Filed 4/9/14 P. v. Dlugitch CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E058256
v. (Super.Ct.No. FWV1000051)
STEVEN ANTHONY DLUGITCH, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael. A Smith,
Judge. (Retired Judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Stephanie
H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant Steven Anthony Dlugitch appeals after the superior
court deemed his petition below to be a request for resentencing under Penal Code
section 1170.126,1 and then denied the petition. We affirm.
FACTS AND PROCEDURAL HISTORY
At the outset, we note that we have granted defendant’s request, pursuant to
Evidence Code section 452, subdivision (d), to take judicial notice of the record in
defendant’s earlier post-conviction appeal in this matter. (People v. Dlugitch (June 1,
2011, E051876) [nonpub. opn.].) The statement of facts and procedural history are taken
primarily from the opinion in that case:
On January 6, 2010, San Bernardino County Sheriff’s Deputies Dean and Peraza
were in an unmarked patrol unit equipped with a red light and emergency siren. At
10:30 p.m., they saw defendant and Jennifer Ortiz exit from a room of a Travel Inn Motel
in Ontario; they got into a silver Hyundai. Defendant was the driver. As the vehicle
passed them, Deputy Dean noticed that it had very dark, tinted windows, a violation of
the Vehicle Code.
The vehicle left the motel at a high rate of speed and rolled through two stop signs.
Deputy Dean activated his red light. At that time, he noticed movement on the passenger
side. Upon making contact with defendant, Deputy Dean smelled “a strong odor of fresh
marijuana coming from the interior of the vehicle.” Defendant stated that he was on
active parole; a records check confirmed defendant’s parole status.
1 All future statutory references are to the Penal Code unless otherwise stated.
2
Defendant gave Deputy Dean permission to search the vehicle. A “hide-a-key”
was found in the glove box, and a hotel room key was found between the passenger seat
and the door. Ortiz stated that she and defendant had stayed in the room the night before,
but were no longer staying there. She stated the room was in her name, but she had not
completely paid for it. Defendant denied he was staying at the motel room; he just
dropped off his property there.
Deputy Dean then went to the motel and spoke with the manager. The manager
stated that the room, which was in Ortiz’s name, was paid in full. Deputy Dean
proceeded to search the room without the consent of Ortiz or defendant. The search
revealed a digital scale, containing methamphetamine residue, on top of the refrigerator.
A cell phone, woman’s wallet, and purse were on the nightstand. The purse contained
identification in the name of Ortiz. Another scale and 36 empty baggies were located by
a large duffle bag containing men’s clothing. Under the air conditioning unit, Deputy
Dean found a hide-a-key similar to the one found in the vehicle. Inside was 3.4 grams of
suspected methamphetamine. The officer also found photographs of defendant and Ortiz;
one photograph was of defendant at Chuck E. Cheese throwing the “F” gang sign.
Deputy Dean had experience investigating gang crimes and has had contact with
over 400 gang members. Deputy Dean was familiar with The Fontana Kings (TFK)
gang, which had 75 documented members. The gang’s primary activity was the sale of
illegal narcotics. Deputy Dean was aware that two TFK members were convicted of
robbery and for possession for sale of marijuana.
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On the day defendant was stopped by Deputy Dean, defendant admitted that he
was a TFK member, but not really active. Defendant stated that he stopped claiming the
gang while he was in prison from 2004 through 2005. Deputy Dean testified that
defendant’s monikers are Vandal and Bandit, and the deputy identified photographs of
defendant throwing gang signs. A tattoo with the letters “TFK” was on defendant’s
stomach.
Deputy Dean opined that the methamphetamine found in the motel room was
possessed for sale because of the presence of baggies, scales, and the text messages found
on Ortiz’s cell phone. The deputy also opined that the possession of methamphetamine
was for the benefit of TFK.
As a result of the investigation, defendant was arrested and charged by complaint,
filed January 11, 2010, with one count of possession of methamphetamine (Health & Saf.
Code, § 11378). The complaint also alleged that the offense was committed for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)), and that defendant had
suffered two prior strike convictions (§§ 1170.12, subd. (a), 667, subds. (b)-(i)). Before
the preliminary hearing, defendant filed a motion to suppress evidence pursuant to
section 1538.5. The court took evidence in the course of the preliminary hearing; it then
denied the motion to suppress, and proceeded to hold defendant to answer on the charge.
Defendant renewed his motion to suppress evidence in the superior court. After
the trial court denied defendant’s renewed motion to suppress, defendant entered into a
plea bargain with the prosecution. Defendant agreed to plead no contest to the charge in
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count 1, possession of methamphetamine for sale, and to admit the gang enhancement,
plus pleading no contest to six additional counts of possession for sale. In exchange, the
prosecutor would dismiss one of the strike allegations so defendant would be sentenced
as a second striker. Instead of facing 25 years to life as a third striker, defendant would
be sentenced to a total determinate term of 18 years. The court’s minutes note that the
information was “amended by interlineation to allege” each of the new counts, counts 2
through 7, although no actual interlineations appear on the information. The court
accepted the preliminary hearing transcript as establishing a factual basis for the pleas.
After receiving a probation report, the court sentenced defendant pursuant to the
plea bargain, to the aggravated term of three years (doubled to six years) on count 1, plus
the aggravated term of four years for the gang enhancement. On counts 2 through 7, the
court imposed one-third the middle term (one-third of two years equals eight months)
doubled to 16 months, each additional term to run consecutively to each previous count.
The total term was 18 years in state prison, as agreed in the plea bargain.
Defendant filed a notice of appeal, raising as an issue the denial of his motion to
suppress evidence. In June 2011, this court issued an opinion upholding the trial court’s
denial of defendant’s motion to suppress evidence, and affirming the judgment.
In November 2012, the electorate approved Proposition 36, the Three Strikes
Reform Act of 2012 (Reform Act), which amended sections 667 and 1170.12 and added
section 1170.126. The Reform Act changed the requirements for sentencing a third strike
offender to an indeterminate term of 25-year-to-life imprisonment. Under the original
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version of the “Three Strikes” law, a recidivist with two or more prior strikes, who was
convicted of any new felony, was subject to an indeterminate life sentence. However, the
Reform Act altered the previous Three Strikes law, and now limits third strike sentences
to current convictions of serious or violent felonies (or a limited number of other
felonies). In other words, for an offender with two or more prior strikes, a current
conviction for a nonserious, nonviolent felony no longer results in an indeterminate life
sentence; rather, the offender is sentenced as a second striker.
On January 7, 2013, after passage of the Reform Act, defendant filed a petition for
writ of habeas corpus in the trial court. Defendant asserted as grounds for relief that, at
his original sentencing, he had been “threatened” by the trial court with a three strikes
sentence if he did not take the plea offer of 18 years. Defendant explained: “I was givin
the ultimatum of taking a 18 year deal including mostly 14 years enhancements or being
sentenced under 3 strikes law & receiving 25-L[ife] for what is now a non-strikable
offence. I was told by court to take deal or basicly recive life in prison. H&S 11378
even if I have two strikes now under 3 strikes law, can not recive life sentance for non-
serious nonviolent crime. I would like to be re-sentanced.”2 Defendant explained that
the issue raised in his petition was not raised in the prior appeal because the “[T]hree
[S]trikes law was not changed yet.”
The trial court deemed the habeas corpus petition to be a motion for resentencing
pursuant to section 1170.126. The court found that defendant “does not satisfy the
2 Multiple spelling and grammatical errors in original.
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criteria in PC 1170.126(e) and is not eligible.” The court ruled that the “petition for
recall of sentence is denied. Defendant was sentenced as a ‘2 striker’ to a determinate
term of 18 years. Defendant is not eligible for resentencing under PC 1170.126.”
Defendant filed a timely notice of appeal from this ruling.
ANALYSIS
I. Although the Trial Court Erred in Treating Defendant’s Habeas Corpus Petition as
One for Resentencing Under Section 1170.126, No Purpose Would Be Served by a
Reversal and Remand for Consideration as a Writ of Habeas Corpus
Defendant contends that the order denying his petition must be reversed because
defendant had not made a motion for resentencing under section 1170.126; rather, his
application was a petition for writ of habeas corpus. The People respond that the trial
court properly construed the petition as one for resentencing under the reformed Three
Strikes law, because throughout the petition, defendant requested resentencing and
pointed to the Reform Act of 2012 as no longer authorizing a nonviolent current offense
to be subject to three strikes treatment.
The Reform Act provides generally that new felony offenses, when a defendant
already has two strikes, will no longer be subject to indeterminate life (third strike)
sentences if the current offense is a nonserious, nonviolent felony. It also provides that,
as to defendants who are already serving a three strikes indeterminate sentence, such
defendants may petition for discretionary resentencing if the current offense, which
resulted in the third strike indeterminate sentence, is a nonserious, nonviolent felony.
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Here, defendant was never sentenced as a third striker. Rather, pursuant to plea
bargain, he was sentenced as a second striker, with a determinate term of 18 years.
Defendant therefore could not petition for resentencing as a third striker under section
1170.126; the trial court effectively recognized as much, for it denied the motion, as a
petition for resentencing, on that ground. Section 1170.126 was simply not applicable.
For this reason, defendant maintains that the thrust of his allegations in the habeas
corpus petition, notwithstanding his reference to the Reform Act and his requests for
resentencing, was that he was effectively coerced into taking the plea bargain because he
was “threatened” with the consequences of a third strike conviction: i.e., an
indeterminate 25-year-to-life term. He argues that he capitulated to the 18-year
determinate second strike sentence because of that “threat.” When the law changed,
however, it was no longer the case that an accused in defendant’s position could be
“threatened” with a third strike sentence as a consequence of a new nonserious,
nonviolent charge. Defendant now argues that what he requested in his petition was not
merely resentencing, but to withdraw the plea and sentence altogether, as if he could and
should be placed in the position he was originally in, without the possibility of being
presently “threatened” with a third strike sentence.
There is some merit to the position that, inasmuch as section 1170.126 was
altogether inapplicable, because defendant was not sentenced as a third striker at all, the
trial court erred in treating his habeas corpus petition as an application for three strikes
resentencing. However, even if the trial court erred in failing to treat the habeas corpus
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petition as a habeas corpus petition, we see no reason to remand to the trial court with
directions to reconsider the matter as a proper writ petition.
Defendant urges that, because the trial court did not conduct an evidentiary
hearing on the habeas corpus petition, there are no factual findings for this court to
review. He maintains that the appropriate procedure is to issue an alternative writ
returnable before the superior court, or to transfer the habeas corpus matter to the
superior court for an evidentiary hearing, or, at a minimum, to have the superior court
decide in the first instance whether an evidentiary hearing is warranted. (See People v.
Seijas (2005) 36 Cal.4th 291, 307.) He also contends that no showing of prejudice is
required, because the trial court essentially failed to exercise its discretion in making the
order that it made, because it misunderstood the correct procedure. (See Mark T. v.
Jamie Z. (2011) 194 Cal.App.4th 1115, 1123-1124 [“A discretionary order that is based
on the application of improper criteria or incorrect legal assumptions is not an exercise of
informed discretion, and is subject to reversal even though there may be substantial
evidence to support that order.”].)
Defendant acknowledges that “a subsequent change in the law generally is not
sufficient in and of itself to require the plea to be vacated,” (citing Brady v. United States
(1970) 397 U.S. 742, 756-758 [90 S.Ct. 1463, 25 L.Ed.2d 747]), but suggests that he
“also asserted he was coerced into entering the plea, an allegation which should be
explored.”
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Defendant’s allegation of coercion does not, however, require any further
exploration. The “coercion” that he asserts was applied to him was neither more nor less
than the exposure he faced should he be convicted of the charge. That is, based on the
felony charge alleged at the time the complaint was filed, defendant was subject to
sentencing as a third striker to an indeterminate term of 25 years to life. However, a plea
does not become involuntary or “coerced,” merely because a reluctant defendant knows
of the strength of the case against him or her, and of the possible penalty should a
conviction result. (In re Cowans (1970) 2 Cal.3d 733, 740.) “The Supreme Court, in
Brady v. United States (1970) 397 U.S. 742 [25 L.Ed.2d 747, 90 S.Ct. 1463], stated: ‘We
decline to hold . . . that a guilty plea is compelled and invalid . . . whenever motivated by
the defendant’s desire to accept the certainty or probability of a lesser penalty rather than
face a wider range of possibilities extending from acquittal to conviction and a higher
penalty authorized by law for the crime charged.’ (397 U.S. at p. 751 [25 L.Ed.2d at
p. 758].)” (Ibid.; cf. also, People v. Jackson (1980) 28 Cal.3d 264, 299 [mere
exhortations to tell the truth are not improper police coercion].)
Even if we accept as entirely true defendant’s claim that he agreed to the plea
bargain for an 18-year determinate two strike sentence because he feared possible
exposure to an indeterminate 25-year-to-life three strike sentence, the allegations of the
habeas petition do not amount to a showing of coercion. At the time of the charges and
plea, defendant was legally subject to a three strikes sentence as a result of the felony
drug charge. A future change in the law cannot change the circumstances under which
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defendant agreed to his plea bargain. Defendant has failed to show coercion, and
therefore has failed to establish good cause to set aside his plea and sentence.
Because defendant cannot prevail on the merits of his habeas corpus petition, we
decline to remand the matter for the superior court to consider the habeas petition,
notwithstanding the trial court’s mistaken treatment of defendant’s petition as a request
for resentencing under section 1170.126. “The law neither does nor requires idle acts.”
(Civ. Code, § 3532.) Section 1170.126 was simply inapplicable, but it would be an idle
act to remand the matter for the court to consider the petition as a petition for writ of
habeas corpus. Defendant’s claim of coercion is patently without merit.
DISPOSITION
For the reasons stated, we affirm the trial court’s ruling denying defendant’s
petition.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
KING
J.
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