Filed 6/28/13 opinion on transfer
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE, C059440
Plaintiff and Respondent, (Super. Ct. No. 04-6100)
v. OPINION ON TRANSFER
CHRISTOPHER ALLEN JONES, SR.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Yolo County, Thomas Edward
Warriner, Judge. Affirmed.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and
Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Julie A.
Hokans, Clara M. Levers, and Judy Kaida, Deputy Attorneys General, for Plaintiff and
Respondent.
* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of part IV.
1
In exchange for a maximum prison term, defendant Christopher Allen Jones, Sr.,
pleaded no contest to several counts of criminal conduct and admitted a prior serious
felony conviction and a prior prison term. To comply with the plea agreement and avoid
the sentencing requirements of the “Three Strikes” law, the trial court struck the prior
serious felony conviction and prior prison term. After doing so, the court sentenced
defendant to the maximum term allowed by the plea agreement. It imposed consecutive
sentences for two of the counts and concurrent sentences for the remaining counts.
On appeal, defendant contends that (1) the information in an affidavit supporting a
search warrant was stale and therefore did not supply probable cause, (2) the court‟s
imposition of consecutive and concurrent terms violated Penal Code section 654‟s
prohibition on double punishment, and (3) he was deprived of effective assistance of
counsel because his trial counsel did not argue against consecutive sentencing.
We conclude that (1) the information in the affidavit supporting the search warrant
was not stale and supported the trial court‟s probable cause finding, (2) defendant is
barred from arguing that the sentence violated Penal Code section 654 because the trial
court sentenced within the maximum term negotiated in the plea agreement, and (3)
defendant was not deprived of effective assistance of counsel. In the unpublished portion
of the opinion we affirm the trial court‟s award of presentence custody credits.
Therefore, we affirm.
PROCEDURE
Defendant was charged by information with two counts of being a felon in
possession of a firearm (Pen. Code, § 12021, subd. (a)(1);1 counts 1 & 2); two counts of
possessing a prohibited firearm (§ 12020, subd. (a)(1); counts 3 & 4); being a felon in
possession of ammunition (§ 12316, subd. (b)(1); count 5); using another‟s personal
1 Subsequent undesignated references to sections are to the Penal Code.
2
identifying information to obtain credit, goods, or services (§ 530.5, subd. (a); count 6);
and receiving stolen property (§ 496, subd. (a); count 7). The information also alleged
that defendant had a prior serious felony conviction (§ 667, subds. (c) & (e)(1)) and
served a prior felony prison term (§ 667.5, subd. (b)).
Pursuant to a plea agreement negotiated with the prosecutor and accepted by the
court, defendant pleaded no contest to all counts and admitted the enhancement
allegations in return for a three-year eight-month “lid” or maximum term in sentencing.
At the plea hearing, defense counsel noted that the plea was entered with the
understanding that defendant was free to argue for probation and would be able to appeal
regarding the denial of his motion to suppress evidence. It was also understood that,
although defendant admitted the prior serious felony conviction and prior prison term, the
court would strike those in order to sentence within the plea agreement‟s maximum term.
The trial court sentenced defendant to a total state prison term of three years eight
months. To do so, the court struck both the prior serious felony conviction and prior
prison term findings. The court imposed the upper term of three years for count 1 (felon
in possession of firearm) and a consecutive eight months (one-third the middle term) for
count 2 (also felon in possession of firearm). As for the remaining five counts, the court
imposed concurrent middle terms.
Defendant petitioned the trial court for a certificate of probable cause, seeking to
challenge the sentence on appeal based on section 654. The trial court initially denied the
petition, but later reversed itself and granted the petition after this court issued a Palma
letter. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171.)
FACTS
The parties stipulated that the factual basis for the plea was contained in (1) the
police report, (2) subpoenas with accompanying documents, and (3) the preliminary
hearing transcript. Our recitation of the facts is based on those sources.
3
Karen Flann‟s purse was stolen in March 2002. In July 2004, she received letters
from collection agencies concerning overdue accounts with AT&T and Liberty Wireless.
Someone had used her date of birth and social security number to open cell phone
accounts with those companies. The name and address on the AT&T account were
defendant‟s.
Flann received a letter from Sprint Wireless in July 2004, informing her that her
application for phone service was denied. She had not applied to Sprint Wireless for
phone services.
The Davis Police Department obtained a search warrant and executed it at
defendant‟s residence. Officers found two sawed-off shotguns, along with 20 shotgun
shells, in a bag under a bed in the master bedroom. They also found the cell phone
associated with the AT&T account obtained using Flann‟s identifying information.
After defendant was arrested, officers found five different California driver‟s
licenses in his car.
The AT&T account was open from November 18, 2003, to April 17, 2004. The
Liberty Wireless account was opened May 9, 2004, but there was no indication
concerning when the Liberty Wireless account was closed.
DISCUSSION
I
Search Warrant
In September 2004, the Davis Police Department sought and obtained a warrant to
search defendant‟s residence. Using the warrant, officers searched the residence.
Defendant made a motion to suppress the evidence discovered in the search, asserting
that the search warrant was invalid because the information in the affidavit was stale.
The trial court denied the motion. After a motion for reconsideration, the court again
denied the motion.
4
On appeal, defendant contends that the information provided in the affidavit in
support of the application for the search warrant was stale and therefore did not provide
probable cause for the warrant. Therefore, he argues, issuance of the warrant violated his
Fourth Amendment rights.
The contention is without merit. Under the circumstances of this case, the
information was not stale.
Background
Detective Ilya Bezuglov of the Davis Police Department filed an affidavit in
support of the application for a search warrant on September 20, 2004. In all material
respects, the facts in the affidavit were the same as those recounted above, up to
obtaining the search warrant and searching the apartment.
Analysis
Appellate review of a trial court determination of probable cause on a motion to
suppress evidence under section 1538.5 is a two-step process. Express or implied
findings of fact are upheld if supported by substantial evidence. We then use
independent judgment to determine whether those facts establish probable cause. (People
v. Leyba (1981) 29 Cal.3d 591, 596-597.) Courts should not invalidate search or arrest
warrants by imposing hypertechnical requirements rather than a common sense approach
to probable cause. (United States v. Ventresca (1965) 380 U.S. 102, 108 [13 L.Ed.2d
684, 689].)
“Information that is remote in time may be deemed stale and thus unworthy of
consideration in determining whether an affidavit for a search warrant is supported by
probable cause. Such information is deemed stale unless it consists of facts so closely
related to the time of the issuance of the warrant that it justifies a finding of probable
cause at that time. The question of staleness turns on the facts of each particular case.
[Citations.] If circumstances would justify a person of ordinary prudence to conclude
that an activity had continued to the present time, then the passage of time will not render
5
the information stale. [Citation.]” (People v. Hulland (2003) 110 Cal.App.4th 1646,
1652 (Hulland).)
“Although there is no bright line rule indicating when information becomes stale
[citation], delays of more than four weeks are generally considered insufficient to
demonstrate present probable cause. [Citation.] For example, a delay of 34 days
between a controlled sale of heroin and the officer‟s affidavit for the search warrant has
been held insufficient to establish present probable cause. [Citation.] Longer delays are
justified only where there is evidence of an activity continuing over a long period of time
or the nature of the activity is such as to justify the inference that it will continue until the
time of the search. [Citation.]” (Hulland, supra, 110 Cal.App.4th at p. 1652.)
Even though the information concerning defendant‟s illegal uses of Flann‟s
identity did not indicate that he had engaged in the activity in the four weeks before
issuance of the search warrant, the information concerning ongoing identity theft
provided probable cause. According to the affidavit, Flann‟s purse was stolen in 2002.
In November 2003, someone began illegally using Flann‟s identity. As late as July 2004
or thereabouts, someone used Flann‟s identity in an attempt to open a Sprint Wireless
account. This ongoing operation, unlike a solitary drug buy, provided probable cause in
September 2004, when the warrant was issued, that evidence of crime would be found in
defendant‟s residence. (See People v. Carrington (2009) 47 Cal.4th 145, 164 [stolen
checks still outstanding two months after burglary provided probable cause that evidence
would be found in defendant‟s residence].)
Defendant argues that the last use of Flann‟s identity that can be connected to him
was in November 2003, when he used her identity to open an account with AT&T.
While it is true that the affidavit did not expressly connect defendant to the Liberty
Wireless account and, particularly, the Sprint Wireless incident, the court could
reasonably infer that, since defendant had Flann‟s identity and illegally used it in
6
November 2003, the later illegal uses for similar purposes were also connected to him.
This inference supported the probable cause determination.
Because we conclude that the information in the affidavit provided probable cause
to support the search warrant, we need not consider the Attorney General‟s assertion that
the good faith exception to the warrant requirement applies.
II
Section 654
Defendant contends that the sentence imposed by the trial court violated section
654 prohibiting double punishment.2 We conclude that this contention is barred by
California Rules of Court rule 4.412(b)3 and the cases upon which that rule is based.
Rule 4.412(b) states: “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.”
Rule 4.412(b) is one of several checks on the opportunities afforded to defendants
to appeal after pleading guilty or no contest. These checks are included in the statutes,
rules, and case law of California. They are meant to preserve judicial resources and
screen out frivolous appeals. (See People v. Buttram (2003) 30 Cal.4th 773, 781, 783
(Buttram) [discussing purpose of § 1237.5; former rule 31(d); former rule 412(b) [now
rule 4.412(b)]].)
2 Defendant makes four contentions of error based on section 654: (1) imposing
unstayed terms for both counts of being a felon in possession of a firearm, (2) imposing
unstayed terms for both counts of possessing a prohibited weapon, (3) imposing unstayed
terms for being a felon in possession of a firearm and possessing a prohibited weapon as
to each shotgun, and (4) imposing unstayed terms for possessing a weapon and
possessing ammunition for that weapon.
3 Subsequent undesignated references to rules are to the California Rules of Court.
7
The purpose of the requirement that a defendant appealing after a guilty or no
contest plea obtain a certificate of probable cause, as provided in section 1237.5 and
former rule 31(d), was “to discourage and weed out frivolous or vexatious appeals
challenging convictions following guilty and nolo contendere pleas. [Citations.] The
objective is to promote judicial economy „by screening out wholly frivolous guilty [and
nolo contendere] plea appeals before time and money is spent preparing the record and
the briefs for consideration by the reviewing court.‟ [Citations.]” (People v. Panizzon
(1996) 13 Cal.4th 68, 75-76, bracketed text in original.)
Similarly, rule 4.412(b) prevents a defendant from challenging the legality of a
sentence to which he agreed and from which he derived benefit. The advisory committee
comment to rule 4.412(b) states: “This subdivision is based on the fact that a defendant
who, with the advice of counsel, expresses agreement to a specified prison term normally
is acknowledging that the term is appropriate for his or her total course of conduct.”
Rule 4.412(b) and its predecessor, former rule 412(b), are codifications of “the
case law rule that defendants are estopped from complaining of sentences to which they
agreed.” (People v. Hester (2000) 22 Cal.4th 290, 295 (Hester).) Hester states that
acceptance of a plea bargain is an implicit waiver of section 654 rights. (Ibid.) “When a
defendant maintains that the trial court‟s sentence violates rules which would have
required the imposition of a more lenient sentence, yet the defendant avoided a
potentially harsher sentence by entering into the plea bargain, it may be implied that the
defendant waived any rights under such rules by choosing to accept the plea bargain.”
(People v. Couch (1996) 48 Cal.App.4th 1053, 1057, quoted in Hester, supra, 22 Cal.4th
at p. 295.)
While defendant agrees that contentions based on section 654 are barred when a
plea agreement includes a “specified prison term,” as stated in rule 4.412(b), he argues
that his plea agreement did not include a “specified prison term” because he agreed to a
maximum term, not to an exact term. In other words, he argues that, because the plea
8
agreement allowed for any sentence at or below the maximum term, his sentence was not
for a “specified prison term,” and therefore rule 4.412(b) does not apply.
This is an open question -- one which the Supreme Court has not decided.4
(People v. Cuevas (2008) 44 Cal.4th 374, 384, fn. 6; People v. Shelton (2006) 37 Cal.4th
759, 771.)
Defendant‟s argument is based on what he contends is the plain language of the
rule. “The plain language of rule 4.412(b),” explains defendant, “indicates [that] it
applies when a defendant agrees to a „specified prison term.‟ A lid is not a specified
prison term. Rather, it „constrains the maximum sentence a trial court may impose but is
less than the maximum exposure the defendant would otherwise face absent the agreed-
upon lid.‟ (People v. Cuevas, supra, 44 Cal.4th at p. 376.)”
We disagree that this is the only reasonable interpretation of the rule‟s language.
“Specified” and “maximum” do not have mutually exclusive meanings. “Specified”
means “to name or state explicitly or in detail.” (Merriam-Webster‟s Collegiate
Dictionary, 11th ed., p. 1198 (2006.) It is related, but not identical, to “specific,” which
means, among other definitions, “restricted to a particular individual, situation, relation,
or effect.” (Ibid.) Therefore, a term is “specified” in a plea agreement even when it is a
maximum term because it is identified explicitly. Therefore, use of the word “specified”
in the rule did not limit the rule to situations in which the plea agreement names the one
and only term that may be imposed. Furthermore, the rule‟s reference to sentences to the
“term or a shorter one” implies application to plea agreements involving a maximum
term.
4 Defendant acknowledges that this is an open question. However, the Attorney
General concedes that defendant‟s argument on the merits is correct. And the Attorney
General bases this concession, without explanation or reasoning, on cases decided before
the Supreme Court identified the issue as an open question. We need not, and do not,
accept this ill-founded concession.
9
In addition to the language of the rule, the cases discussing the concepts on which
the rule is based support the conclusion that it applies to maximum, as well as exact,
sentences in plea agreements. As discussed below, whether a defendant can challenge a
sentencing decision on appeal after a guilty or no contest plea turns on whether the
defendant is challenging (1) the trial court‟s jurisdiction to impose the sentence or (2) the
court‟s discretionary sentencing decision. When the challenge is to the court‟s
jurisdiction, it is barred. When the challenge is to the court‟s discretionary sentencing
decision, it is not barred.
The difference is illustrated in Hester, supra, 22 Cal.4th 290, involving a
jurisdictional challenge to a sentence, and Buttram, supra, 30 Cal.4th 773, in which the
defendant argued that the trial court abused its discretion in sentencing.
In Hester, the defendant pleaded no contest in exchange for an agreed-upon term
of four years. At sentencing, the court imposed the four-year term but also imposed
concurrent terms for other crimes. (Hester, supra, 22 Cal.4th at p. 293.) On appeal,
defendant asserted that imposition of the concurrent sentences violated section 654. But
the court concluded that the assertion was barred by former rule 412(b). It stated:
“Where the defendants have pleaded guilty in return for a specified sentence, appellate
courts will not find error even though the trial court acted in excess of jurisdiction in
reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The
rationale behind this policy is that defendants who have received the benefit of their
bargain should not be allowed to trifle with the courts by attempting to better the bargain
through the appellate process. [Citations.]” (Hester, supra, at p. 295, original italics.)
On the other hand, the Supreme Court, in the analogous context of the certificate
of probable cause requirement, has stated that sentencing decisions based on the trial
court‟s discretion are not foreclosed. (Buttram, supra, 30 Cal.4th at p. 777.) The court
held: “Unless it specifies otherwise, a plea agreement providing for a maximum sentence
inherently reserves the parties‟ right to a sentencing proceeding in which (1) as occurred
10
here, they may litigate the appropriate individualized sentence choice within the
constraints of the bargain and the court‟s lawful discretion, and (2) appellate challenges
otherwise available against the court’s exercise of that discretion are retained.” (Ibid.,
italics added.)
Within this jurisdictional-discretionary dichotomy, challenges to a sentence based
on section 654 are jurisdictional because “a court acts in excess of its jurisdiction and
imposes an unauthorized sentence when it fails to stay execution of a sentence under
section 654. [Citations.]” (Hester, supra, 22 Cal.4th at p. 295.) It makes no difference,
within this analytical system, whether the plea agreement was for a maximum term or an
exact term.
Construed consistently with case law upon which it is based, rule 4.412(b) bars
reliance on section 654 to attack the sentence on appeal when a term, even a maximum
term, is specified. Unlike when a defendant asserts the trial court abused its discretion in
sentencing within the specified maximum term, a defendant who relies on section 654
contends that the court did not have jurisdiction to impose the maximum term. Because
that contention conflicts with the plea agreement, in which the defendant conceded that
the trial court could impose the maximum term, he is estopped from relying on section
654. Any other conclusion would allow the defendant to unilaterally renege on the
agreement that was negotiated in good faith with the prosecutor and accepted by the trial
court.
Given these authorities, we conclude that, when a maximum term is specified in a
plea agreement, the defendant is estopped from arguing on appeal that the sentence
violates section 654, “unless that claim is asserted at the time the agreement is recited on
the record.” (Rule 4.412(b).) Here, defendant did not assert the section 654 claim when
the agreement was recited on the record. Accordingly, the claim is barred.
11
III
Effective Assistance of Counsel
Defendant contends that he was denied effective assistance of counsel because his
attorney at trial did not argue for concurrent, rather than consecutive, sentencing on
counts 1 and 2. We conclude that the contention is without merit because counsel‟s
performance did not fall below an objective standard of reasonableness.
To establish ineffective assistance of counsel, a defendant must show (1) counsel‟s
performance was deficient and fell below an objective standard of reasonableness and (2)
it is reasonably probable that a more favorable result would have been reached absent the
deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80
L.Ed.2d 674, 693-694].) A reasonable probability is a “probability sufficient to
undermine confidence in the outcome.” (Id. at p. 694.)
Here, we conclude that counsel was not deficient; therefore, we need not discuss
prejudice.
Sentencing
As noted above, defendant pleaded no contest and admitted the prior serious
felony conviction and prior prison term allegations. In exchange, he was promised a
sentence maximum of three years eight months.
In preparation for sentencing, the probation department submitted its report. In
that report, it listed five circumstances in aggravation and none in mitigation. The five
aggravating circumstances were: (1) previous violent conduct indicating a serious danger
to society, (2) numerous prior convictions, (3) a prior prison term, (4) commission of the
offense while on multiple grants of probation, and (5) poor past performance on parole
and probation. The probation department argued against striking the prior serious felony
conviction and prior prison term and recommended a sentence of twelve years four
months.
12
While this case was pending, defendant committed a burglary relating to a check
forgery, and he drove on a suspended license.
At sentencing, defense counsel argued for a grant of probation, encouraging the
court to be lenient. The court then related its intended approach to the sentence:
“Probation‟s made a recommendation of a very substantial sentence, something of 12
years, and I‟m not inclined to follow that recommendation. Weapons are a dangerous
thing and two sawed-off shotguns under your bed together with 15 rounds of ammunition
that fit at least one of the weapons is not permitted, nor are the multiple driver‟s licenses,
so I do believe a sentence is in order. [¶] I have to respect the fact that the defendant‟s
problems stretch back a number of years and that his -- his approach towards life has
changed. It‟s unfortunate the weapons were there, but it has changed, so I‟m inclined to
strike both of the case enhancements relying on the Romero case for the notion and
because of their age and remoteness in time . . . , and I also believe that much of the
sentence which I‟m inclined to impose should be run concurrently.”5
Imposing the sentence, the court stated: “[W]ith regard to Count 1, . . . I‟m going
to sentence the defendant to the upper term of three years. And I reached upper term
because of the -- I struck two of the case enhancements . . . .” The prosecutor then
interjected: “For clarification, your Honor, if I may interrupt, is the Court also referring
to the factors in aggravation as noted in the probation report.” The court replied: “I am.”
The court continued by imposing a consecutive term of eight months for count 2, but it
did not state the reasons for making the term consecutive.
Analysis
Seizing on the trial court‟s positive response to the prosecutor‟s question of
whether the trial court was “referring” to the aggravating circumstances in the probation
5 See People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
13
report in imposing the upper term and noting the prohibition on dual use of aggravating
circumstances to impose the upper term and impose consecutive terms, defendant argues
on appeal that trial counsel should have argued for concurrent sentencing. The argument
fails to persuade us because (1) trial counsel argued generally for leniency when it
encouraged the trial court to grant probation and (2) there is no indication in this record
that an argument for concurrent sentencing would have resulted in an even more lenient
sentence. Thus, it is not objectively reasonable to argue that counsel was deficient.
Considering that, to arrive at the sentence agreed to as a maximum, the trial court
struck the prior serious felony conviction and prior prison term and imposed many of the
terms concurrently instead of consecutively, defendant‟s punishment is remarkably
lenient compared to what it could have been, especially since he committed a burglary
while this case was pending. Although the trial court said defendant‟s “approach towards
life has changed,” there is little in the record to support that purported change, given his
continued criminality.
Defendant asserts that, because the trial court used the striking of the prior
conviction and prior prison term, as well as the aggravating factors in the probation
report, to impose the upper term, there were no remaining aggravating factors to use in
imposing consecutive sentences. Based on this assertion, defendant argues that “it is
reasonably probable an objection would have lead [sic] to a lesser sentence . . . .” We
disagree. There were multiple aggravating circumstances for the trial court to consider
and plenty upon which to impose both the upper term and consecutive sentences. The
court had already exercised considerable leniency, so it is unlikely that it would have
been even more lenient simply at the suggestion of defense counsel that there might be an
easily corrected dual use problem.6
6 The Attorney General and defendant argue concerning whether recent
developments in sentencing law have abrogated the prohibition on dual use of facts to
14
Simply put, defendant‟s resume did not inspire leniency. Defense counsel‟s
performance did not fall below an objective standard of reasonableness for failing to
argue for concurrent sentencing on count 2 because it is unlikely that such an argument
would have convinced the court to be even more lenient.
IV
Additional Presentence Custody Credit
After initial briefing was completed, we invited the parties to submit supplemental
briefs concerning whether defendant is eligible for additional presentence custody credit
pursuant to recent amendments to section 4019. We concluded in our first decision that
amendments to section 4019 in Senate Bill No. 18 (2009-2010 3d Ex. Sess.) (hereafter
Senate Bill No. 18) retroactively provided additional presentence custody credit, unless a
defendant has a prior serious felony conviction. We therefore concluded that we must
remand the case so that the trial court could determine whether to strike the prior serious
felony conviction for the purpose of applying section 4019.
The Attorney General petitioned the California Supreme Court for review, and the
Supreme Court granted the petition and transferred the matter back to this court “with
directions to vacate [our] decision and to reconsider the cause in light of People v. Brown
(2012) 54 Cal.4th 314 and People v. Lara (2012) 54 Cal.4th 896.” On transfer, we
vacated our prior decision and now conclude that the cited Supreme Court cases, decided
after we filed our first decision, require us to affirm the trial court‟s award of presentence
custody credits.7
impose the upper term and consecutive sentencing. Resolution of that debate is
unnecessary here. Even assuming a prohibition on dual use of facts, defendant‟s
effective assistance of counsel argument is without merit.
7 Neither party filed a supplemental brief after the transfer to this court from the
California Supreme Court.
15
At this point, the matter is quite simple. The Supreme Court held that Senate Bill
No. 18 is not retroactive (People v. Brown, supra, 54 Cal.4th 314) and, in any event,
defendant‟s prior serious felony conviction, which the trial court could not strike for
presentence custody credit purposes, would have precluded him from receiving the
additional presentence custody credit (People v. Lara, supra, 54 Cal.4th 896). Therefore,
the trial court‟s award of presentence custody credits under the law predating Senate Bill
No. 18 was proper.
DISPOSITION
The judgment is affirmed.
NICHOLSON , J.
We concur:
RAYE , P. J.
BUTZ , J.
16