bail enhancement was not mandatory and could have been stricken.” We disagree. As previously discussed, the sentencing hearing record is silent on the understanding of the trial court regarding its discretion. Appellant’s own exhibit, on the other hand, shows both that the trial court had learned shortly after the plea negotiation hearing that the on-bail enhancement was not mandatory and that it nonetheless chose to impose the two-year term for that enhancement.
It is true that the court’s mistaken belief about the mandatory nature of the enhancement appears to have affected the indicated term agreed to at the plea negotiation hearing. However, by the time of the sentencing hearing, the court fully understood its discretion when it imposed the two-year on-bail enhancement. Thus, the court was aware it could impose a lesser total term, but exercised its discretion to impose a six-year term, which included the two-year term pursuant to section 12022.1.
At the sentencing hearing, the court, when it denied appellant’s motions, cited to the fact that one prior strike had already been stricken and that appellant had engaged in ongoing criminality for many years. Indeed, the probation officer had recommended a sentence of 10 years 4 months, and the prosecutor had previously argued for an eight-year four-month term. As appellant acknowledges, “the trial court, under the written terms of the plea agreements, had approved no specific agreed upon sentence at the time of the plea and thus had the discretion to impose a lesser or even a greater sentence.” The court, in its discretion, determined that six years—somewhat longer than appellant argued for and much shorter than the probation officer had recommended—was the proper total sentence.
Consequently, even if defense counsel’s representation was deficient because he failed to move to strike the non-mandatory on-bail enhancement at the time of sentencing, appellant cannot show prejudice. That is, there is not “a reasonable probability that, but for counsel’s unprofessional errors,” the court would have stricken the two-year enhancement. (Strickland v. Washington, supra, 466 U.S. at p. 694.)
II. Prior Prison Term
Appellant contends only one of two stayed one-year terms for a prior prison term under section 667.5, subdivision (b), was properly imposed. He asserts that one of the terms should have been stricken rather than stayed because his consolidated sentencing permitted imposing a term for only a single prior prison term.
Respondent agrees that the one remaining prior prison term—the attempted robbery from Solano County—should not have been imposed and stayed in both cases, and that this error is reflected in the abstract of judgment.
In People v. Smith (1992) 10 Cal.App.4th 178, 182-183, the appellate court explained: “Irrespective of whether a defendant’s various sentences on multiple convictions are imposed so as to run consecutively or concurrently, section 667.5, subdivision (b) enhancements ‘do not attach to particular counts.’ To the extent that defendant had suffered only one ‘prior prison term served, only one section 667.5, subdivision (b) enhancement should have been alleged by the People and found true and imposed by the trial court.”
Here, because only one of the prior prison term enhancements could properly be imposed, we shall remand this matter to the trial court with directions to strike the prior prison term enhancement appended to case No. SCR489359. (See People v. Smith, supra, 10 Cal.App.4th at p. 183.)
Disposition
The matter is remanded to the trial court with directions to strike the section 667.5, subdivision (b) enhancement allegation appended to case No. SCR489359; prepare a corrected abstract of judgment; and forward copies of such abstract of judgment to the appropriate correctional authorities. The judgment is otherwise affirmed. The petition for writ of habeas corpus is denied.
We concur: Haerle, J., Lambden, J.