Opinion
C081657
03-10-2017
THE PEOPLE, Plaintiff and Respondent, v. ATHENA LADESSA GUERRA, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. NCR96448)
Defendant Athena Ladessa Guerra was sentenced to five years four months in state prison following entry of her plea and subsequent failure to appear for sentencing in violation of her plea agreement. She challenges the trial court's calculation of the maximum term of the plea and imposition of sentence. The People concede that certain sentencing errors require remand for resentencing. We will remand the matter to the trial court for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the probation report's summary of the Tehama County Sheriff's Department report which, as stipulated by the parties, provides a factual basis for defendant's plea.
On December 3, 2015, a Tehama County Sheriff's Deputy approached defendant, who was lying on the front porch of a residence without the homeowner's consent. Defendant appeared to be sleeping, but her eyes and upper body twitched. When the deputy woke defendant, she appeared to be disoriented and made nervous, jerky movements. Defendant admitted she had been using methamphetamine and marijuana. After obtaining defendant's consent, the deputy searched her purse and found two hypodermic syringes, methamphetamine pipes, pepper spray, and a metal shuriken (a throwing star which can be used as a weapon).
Defendant was charged with possession of a shuriken (Pen. Code, § 22410--count I), possession and transportation of tear gas and a tear gas weapon (§ 22900--count II), and possession of drug paraphernalia (Health & Saf. Code, § 11364--count III). The complaint alleged defendant suffered four prior prison terms. (§ 667.5, subd. (b).)
Unspecified statutory references are to the Penal Code.
On December 21, 2015, defendant entered a negotiated plea of guilty to count I and admitted two of the four prior prison term allegations in exchange for dismissal of the remaining counts and allegations and a sentence to be determined pursuant to an apparent Cruz waiver, whereby defendant would be released on her own recognizance and would receive either a stipulated sentence of three years four months if she reported to probation and appeared for sentencing on January 19, 2016, or a stipulated sentence of five years four months if she failed to do so.
People v. Cruz (1988) 44 Cal.3d 1247 (Cruz). While the record does not refer to defendant's agreement as a Cruz waiver, the parties refer to it as such and so shall we. --------
Defendant failed to report to probation or appear for sentencing on January 19, 2016, and a bench warrant was issued for her arrest.
Defendant did appear in court on January 25, 2016. After noting her failure to appear the week prior and her agreement that failure to do so would result in "sentence being raised from low term to mid term," the court stated, "So, apparently that was some sort of Cruz waiver that was part of the deal. So, with that, it looks like the defendant has given up the ability to be sentenced to the low term and now is looking at the mid term based on what I see to be the agreement as part of the plea. Is that correct?" Defendant's counsel responded, "That is correct." The court continued, "Well, [defendant], I am not sure why you weren't here and I am not sure why you didn't appear at Probation, but the Court has concerns that you will not appear as directed, despite the fact that you are here now. So you are going to be remanded. You are going to be remanded without bail." Defendant asked the court if she could speak and stated, "The day I had court, I had a seizure. I called the court both, had my friend call both the courthouse and [defendant's counsel]. I have an appointment with Probation on the 27th to do my sentencing report." The court responded, "Ma'am, Probation indicates that you did not contact them to set an interview. Messages were left for you on three different occasions. I am not sure that you had a seizure, I am not sure what happened at Probation, but what I am sure of, I am concerned that you won't be here." The court remanded defendant into custody pending preparation of a probation report and informed defendant, "You and the People can address the issue regarding whether or not there is going to be a low term or mid term, based on what appears to be a Cruz waiver or something along those lines with Judge Scheuler at the time of sentencing, which is going to be on the 22nd of February, 8:00 a.m." The court ordered defendant to cooperate with probation and stated she would be permitted to submit letters on her behalf or a statement. Defendant interrupted and said, "Your Honor, please. I am in the middle of moving, please." The court reiterated that defendant could submit letters or a statement if she chose to do so.
On February 22, 2016, the trial court sentenced defendant to the low term of 16 months on count I, plus four consecutive one-year terms for the four prior prison term enhancements, for an aggregate sentence of five years four months in state prison. In reaching that conclusion, the court had the following discussion with counsel:
"THE COURT: Counsel, Judge Scheuler took the plea it looks like and it state[s] if she did not appear at the time of sentencing, it would be five years, four months. It would be three years, four months if she did appear at the time of sentencing. My understanding is the date and time for sentencing was to be 1/19, is that right?
"[DEFENDANT'S COUNSEL]: That is correct, your Honor.
"THE COURT: And she did not appear?
"[DEFENDANT'S COUNSEL]: That is correct.
"THE COURT: So my understanding is the stipulated agreement is five years, four months.
"[DEFENDANT'S COUNSEL]: That is correct.
"THE COURT: Are you submitting on that?
"[DEFENDANT'S COUNSEL]: Yes, sir.
"THE COURT: Mr. Rogers [(the prosecutor)]?
"[THE PROSECUTION]: Submit it on that, sir.
"THE COURT: So you are talking about the low term plus the four [section] 667.5 [subdivision] (b)'s?
"[DEFENDANT'S COUNSEL]: Yes.
"THE COURT: All right.
"By way of the stipulated agreement, in NCR96448 the defendant will be sentenced on the [section] 22410 felony to the low term of 16 months. There will be an additional four years, one year each for each of the four [section] 667.5 [subdivision] (b)['s].
"[DEFENDANT'S COUNSEL]: Sorry, your Honor, it shows only--on the probation report, only shows two for a felony conviction under [section] 667.5 [subdivision] (b).
"THE COURT: Mr. Miller [(defendant's counsel)], my understanding was that it was five years, four months and there is no way you could get that unless it was the low term plus four. I'm looking at the plea form and the plea form indicated that she pled to [section] 667.5 [subdivision] (b) times four.
"[DEFENDANT'S COUNSEL]: Okay. That is fine, Judge.
"THE COURT: So I am not sure why probation says two, but my understanding is it is four. You have something that shows to the contrary?
"[DEFENDANT'S COUNSEL]: No, I do not. I was going by the probation report.
"THE COURT: So it is going to be the five years, four months. . . ."
Defendant filed a timely notice of appeal. The trial court granted her request for a certificate of probable cause.
DISCUSSION
I
Sentencing on Prior Prison Enhancements
Defendant contends, and the People concede, that the trial court improperly sentenced her on two prior prison term enhancements that were dismissed as part of her negotiated plea agreement. We will accept the People's concession.
The complaint alleged defendant suffered four prior prison terms. Pursuant to defendant's negotiated plea, two of the prior prison allegations were admitted, and two were dismissed. The plea also included a stipulated sentence of three years four months, or five years four months if she violated her Cruz waiver.
The written plea form stating defendant admitted four prior prison term allegations and a portion of the reporter's transcript at sentencing in which the court imposed a one- year term for each of the four prior prison allegations are at odds with the reporter's transcript of the plea hearing, which reflects that defendant admitted only two of the four prison priors in exchange for dismissal of the remaining two. As a general rule, " 'when, as in this case, the record is in conflict it will be harmonized if possible; but where this is not possible that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to greater credence [citation]. Therefore whether the recitals in the clerk's minutes should prevail as against contrary statements in the reporter's transcript, must depend upon the circumstances of each particular case.' " (People v. Smith (1983) 33 Cal.3d 596, 599.) Such error may be corrected at any time. (Ibid.)
Here, the record makes plain that defendant admitted only two prison priors and the remaining two were dismissed. At the time of entry of the plea, counsel and the court discussed which two of the four prison priors defendant would admit, with the court noting, "Because on the plea form it just says two. It doesn't say which two." The court also told defendant, "[T]here are four possibilities here. Two of them are going to be dismissed . . . ." Defendant admitted prison priors on September 12, 2005, and March 1, 2004. Thereafter, the court stated, "I have now accepted that plea and those two admissions," and granted the People's motion to "dismiss the balance of the counts in the first two prior conviction allegations." Similarly, the court's minute order clearly states defendant admitted "2 prison prior convictions," and the probation report states defendant "pled guilty to Count 1 and admitted two prior felony convictions" and the "remaining counts and special allegations were dismissed."
The reporter's transcript, the court's minute order, and the probation report all confirm defendant admitted two prison priors and the remaining two were dismissed. Thus, the trial court erred in imposing a sentence which included punishment for the two dismissed enhancements. We will remand the matter to the trial court for resentencing.
II
Determination of Violation of Cruz Waiver
Defendant contends the trial court violated her right to due process by failing to make a finding that her failure to appear for sentencing was willful. The claim fails.
In Cruz, our Supreme Court held that a defendant's failure to appear at sentencing ordinarily does not justify the imposition of a sentence greater than that for which she bargained. However, the right to be sentenced in accordance with a plea agreement can be waived by the defendant's willful failure to appear at sentencing if the waiver is made at the time the plea is entered. (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5.)
As defendant concedes, the Cruz court did not provide a procedure by which to determine whether one's failure to abide by the terms of the agreement was willful. However, she claims the court failed to conduct a hearing to make such a determination or make any findings in that regard. We disagree.
As we explain, the court impliedly found defendant's failures to appear at the probation interview and for sentencing were willful and without good cause, and there was substantial evidence to support the court's findings. (See People v. Fairbank (1997) 16 Cal.4th 1223, 1254 [reviewing court must adopt the trial court's factual findings if substantial evidence supports them].) At the January 25, 2016, hearing, the court noted and defendant's counsel confirmed that defendant had entered "some sort of Cruz waiver" that required her to report to probation and appear at the January 19, 2016, sentencing hearing, and that she failed to do so. The court said to defendant, ". . . I am not sure why you weren't here and I am not sure why you didn't appear at Probation, but the Court has concerns that you will not appear as directed, despite the fact that you are here now. So you are going to be . . . remanded without bail." Defendant told the court she had had a seizure on the day she was to appear for sentencing, that she had her friend "call both the courthouse and [defendant's counsel]," and that she had an appointment with probation "on the 27th to do my sentencing report." The court rejected defendant's argument, noting probation indicated messages had been left for defendant "on three different occasions" and defendant had not contacted them to schedule an interview. The court added, "I am not sure that you had a seizure, I am not sure what happened at Probation, but what I am sure of, I am concerned that you won't be here."
Defendant argues the January 25, 2016 hearing was "only a scheduling hearing" and thus the exchange between the court and defendant was not a "willfulness hearing pursuant to the Cruz waiver" and the court did not make findings regarding her willfulness, instead remanding her to custody pending preparation of a probation report. We are not persuaded.
The court's statements imply findings of defendant's willful failures to appear without good cause that are supported by substantial evidence. Defendant does not now deny, nor did she at the January 25, 2016, hearing, that she failed to report to probation and to appear at the January 19, 2016, sentencing hearing. While she claimed she had a seizure and had a friend contact "the courthouse" and that she had an appointment with probation scheduled for January 27, 2016, that information was not substantiated and was in part directly contradicted by probation. The court's comments demonstrate it found defendant's explanation was insufficient and not credible and did not amount to a reasonable excuse for her failure to report to probation or show up for sentencing on January 19, 2016. As such, defendant's claim fails.
III
Sentence in Excess of Statutory Maximum
Defendant contends, and the People concede, that in light of the sentencing error regarding the two dismissed prior prison term enhancements, the five year four month sentence exceeds the five-year statutory maximum permitted on her plea and the matter must be remanded for resentencing. We agree.
Pursuant to defendant's plea agreement, defendant pled guilty to possession of a shuriken (§ 22410), a crime that carries with it a statutory maximum sentence of three years. Each prior prison term enhancement carries a one-year term. (§ 667.5, subd. (b).) As discussed in part I of this opinion, defendant admitted only two of the prior prison term allegations and the remaining two were dismissed. Thus, the maximum sentence defendant could have received pursuant to her plea was five years in state prison. As the parties aptly note, the five-year four-month sentence referenced as part of the Cruz waiver was an unauthorized sentence and we will remand the matter to the trial court for resentencing in accordance with defendant's plea agreement, which prohibits a sentence greater than the statutory maximum of five years.
In light of our conclusions herein and our remand for resentencing, we need not reach defendant's claim of ineffective assistance of counsel.
DISPOSITION
The matter is remanded to the trial court for resentencing consistent with this opinion. In all other respects, the judgment is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Mauro, J.