Filed 7/8/21 P. v. Williams CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, C090169
Plaintiff and Respondent, (Super. Ct. No. 15F6855)
v.
NICKOLAS EVERETT WILLIAMS,
Defendant and Appellant.
Defendant Nickolas Everett Williams pled no contest to discharging a firearm with
gross negligence and felony assault with force likely to produce great bodily injury. The
plea agreement included three years’ probation and permitted him to withdraw his plea as
to the firearm count and seek dismissal of that count if he complied with probation
without “violation” during his first 18 months of probation. Nearly three years into
probation, the court found defendant violated probation and sentenced him on the two
underlying crimes to three years in prison. Defendant contends on appeal that the
sentence imposed exceeds the plea agreement because the court should have dismissed
the discharging a firearm count as there were no probation violations “sustained or
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pending” during the first 18 months of probation. For reasons explained below, we shall
affirm.
I. BACKGROUND
A. Underlying Convictions
Defendant had an escalating verbal argument with his mother, whom he lived
with, before threatening to kill her with a shotgun; he eventually fired the shotgun in the
house. Police arrived and had to use chemical agents to remove defendant from the
house to arrest him.
Defendant was charged with felony making criminal threats (Pen. Code, § 422—
count 1),1 with the enhancement he used a deadly weapon in its commission (§ 12022,
subd. (b)); felony discharging a firearm with gross negligence (§ 246.3—count 2);
misdemeanor resisting a peace officer (§ 148, subd. (a)(1)—count 3); and felony assault
with force likely to produce great bodily injury (§ 245, subd. (a)(4)—count 4).
On March 14, 2016, defendant pled no contest to counts 2 and 4. The handwritten
portion of the plea agreement form stated the agreed disposition as: “36 mos [probation]
at initial sentencing, w 90 days adult work program. Should [defendant] comply w/
probation without violation for 18 mos, [defendant] may withdraw his plea to Ct. 2 and
have that charge[] dismissed.” At the change of plea hearing, the court confirmed
defendant’s understanding of the plea, phrasing the disposition as: “In 18 months should
you have no violations of probation either sustained or pending, no other violations of
law, you may withdraw your plea to Count 2 and have that charge dismissed. . . . Does
that sound like the agreement you reached?” Defendant responded, “Yes.” Counts 1 and
3 were dismissed with Harvey waivers.2
1 Undesignated statutory references are to the Penal Code.
2 See People v. Harvey (1979) 25 Cal.3d 754.
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On April 26, 2016, the trial court suspended imposition of sentence and granted
three years of formal probation. The probation order included 19 conditions including
that he: serve two days in jail and “report in person to the Probation Officer immediately
upon release”; serve 90 days in the Adult Work Program; attend and participate in an
orientation as directed by the Probation Department; refrain from using or possessing
alcoholic beverages and any controlled substances; and violate no laws.
B. Probation Revocation
On March 20, 2019, the probation department filed a petition for revocation of
probation. The petition alleged four probation violations relating to defendant abusing
his mother and resisting arrest in January and March of 2019. Defendant admitted two of
the violations and the other two allegations were dismissed pursuant to a plea.
The probation report for the violation sentencing detailed several incidences of
defendant’s failure to comply with his probation conditions. This included failing to
initially report to probation until April 19, 2017, not participating in required programs
throughout 2017, being found possessing marijuana and ammunition in April 2018, being
“booked on a violation of probation” for having a “verbal altercation with his mother” in
August 2018, and being booked and released after having a blood-alcohol content of
.20 percent in December 2018. The report also noted that, “[a]lthough this represents the
defendant’s first sustained petition, the present admission follows more than two years of
negligible compliance with his supervision, as the defendant has routinely disregarded the
directives given him by those supervising his probation and has disregarded the Court’s
orders in respect to his abstention from alcohol and non-harassment of the victim.”
At the sentencing hearing, defendant testified to “drinking alcohol again” and
confirmed he had “gone through a lot of problems in” his life since being placed on
probation. Defendant also said he “had never met [his] probation officer or seen them.”
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The court denied reinstatement of probation and sentenced defendant to the
midterm of three years for assault likely to produce great bodily injury and two years for
discharging a firearm but stayed this term under section 654.
II. DISCUSSION
Defendant alleges his sentence exceeds the terms of his plea agreement and
therefore violates his right to due process. The plea agreement entitled him to dismissal
of count 2 if he had no probation violations during the first 18 months of probation.
Though he concedes his performance during this time was “imperfect,” he claims there
were no violations “sustained or pending” within that time. Defendant also concedes he
did not raise this issue at sentencing but urges us to exercise our inherent authority to
reach the issue even if it wasn’t preserved.
A. Forfeiture
“ ‘No procedural principle is more familiar to this Court than that a constitutional
right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by
the failure to make timely assertion of the right before a tribunal having jurisdiction to
determine it.’ ” (U.S. v. Olano (1993) 507 U.S. 725, 731.) “[F]orfeiture is the failure to
make the timely assertion of a right.” (Id. at p. 733.) “ ‘[F]orfeiture results in the loss of
a right regardless of the defendant’s knowledge thereof and irrespective of whether the
defendant intended to relinquish the right.’ ” (King v. Superior Court (2003) 107
Cal.App.4th 929, 938.) “[T]he forfeiture rule applies in the context of sentencing as in
other areas of criminal law.” (In re Sheena K. (2007) 40 Cal.4th 875, 881.)
Defendant failed to exercise his right under the plea agreement. The written plea
agreement stated: “Should [defendant] comply w/ probation without violation for 18
mos, [defendant] may withdraw his plea to Ct. 2 and have that charge[] dismissed.”
(Italics added.) The trial court’s oral summary similarly stated defendant “may withdraw
[his] plea” if he had no violations at the 18-month mark. Regardless of what “violation”
meant, the plea agreement unquestionably made it defendant’s obligation to withdraw
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from the plea as to count 2. It was not the court’s obligation, prosecutor’s obligation, or
probation department’s obligation to withdraw defendant from the plea. (See § 1018
[“every plea shall be entered or withdrawn by the defendant himself or herself in open
court”].) Defendant had over a year to exercise this right if he felt the plea agreement
permitted him to withdraw at the 18-month mark. He failed to do so and even failed to
mention this right to withdraw at the sentencing hearing where the trial court adjudicated
the subject matter of the plea. Defendant therefore forfeited any rights he may have had
under the plea agreement by failing to timely assert such rights.
B. No Ineffective Assistance of Counsel
Defendant alleges that he suffered from ineffective assistance of counsel if we find
he has forfeited his claim. We disagree.
“To establish ineffective assistance of counsel, a defendant must show that (1)
counsel’s representation fell below an objective standard of reasonableness under
prevailing professional norms, and (2) counsel’s deficient performance was prejudicial,
i.e., there is a reasonable probability that, but for counsel’s failings, the result would have
been more favorable to the defendant.” (People v. Scott (1997) 15 Cal.4th 1188, 1211.)
We “must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance. [Citation.] Tactical errors are generally not
deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the
available facts. [Citation.] To the extent the record on appeal fails to disclose why
counsel acted or failed to act in the manner challenged, we will affirm the judgment
unless counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation.” (People v. Maury (2003) 30 Cal.4th 342,
389; see People v. Jones (2003) 29 Cal.4th 1229, 1254 [“where counsel’s trial tactics or
strategic reasons for challenged decisions do not appear on the record, we will not find
ineffective assistance of counsel on appeal unless there could be no conceivable reason
for counsel’s acts or omissions”].)
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The record here is inadequate for an evaluation of defendant’s ineffective
assistance of counsel claim. Again, defendant’s potential right to withdraw from the plea
as to count 2 was never raised, so there is no discussion in the record regarding this
decision. Without any indication for the potential reasoning we are obligated to affirm
the judgment if there could be a satisfactory explanation for the decision.
Here, there are several possible reasonable explanations for defense counsel’s
silence before the sentencing hearing. The probation report and defendant himself
confirmed he had been noncompliant long before the end of the 18-month window,
including that he initially failed to report to probation for at least a year later, and he had
been drinking alcohol. Had defendant moved to withdraw at the 18-month date, defense
counsel could have reasonably believed the probation department would be motivated to
then file formal violations for defendant’s noncompliant behavior. This would have
eliminated defendant’s opportunity to improve his behavior and avoid probation
revocation on count 4, which was not subject to dismissal under the plea. It is also
possible defense counsel was aware of other noncompliant behavior that had not been
brought to the probation department’s attention yet, so counsel knowingly refrained from
seeking withdrawal to avoid the probation department from discovering this behavior.
Reasonable explanations exist for not bringing up the plea at the sentencing
hearing as well. Defense counsel could have understood the trial court’s oral summary of
the plea as permitting defendant to withdraw only if there were “no violations of
probation either sustained or pending” at the time of withdrawal. Since there were formal
violations pending as of March 20, 2019, and defendant admitted to the behavior
supporting the violations, counsel could have reasonably believed defendant was
ineligible to withdraw from the plea by the hearing,
We cannot say for certain the real reason for defense counsel’s tactics because of
the state of the record. But as there are potential reasonable explanations, we find
defendant’s ineffective assistance of counsel claim must fail.
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III. DISPOSITION
The judgment is affirmed.
/S/
RENNER, J.
We concur:
/S/
HULL, Acting P. J.
/S/
MAURO, J.
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