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The People v. Kenneth Dean Best

July 25, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KENNETH DEAN BEST, DEFENDANT AND APPELLANT.



(Super. Ct. No. 62085952)

The opinion of the court was delivered by: Duarte , J.

P. v. Best

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Kenneth Dean Best filed a petition for a writ of error coram nobis to set aside his conviction based on a no contest plea, alleging he was misled as to the need to serve a jail sentence if he did not complete a work project obligation. The trial court denied the petition, and defendant timely filed this appeal.

We reject defendant's assertion that he was promised he would not have had to serve a jail sentence if he did not complete work project. The record instead shows defendant was misadvised by his attorney, which is not a fact that would prevent rendition of judgment, a necessary element of coram nobis relief. (People v. Kim (2009) 45 Cal.4th 1078, 1102-1103 (Kim).) We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On October 14, 2009, as part of a plea bargain, defendant pled no contest to vandalism causing over $400 in damages. (Pen. Code, § 594, subd. (b)(1).) The prosecutor stated the terms of the bargain, which in part called for the charge to be specified as a misdemeanor, and called for defendant to "be placed on two years of informal probation, [and] be given 60 days sentence which he can satisfy doing work project."*fn1 The trial court granted defendant informal probation with "a disciplinary sentence of 60 days to be served as outlined by the prosecutor here this morning."

The prosecutor then stated defendant needed a date to report to jail, in the event defendant "doesn't do work project and doesn't sign up, then he has a report to jail date. If he does everything he's supposed to do, he doesn't have to worry about it. It's a fall back." Defendant's counsel agreed, and defendant represented that he understood he would have to report to jail unless, in the words of the trial court, "all these other matters are resolved."*fn2 The minute order, signed by defendant, reflects that he was sentenced to jail for 60 days and he was provided a turn-in date.

Defendant later moved to modify the sentence or withdraw his plea. He alleged he applied for and was granted work project, but the probation department, which administers work project, terminated him for arbitrary reasons. Defendant asserted that the plea bargain granted him the absolute right to fulfill his jail obligation via work project, and therefore he sought to modify his sentence to eliminate the jail condition, or to withdraw his plea on the ground he was not given the benefit of his bargain.

Defendant's counsel, Judson H. Henry, provided a declaration stating his understanding of the plea bargain was that defendant "would be eligible to serve his time (a total of 60 days, less 1 day credit) in alternative sentencing (work project) and would not be required to serve any jail time." The probation department had removed defendant from work project. Henry alleged he had attended a hearing regarding the probation department's actions and alleged improper hearsay evidence had been admitted at that hearing.*fn3

The People opposed defendant's motion, arguing the plea bargain called for defendant to serve a 60-day jail sentence unless he served that time through work project, in compliance with the probation department's rules.

On March 1, 2010, the trial court denied defendant's motion to modify the sentence or withdraw the plea, finding the minute order at sentencing--which had been signed by defendant--"put the defendant on notice that he was not guaranteed alternative sentencing. Otherwise there would be no point of giving the defendant a date to turn himself in to jail." The trial court credited defendant's days on work project ...


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