Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR459719 & SCR531149
Haerle, J.
I. INTRODUCTION
Appellant appeals from the concurrent sentence imposed on him in two cases. In the first case chronologically (hereafter “case 19”), he was sentenced to 36 months in prison, but placed on probation, which was later revoked. In the second numbered case (hereafter “case 49”), there was a plea agreement pursuant to which appellant pled guilty to two counts and admitted several other prior convictions. Pursuant to that agreement, appellant would be sentenced to 32 months in prison. The court found that appellant had violated probation in case 19, revoked that probation and, at the sentencing hearing in case 49, ordered that he serve the 32-month term agreed to in that case concurrently with the three-year sentence previously imposed in case 19. In this appeal, appellant claims (1) the trial court and the prosecutor misadvised him regarding the sentencing implications of his plea agreement in case 49 and (2) his trial counsel was ineffective in his advice to him on that subject and in not objecting to the three-year concurrent sentence in the two cases. We reject both contentions and hence affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
First regarding case 19: In 2005, appellant pled no contest to two of seven counts in case 19, counts charging criminal threats and theft from a person. (Pen. Code, §§ 422 & 487, subd. (c).) On September 23, 2005, the court imposed, but then suspended, execution of a three-year prison term and placed appellant on probation for that same period.
On March 12, 2008, the court terminated appellant’s probation in case 19, but sentencing in that case was continued until August 20. After a hearing on that date—combined with a hearing on case 49, to be summarized next—the court imposed the previously suspended three-year term. As will be noted further below, it also ordered that the 32-month sentence negotiated in case 49 run concurrently with the sentence in case 19.
All further dates noted are in 2008.
Appellant filed a timely notice of appeal on August 29, and the trial court granted his application for issuance of a certificate of probable cause.
Regarding case 49: At approximately 2:00 a.m. on March 11, a Sonoma County Deputy Sheriff observed appellant driving a vehicle at a high rate of speed and crossing solid white lines in the process. Appellant did not respond to the officer’s attempt to stop him but, instead, increased his speed and began weaving through the lanes of traffic. He then exited the freeway and continued through city streets at a high rate of speed, almost hitting several parked cars. He then stopped the car, jumped out, and attempted to hide in a creek embankment and bushes. Officers, with weapons drawn, pulled him out of the bushes and arrested him. He was belligerent and only moaned when attempting to talk. The officers discovered his probationary status and the fact that his driver’s license had been suspended. They also discovered 28.5 grams of marijuana and a marijuana pipe on him. While enroute to the jail, appellant apologized for his actions and then offered to submit to a breath test. However, he subsequently changed his mind, and then wavered back and forth regarding submitting to either that test or a blood test. Ultimately, a forced blood test was conducted, revealing a blood alcohol level of .16 percent.
The next day, March 12—the same day probation was summarily revoked in case 19—a felony complaint was filed in Sonoma County Superior Court charging appellant with evading a police officer while driving, resisting an officer, transportation of marijuana, driving under the influence of alcohol or drugs, driving with a blood alcohol level of .08 or above, and driving with a suspended or revoked license. (Pen. Code, §§ 2800.2, subd. (a), 69; Health & Saf. Code, § 11360, subd. (a), & Veh. Code, §§ 23152, subds. (a) & (b) & 14601.2, subd. (a).) The complaint also alleged two prior DUI convictions as well as the conviction in case 19, alleged as a “Prior Strike Conviction.”
On May 13, appellant signed and initialed a four-page Tahl waiver form by which he waived his various constitutional rights and pled guilty to two counts: evading a police officer while driving and driving under the influence of drugs or alcohol (counts one and four of the complaint), and also admitted the two prior DUI convictions.
In re Tahl (1969) 1 Cal.3d 122
On July 2, appellant moved to strike the prior strike, i.e., the conviction in case 19, a motion the trial court later denied.
As detailed below, on August 20, the court sentenced appellant to a term of imprisonment for 32 months on case 49, that term to run concurrently with the three-year term in case No. 19.
Appellant also filed a notice of appeal in this case on August 29, and the court also granted his request for a certificate of probable cause in it.
III. DISCUSSION
Appellant’s basic point in his briefs to us is that he— and at least according to him, also his attorney—thought they had negotiated a maximum term of 32 months in case 49, and were thus dismayed to learn that he would be serving four months longer because of the revocation of probation in case 19 and the trial court’s order that these terms be served concurrently. We have no difficulty in rejecting this contention, and also the contention that his trial counsel was prejudicially ineffective in, apparently, also failing to realize the impact of the combination of the two cases.
As noted above, appellant was sentenced to three years in case 19 in 2005, but that sentence was suspended and he was placed on probation. One day after his March 11 arrest in case 49, that sentence was “Revoked Summ[arily].” Obviously, this meant that, subject to a later formal court hearing, he was going to be serving a three-year prison term in case 19.
On May 13, he and his attorney appeared in court along with two Sonoma County Deputy District Attorneys to formalize the plea agreement in case 49. On that date, the court accepted and filed his four-page Tahl waiver form in that case. Both that form and the dialogue between the court and counsel demonstrate that the only proper understanding of the combined sentence appellant would be receiving was three years.
First of all, page 2 of the waiver form specifically recites: “I understand that the maximum punishment I may receive as a result of this plea is . . . [a] determinate term in state prison of 3 years and 0 months followed by parole for (3 to 4 years) . . . with return to prison for every parole violation . . . .”
One page later, under the heading “Negotiated Disposition pursuant to PC 1192.5,” two separate penned notes were made. The first was that appellant’s plea was conditioned on his sentence being “determined by the court,” a phrase he specifically initialed. Then, after the printed words “[t]he custody term will be for the stipulated term of” three separate penned notations appear. The first reads “32 month low term stipulated,” the second “Romero motion to be filed,” with the critical third reading: “Concurrent to SCR 459719 (VOP case).” In between the case number and the (“VOP case”) notations appellant’s initials appear again. These two separate and distinct entries make clear to us that, at the time of entry of his guilty plea to the two counts of the complaint in case 49, appellant and his counsel understood that they were looking at prison time totaling three years, i.e., a sentence to run concurrently with case 19, i.e., the “VOP case.”
Further, the issue then came up verbally at the plea-acceptance hearing on May 13. The exchange there was as follows:
“THE COURT: And that . . . any time that the Defendant would be sentenced to in [case 19] be concurrent with the time in this case.
“MS. LI [one of two deputy prosecutors present in court]: I think it’s vice versa, Your Honor. Any time in this case would be concurrent with time in that case.
“THE COURT: With the V.O.P.?
“MS. LI: With the V.O.P.
“THE COURT: Yes. And then if there’s—he’s on misdemeanor probation for driving under the influence. Any time assessed in that particular case could be served in any penal institution and run concurrent.
“MR. RUBENSTEIN [defense counsel]: Yes, Your Honor.
“MS. LI: Thank you, Your Honor.” (Emphasis supplied.)
Several months later, at appellant’s August 20 sentencing hearing, this point came up again. At that time, appellant’s counsel claimed not to understand that the 32 months negotiated in case 49 was not, because of case 19, the maximum appellant would be serving. The following dialogue then took place:
“PROBATION OFFICER: Is the Court going to be sentencing concurrently or consecutively to the VOP matter?
“THE COURT: It’s going to be concurrent.
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“THE COURT: . . . In this particular matter, SCR-459719, the original sentence that was imposed upon execution of sentence was suspended. That suspension will be lifted. And in this particular matter, probation is denied and the defendant is committed to the Department of Corrections and Rehabilitation for a term of three years. [¶] That three-year term will be served concurrent to the time
“MR. RUBENSTEIN: Your Honor, doesn’t that go beyond the 32 months?
“THE COURT: Yes. It’s contained in the Tahl waiver form.
“MR. RUBENSTEIN: 32 months.
“THE COURT: Time in case SCR-459719 to be concurrent.
“MR. RUBENSTEIN: As I understood from the agreement was it was not going to be more than 32 months. That was the stipulated agreement.
“THE COURT: Yes. I think your indication of the Tahl waiver form may subject the defendant to additional time in custody, but that’s what it says on the Tahl waiver form.
“MR. RUBENSTEIN: Certainly counsel had argued that the bargain that we originally had other than the Romero motion is something that should be enforced. And that was our understanding that it was going to be 32 months and not more.
“THE COURT: What is meant by the statement on the Tahl waiver form that says: [¶] ‘The time in case ending 149,’ I’m quoting, ‘concurrent to SCR-459719?’
“MR. RUBENSTEIN: Whatever would be imposed – my understanding is whatever would be imposed would not be more than 32 months and would run concurrent.
“THE COURT: Ms. Carrillo?
“MS. CARRILLO: It was always from what I believe – from the very start of the negotiations it was the time in the VOP, but it was 32 months on this particular case.
“THE COURT: Yeah, that’s what it appears to the Court. So you think that my proposed sentence falls outside the terms of the Tahl waiver form?
“MR. RUBENSTEIN: As I indicated, I thought it was going to be 32 months and not more.
“THE COURT: It certainly is indicated 32 months as to the situation. [¶] Based upon the entry of the plea in the two counts in case ending 149, and I’m going exactly as outlined in the Tahl waiver form and am sentencing the defendant to concurrent time in this particular case as indicated within the Tahl waiver form. [¶] So if – I don’t see a cap on the current time – excuse me, on the concurrent time in case ending 719. And that doesn’t appear to be the bargain that was reached pursuant to Penal Code 1192.5 contained within the waiver form in case ending 149.
“MR. RUBENSTEIN: I think certainly that is what Mr. Smith understood. That’s really what I understood too. I did not suspect it was going to go beyond 32 months. Everything else that was remaining was going to be – you know, why not – I didn’t expect it to be consecutive, certainly. And normally when we say ‘concurrent,’ we would say it’s the amount that the principal case has.
“THE COURT: Okay.
“MR. RUBENSTEIN: I certainly think that Mr. Smith understood it.
“THE COURT: Then I have a question for you. [¶] With the anticipated lifting of the suspension, how would I alter the prison term that was previously imposed?
“MR. RUBENSTEIN: Any time period less than that. And as long as it runs concurrent the 32 months still stays in effect and he’s going to have to serve that particular length of sentence for 32 months.
“THE COURT: Yeah. [¶] I haven’t read the agreement that way. This is the first that I heard of that. [¶] I don’t think apparently based upon the reports that I received that anyone is contemplating that situation. [¶] And I’m wondering why in the Tahl waiver form it doesn’t simply indicate that the 32-month low term stipulated result was to apply to the other case.
“MR. RUBENSTEIN: Why have a global resolution and put down 32 months and then – you know, we should have then just put down 36 months would be the net effect. [¶] So in putting down the 32 months, that is what was agreed that we all thought would occur if the Romero motion was not granted.
“THE COURT: Okay. What you’re asking me to do is sentence the defendant consecutively.
“MR. RUBENSTEIN: Well, of course not. If that’s going to impose more than 32 months, no.
“THE COURT: Well, then, your interpretation makes no sense whatsoever to me. It either has to be concurrent or consecutive. And according to the documents signed by you and your client, you anticipated a concurrent sentence which is exactly what I’m imposing.
“MR. RUBENSTIEN: I understand, Your Honor. [¶] I believe what I understand and I think more important what Mr. Smith understood was that it was not going to be more then 32 months.
“THE COURT: Okay.
“MR. RUBENSTEIN: Whatever else was going to be concurrent would match that.
“THE COURT: Okay. Then I’m going to pronounce the sentence exactly as I’ve just indicated. [¶] And if you want to bring this back to me because I don’t know the net result, but I do believe that this is tracking precisely what was the agreed upon resolution. [¶] Ms. Carrillo, do you want to be heard in this matter?
“MS. CARRILLO: Your Honor, simply the starting point was always he had the 32 months – excuse me, three years eight months suspended in the VOP and the 32 months in this case would run concurrent with that.
“THE COURT: Okay.
“MR. RUBENSTEIN: We’re talking about four additional more months, apparently.
“THE COURT: And I don’t know with the credits if it will actually result in that which is something that you can certainly look into. [¶] But it doesn’t seem to me that what you’ve indicated to the Court is in keeping with the precise wording contained upon the Tahl waiver form.”
The trial court was right and appellant’s counsel was wrong on August 20: the term to which appellant was properly sentenced in the combined cases was three years.
In his briefs to us, appellant argues that the negotiations to reach an agreement for a 32-month term demonstrate that he and his counsel thought that would be the maximum term which was going to be imposed on him. If, he argues, it was necessarily going to be three years, i.e., four months longer, what was the point of those negotiations? “The bargain was plainly weird,” he contends.
The answers to this are relatively easy. First of all, and as the Attorney General points out (RB 6), appellant received the benefit of his already-lengthy criminal record getting only two counts, not five counts, longer. But more importantly, if, as and when appellant’s (hopefully) good behavior in prison—or some other relevant event constituting “good cause”—led to the reinstatement of probation in case 19 pursuant to Penal Code section 1203.2, subdivision (e), then his sentence would automatically revert to the 32 months imposed in case 49. Those two benefits clearly make his bargain in case 49 something other than “weird.”
Appellant is also wrong that there was ineffective assistance of counsel at the sentencing hearing. It is elemental that, to constitute such ineffective assistance, the error of counsel must be prejudicial. (See, e.g., In re Scott (2003) 29 Cal.4th 783, 825.) Such was not the case here; irrespective of whether attorney Rubenstein really thought on August 20 (despite his presence at the May 13 hearing and his signature on the waiver form filed that day) that appellant was only going to receive a 32-month sentence in the combined cases, the realities were clearly to the contrary at all times.
IV. DISPOSITION
The judgment and sentence imposed are both affirmed.
We concur: line, P.J., Richman, J.