THE PEOPLE v. WAYNE COIT SENTER (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Wayne Coit Senter appeals from the judgment entered after a jury convicted him of first degree burglary (Pen.Code, § 459) ¹ and burglary with explosives (§ 464).   The trial court, in a bifurcated proceeding, found that appellant had suffered a prior strike under the Three Strikes Law (§§ 667, subds.(b) - (i);  1170.12, subds. (a) - (d)), a prior serious felony conviction (§ 667, subd. (a)), and nine prior prison terms (§ 667.5, subd. (b)).  Appellant was sentenced as a second strike offender to 15 years state prison.²  We affirm the judgment with directions to amend the abstract of judgment to strike the “person present” language on count 3 for first degree burglary.

Facts

On December 26, 2008, four men used an acetylene torch to burglarize a money machine in the Mountain Shadows Apartment's laundry room.   The men took $500 to $1,000 and left a scorched $10 bill in the machine.

Tony Martinez heard a loud pop and the sound of glass breaking at 3:00 in the morning.   He saw two men wheel a large object with cords into the laundry room and sparks and flashes of light.

Appellant, who was wearing a black and white camouflage sweater, and another man were stationed outside the laundry room near the parking lot.   The men met in the parking lot and disappeared.   Martinez saw a white truck leave and called the police.

West Covina Police Officers Gilbert Amis and Eduardo Gomez received a radio broadcast that several males had broken into the laundry room and were leaving in a white truck.   The officers saw the truck a mile and a half from the apartment complex and made a traffic stop.   Appellant was driving and Daniel Williams was in the passenger seat.   The truck license plate was covered over with a piece of cardboard.

In the truck, the officers saw a pair of bolt cutters, an acetylene welding torch and tanks, a dolly, a camouflage jacket, a head lamp with a band, a window punch to break out windows, screwdrivers, and a black and white camouflage sweater.

Martinez was transported to the traffic stop and identified appellant and Williams.   He said that Williams was “the one who went into the laundry room.”

Ineffective Assistance of Counsel

Appellant claims that he was denied effective assistance of counsel because Alternate Public Defender Greg Roman failed to advise appellant to accept a nine year plea offer at the arraignment hearing.   Roman had just been assigned to the case and believed the plea offer was put over to the next hearing.

When appellant appeared at the trial readiness hearing, the prosecutor announced the plea offer was 17 years.   Appellant was willing to plea to an 11 year sentence, but due to a change in “administration” in the prosecutor's office nothing was resolved.

Appellant asked the trial court to reinstate the nine year plea offer.   Appellant had talked to his daughter, had changed his mind, and “wanted to get the explosive[s] charge dropped, so I can go to fire camp and take the nine years.”   The trial court denied the request because it could not “force the prosecution” to accept a plea offer that had been withdrawn.

To prevail on a claim of ineffective assistance of counsel, appellant must show deficient representation and resulting prejudice.  (In re Alvernaz (1992) 2 Cal.4th 924, 936-937.)   In the context of a plea bargain, prejudice is shown where there is a reasonable probability that the defendant would have accepted the proffered plea bargain had he been properly advised by counsel, and there is a reasonable probability the trial court would have approved the plea bargain.  (Id., at p. 937.)

Appellant makes no showing that counsel's performance fell below an objective standard of reasonableness.  (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693-694];  People v. Ledesma (1987) 43 Cal.3d 171, 215-217.)   Appellant argues that Roman should have advised appellant to take the plea offer even though Roman had just been assigned to the case.   It is the antithesis of what is expected of criminal defense attorneys in advising a defendant as to the consequences of a proffered plea bargain.  (See In re Alvernaz, supra, 2 Cal.4th at p. 937.)   Roman had to review the police reports and preliminary hearing transcript, discuss possible defenses with appellant, review the factual and legal basis for the strike prior allegation, and assess the strength of the prosecution's case before he could competently advise appellant on the plea offer.  (Ibid.;  People v. Pope (1979) 23 Cal.3d 412, 424-425.)

For the first time on appeal, appellant claims that Roman “affirmatively rejected” the plea offer.   We disagree.   Roman stated that the nine year offer was”offered at arraignment and plea when I first met him.   We put it over.” ³  Appellant told the trial court that Roman “approached me with the nine-year offer, and he tells me at the same time, that ‘I just got your file five minutes ago[.]’  [O]kay, I would like my attorney to read my file before I take any kind of deal.”   Appellant and Roman were “taken by surprise” when the prosecution announced, at the trial readiness hearing, that the plea offer was 17 years state prison.

Appellant argues that Roman should have been prepared to evaluate the plea offer at the arraignment hearing, or should have requested a continuance or filed a motion to withdraw as counsel.   Appellant does not explain how that would have preserved the plea offer.   The prosecution had the right to withdraw the offer at any time and did so.  (See § 1192.5;  People v. Orin (1975) 13 Cal.3d 937, 942-943.)   Even if we were to assume that counsel's representation fell below an objective standard of reasonableness, appellant must show there is a reasonable probability that but for counsel's errors, appellant would have accepted the plea offer and the trial court would have approved it.  (In re Alvernaz, supra, 2 Cal.4th at p. 937.)  “[A] defendant's self-serving statement - after trial, conviction, and sentence - that with competent advice he or she would have accepted a proffered plea bargain, is insufficient in and of itself to sustain the defendant's burden of proof as to prejudice, and must be corroborated independently by objective evidence.   A contrary holding would lead to an unchecked flow of easily fabricated claims.”  (Id., at p. 938.)

Before Roman was assigned to the case, appellant rejected a four year EDP offer, the inference being that appellant believed he could negotiate a better offer.⁴  The nine year plea offer was made a few minutes after Roman got the case.   The prosecution wanted appellant to plead guilty to count 3 for burglary and admit the prior strike allegation.   It is unclear whether the plea offer required appellant to plead guilty to first degree burglary with a person present, as alleged in the information.   It was a concern because the burglary, as charged, was a violent felony. (§§ 460, subd. (a);  667.5, subd. (c)(21).)

On the first day of trial, appellant asked the trial court to reinstate the nine year plea offer, but with new terms.   Appellant wanted to strike the “person present” allegation and wanted the prosecution to dismiss the burglary with explosives charge so that appellant could go to fire camp.   There is no evidence that the prosecution agreed to or would have agreed to such a plea bargain.

To prevail on a claim of ineffective assistance of counsel, appellant must prove prejudice as a “ ‘ “demonstrable reality,” not simply speculation.’   [Citation.]”  (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)   Appellant's self-serving statement that the alternate public defender officer provided deficient representation and caused appellant to pass up a favorable plea offer is without merit.  (In re Alvernaz, supra, 2 Cal.4th at p. 938.)   Appellant rejected a four year offer, and the nine year offer lapsed, Then appellant tried to negotiate an 11 year plea bargain.   There is no constitutional right to a plea bargain where the prosecution withdraws the offer before it is accepted.  (Weatherford v. Bursey (1977) 429 U.S. 545, 561 [51 L.Ed.2d 30, 43];  see People v. Rhoden (1999) 75 Cal.App.4th 1346, 1353-1354 [prosecutor may withdraw plea bargain before defendant pleads guilty or detrimentally relies on bargain].

Romero Motion

Appellant argues that the trial court abused its discretion in denying his Romero motion (People v. Romero (1996) 13 Cal.4th 497) to strike a 2005 conviction for first degree burglary.   The standard for deciding whether to strike a prior is well established.   The trial court “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit․”  (People v. Williams (1998) 17 Cal.4th 148, 161.)   Once a career criminal commits the requisite number of strikes, the “circumstances must be ‘extraordinary’ “ before he or she can be deemed to fall outside the spirit of the Three Strikes law.  (People v. Carmony (2004) 33 Cal.4th 367, 376.)

The trial court considered appellant's extensive criminal record which dates back to 1987 and includes convictions for possession of a controlled substance for sale, carrying a loaded firearm in a public place, being under the influence of a controlled substance and possession of a controlled substance, second degree burglary, receiving stolen property, and a 2005 conviction for first degree residential burglary and evading a police officer.   Between 1993 and 2004, appellant violated parole seven times.

The trial court rejected the argument that the 2005 burglary conviction was remote in time and that appellant's involvement in the instant crime was minor.   Appellant argued there “was nothing exceptionally vulnerable about the victim, Mountain Shadows Apartments” and that he was less culpable than his cohort, Williams, who was sentenced to four years state prison.   The trial court reasonably concluded that appellant is the kind of revolving-door career criminal for whom the Three Strikes law was devised.  (See People v. Gaston (1999) 74 Cal.App.4th 310, 320.)

Appellant argues that the trial court erred in finding that appellant was on parole when he committed the instant offense.   Appellant's parole status is unclear.⁵  The trial court did, however, cite other factors including appellant's multiple prison commitments and the absence of mitigating factors.   It found that striking the prior would not promote the interest of justice.

Assuming, arguendo, that appellant was not on parole, it is not reasonably probable that the trial court would impose a more lenient sentence if the matter was remanded for resentencing.  (People v. Price (1991) 1 Cal.4th 324, 492;  see e.g., People v. Superior Court (Romero ), supra,13 Cal.4th at p. 530, fn. 13 [petition for reconsideration of sentence may be summarily denied where sentencing court made its intentions clear].)   The trial court found that a 15 year sentence was “commensurate with the gravamen and seriousness of this offense” and no mitigating factors.   As an act of leniency, it struck the prior prison term enhancements for sentencing purposes.

Appellant makes no showing that the sentence is “so irrational, or arbitrary that no reasonable person could agree with it.”  (People v. Carmony, supra, 33 Cal.4th at p. 377.)   As reflected in the probation report, the instant offense (burglary with an acetylene torch) involved considerable planning and sophistication, and appellant has an extensive criminal record with failed attempts at probation and parole.   We believe it would have been an abuse of discretion to strike the prior serious felony conviction.  (See e.g., People v. Williams, supra, 17 Cal.4th at pp. 163-164;  People v. Humphry (1997) 58 Cal.App.4th 809, 813.)

Abstract of Judgment

Appellant asserts that the abstract of judgment erroneously states that the conviction on count 3 is for first degree burglary with a “person present.”   The “person present” allegation was struck the first day of trial pursuant to People v. Singleton (2007) 155 Cal.App.4th 1332.   The Attorney General agrees that the “person present” language should be deleted from the abstract of judgment to reflect the judgment imposed.

The Attorney General argues that the abstract of judgment incorrectly states that the sentence on count 3 was stayed pursuant to section 654.   We disagree.   The trial court stated that it was imposing an eight year sentence on count 3,” concurrent to count 4, the burglary with explosives, by virtue of [section] 654.”   The reference to section 654 means the sentence on count 3 was stayed.   (See People v. Danowski (1999) 74 Cal.App.4th 815, 824 [section 654 applies to sentencing under Three Strikes law].)

“Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct.  [Citations.]  If, for example a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed.  [Citation.]  Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences.   [Citation.]”  (People v. Deloza (1998) 18 Cal.4th 585, 591-592.)

Conclusion

The judgment is affirmed.   The trial court is directed to amend the abstract of judgment to strike the “person present” language on count 3 for first degree burglary and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED.

We concur:

Superior Court County of Los Angeles

Helen Simkins Irza, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Corey J. Robins, Deputy Attorney General, for Plaintiff and Respondent.

FOOTNOTES

FN1. All statutory references are to the Penal Code..  FN1. All statutory references are to the Penal Code.

FN2. The trial court sentenced appellant to 10 years on count 4 for burglary with explosives (five year midterm, doubled to 10 years based on the prior strike), plus five years on the serious felony conviction enhancement (§ 667, subd. (a)).  On count 3 for first degree burglary, the court imposed an eight year sentence (four year midterm, doubled to eight years based on the prior strike) that was stayed pursuant to section 654.   The prior prison term enhancements were stricken..  FN2. The trial court sentenced appellant to 10 years on count 4 for burglary with explosives (five year midterm, doubled to 10 years based on the prior strike), plus five years on the serious felony conviction enhancement (§ 667, subd. (a)).  On count 3 for first degree burglary, the court imposed an eight year sentence (four year midterm, doubled to eight years based on the prior strike) that was stayed pursuant to section 654.   The prior prison term enhancements were stricken.

FN3. The March 10, 2009 minute order states that appellant entered a plea of not guilty and “rejects the People's settlement offer of a 9 year state prison sentence.  [¶] The People withdraw said offer.”   Appellant has not augmented the record to provide a transcript of the hearing..  FN3. The March 10, 2009 minute order states that appellant entered a plea of not guilty and “rejects the People's settlement offer of a 9 year state prison sentence.  [¶] The People withdraw said offer.”   Appellant has not augmented the record to provide a transcript of the hearing.

FN4. A different attorney from Roman's office represented appellant when the prosecution made the four year plea offer..  FN4. A different attorney from Roman's office represented appellant when the prosecution made the four year plea offer.

FN5. The prosecutor argued that appellant was on still on parole.   Appellant said that he was not.   The Department of Corrections chronological history shows a January 13, 2007 “Discharge by operation of Law” but it is unknown whether the entry refers to discharge from custody or discharge from parole.  (See § 3000, subd. (b)(1).).  FN5. The prosecutor argued that appellant was on still on parole.   Appellant said that he was not.   The Department of Corrections chronological history shows a January 13, 2007 “Discharge by operation of Law” but it is unknown whether the entry refers to discharge from custody or discharge from parole.  (See § 3000, subd. (b)(1).)

GILBERT, P.J. PERREN, J. Robert M. Martinez, Judge