Opinion
C084768
08-15-2018
THE PEOPLE, Plaintiff and Respondent, v. SEAN CORY SOGOIAN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. NCR98764)
Defendant Sean Cory Sogoian entered a negotiated, open plea of guilty to unlawful taking of a vehicle with a prior for vehicle theft (Pen. Code, § 666.5) and admitted a strike prior (first degree burglary (§§ 667, subds. (b)-(i), 1170.12)) and two prior prison terms (§ 667.5, subd. (b)). He agreed to a sentence of not less than six years and not more than 10 years in state prison and/or probation for five years with up to 365 days in county jail. The parties agreed to a referral to drug court. If drug court found defendant suitable, the trial court would have discretion to grant probation and thus drug court. The drug court team found defendant suitable. At sentencing, defense counsel requested that the court strike the strike prior, impose the low term, suspend sentence, and grant probation with drug court. The trial court denied defendant's request to strike the strike prior and sentenced defendant to eight years in state prison.
Undesignated statutory references are to the Penal Code.
Having obtained a certificate of probable cause (§ 1237.5), defendant appeals, contending the plea agreement was invalid from the beginning because he was statutorily ineligible for probation with drug court, having admitted a strike prior, and he suffered prejudice since the prosecutor, defense counsel, and the court failed to so advise him. In this respect, he contends defense counsel rendered ineffective assistance. Defendant also contends the trial court violated the terms of the plea agreement which, he claims, provided for a suspended prison sentence of no less than six years and no more than 10 years, and a grant of five years of probation with a condition of 365 days in jail and referral to drug court. We reject defendant's contentions.
FACTUAL AND PROCEDURAL BACKGROUND
On July 4, 2016, defendant stole a pickup truck belonging to David J. The victim had video surveillance of defendant stealing the truck. A responding officer located the truck shortly after defendant stole it and arrested defendant, who was walking nearby. The officer told defendant about the video, and defendant showed the officer the location of the keys, which were on the ground in the area where defendant had been walking.
A plea form signed and initialed by defendant reflected his guilty plea to the sheet in exchange for not less than six years and not more than 10 years in state prison and/or probation for five years with up to 365 days in county jail. Defendant initialed the box reflecting that it was an open plea: "I understand the maximum and minimum sentences for the charges and allegations stated on page 1. No one has made any other promises to me about what sentence the court may order." Defendant also initialed the box stating: "Other Terms: Open plea. Referral to Adult Felony Drug Court. [Defendant] may not withdraw plea if Adult Felony Drug Court not granted. [Defendant] understands that entry of this plea does not promise/guarantee admission into Adult Felony Drug Court. Decision to place [defendant] in Adult Felony Drug Court is left solely with sentencing judge." Defendant also initialed the box indicating that before his plea, he had had a "full opportunity to discuss" (boldface omitted) several topics with his attorney, including "[t]he consequences of this plea . . . ." Defendant initialed the box that reflected he had no questions of the court or his attorney with regard to his plea, any of his rights, or "anything else on this form." Defendant initialed the box indicating that he was freely and voluntarily entering his plea of guilty "with full understanding of everything on this form" and that there were no promises "except as listed in this form, in order to convince [him] to plead guilty or no contest."
At the entry of plea hearing, defendant confirmed that he was entering an open plea for up to 10 years and the actual sentence was discretionary with the sentencing judge. Defendant also confirmed that the agreement provided for an evaluation by the drug court, but whether drug court was actually granted was discretionary with the sentencing court. Defendant stated that he understood that he could not withdraw from the plea if drug court was not granted. In view of defendant's plea, two other cases, one a felony and the other a misdemeanor, were dismissed.
The drug court team evaluated defendant and found that he was suitable for the program. Even though defendant had an "extensive criminal record," defendant explained to the team that it was "caused by his drug use." The team noted that defendant had successfully completed a treatment program 11 years ago, "proving he can succeed." The team noted that defendant had used methamphetamine daily since 18 years of age.
At sentencing, the court stated that it had read the drug court team's evaluation as well as the probation report. The probation report reflected that defendant was not eligible for probation due to the strike prior. Defense counsel requested that the court strike the strike prior, impose sentence with execution suspended, and grant probation with the drug court program as a condition. The court considered defense counsel's request to strike the strike prior as a Romero motion presented orally. The trial court then denied the request, finding defendant had an extensive and "almost unbroken record of criminality" as reflected in the probation report and posed a risk and threat to public safety. Defense counsel next requested the low term and defendant personally addressed the court. Defendant admitted wrongdoing and pleaded for mercy: "I am not asking for justice, because the People are right, if I was asking for justice I wouldn't be granted anything, according to the law; but, today, Judge Bottke, I am asking for mercy, Sir." Defendant also stated that although he did not deserve a chance at the drug court program, he believed he would be successful. The court sentenced defendant to the midterm of three years, doubled for the strike prior, plus one year each for the two prior prison terms for an aggregate of eight years in state prison.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497. --------
DISCUSSION
Defendant claims he was misadvised as to the consequences of his plea. Defendant did not object at sentencing that he had been misadvised of the consequences of his plea or move to withdraw his plea. Instead, defendant personally addressed the court, admitting his wrongdoing and pleading for mercy. We conclude defendant has forfeited his claim that the trial court misadvised him as to the consequences of the plea. (People v. McClellan (1993) 6 Cal.4th 367, 377.)
In any event, the record reflects the trial court did not err in advising defendant of the consequences of his guilty plea. Even though defendant admitted the strike prior, the trial court had the discretion to strike or dismiss it and grant probation with drug court.
Defendant misplaces his reliance upon People v. Caban (1983) 148 Cal.App.3d 706 (Caban). In Caban, the defendant admitted personal use of a firearm during the commission of a robbery, which made him ineligible for probation under section 1203.06. (Caban, at pp. 708-711.) Caban held that "legal ineligibility for probation consideration" is a "direct penal consequence inexorably following conviction of gun use in the commission of a robbery" and thus the trial court was required to so advise the defendant. (Id. at pp. 710-711.) At the time, the trial court did not have discretion under section 1385 to strike a gun use admission. (Caban, at p. 709, fn. 3.)
Caban is distinguishable. Unlike the firearm enhancement in Caban, which precluded the trial court from considering probation, the trial court here had discretion to strike the strike prior (§ 1385) and could and did consider defendant's request to strike it. Thus, legal ineligibility for probation consideration was not a direct penal consequence of defendant's plea.
Moreover, defendant has failed to demonstrate that he would not have entered the plea of guilty had the proper advisement been given, that is, he could receive a grant of probation and drug court only if the court exercised its discretion to strike the strike prior. The plea form and transcript of the entry of plea hearing reflect that defendant understood he could be sentenced in a range from probation up to 10 years in state prison. The plea form reflected and the court stated that there were no promises that defendant would be given drug court and that any decision to grant drug court would be up to the sentencing judge. The court told defendant that he would meet with the drug court team and the probation officer who would make recommendations to the sentencing court. At sentencing, defendant did not object that he had been misadvised of the consequences or that the sentence imposed violated the plea agreement. Any error was harmless. (People v. McClellan, supra, 6 Cal.4th at p. 378; cf. People v. Zaidi (2007) 147 Cal.App.4th 1470, 1488, 1490.)
Defendant also contends the trial court violated the terms of the plea agreement. He argues the plea agreement was for five years of probation with a referral to drug court and a suspended sentence of not more than 10 years and not less than six years. The record does not support defendant's claim. The written plea form reflects a state prison sentence of a minimum of six years and a maximum of 10 years and/or probation with 365 days in jail. In entering his plea, defendant confirmed several times that he understood that his plea was an open plea, that he could be granted probation and/or sentenced up to 10 years, and that the sentence would be within the discretion of the sentencing court. There was no promise of a suspended prison sentence. At sentencing, neither defendant nor defense counsel claimed that the sentence violated their understanding of the plea agreement.
With respect to the claim that defense counsel either did not know the law or failed to correctly advise him regarding the consequences of his plea, nothing in the record reflects that defense counsel misadvised or failed to advise defendant properly about the consequences of the plea agreement. Nor was defense counsel asked. We will not speculate. Where the record does not support an ineffective assistance claim, defendant is relegated to a habeas corpus proceeding. (People v. Delgado (2017) 2 Cal.5th 544, 559; People v. Pope (1979) 23 Cal.3d 412, 425-426.)
DISPOSITION
The judgment is affirmed.
BUTZ, Acting P. J. We concur: MURRAY, J. DUARTE, J.