P. v. Kimmons CA1/5 filed
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Filed 3/21/11 P. v. Kimmons CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE THE PEOPLE, Plaintiff and Respondent, A125339, A127741 v. (San Francisco County Super. Ct. No. 207138) KEITH KIMMONS, Defendant and Appellant. Appellant Keith Kimmons was placed on felony probation after he pled guilty to a single count of selling cocaine base. (Health & Saf. Code, § 11352, subd. (a).) When he was caught selling drugs to an undercover officer several months later, the court revoked his probation and sentenced him to prison for the upper term of five years. In this consolidated appeal from the original judgment and probation revocation proceedings, he contends: (1) the court violated his right to due process when it imposed a prison sentence that exceeded the maximum term specified when he entered his plea; (2) he is entitled to additional presentence conduct credits under Penal Code section 4019; and (3) the trial court should have obtained a supplemental probation report before imposing sentence following his probation revocation. We agree that appellant is entitled to additional credits but otherwise affirm. BACKGROUND The charges in this case arise from a police officer s observation of a hand-to-hand drug sale made by appellant and an accomplice to an unknown passer by. Appellant was 1 charged by criminal complaint with selling cocaine base and possessing cocaine base for sale. (Health & Saf. Code, §§ 11352, subd. (a), 11351.5.) The complaint included special allegations that appellant had served a prior prison term rendering him eligible for a one-year enhancement under Penal Code section 667.5, subdivision (b), that he had suffered six prior drug-related convictions rendering him eligible for consecutive threeyear enhancements under Health and Safety Code section 11370.2, subds. (a) & (c), and that his current charges and prior convictions rendered him ineligible for probation under Penal Code section 1203.07, subd. (a)(11). On October 30, 2008, the day the preliminary hearing was scheduled, appellant agreed to plead guilty to selling cocaine base in exchange for a dismissal of the remaining count and special allegations and an initial grant of probation. Defense counsel stated on the record that he had advised appellant about his right to a preliminary hearing, his privilege against self-incrimination, his right to be tried before a jury, and his right to confront and cross-examine the witnesses against him. Counsel also indicated that he had advised [appellant] of the legal consequences of a guilty plea to the charge[] and that the punishment for the offense is two, three or four years in state prison as I understand it, but that the prosecutor had agreed that the imposition of sentence would be suspended and probation would be granted. Appellant waived his various rights on the record, entered his guilty plea, and acknowledged that he understood he could be sentenced to prison without a jury trial in the event he violated the terms of his probation. After he entered his plea but before he was sentenced, appellant s parole in an earlier case was violated, apparently as a result of his plea to the charges in this case. He was returned to prison for a 10-month term on the parole violation. Appellant filed a motion to withdraw his guilty plea, arguing that he had not been given sufficient time to consult with his parole officer and determine the effect of his plea on his parole. The trial court denied the motion. In a sentencing hearing held January 16, 2009, the court placed appellant on felony probation with various conditions. Appellant filed a notice of appeal from the judgment (A125339) and obtained a certificate of probable cause. 2 Appellant was arrested a few months later for selling drugs to an undercover officer. The probation department filed a petition to revoke appellant s probation, which was heard concurrently with a preliminary hearing on the new charges. The court revoked appellant s probation and, based on his lengthy history of drug offenses, sentenced him to prison for the five-year upper term.1 Appellant filed a notice of appeal from the judgment revoking his probation and sentencing him to prison (A127741). In the appeal from the original judgment (A125339), appellant s court-appointed counsel filed a brief raising no issues, but seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). We noted during our review that appellant s probation had since been violated, that he had been sentenced to a five-year prison term as noted above, and that during the initial change of plea hearing, defense counsel had misadvised him that the sentencing range for his crime was two, three or four years in state prison. We filed an order consolidating that appeal with the appeal from the probation revocation proceedings and directed counsel to brief the question of whether the misadvisement regarding the sentencing range entitled him to relief, along with any other appellate issues that might arise from the revocation of probation and the sentence imposed. DISCUSSION I. Error in Description of Sentencing Range At the change of plea hearing, defense counsel advised appellant that the sentencing range for selling cocaine base was two, three, or four years, whereas the actual sentencing range is three, four, or five years. (Health & Saf. Code, § 11352, subd. (a).) Neither the prosecutor nor the court corrected the mistake. When appellant s probation was revoked, he was sentenced (without objection) to five years in prison, which was a year longer than the maximum term stated in the advisement. 1 Appellant was also held to answer on the new charges, though the record does not reveal the outcome of that case. 3 The parties agree that the advisement by defense counsel was in error, but they disagree as to the consequences. Appellant claims the sentencing range recited by counsel was a material term of his plea bargain that allowed the court to sentence him to no more than four years in prison in the event probation was revoked. (See In re Moser (1993) 6 Cal.4th 342, 353-358 (Moser); People v. Knox (2004) 123 Cal.App.4th 1453, 1459 (Knox).) The People respond that appellant was simply misadvised as to the consequences of his plea, an error that requires a showing of prejudice and that was forfeited by appellant s failure to object to the five-year prison term. (See Moser, at p. 350-353; People v. McClellan (1993) 6 Cal.4th 367, 376-378 (McClellan); People v. Walker (1991) 54 Cal.3d 1013, 1020 (Walker).) We agree with the People. Appellant s argument raises two related but distinct legal principles. (Walker, supra, 54 Cal.3d at p. 1020.) The first is that whenever a defendant enters a guilty or no contest plea, he must be advised of the direct consequences of that plea. The second is that the parties must adhere to the terms of a plea bargain. (Ibid.) In any given case, there may be a violation of the advisement requirement, of the plea bargain, or of both. Although these possible violations are related, they must be analyzed separately, for the nature of the rights involved and the consequences of a violation differ substantially. (Ibid.) A. Misadvisement of Penal Consequences The maximum penalty for an offense is a direct consequence of a plea as to which an advisement is required. (See Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605; People v. Lytle (1992) 10 Cal.App.4th 1, 4.) The trial court in this case did not advise appellant of the sentencing range for the crime when it accepted the plea, nor did it correct defense counsel when counsel misstated that range as being less than it really was. The lack of an accurate advisement does not, however, entitle appellant to automatic relief. The requirement that the court advise the defendant of the direct consequences of the plea is not constitutionally mandated. (Walker, supra, 54 Cal.3d at p. 1022.) A 4 defendant asserting error in an advisement must establish prejudice; i.e., that he would not otherwise have entered the plea. (McClellan, supra, 6 Cal.4th at p. 378; Moser, supra, 6 Cal.4th at p. 352.) Moreover, any claim of error arising from a misadvisement is forfeited on appeal when the defendant does not object to the imposition of a sentence that is at variance with the advisement given. (McClellan, at p. 377; Moser, at p. 352, fn. 8.) Appellant cannot establish prejudice on this record because there is no indication he would have rejected the plea if he had known his conviction carried a five-year maximum term. He entered his plea to obtain a grant of probation with no additional time in custody, and the prosecutor agreed to the dismissal of several enhancements that would have rendered him ineligible for probation and substantially increased his sentence had they been found true. It is not reasonably likely appellant would have insisted on going to trial had he learned that the maximum possible sentence upon a probation revocation was five years rather than four years. Additionally, appellant did not object to the five-year prison term on the ground that it exceeded the sentencing range he had been advised of at the time of his plea. This failure to object forfeited any claim based on a failure to advise of direct penal consequences. Appellant argues that he would not have entered the plea if he had known about the one-year difference in the maximum available punishment, as evidenced by his attempt to withdraw his plea after he learned he would be violated on his parole and returned to custody for 10 months. He points out that the one-year difference between a four- and five-year maximum sentence is greater than the 10 months he was unwilling to serve for his violation of parole. The distinction, as we see it, is that the 10-month term on the parole violation placed appellant in custody immediately, whereas a longer sentence on the substantive crime would only affect him if his probation were revoked at some time in the future. Appellant s failure to object to the five-year term when his probation was revoked is a further indication that the one-year difference in the maximum term did not influence his decision to plead. (See McClellan, supra, 6 Cal.4th at p. 378 [defendant s failure to object to sex offender registration requirement at 5 sentencing suggests he did not consider it significant in the context of his plea agreement; failure to advise of registration requirement was not prejudicial].) B. Violation of Plea Agreement We next consider appellant s claim that the court violated a term of the plea agreement and his right to due process when it imposed a five-year sentence. Plea agreements have a constitutional dimension, and [a] criminal defendant s constitutional due process right is implicated by the failure to implement a plea bargain according to its terms. [Citations.] For that reason, violation of a plea bargain is not subject to harmless error analysis. (Knox, supra, 123 Cal.App.4th at p. 1459.) Appellant can prevail in his claim that the court violated his plea agreement only if he can establish that a four-year maximum sentence was a term or condition of that agreement. [W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. (Walker, supra, 54 Cal.4th at p. 1024.) A four-year maximum sentence was not a term or condition of appellant s plea. The record contains no evidence that a four-year term was a subject of negotiation (or even discussion) during the plea-negotiation process, or that the prosecutor made any promises or inducements relevant to the challenged element. (McClellan, supra, 6 Cal.4th at p. 379; see also Santobello v. New York (1971) 404 U.S. 257, 262.) The prosecutor agreed that appellant would be placed on three years probation with the imposition of sentence suspended and that an additional charge and various enhancement allegations would be dismissed. He did not agree to a particular maximum sentence in the event of a probation violation. Even if we were to assume a four-year maximum sentence was a term of the plea agreement, appellant has forfeited his challenge. If a plea bargain is violated through imposition of punishment exceeding the terms of the bargain, the error is waived by failure to object at sentencing if the court had advised the defendant of the right to withdraw the plea upon court withdrawal of plea approval. ([Pen. Code], § 1192.5), but 6 is not waived by failure to object and is not subject to harmless error analysis if that advisement was not given. (People v. DeFilippis (1992) 9 Cal.App.4th 1876, 1879, italics omitted.) When the trial court accepted appellant s plea, it advised him he would have the right to withdraw the plea if it withdrew approval of the plea agreement: The acceptance of your plea at this time is not binding on the Court, and if the Court withdraws approval at the time of sentencing, you will be allowed to take back your plea of guilty and enter a plea of not guilty if you wish to do so. If you do that, any dismissed charges or allegations may be reinstated. In light of this advisement, appellant s failure to object to the five-year term as exceeding the punishment authorized by the plea agreement relinquished any right he had to withdraw the plea on this ground. (See Walker, supra, 54 Cal.3d at pp. 1025, 1026.) C. Ineffective Assistance of Counsel Appellant alternatively argues that his trial attorney provided ineffective assistance of counsel in failing to object to the imposition of a five-year prison sentence. We are not persuaded. A defendant claiming ineffective assistance of counsel has the burden of showing: (1) counsel s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice, i.e., a reasonable probability that the result of the proceeding would have been different were it not for the error. (Strickland v. Washington (1984) 466 U.S. 668, 686, 688 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216, 218 (Ledesma).) The record here does not establish prejudice. We have already concluded that the error in this case was a misadvisement of the consequences of the plea rather than a violation of the plea agreement, meaning the only possible remedy would have been the opportunity to withdraw the plea. (Berman v. Cate (2010) 187 Cal.App.4th 885, 900 [specific performance is not an available remedy for a failure to advise of penal consequences].) Had counsel objected to the five-year sentence when it was imposed, appellant would have been entitled to withdraw his plea only if he could establish that he would not have entered the plea knowing he faced a five- rather 7 than four-year term in the event his probation were revoked. (See Moser, supra, 6 Cal.4th at p. 352.) There is no reasonable probability appellant would have been able to make this showing given the favorable nature of the plea agreement. II. Presentence Conduct Credits Appellant was sentenced to prison on June 16, 2009, following the revocation of his probation. The court awarded him 146 days of credit for time actually spent in custody, plus an additional 72 days in conduct credits under former Penal Code section 4019, for a total of 218 days. After his sentencing hearing, section 4019 was amended to provide for additional conduct credits in many felony cases. We agree with appellant that he is entitled to the benefits of this provision. Former Penal Code section 4019 provided in relevant part that if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody. (Pen. Code, former § 4019, subd. (f), as amended by Stats. 1982, ch. 1234, § 7.) An amendment effective January 25, 2010, increased the number of conduct credits so that, subject to exceptions not relevant here, if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody. (Pen. Code, § 4019, subd. (f), as amended by Stats. 2009-2010, 3d Ex.Sess., ch. 28, § 50, eff. Jan. 25, 2010.)2 In People v. Pelayo (2010) 184 Cal.App.4th 481 (review granted July 21, 2010, S183552) (Pelayo), we concluded that the amended presentence conduct credit provisions of Penal Code section 4019 were retroactive as to all sentences not yet final on direct appeal at the time the amendments went into effect. The California Supreme Court has granted review of the issue, both in cases that reached the same conclusion as we did, 2 Penal Code section 4019 was subsequently amended to reduce the number of conduct credits available, but these amendments apply only to cases involving crimes occurring on or after the effective date of September 28, 2010. (Stats. 2010, ch. 426, § 2.) The new version of the statute does not affect this case and does not change our analysis. All of our references to the amended version of section 4019 are to version effective January 25, 2010, and not the newest version effective September 28, 2010.. 8 and in cases that reached the opposite conclusion. (E.g., People v. Brown, review granted June 9, 2010, S181963; People v. Rodriguez, review granted June 9, 2010, S181808.) Pending our Supreme Court s resolution of the issue, we continue to be of the view that the amendment applies retroactively, and therefore incorporate our reasoning in Pelayo. Having spent 146 days in actual presentence custody, appellant is entitled to 146 days in conduct credits, for a total of 292 days. III. Supplemental Probation Report Appellant argues that the case must be remanded for resentencing because the court did not order a supplemental probation report. We disagree. When probation is revoked or other circumstances lead to the passage of a significant period of time between the original probation report and subsequent sentencing proceeding, the court must order a supplemental probation report. (Pen. Code, § 1203.2, subd. (b); Cal. Rules of Court, rule 4.411(c) [ The court must order a supplemental probation officer s report in preparation for sentencing proceedings that occur a significant period of time after the original report was prepared ].) According to the Advisory Committee Comment to rule 4.411(c), a period of more than six months may constitute a significant period of time. (See People v. Dobbins (2005) 127 Cal.App.4th 176, 181.) In this case, a probation report was prepared for appellant s initial sentencing hearing held on January 16, 2009, following his guilty plea. After appellant s probation was revoked on June 3, 2009, the court referred the case to the probation department for a supplemental report, specifically on the issue of custody credits. The probation officer submitted a written report for the June 16, 2009 sentencing hearing, which updated the calculation of custody credits and noted appellant s rearrest on the drug charges that had led to the revocation of his probation. Thus, a supplemental probation report was prepared for the June 16, 2009 sentencing hearing. If the report was insufficient to describe events that had transpired 9 since appellant s original sentencing just six months earlier, it was incumbent upon him to bring those matters to the trial court s attention. If the defendant feels the probation report is insufficient or inaccurate, or is based upon unreliable information, he or she may present witnesses to counteract or correct any portion of the report. (People v. Bloom (1983) 142 Cal.App.3d 310, 320.) Even if we assume the report was inadequate and the challenge was not forfeited, remand is required only if it is reasonably probable a more thorough report would have produced a better result for appellant. (Dobbins, supra, 127 Cal.App.4th at pp. 182-183.) Appellant has failed to make this showing. He was placed on probation in January 2009 and was arrested on new charges in April 2009, leading to the revocation of probation. He does not explain how information about his behavior during the three months or so before his rearrest would have persuaded the trial court to disregard the extensive criminal history that was documented in the original probation report and impose a more lenient sentence. Nor does he cite any other facts that would have mitigated his culpability. A remand for resentencing is not required. DISPOSITION The judgment is modified to reflect an award of 146 days of actual presentence custody credits and 146 days of conduct credits under section 4019, for a total award of 292 days of credit. The superior court shall prepare an amended abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed. 10 NEEDHAM, J. We concur. JONES, P. J. BRUINIERS, J. 11
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