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The People v. Kenneth Dean Best

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)


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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 towards his sentence, a new turn-in date was set, and defendant was permitted to reapply for work project.

On May 17, 2010, defendant filed the instant coram nobis petition. He again asserted the plea bargain called for "no jail time" and that he had been improperly excluded from work project, and added that he was denied readmission to work project.

The People's opposition asserted defendant got what he bargained for: A 60-day jail sentence, with the understanding he was eligible to apply for work project.

In reply, defendant emphasized the plea "is the result of a misrepresentation[,]" and his sentence was in effect changed due to the arbitrary actions of the probation department.

At the hearing on the motion, defendant was represented by a public defender. Defendant's prior attorney, Henry, testified he had been a lawyer for six or seven years, practicing mostly bankruptcy and civil litigation. This was "maybe my third, but I think my second" criminal case in Placer County. The other case had been resolved by plea and had not involved work project. Henry thought the plea meant the jail sentence, "Was to be served at work project. No ifs, ands, or buts." Henry thought the jail turn-in date was in case defendant did not enroll in work project or refused to complete it, and he so advised defendant. Henry had not contacted the probation department before the plea bargain to learn how work project functioned.

The public defender argued the record showed Henry had been incompetent or there had been a misunderstanding, depriving defendant of the benefit of the bargain he thought he was getting. "[N]obody ever explained to [defendant] that there was going to be custody time if for some reason he was either not accepted by probation or at some point terminated from probation. And given that he never would have entered the plea had he known that work project was not a guaranteed right for him, he's entitled to withdraw his plea."

The trial court found defendant had not shown any fact existing at the time of sentencing that was unknown and unknowable, because defendant knew he had a turn-in (to jail) date in the event that he did not satisfy his jail sentence through work project, therefore it was unreasonable for defendant to believe "he would be entitled to remain in the work project program no matter what type of dispute or what level of conflict he might have entered into with the probation department who runs that program." Further, the trial court found that the facts alleged by defendant would not have prevented judgment, a necessary element of a coram nobis claim. The petition was denied.

The public defender was relieved, and defendant's prior attorney, Henry, brought this timely appeal.

DISCUSSION

Generally, there are three elements to a coram nobis claim:

"'(1) Petitioner must "show that some fact existed which, without any fault or negligence on his part, was not presented to the court at the trial on the merits, and which if presented would have prevented the rendition of the judgment." [Citations.] (2) Petitioner must also show that the "newly discovered evidence . . . [does not go] to the merits of issues tried; . . ." (3) Petitioner "must show that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ. . . ."'" (Kim, supra, 45 Cal.4th at p. 1093.)

Defendant's attack on the order denying his petition for writ of error coram nobis hinges on the view that the plea bargain was understood not to require him to serve any jail time under any circumstance, as long as he presented himself to probation for work project. As the public defender argued at the hearing, it appears Henry's understanding of the plea bargain stemmed from Henry's ignorance of criminal sentencing procedures.*fn4

A county may "authorize the sheriff or other official in charge of county correctional facilities to offer a voluntary program under which any person committed to the facility may participate in a work release program . . . in which one day of participation will be in lieu of one day of confinement." (Pen. Code, § 4024.2, subd. (a).)

When a defendant is deemed eligible for work release (commonly called "work project"), that allows her or him to apply for admission to the program. If accepted, every day worked will count towards a jail sentence obligation. Unlike serving an actual jail sentence, the defendant does not accrue conduct credits while on work project because the defendant is not in actual custody. (See People v. Richter (2005) 128 Cal.App.4th 575; People v. Wills (1994) 22 Cal.App.4th 1810.) However, work project allows the defendant to go home at night, and benefits the community, because, "The program may consist of various types of work, including manual labor to maintain public facilities or in support of nonprofit organizations, graffiti cleanup, and services on behalf of senior citizens." (3 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Punishment, § 32, pp. 69-70; see Pen. Code, § 4024.2, subd. (b).)

A trial court cannot order a defendant into work project. (Pen. Code, § 4024.2, subd. (d) ["A person shall be eligible for work release under this section only if the sheriff or other official in charge concludes that the person is a fit subject therefor"]; see Ryan v. Commission on Judicial Performance (1988) 45 Cal.3d 518, 539 (Ryan) ["A judge has the power to commit a person to a correctional facility, but then the administrative official in charge of the facility has the discretionary power to offer work release if the person is deemed eligible under the rules of the program"].)

Despite the clear rule that a trial court cannot order a defendant into work project, Henry testified he thought the plea bargain meant defendant was guaranteed not to spend time in jail, so long as he timely enrolled in and showed up for work project. He also testified his other criminal case had not involved work project, and he had not taken steps to learn how work project functioned. Henry testified he conveyed his (mis)understanding about work project to defendant.

We have held that a plea bargain, like a contract, must be read in light of the applicable law. (People v. Haney (1989) 207 Cal.App.3d 1034, 1037-1038.)

The transcript of the change of plea hearing reflects a routine plea bargain wherein the trial court granted defendant probation, with conditions including service of a disciplinary jail term, with the (correct) understanding that the defendant was eligible for work project. And indeed, defendant was serving his jail sentence through work project, until his dispute with probation arose. The trial court lacked the authority to order probation to accept defendant into the program or to reinstate him therein.*fn5 Therefore, no reasonable construction of the plea bargain supports defendant's claim that he was promised no jail time.

This is not a case of factual misrepresentations made or corroborated by the trial court or prosecutor that are in good faith and without negligence relied upon by the defendant, and in truth operate to prevent the exercise of his free will and judgment. (People v. Gilbert (1944) 25 Cal.2d 422, 442-443; cf. People v. Goodrum (1991) 228 Cal.App.3d 397 (Goodrum) [trial court wrongly advised defendant that no contest plea to felony drunk driving could not be used in pending tort suit].) Nor is this a case where the plea bargain could not be consummated because of a fact extant but unknown at the time of sentencing. (Cf. People v. Delles (1968) 69 Cal.2d 906, 910-911.)

This is a case where defendant's counsel misunderstood the plea bargain and misadvised his client. Defendant declared he honestly believed he would not have to go to jail, and had he known otherwise he would not have accepted the bargain. Even if defendant were being truthful, no attorney reasonably familiar with criminal sentencing would have understood the remarks made at the change of plea hearing as a guarantee of work project in lieu of jail time, as explained above. Defendant's mistaken belief, if any, was caused by Henry's misadvice, not by the court or by the prosecutor.

The California Supreme Court has held misadvice about the immigration consequences of a plea bargain did not justify coram nobis relief, because "facts that would merely have affected the willingness of a litigant to enter a plea, or would have encouraged or convinced him or her to make different strategic choices or seek a different disposition, are not facts that would have prevented rendition of the judgment." (Kim, supra, 45 Cal.4th at p. 1103; see also People v. Gallardo (2000) 77 Cal.App.4th 971, 982-983 ["Coram nobis will not issue to vacate a plea of guilty solely on the ground that it was induced by misstatements of counsel . . . or where the claim is that the defendant did not receive effective assistance from counsel"].)

Thus, we see no basis for relief in this proceeding.

Where no prima facie showing is made, an appeal from an order denying a coram nobis petition may be dismissed summarily. (See People v. Totari (2002) 28 Cal.4th 876, 885, fn. 4.) However, the petition in this case was framed as a claim that the plea was induced by factual misstatements made by the prosecutor, a type of claim that could conceivably support coram nobis relief, if supported by the record. Accordingly, although we disagree with defendant's view of the record, our proper course is to affirm the order denying his petition, rather than summarily dismissing this appeal.*fn6 (See People v. Chaklader (1994) 24 Cal.App.4th 407, 409.)

DISPOSITION

The order denying the coram nobis petition is affirmed.

We concur: BLEASE , Acting P. J. BUTZ , J.


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