Opinion
NOT TO BE PUBLISHED
Super. Ct. No. F3713
BUTZ, J.Defendant John Thomas Shone entered a negotiated plea of no contest to corporal injury to a spouse (Pen. Code, § 273.5, subd. (a)--count I), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)--count III), criminal threats (§ 422--count V) and wiretapping (§ 631, subd. (a)--count XII) in exchange for a state prison sentencing lid of six years four months and dismissal of the remaining eight counts and a firearm use allegation.
Undesignated statutory references are to the Penal Code.
After denying defendant’s motion to withdraw his plea, the trial court sentenced defendant to state prison for six years four months, that is, the upper term of four years for corporal injury to a spouse, a consecutive one-third the midterm or one year for the assault offense and consecutive one-third the midterm or eight months for both criminal threats and wiretapping.
Defendant appeals. The trial court granted defendant’s request for a certificate of probable cause. (§ 1237.5.) Defendant contends (1) the trial court abused its discretion in denying his motion to withdraw his plea or counsel rendered ineffective assistance; (2) the trial court’s determination that section 654 did not bar separate punishment contravened Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856]; and (3) the trial court erroneously imposed a criminal protective order. We shall strike the “no contact order” but otherwise affirm the judgment.
The facts are quoted from the factual basis set forth at the entry of plea hearing.
“On April 1st of 2006, [the victim], who is defendant’s wife, came home from work. She worked at a restaurant. She came home at about 10:00 o’clock that evening.
“When she got home, defendant, the first thing he said to her is, ‘You are so fucking dead, you don’t even know it. You are going to die tonight, bitch. You know what you did.’
“[Defendant] has consistently throughout his marriage with [the victim] accused her of cheating. . . .
“Prior in the evening, her 11-year-old son, [J.], had a discussion with [defendant]. [Defendant] claimed to [the victim] that the son had told him eight different names of men that she had been sleeping around with. He used that as a way to start off this fight basically.
“He immediately slapped her and basically this type of conduct continues throughout the entire night. He keeps her awake the entire night, mostly confined to the kitchen until about 7:00 o’clock the next morning.
Defense counsel objected to the use of the language “confined to the kitchen” since false imprisonment was not one of the offenses to which defendant agreed to enter a plea. The prosecutor clarified, “Well, the point is, most of the incidents occurred in the kitchen.”
“[¶] . . . [¶]
“He told her that she better start giving him the information he wanted or he was going to start torturing her slowly.
“He described to her numerous ways in which he could kill her. He told her that he could take a ballpoint pen and shove it through her temple. He told her [he] could take his two fingers and rip out her eyes and juggle [sic] them like Jell-O. He could rip out her juggler [sic].
“He hit her with the palm of his hand into her mouth, told her it was lucky it wasn’t her nose because the next time he would ram her nose bone into her brain and let her die.
“He shoved her head into the kitchen cabinet. He taunted her about picking up the phone, telling her that before she got there, he could rip out her juggler [sic] and kill her.
“He took kitchen knives and, while pretending to be some sort of a kung fu master, would hold the knife by the handle and with the blade down his arm and make swiping motions at her.
“She described there were too--I believe, she said there was too many times to count, about 50 she thought, some of which he described as decapitating her, he could slice off her arms. He would cut her tendons so she could never walk.
“The swiping motions, some of them came to about an inch or closer to her neck while he was making the statements about killing her.
“He also used the flat end of the knives to strike her legs. He told her she wants to be a whore, he will treat her like one.
“At one point, [the victim] was wearing a baggie pair of jeans and a shirt. [Defendant] had taken a very small screwdriver . . . and had used the pointed edge of it to push it through the seam of the pants to the left of the zipper; he then ripped it all the way up, through the waist to where her pants fell off. He went up underneath her shirt and literally ripped her bra off of her. He also ripped her underwear off of her.
“[Defendant] was smoking a cigarette at one point and he had, after taking her clothes off, had propped her up onto one of the cabinets and according to [the victim], he had taken the cigarette and had touched her vagina with it.
Defense counsel interjected: “I object, unless the People can clarify which of the offenses they are alleging that fits.” The prosecutor responded that it went to either the assault offense or the corporal injury offense.
“[¶] . . . [¶]
“[A]t one point during the incident, [the victim] said that [defendant] is a handyman, so he had various tools around the house. And he had taken a pair of pliers and had clamped onto the bridge of her nose. . . .
Defense counsel objected and the prosecutor responded that it went to the corporal injury offense.
“[¶] . . . [¶]
“And had forced her head down toward the counter area of the kitchen. She also said that he had what were called wire splicers.
Defense counsel objected, commenting that there had been no injury.
“[¶] . . . [¶]
“ . . . Anyway, wire splicers that had clamped onto her left nipple for about a minute and had led her around the house toward the end of the evening or the early morning.
“Throughout this entire period, [defendant] had been consuming alcohol or beer. About 7:00 o’clock, before the children were woke up, [defendant] forced her to drive him to a local mini-mart, where he is seen on videotape going in and buying more alcohol.
“They returned home; the abuse continued. He made her sit down at a table and he struck her. She fell. He pretended to help her up, struck her again.
“At this point, two of her small children, the older boy, [J.], who is 11, and [A.], who . . . was about four, had woken up and come over.
“ . . . [J.] recalls hearing a good portion of the incident before he fell asleep. He recalls the threat that was first made, ‘You are dead and you don’t even know it.’ He recalls seeing his dad, as he refers to [defendant], with a knife and making the swiping motions toward [the victim]. He recalls in the morning when he woke up his dad hitting [the victim].
“He recalls his dad saying something to the effect of, ‘You know the sad part is after killing you, I am going to have to kill our kids, leave no witnesses.’
“At some point, [defendant] told [the victim] to get up, they were going to the back bedroom. As she got up to go, he was leading her by the hand, she mouthed to [J.] to call 911.
“[J.] said that he waited for about five minutes after they had gone into the bedroom. He left and went to a neighbor’s and called 911.
“While in the bedroom, [defendant] got out a small portable space heater with some belts and told [the victim] that he was going to strap them to her and melt her flesh off.
“At that point, there was a knock at the door, the deputy was there. [Defendant] saw the deputy, indicated to [the victim], why is the Deputy here? She said, I will find out. She goes to the door, let’s him in, [defendant] escapes out the back window.
The court queried whether the factual basis “sound[ed] like a substantially accurate representation of the evidence that the People would present if we went to trial?” Defense counsel agreed that that would be the prosecution’s case and defendant would enter a no contest plea because he disputed “a lot of that.” Defendant personally added, “Yeah, but as far as what happened, it’s way out there. That is not what happened. That I do know.”
“[Defendant] had taken a microcassette tape recorder that was voice activated, literally attached it to the telephone line at the junction box for the phone. He is heard on the tape stating the date April 2nd or April 1st.” [We end our quotation from the entry of plea hearing.]
DISCUSSION
I. Motion to Withdraw Plea
Defendant contends the court abused its discretion in denying his motion to withdraw his plea and that counsel rendered ineffective assistance. Defendant argues that he never knowingly admitted that his offenses were subject to consecutive sentencing and never agreed that an appropriate sentence was six years four months. We conclude that defendant has failed to demonstrate an abuse of discretion by the trial court or that counsel’s performance was deficient.
A. Background
Defense counsel stated that defendant offered to plead no contest to corporal injury (count I), the assault offense, deleting the language making it a strike (“deadly weapon, to wit, knives”) (count III), criminal threats (count V) and wiretapping (count XII) in exchange for a sentencing lid of six years four months. Defense counsel noted that the criminal threats offense would be the only strike charge. Defense counsel stated that defendant had been advised that he would be “eligible for half-time custody credits at state prison should he be so sentenced. The timeframe is open to give him a chance to talk to Probation.” Defendant confirmed his offer. The People accepted defendant’s offer.
The court queried whether defendant understood the nature of the offenses to which he planned to enter a plea. Defendant confirmed that he did. Defendant confirmed that he had had enough time to confer with his attorney, telling her all the facts and circumstances about the case. Defendant was not under the influence and agreed that he was entering a plea of no contest freely and voluntarily. He confirmed that no one had threatened him to enter his plea. He understood that the court treated a no contest plea the same as a guilty plea. He waived his rights to a jury trial, to confront and cross-examine witnesses, and to present a defense, and the right against self-incrimination.
“THE COURT: Okay. You understand that the maximum sentence for these offenses could be up to six years four months in state prison?
“THE DEFENDANT: Yeah, I do.”
The court advised defendant of the consequences of his plea, that is, a period of parole, a restitution fine, a general fine, victim restitution, and so on.
When the court asked defendant whether any other promises had been made, defense counsel interjected, “He knows that we are going to be arguing for probation. We would like to put on a sentencing hearing. He knows what the minimum and maximum are. [¶] . . . [¶] That he would be eligible for half time if he were sent to prison.” Defendant confirmed that no other promises had been made. Defense counsel confirmed that she had had enough time to discuss the case with defendant and consented to defendant’s plea.
Before setting forth the factual basis for the plea, the prosecutor stated the following:
“I want to make clear, I believe that to the defense and myself that it’s clear, but I want to make clear for the Court, none of these offenses would be treated as [section] 654 offenses. They did all occur over one continuous period of time, but they are all being treated as independent and having their own factual basis.”
Defense counsel confirmed that that was the understanding and that the defense “may still argue for concurrent time.” The following discourse then ensued:
“[THE PROSECUTOR]: That is fine arguing for concurrent time, but I don’t want--or I want--basically what I am asking for is a waiver that these are [section] 654. I understand that it can be asked that they be run concurrent. Should the Court view them to be consecutive, I want the Court to have that option.
“[DEFENSE COUNSEL]: The difference is the Judge can still consider them concurrent time. [Section] 654 is saying they are really two different ways of saying the same crime, okay? [The prosecutor] is saying they are not.
“THE DEFENDANT: It was all the same night.
“[DEFENSE COUNSEL]: It was all the same night.
“THE COURT: Okay. Is that part of the agreement?
“[DEFENSE COUNSEL]: It’s part of the agreement that the Judge will still have discretion to consider concurrent time.
“As far as the People asking for a waiver of [section] 654, let me just confirm.
“You are asking me to admit that these are not two different ways of phrasing the same conduct?
“[THE PROSECUTOR]: Correct. These are independent crimes for which the Court could impose or have the discretion to impose consecutive sentences.
“[DEFENSE COUNSEL]: They do define different incidents that are alleged to be happening that night, on the same night.
“[THE PROSECUTOR]: Okay. Is that a waiver? Yes or no?
“[DEFENSE COUNSEL]: It’s a waiver of [section] 654, but not a waiver--an acknowledgement that the Judge has the discretion to consider concurrent sentencing.
“[THE PROSECUTOR]: That’s fine.”
The prosecutor thereafter set forth the factual basis for the plea. Defense counsel and defendant agreed that the prosecution would present such evidence at trial but that defendant disputed a lot of it.
The prosecutor agreed to accept defendant’s offer as to counts I, III, V and XII, explaining that she had substantial corroborating evidence for the offenses. For the dismissed counts, the prosecutor explained that the victim never reported most of the incidents in a “very long history of abuse” and there was no corroborating evidence.
Defendant thereafter entered his pleas of no contest. The court found a factual basis for each plea. The court further found that defendant freely, voluntarily, knowingly and intelligently waived his rights and entered his pleas and understood the nature of the crime, the defenses and consequences.
On the date set for sentencing, defendant stated that he “wanted to withdraw [his] plea on various levels of [his] constitutional rights being violated throughout this, the entire due process here.” The court appointed new counsel to investigate the grounds, if any, for a motion to withdraw defendant’s pleas.
New counsel filed a motion to withdraw defendant’s pleas, claiming that there was good cause. In the points and authorities, new counsel cited case law for certain propositions but did not argue any of them. Defendant’s declaration was filed in support of the motion. He stated: He was not guilty and there was a defense to the offenses; he felt coerced to enter the pleas, having been told by his attorney that the prosecutor planned to “‘fry’” him if the case went to trial and that he would not be released from prison until he was 62 years of age; he was not asked whether he had any defense to the charges, having been told by his attorney that he “‘was guilty until proven innocent’ and that the ‘truth doesn’t matter’”; his attorney did not properly prepare a defense; acknowledging that the prosecutor and his attorney agreed on the record that section 654 would not apply but that his attorney could argue for concurrent sentencing, he claims he “was never advised of [his] rights under Penal Code section 654 and now believe[s] that said pleas should come under the provisions of said section”; he was not advised of the nature of the charges to which he entered a plea, thinking he was “entering a plea to Penal Code [s]ection 245 but in Court Penal Code [s]ection 245[, subdivision] (a)(1) was the charge to which [he] had to plea”; and he disputed the factual basis stated by the prosecutor for his pleas.
The prosecutor opposed the motion, arguing that defendant had not shown good cause but instead was “simply experiencing ‘buyer[’]s remorse.’” The prosecutor noted that at the entry of plea hearing, defense counsel explained to defendant “the basic difference between asking for concurrent time and crimes that are considered [section] 654 to each other” and defense counsel waived application of section 654 to the four counts to which defendant entered a plea. The prosecutor argued that defendant’s lack of understanding as to the application of section 654 did not constitute a ground to withdraw his plea because he “knew what the parameters of the plea bargain were when he entered his plea and nothing has changed.” With respect to defendant’s claim of lack of advisement by his former attorney, the prosecutor attached the declaration of defendant’s former attorney, Alison Kaylor. The prosecutor also noted that the transcript of the entry of plea hearing belied most of his claims, in that, he told the court that he had informed his attorney about everything he knew about the case, he had had enough time to talk to her, he had not been threatened to enter his pleas and he was pleading freely and voluntarily.
In her declaration, Kaylor stated that although she did not “specifically counsel” defendant about the “nature” of section 654, she did talk to defendant about the “possibility of concurrent sentencing on numerous occasions, including during our specific discussions concerning the plea offer.” She stated, “I intentionally constructed a plan so that [defendant’s] exposure pursuant to a plea offer would include only charges on one of the three dates[,] for the specific purpose that we would have a better opportunity to argue for concurrent time. I discussed this with [defendant] repeatedly.”
Kaylor noted that there were other considerations in making the plea offer, that is, limiting defendant’s exposure to strike offenses and to less than half time, “limiting the enormous exposure (especially from the firearm allegation) that the case involved,” and getting him evaluated at Delancey Street Foundation where he was later accepted. Kaylor claimed that their plea offer was “significantly more advantageous” than that made by the prosecutor. Kaylor stated that she “had lengthy discussions with [defendant] concerning the plea offer and possible sentencing options including the lengths of various state prison terms the court could impose. . . . My counsel to [defendant] was made in terms of what ‘risk’ he was prepared to take, and possible sentencing ‘exposure’ under various scenarios. [Defendant] was thoughtful in the time he took considering the offer.” Kaylor also considered defendant’s research on various issues, explaining the relevance and irrelevance. Kaylor explained to defendant that the section 245 offense would be part of the plea agreement with language deleted to make it a nonstrike offense and commented, “I am at a loss as to why this is presented as an issue [in defendant’s motion to withdraw his plea].”
Kaylor also set forth her efforts, and those of her investigators, in preparing a defense, including her numerous visits and discussions with defendant.
In conclusion, Kaylor stated the following:
“In short, I agree that [section] 654 was not specifically discussed with [defendant] prior to the start of the [entry of plea] hearing; but the opportunity to argue for concurrent sentencing was repeatedly discussed. I spoke with [defendant] in detail as to the plea offer, possible consequences, benefits and detriments. Extensive efforts were made in defense of [defendant’s] case, and discussed at length with [defendant]. I do believe that [defendant] has grown frustrated during his lengthy time in jail, and with what he and I believe to be exaggerations made by the complaining witness[.] I emphasize [sic] with him as to that. I would also like the court to know that despite his frustrations, [defendant] always treated me and the investigators politely and respectfully. But he has required, and gotten, a great deal of attention, effort, and work from us.”
Kaylor stated the “sentencing” hearing but it is an obvious misstatement.
A defense investigator also submitted her declaration with respect to her efforts on behalf of defendant.
At the hearing on defendant’s motion to withdraw his plea, defendant testified. He explained that he wanted to withdraw his pleas because he was “led to believe that the [section] 245 was not going to be part of the deal,” was only added when he got to court and “then the [subdivision] (a)(1) was taken away and then added toward the end of the proceedings.” He claimed he was never advised about the application of section 654 which “was waived,” stating that he “didn’t even know nothing about the [section] 654, what it meant for any of [his] charges.” He claimed he only learned about the charges against him by doing his own research in the law library. He repeated some of the claims in his declaration about being “fried” by the prosecutor, feeling coerced if he did not enter a plea and his attorney whom he had not spoken to “for seven months” believing he was guilty. He denied the facts stated by the prosecutor for the factual basis for the plea, claiming “that’s the first time I have heard anything of, you know, what I was admitting to or any of that and I strongly deny all of that.” He claimed there was new evidence, that is, his father and other witnesses would testify that the victim had made false allegations on prior occasions.
On cross-examination, defendant denied having ever been arrested before for domestic violence against the victim. Defendant refused to admit that such a case had been filed in another county, denying having been arrested but admitting having completed probation and anger management. Defendant denied telling Kaylor about his father but admitted that she claimed to have spoken with his father. He had read the police reports in the case but denied the factual basis stated for the plea was the same. Defendant stopped talking to Kaylor for seven months when she said he was guilty. Defendant denied that anyone ever explained in detail the charges against him. He claimed he was confused when he entered his plea but never said anything because he “felt like [he] was on the spot” and it “was over [his] head.” He admitted that Kaylor discussed with him the planned plea offer and he agreed to it only if she removed the section 245 offense. He recalled that Kaylor told him the maximum time he faced. He recalled that Kaylor “led [him] to believe that [he] would get concurrent, seeing how everything happened on the same evening.” When asked if Kaylor told him he would definitely get concurrent time, defendant responded, “No, there was never no definites, but there was no [section] 654 waiver or anything of that either.” When asked if Kaylor explained that defendant’s sentence was up to the court, defendant responded, “She had mentioned something about that, that she can leave the discretion up to the Court for the sentencing. On one occasion she had mentioned that, yes.” He claimed the section 245 offense was not supposed to be part of the bargain and he would never have accepted it had he known. He claimed, “You guys slipped the [subdivision] (a)(1) in on the end. You took it away at the beginning and put it back in in the end.” He claimed he never assaulted the victim with a deadly weapon and never beat her up but only slapped her.
The prosecutor called Kaylor to testify and augment her declaration. Kaylor explained that she had represented defendant for about a year, since his arraignment on the original case which was later consolidated with another case. She had had many conversations with defendant. She noted that initially, he was not “forthcoming about the details.” He later explained that he had not felt comfortable. There was never a point where he became uncooperative. Kaylor discussed the charges many times with defendant and the facts of the case as alleged by the victim. Defendant had a copy of the discovery. Kaylor confirmed that she had made the plea offer accepted by the prosecutor after discussing it a lot with defendant who took a “very long time to think about it.” Kaylor said there was no confusion that the section 245 was included in the offer. Kaylor denied telling defendant that he was guilty of the offenses, claiming instead that she had “empathized with him because [she] felt a lot of details were exaggerated.” She did tell defendant that some of the offenses would be easily proved. She denied telling defendant that he would be “fried” by the prosecutor and never told defendant he definitely would get 24 years, the maximum for all charges. Kaylor and defendant discussed the sentencing possibilities, defenses and witnesses.
On cross-examination, Kaylor denied that defendant had only admitted slapping the victim. Kaylor confirmed that defendant admitted to more than that. Kaylor stated that defendant never told her that he did not want to enter a plea because he was not guilty. She stated that he entered a plea of no contest because he disagreed with the details underlying the offenses. When shown a piece of paper with her handwriting, she explained that it reflected sentencing possibilities but was written before they made the plea offer.
In rebuttal, defendant claimed the paper represented the deal.
The prosecutor represented to the court that defendant was on diversion in Amador County for a section 273.5 violation with a bench warrant pending.
The court denied the motion to withdraw the plea, concluding that it went over the charges with defendant, that the strike language was deleted from the section 245 offense for defendant’s benefit, and that defendant agreed to a sentencing lid of six years four months in state prison. With respect to the section 654 issue, the court found defendant waived the section 654 issue, citing California Rules of Court, rule 4.412(b), and in any event, he could still argue for concurrent time and “basically make factually and legally a [section] 654 argument against the consecutive time.” The court concluded defendant had not shown any newly discovered evidence in that defendant knew about any false allegations the victim made in the past and that defendant had not shown that his father had been a percipient witness to any prior allegations.
California Rules of Court, rule 4.412(b) provides: “By agreeing to a specified prison term personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654’s prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record.”
B. Analysis
Defendant states he “never entered into any personal waiver of section 654, or an agreement that the four offenses were not part of an indivisible course of conduct, or that they had separate objectives.” He argues that this amounted to good cause to set aside the plea. Claiming the sentencing court determined that defendant had agreed that six years four months was an “‘appropriate’” sentence, defendant argues on appeal that he “never agreed to that either.” He contends either the court abused its discretion in denying his motion to withdraw his plea or counsel rendered ineffective assistance because “she failed to explain to [defendant] what he was giving away when she ‘waived’ section 654.” We find neither an abuse of discretion nor ineffective assistance.
Section 1018 provides, in relevant part, that on defendant’s motion prior to judgment, the court may, “for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.”
In seeking to withdraw his plea, the defendant has the “burden to produce evidence of good cause by clear and convincing evidence.” (People v. Wharton (1991) 53 Cal.3d 522, 585.) To demonstrate good cause, a defendant must show that his plea was not the product of his free judgment. “Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea.” (People v. Cruz (1974) 12 Cal.3d 562, 566.)
A trial court’s denial of a motion to withdraw a guilty plea will not be disturbed unless abuse of discretion is shown. (People v. Holmes (2004) 32 Cal.4th 432, 442-443; People v. Wharton, supra, 53 Cal.3d at p. 585.) We “must adopt the trial court’s factual findings if substantial evidence supports them.” (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) Moreover, “‘pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.’” (People v. Weaver (2004) 118 Cal.App.4th 131, 146.)
“[P]lea bargaining is an integral component” and “critical stage in the criminal process at which a defendant is entitled to the effective assistance of counsel guaranteed by the federal and California Constitutions.” (In re Alvernaz (1992) 2 Cal.4th 924, 933.) “It is well settled that where ineffective assistance of counsel results in the defendant’s decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea.” (Id. at p. 934.) “[I]n order successfully to challenge a guilty plea on the ground of ineffective assistance of counsel, a defendant must establish not only incompetent performance by counsel, but also a reasonable probability that, but for counsel’s incompetence, the defendant would not have pleaded guilty and would have insisted on proceeding to trial.” (Ibid.)
Defendant confirmed defense counsel’s statement of the offer to plead to certain offenses including, inter alia, the assault offense deleting only the deadly weapon language, in exchange for a sentencing lid of six years four months. Deleting the deadly weapon language from the assault offense left intact the language “by any means of force likely to produce great bodily injury.” (§ 245, subd. (a)(1).) Defense counsel Kaylor stated that there was no confusion that section 245 was included in the offer and that defendant had admitted to more than just slapping the victim. Defendant confirmed that he understood the nature of the offenses and had had enough time to confer with counsel. He confirmed he understood that the maximum term was six years four months.
With respect to the section 654 issue, the prosecutor insisted on a waiver of the application of section 654 and defense counsel waived it with the understanding that she could argue nevertheless for concurrent time. Defendant testified that his attorney advised that the sentence was in the trial court’s discretion and never said he would definitely get concurrent time.
Defendant’s exposure was six years four months without application of section 654 which operates to stay sentencing on an offense. It matters not that defendant did not personally waive the application of section 654. Defendant personally agreed to a six year four month sentence by confirming the offer as stated by defense counsel. Defense counsel waived section 654 and did not assert it at the plea hearing, reserving instead the right to argue for concurrent time. Such waiver did not constitute deficient performance. Defendant admitted that defense counsel never advised him that the court would definitely impose a certain sentence or concurrent time.
While an attorney’s erroneous advice on sentencing exposure may violate a defendant’s right to effective assistance of counsel (see People v. Johnson (1995) 36 Cal.App.4th 1351, 1357-1358), even assuming defense counsel’s actions here in advising defendant on the likely consequences of his plea constituted deficient performance, defendant has not demonstrated prejudice. Defendant was later sentenced to the lid. He fails to show he was prepared to go to trial if counsel advised him that the court may decide not to stay sentence on a count based on section 654. Defendant has failed to establish the prejudice prong for his contention that counsel rendered ineffective assistance. Defendant has failed to demonstrate that the trial court abused its discretion in denying his motion to withdraw his pleas.
II. Consecutive Sentences
In imposing consecutive sentences, the trial court found that even if section 654 had not been waived, the offenses were separate and distinct with independent intents and objectives. Defendant contends that the trial court’s determination that section 654 did not apply contravened Cunningham and the cases upon which it relied. We reject defendant’s contention.
In People v. Black (2007) 41 Cal.4th 799, 820-821, the defendant contended that the trial court’s imposition of consecutive sentences under section 669 violated his Sixth Amendment rights. Black concluded Cunningham is inapplicable to the determination of whether section 669, a penalty reducing statute, applies. (Black, at pp. 820-823.)
In People v. Cleveland (2001) 87 Cal.App.4th 263, the majority concluded that there is no right to a jury trial and determination on whether section 654 applied, reasoning that section 654 is a penalty reducing statute, that section 654 does not set forth the maximum sentence for an offense, and that a finding on section 654 did not create a new offense. (Cleveland, at pp. 270-271.)
Defendant ignores Black in both his opening brief and reply brief. Defendant cites the dissenting opinion in Cleveland. The Attorney General relied upon Black in his brief.
In People v. Retanan (2007) 154 Cal.App.4th 1219, this court cited the majority opinion in Cleveland with approval in concluding that a former section 667.61, subdivision (g) finding of a separate offense was not subject to a jury trial and determination; a determination that the statute applied would have acted to reduce the defendant’s penalty for his crimes. (Retanan, at pp. 1228-1230.)
Section 654 is a sentencing reduction statute. We conclude, as did the majority in Cleveland, that defendant’s Sixth Amendment right to a jury trial and determination was not applicable to whether section 654 applies.
III. Criminal Protective Order
Finally, defendant contends and the Attorney General concedes that the trial court erroneously ordered defendant to have no contact with the victim or her three children for five years from the date of sentencing. The “no contact order” is reflected on a Judicial Council form that cites sections 136.2 and 1203.097, subdivision (a)(2). Neither section authorizes such an order. Section 136.2 applies to protect victims, witnesses and immediate family members living in the household but only during the pendency of the criminal proceedings. (People v. Stone (2004) 123 Cal.App.4th 153, 159-160.) The criminal action concluded upon defendant’s sentence to state prison. Section 1203.097, subdivision (a)(2) applies when probation is granted in a domestic violence case. Here, defendant was sentenced to state prison. We will strike the “no contact order.”
DISPOSITION
The trial court’s order that defendant have no contact with the victim or her three children for five years from the date of sentencing is stricken. The trial court shall amend the abstract of judgment at item 11 to delete reference to the criminal protective order. A certified copy of the amended abstract shall be forwarded to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
We concur: BLEASE , Acting P. J., HULL , J.