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Court of Appeal, First District, Division 2, California.

The PEOPLE, Plaintiff and Respondent, v. Aaron Carnelius DARIA, Defendant and Appellant.

No. A070696.

Decided: August 23, 1996

Eric Liberman, Burlingame, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Ronald S. Matthias, Supervising Deputy Attorney General, Martin S. Kaye, Deputy Attorney General, for Plaintiff and Respondent.

Aaron Carnelius Daria appeals from convictions entered upon pleas of nolo contendere on sixteen criminal counts.   He claims his sentence of a consecutive life term on count 1, attempted murder, violates a plea bargain under which he was to receive a concurrent sentence for that count.


On March 24, 1994, an information was filed charging appellant with 33 felony counts.1  These included one count of attempted murder (Pen. Code, § 664/187),2 fourteen counts of assault with a deadly weapon (§ 245, subd. (a)(2)), one count of attempted robbery (§ 664/212.5), eight counts of robbery (§ 212.5), seven counts commercial burglary (§ 460, subd. (b)), and single counts of automobile theft (Veh. Code, § 10851, subd. (a)), and conspiracy (§ 182, subd. (1)).  The facts of the underlying offenses, which occurred between August 13, 1993 and November 12, 1993, are not relevant to the issues on appeal.

On June 16, 1994, an amended information was filed.   The same day, appellant pleaded nolo contendere to 16 counts of the amended information as follows:  Count 1, attempted murder with use of a firearm and infliction of great bodily injury (§§ 664/187, 12022.5, 12022.7);  counts 4, 8, 9, 14, 20, and 22, robbery with use of a firearm (§§ 212.5, 12022.5);  counts 25 and 28, robbery while armed with a firearm (§§ 212.5, 12022, subd. (a)(1));  counts 18, 19, 30, and 31, assault with a deadly weapon while armed with a firearm (§§ 245, subd. (a)(2), 12022, subd. (a)(1));  count 6, assault with a deadly weapon with use of a firearm (§§ 245, subd. (a)(2), 12022.5);  count 33, conspiracy (§ 182.1);  and count 13, automobile theft (Veh. Code, § 10851).

Appellant entered his plea to the above counts after an in-chambers discussion between court and counsel.   The trial judge informed appellant he could receive a maximum potential sentence of 34 years and four months as the determinate term plus a life term for the attempted murder count.   However, the court then stated appellant would receive an “indicated sentence” of a determinate sentence of 28 years for all counts save the attempted murder count, for which a concurrent life term would be imposed.   The court also “indicated” that it would dismiss the remaining counts at the sentencing hearing pursuant to section 654.

At the sentencing hearing, the prosecution presented evidence that, after the hearing at which he entered his plea, and while in detention, appellant was found in possession of a gun and had spoken to another juvenile detainee about escaping.   After considering this evidence, the court sentenced appellant to seventeen years, eight months on all counts except the attempted murder count.   On that count, appellant was sentenced to a consecutive life term.   Thus the sentence actually imposed was significantly harsher than the “indicated sentence” earlier described to appellant by the court.

Leave to file a late notice of appeal and an application for a certificate of probable cause were filed August 3, 1995, and thereafter granted.3  (CT 190–94)


I.The Sentence Did Not Violate the Terms of the Plea Bargain

 Penal Code section 1192.5 provides that a defendant cannot be sentenced on the basis of a plea to a punishment more severe than that specified in the plea.   This statute also provides that the court is not bound to a plea bargain, but that if the court withdraws its offer, the court must allow the defendant to withdraw his plea.

Appellant contends that by sentencing him to a consecutive life term the trial court violated the plea bargain and he was therefore entitled to withdraw his plea but was improperly denied an opportunity to do so.   Appellant rests his claim almost entirely on People v. Johnson (1974) 10 Cal.3d 868, 112 Cal.Rptr. 556, 519 P.2d 604.   In that case the trial court discovered that in negotiating a plea bargain under which the defendant pleaded guilty in return for a misdemeanor sentence under a credit card forgery charge, he had concealed his true name and past criminal record.   The court therefore withdrew its prior approval of the bargain and sentenced the defendant to state prison.   At no time between the filing of the information and the date of sentencing did the court inform the defendant of his right under section 1192.5 to withdraw his plea;  and at no time did the defendant or his counsel seek leave to withdraw the guilty plea after the bargain was disapproved.   The Supreme Court reversed, directing that the defendant be advised of his right under section 1192.5 and permitted to withdraw his guilty plea and enter a new plea.   The court explained that the provision in the statute declaring that if a defendant's offer of a plea bargain is not accepted by the prosecutor and approved by the court, the plea is deemed withdrawn and the defendant may enter a new plea, was held to apply to, not only an initial rejection of the defendant's offer, but also to a court's withdrawal of its prior approval of a negotiated plea.  (Id., at p. 872, 112 Cal.Rptr. 556, 519 P.2d 604.)   The court additionally held that the defendant did not waive his right to change his plea by failing to request a change of plea after learning of the court's withdrawal of its prior approval.  (Id., at pp. 872–873, 112 Cal.Rptr. 556, 519 P.2d 604.)

The problem with appellant's argument, and the reason Johnson is inapposite, is that the trial court in this case never withdrew its approval of the plea bargain.   Though the sentence actually imposed was harsher than the indicated sentence it was still within the discretion left to the court under the bargain negotiated by the parties.   As the Attorney General correctly points out, the bargain in this case simply required the People to dismiss 13 counts, which was the consideration for appellant's reciprocal withdrawal of his not guilty plea and entry of a plea of nolo contendere to the remaining counts.   The specific sentence on the counts appellant admitted was left to the discretion of the court.   This was clearly the understanding of trial counsel.   At the sentencing hearing he strenuously argued that “there's enough evidence before the court to allow the court to choose the mitigated terms in these offenses and to run the count 1 concurrent with the enormous number of other counts and their respective sentences that the court will impose.”   This argument concedes that the bargain left open the issue of imposing the life term concurrently or consecutively.   Accordingly, we hold that appellant had no right under section 1192.5 to withdraw his plea.

This is not, however, the end of our analysis.   The dispute between the parties as to the nature of the bargain raises the question whether appellant understood the bargain at the time he entered his plea;  that is, whether the plea was intelligent and voluntary and, if it was not, whether he must for that reason be provided an opportunity to withdraw his plea.


Appellant Was Not Adequately Advised of the Range of Permissible Sentences

 In Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, the United States Supreme Court established, as a matter of constitutional law, that a plea of guilty in a felony case cannot be accepted without an affirmative showing that it was intelligent and voluntary.   In In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449, the California Supreme Court assayed the effect of the Boykin rule in this state.   As stated in Tahl, the Boykin court, “while not establishing precise guidelines, makes clear that a plea of guilty cannot stand unless the record in some manner indicates a free and intelligent waiver of the three enumerated rights [i.e., the self-incrimination privilege, the right of trial by jury, and the right of confrontation] necessarily abandoned by a guilty plea and an understanding of the nature and consequences of the plea.   Clearly the judge's active participation ‘in canvassing the matter with the accused’ is essential, and a fortiori a silent record is insufficient.”  (Id., at p. 130, 81 Cal.Rptr. 577, 460 P.2d 449, italics added.)   Quoting with approval from Commonwealth ex rel. West v. Rundle (1968) 428 Pa. 102, 237 A.2d 196, 197–198, which had also been quoted with approval in Boykin, the Tahl court also observed that “ ‘[a] majority of criminal convictions are obtained after a plea of guilty.   If these convictions are to be insulated from attack, the trial court is best advised to conduct an on the record examination of the defendant which should include, inter alia, an attempt to satisfy itself that the defendant understands the nature of the charges, his right to a jury trial, the acts sufficient to constitute the offenses for which he is charged, and the permissible range of sentences.’ ”  (In re Tahl, supra, 1 Cal.3d at p. 133, fn. 7, 81 Cal.Rptr. 577, 460 P.2d 449, italics added.)

While courts have held that a plea of guilty cannot reasonably be found to have been knowingly and voluntarily entered if the defendant is unaware of the primary and direct consequences of his imminent conviction on a plea of guilty (see, e.g., In re Birch (1973) 10 Cal.3d 314, 319, 110 Cal.Rptr. 212, 515 P.2d 12;  People v. Tabucchi (1976) 64 Cal.App.3d 133, 134 Cal.Rptr. 245), “[c]ommon sense dictates that the court need only apprise defendant of the sentence possibilities in a general fashion.”  (Scoggins v. Superior Court (1977) 65 Cal.App.3d 873, 877, 135 Cal.Rptr. 619.)

People v. Spears (1984) 153 Cal.App.3d 79, 199 Cal.Rptr. 922 and People v. Vento (1989) 208 Cal.App.3d 876, 256 Cal.Rptr. 497 are instructive as to the extent of the judicial responsibility to advise a defendant entering a negotiated plea of the permissible range of sentences and the consequences of the judicial failure to provide such advice.   In Spears, defendants charged with numerous serious felonies entered into plea bargains under conditions in which they were permitted by the trial court to believe that probation was likely.   While the court made it clear no promises were being made, it failed to disclose that the pleas made probation statutorily disfavored and therefore improbable.   In the case of one defendant “the taking of the plea commenced with his counsel asking for confirmation that his client would be eligible for probation.   The court responded:  ‘I don't read it as a mandatory prison, where the Court has no discretion.   Do you understand that?’   Defense counsel responded that he agreed.   The plea was then taken by a careful court which made it clear that no promises had been made, interspersed with references to ‘if’ the defendant should go to prison.”  (Id., at p. 83, 199 Cal.Rptr. 922.)   The other defendant also “was told no promises were being made.   He agreed with the court's denial that neither the judge, defense counsel, nor the district attorney ‘is promising you, if you plead guilty to these two things we guarantee you wouldn't go to prison, or we guarantee you will get straight probation.’ ”  (Ibid.)  After spelling out the various prison terms to which they were exposed by their pleas, “[t]he court also warned the defendants that if given probation, the terms and conditions of probation must be observed to avoid revocation.”  (Ibid.)  After the defendants were sentenced to state prison they moved to withdraw their pleas on the basis of “an asserted understanding by all concerned that the defendants were local businessmen whose affairs would be jeopardized if they were not given probation and an assignment to a work furlough program.”  (Id., at p. 84, 199 Cal.Rptr. 922.)

The appellate court concluded that, although the defendants were advised of the maximum sentence, “references were made to probation without the slightest hint that there were statutory hurdles.”  (Id., at p. 87, 199 Cal.Rptr. 922.)   Declining to decide whether a court must invariably advise a defendant that a plea invokes a strong statutory presumption against probation, the court simply expressed “the need to advise a defendant that probation is disfavored when the plea and admissions make it so, and the defendant, counsel, and the court appear to consider probation ‘likely.’   In that situation, to avoid having to grant a subsequent motion to withdraw the plea, the court must disclose the full consequences of such a plea;  it shall not consider advice of the maximum punishment permitted by law to be sufficient.”  (Ibid., italics in original.)   Considering the policy reasons why a prejudgment motion to withdraw a guilty plea should be granted whenever there is doubt (see Pen. Code, § 1018), the court held that the trial court abused its discretion in not allowing defendants to withdraw their pleas of guilty.

In People v. Vento, supra, 208 Cal.App.3d 876, 256 Cal.Rptr. 497, the trial court advised the defendant of the maximum sentence he faced.  “The trial court then stated, ‘Now I indicated to your attorney that should you plead guilty or be found guilty that I would not rule out the possibility of probation and local sentencing in your case.   By the same token, I would not rule out the possibility of a state prison commitment;  do you understand that?’   Vento stated that he did and proceeded to waive his constitutional rights and plead guilty.   He indicated that he had not been promised anything in exchange for his plea other than what was stated in court, and that he was pleading guilty because he was in fact guilty.”  (Id., at p. 878, 256 Cal.Rptr. 497.)   The defendant contended “that the trial court's comments regarding the possibility of probation were misleading, since in fact probation could only be granted in an unusual case where the interests of justice would best be served ․” and that he was therefore entitled to a reversal of the judgment and an opportunity to withdraw his plea.  (Ibid.)

The Court of Appeal found that although Vento was not informed at the time he entered his plea that probation was statutorily disfavored, “the record does not show a climate of ‘real anticipation’ that probation was likely.   Instead, the trial court simply indicated that it was ruling out none of its sentencing options.   Moreover, unlike the defendants in Spears, at no time did Vento move to withdraw his plea.”   Because “[t]here [was] no indication at the time of sentencing that Vento was surprised by the statutory limitation on probation or that he felt the plea bargain was being breached either in letter or in spirit” (id. at pp. 879–880, 256 Cal.Rptr. 497), the appellate court rejected his argument that his plea was improperly induced and affirmed the judgment.

In the present case, the threshold question is whether appellant understood or should have understood the permissible range of sentences contemplated by the bargain he entered;  that is, whether he fully realized his exposure to the sentence he actually received.   While we are aware that off-the-record plea discussions probably took place, and that the court or counsel may in that context have correctly explained the range of sentencing possibilities the plea bargain left open to the court, we cannot speculate as to what appellant may have been told;  our inquiry must be confined to the record.  (In re Tahl, supra, 1 Cal.3d at pp. 130–131, 81 Cal.Rptr. 577, 460 P.2d 449;  People v. Spears, supra, 153 Cal.App.3d at p. 83, 199 Cal.Rptr. 922.)   The only portion of the record that sheds light on appellant's understanding of the permissible range of sentences contemplated by the bargain he entered are the plea agreement executed on June 16, 1994 and a colloquy between the court and appellant that same day, when the court accepted the change of plea.

The form “Declaration Concerning Change of Plea To Guilty or Nolo Contendere” executed by appellant, defense counsel and the district attorney, recites in material part that counsel explained to appellant the maximum penalty which could be imposed as a result of the plea of nolo contendere and that appellant was not “induced to plead guilty or nolo contendere by any promise or representation of a lesser sentence, probation, reward, immunity, or anything else except [and the following is handwritten]:  ‘The court has indicated that I will be sentenced to 28 years in determinate terms with the sentence on ct. 1 to run concurrent.   That is, the life term in ct. 1 plus any special allegations attached to ct. 1 will be imposed to run concurrently with the 28 years indeterminate terms imposed in cts. 4–33.’ ”   (Italics added.)   The use of the word “except” enhances the possibility appellant may have erroneously understood the “indicated sentence” to constitute a promise.   Finally, the declaration states that “The Court reserves the right to withdraw its consent to any sentence limitation agreement;  and, in the event, I will be permitted to withdraw my plea(s) of guilty or nolo contendere and all charges will be reinstated.”   At the bottom of the declaration, the district attorney wrote in, next to her signature, “plea is open by People.”

The court accepted appellant's change of plea the same day.   After admonishing appellant of the constitutional rights he would be giving up by entering a plea of nolo contendere, the following colloquy ensued:

“THE COURT:  You understand that the maximum potential penalty which you could receive for the combined offenses I just indicated could be 34 years and four months in the Department of Corrections?․


“THE COURT:  You understand that, sir?


“THE COURT:  Now, in this particular instance the court has indicated and its an indicated sentence only, that you will be sentenced to 28 years with respect to the determinate terms, with the sentence on Count I, that is the life term, together with those special allegations to run concurrent to the earlier term.

“By that, I mean the life term plus the special allegations of eight years will be imposed to run concurrently with the 28 years of the determinate sentence and to be imposed by the court as relates to those counts.

“The balance of the charges to which you are not either admitting or pleading no contest to will be dismissed at the time of sentencing.

“Is that your understanding?

“THE DEFENDANT:  Yes.”  (Italics added.)

 Whether appellant appreciated that his plea bargain allowed the possibility of the sentence he received primarily turns on whether he understood or can reasonably be deemed to have understood the court's use of the phrase “indicated sentence,” as well as the word “indicated” used in the declaration concerning the change of plea.   The expression “indicated sentence” refers to the sentence which, at the time the court accepts a plea of guilty, it intends or is inclined to later impose if a given set of facts were proved.  (People v. Superior Court (Felmann) (1976) 59 Cal.App.3d 270, 276, 130 Cal.Rptr. 548).   An “indicated sentence” thus embodies no promise that it will necessarily be imposed.  “The court may, and should, withdraw from an ‘indicated sentence’ if new facts are brought out at the sentencing hearing showing that the ‘indicated sentence’ is not appropriate.”  (People v. Superior Court (Ramos) (1991) 235 Cal.App.3d 1261, 1269, 1 Cal.Rptr.2d 333, citing Bryce v. Superior Court (1988) 205 Cal.App.3d 671, 676, fn. 2, 252 Cal.Rptr. 443;  People v. Johnson, supra, 10 Cal.3d 868, 873, 112 Cal.Rptr. 556, 519 P.2d 604.)   Moreover, the prosecutor has the “inherent right to challenge the factual predicate and to argue that the court's indicated sentence is wrong.”  (People v. Superior Court (Felmann), supra, 59 Cal.App.3d at p. 276, 130 Cal.Rptr. 548.)

While the meaning of “indicated sentence” just described is fully appreciated by the judges, lawyers and other professionals familiar with the circumlocutions to which our criminal justice system is, unhappily, so predisposed, it is highly doubtful others share this understanding.  “Words after all are symbols,” Cardozo once pointed out, “and the significance of the symbols varies with the knowledge and experience of the mind receiving them.”  (Cooper v. Dasher (1933) 290 U.S. 106, 109, 54 S.Ct. 6, 7, 78 L.Ed. 203.)   The word “indicate” has many meanings, some of them in conflict.   Nonetheless, in common usage it does not connote an aspect of tentativeness.   Indeed, Webster's first definition of “indicate” is “to point or point to or toward with more or less exactness,” that is, to “show or make known with a fair degree of certainty.”  (Webster's Third New International Dictionary (1970) at p. 1150.) 4

While the trial judge advised appellant he could receive a sentence as long as 34 years and four months, the record does not reveal that it was ever explained to appellant that the lesser “indicated sentence” was provisional and, if new facts came to light, might later be repudiated by the court and the district attorney, despite their former endorsement.   Consistent with the principle articulated in In re Tahl, supra, and its progeny, particularly cases relating to the need to advise of the range of sentences permitted by a plea bargain (e.g., People v. Spears, supra, 153 Cal.App.3d 79, 199 Cal.Rptr. 922), a trial court cannot assume that the tentative nature of an “indicated sentence,” is communicated to a defendant merely through the use of that recondite phrase;  the defendant must be explicitly advised, as is ordinarily done, that an “indicated sentence” does not constitute a guarantee.  (See People v. Delgado (1993) 16 Cal.App.4th 551, 554, 20 Cal.Rptr.2d 125.)   From all that appears in the record, by which we are bound, appellant never received such an advisement and might therefore reasonably have believed that the “indicated sentence” agreed to by the district attorney and accepted by the court was part of the bargain and therefore assured.

To one unfamiliar with the jargon employed in our criminal courts, the cryptic statement “plea is open by People,” which appears handwritten at the bottom of the declaration concerning the change of plea is no more illuminating than the phrase “indicated sentence.”   The uninitiated cannot reasonably be deemed to understand that an “open” plea is one that leaves sentencing discretion to the court.   And even if this were understood, the statement that the plea is open “by People ” suggests that condition may not have been agreed to by the defendant.

In short, so far as is shown by the record, appellant was never adequately advised of the range of permissible sentences that could be imposed under the terms of the plea bargain.


Appellant Was Not Prejudiced by the Inadequate Advisement

 While we conclude appellant was not adequately advised of the range of sentences he could receive under the plea bargain, the failure to give such an advisement is not reversible per se.   An uninformed waiver of specified constitutional rights does not necessarily render a plea or admission involuntary.   Such a plea or admission need not be set aside if the “totality of the circumstances” delineated in the record affirmatively demonstrates that the plea was voluntary and intelligent.   (People v. Howard (1992) 1 Cal.4th 1132, 1178, 5 Cal.Rptr.2d 268, 824 P.2d 1315 and federal cases there cited.)   Moreover, an uninformed waiver based on the failure of the court to advise an accused of the penal consequences of a plea or admission does not violate any constitutional rights, but merely a judicially declared rule of criminal procedure.  (People v. Walker (1991) 54 Cal.3d 1013, 1022–1023, 1 Cal.Rptr.2d 902, 819 P.2d 861.)   Such a failure to advise therefore requires reversal only if the error is prejudicial to the accused.  (Ibid., quoting In re Ronald E. (1977) 19 Cal.3d 315, 321, 137 Cal.Rptr. 781, 562 P.2d 684.)   Thus, appellant must demonstrate that it is reasonably probable he would not have entered his plea if he had not been told of the provisional nature of the “indicated sentence.”

 Furthermore, as also noted in People v. Walker, supra, 54 Cal.3d at p. 1023, 1 Cal.Rptr.2d 902, 819 P.2d 861, the error in omitting such an advisement is waived if objection is not made at or before sentencing.   The purpose of the general doctrine of waiver is to encourage parties to bring objections to the attention of the trial court so that they may be avoided or cured.  “Upon a timely objection, the sentencing court must determine whether the error prejudiced the defendant, i.e., whether it is ‘reasonably probable’ the defendant would not have pleaded guilty if properly advised.”  (Id., citing People v. Glennon (1990) 225 Cal.App.3d 101, 105, 276 Cal.Rptr. 1;  see also People v. Melton (1990) 218 Cal.App.3d 1406, 1408–1409, 267 Cal.Rptr. 640.)   It is therefore significant that appellant did not move to withdraw his plea at the time of sentencing, instead the entire hearing was occupied by testimony in support of the statements in mitigation and aggravation previously submitted to the court by defense counsel and the district attorney.   As the district attorney accurately stated at the close of the hearing, whether to impose the life term on count 1 concurrently or consecutively is the question “substantially at issue at this sentencing hearing.”

As earlier noted, defense counsel agreed that was the issue.   In People v. Vento, supra, 208 Cal.App.3d 876, 879, 256 Cal.Rptr. 497, where the defendant was not informed at the time he entered his plea that the probation he desired was statutorily disfavored, the appellate court considered the defendant's failure to later move to withdraw his plea an indication that he was not surprised by the prison term imposed and did not feel the plea bargain was being breached either in letter or spirit.  (Id., at pp. 879–880, 256 Cal.Rptr. 497.)   So too in the present case does appellant's failure to move to withdraw his plea reflect his understanding at that time that the consecutive sentence imposed by the court was within the terms of the plea bargain.5  Moreover, the evidence that appellant smuggled a loaded and operable 25 caliber handgun into the juvenile hall in order to facilitate an escape, and may have committed serious new felonies for which he could have been but apparently was not separately charged, suggests he was not prejudiced by the sentence imposed.

Accordingly, the judgment is affirmed.


1.   Appellant was 16 years old at the time of the underlying offenses.   The juvenile court found he was “not a fit and proper subject to be dealt with under the juvenile court law” pursuant to Welfare and Institutions section 707.   Accordingly, appellant has been sentenced in the criminal court as an adult.

2.   All further statutory references are to the Penal Code unless otherwise specified.

3.   The superior court previously denied an application for probable cause.   However, under California Rules of Court, rule 31(d) and section 1237.5 this appeal is cognizable without a certificate of probable cause because it does not challenge the validity of the plea but contests the sentence.  (See People v. Delles (1968) 69 Cal.2d 906, 909–910, 73 Cal.Rptr. 389, 447 P.2d 629 [interpreting § 1237.5 to allow for appeal without a certificate of probable cause where the defendant asserts error in those proceedings subsequent to entry of guilty plea that determine the penalty to be imposed].)

4.   The uncertainty of the word is exemplified by the various examples Webster supplies of its primary usage.   Thus “indicate” is used “to show the probable presence of existence or nature or course of:  give fair evidence of:  be a fairly certain sign or symptom of:  reveal in a fairly clear way.”  (Webster's Third International Dictionary, supra, at p. 1150.)

5.   Appellant's contention that he failed to waive his right to withdraw his plea as a result of ineffective assistance of counsel, which is improperly raised for the first time in his reply brief, is unpersuasive.   As we have explained, the sentence imposed by the court was clearly within the terms of the plea bargain and a motion to withdraw on the theory it was not was sure to be denied.   Moreover, if appellant were allowed to withdraw his plea, the district attorney could not only reinstate the 13 counts that had been dismissed, but could additionally charge appellant with the criminal acts he allegedly committed while in detention.   For these reasons, it would have been tactically unwise for appellant to move to withdraw his plea.

KLINE, Presiding Justice.

LAMBDEN and HITCHENS*, JJ., concur.

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