Opinion
2d Crim. No. B228153 Super. Ct. No. 2008017908
10-18-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSE ENRIQUE VALDEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Ventura County)
Jose Enrique Valdez appeals a nunc pro tunc order clarifying his sentence after a guilty plea to first degree residential burglary and other offenses. He contends that the order violated his constitutional rights to due process and effective assistance of counsel. We affirm.
FACTS AND PROCEDURAL HISTORY
On May 15, 2008, a complaint was filed in this case (No. 2008017908) alleging two counts of first degree residential burglary (Pen. Code, § 459), and one count of receiving stolen property (§ 496, subd. (a)). The complaint also alleged that a person other than Valdez or an accomplice was present during the first burglary making that offense a violent felony under section 667.5, subdivision (c)(21). At a hearing on the same day, Valdez entered into a plea agreement under which he pleaded guilty to the first burglary and admitted the section 667.5, subdivision (c)(21) allegation. The other charges were dismissed. A conflict defense attorney was appointed by the court and represented Valdez at the hearing. A sentencing hearing was conducted on July 14, 2008, at which the trial court suspended imposition of sentence and placed Valdez on formal probation, subject to his serving 270 days in county jail and other conditions. Valdez was represented by the duly-appointed conflict defense attorney at the sentencing hearing.
All statutory references are to the Penal Code.
The People filed a request for judicial notice of certain minute orders in case No. 2008017908 and in case No. 2009034765. The request is hereby granted and the minute orders contained in the request are deemed to be part of the record in this case.
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On October 23, 2009, Valdez was charged with second degree burglary of a vehicle (§ 459) and petty theft with priors (§ 666) in Ventura County Superior Court case No. 2009034765. The public defender was appointed by the court and represented Valdez in case No. 2009034765. At the same time, a notice of probation violation was filed in case No. 2008017908.
In December 2009, Valdez pleaded guilty to the offenses charged in case No. 2009034765.
On February 2, 2010, the trial court revoked probation in case No. 2008017908 and sentenced Valdez to the two-year low term for burglary. In a concurrently held sentencing hearing in case No. 2009034765, the trial court sentenced Valdez to a consecutive eight-month term (one-third of the midterm) for the second degree burglary of a vehicle. The plea agreement and sentencing order included the dismissal of the section 667.5, subdivision (c)(21) strike allegation in case No. 2009034765. The trial court credited Valdez with custody credit and good time/work time credit in both cases. The public defender appeared on behalf of Valdez at the sentencing hearing for both case Nos. 2008017908 and 2009034765.
On August 24, 2010, the California Department of Corrections and Rehabilitation (CDCR) sent a letter to the trial court stating that it was not clear from the minute order and abstract of judgment in case No. 2008017908 whether the section 667.5, subdivision (c)(21) allegation had been found to be true. The letter stated that CDCR needed clarification for it to determine whether Valdez was subject to the work time credit restriction as set forth in section 2933.1. The letter was served on the district attorney, the public defender, and Valdez.
On August 30, 2010, the trial court considered the CDCR request. Conflict defense attorney Steinfeld appeared on behalf of Valdez. At the hearing, the court issued a nunc pro tunc order stating that the section 667.5, subdivision (c)(21) allegation had been admitted by Valdez on May 15, 2008. The court also issued a corrected minute order.
Valdez filed a notice of appeal of the August 30, 2010, order.
DISCUSSION
Valdez contends that the hearing on August 30, 2010, was conducted without the presence of counsel for Valdez and, therefore, violated his right to due process and effective assistance of counsel. In a two-page brief, Valdez argues that the public defender was Valdez's counsel of record in case No. 2008017908 and his right to counsel is "not honored merely by having some random person with a state bar card present in the room." We disagree with this conclusion.
At the August 30, 2010, hearing, Valdez was not represented by "some random person with a state bar card." He was represented by counsel duly appointed by the trial court. The record shows that, on May 5, 2008, the trial court appointed the "Conflict Defense Attorney" as counsel for Valdez in case No. 2008017908. The conflict defense attorney represented Valdez at the May 15, 2008, hearing when his plea was entered and at the July 2008 sentencing hearing.
On September 25, 2009, the trial court appointed the public defender to represent Valdez in case No. 2009034765. The public defender also appeared for Valdez in the probation revocation proceedings in case No. 2008017908. There is nothing in the record showing a substitution of counsel or appointment of the public defender in case No. 2008017908, or providing any explanation of why the public defender appeared on behalf of Valdez in the probation revocation proceedings. Also, Valdez does not offer any explanation for the apparent entry of the public defender in case No. 2008017908, nor does he assert that the public defender had no notice of the August 30, 2010, hearing.
Based on the record, Valdez was represented at the August 30, 2010, hearing by his counsel of record in case No. 2008017908. The record contains no indication that representation by the conflict defense attorney was deficient in any manner. Valdez focuses his argument on the order dismissing the section 667.5, subdivision (c)(21) strike allegation in case No. 2009034765. In oral argument in particular, Valdez argued that his counsel could have "invited" the court to strike the section 667.5, subdivision (c)(21) allegation for all purposes. He argued that the record is unclear whether the court intended to strike the strike only for purposes of the Three Strikes law sentencing or also for purposes of establishing the commission of a violent felony. There is no basis in the record that this argument has any merit.
There is no dispute that Valdez admitted the section 667.5, subdivision (c)(21) allegation in his written plea agreement and in open court at the May 15, 2008, hearing. The trial court made no "additional findings" on August 30, 2010, and the time to question Valdez's admission of the section 667.5, subdivision (c)(21) allegation had long since passed. It is clear from the record that the trial court "struck the strike" for sentencing purposes, but did not and could not vacate Valdez's admission that a person was present during the commission of the burglary in case No. 2008017908, thereby making the burglary a violent felony. There is no possibility, if the matter were remanded, that Valdez could withdraw his 2008 admission of the offense or that the circumstances made it a violent felony. Therefore, the August 30, 2010, order constituted a clarification of the record, not a substantive determination of any unresolved and disputed sentencing issue. (In re Candelario (1970) 3 Cal.3d 702, 705; see also Johnson & Johnson v. Superior Court (1985) 38 Cal.3d 243, 256; People v. Mitchell (2001) 26 Cal.4th 181, 185.)
The judgment (order) is affirmed.
NOT TO BE PUBLISHED.
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PERREN, J.
We concur:
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GILBERT, P.J.
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YEGAN, J.
Bruce A. Clark, Judge
Superior Court County of Ventura
Stephen P. Lipson, Public Defender, Michael C. McMahon, Chief Deputy, Paul Drevenstedt, Deputy Public Defender, for Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Margaret E. Maxwell and Baine P. Kerr, Deputy Attorneys General, for Respondent.