IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Modoc)
August 16, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
RICHARD LYNN ELSEA, DEFENDANT AND APPELLANT.
(Super. Ct. No. F10209)
The opinion of the court was delivered by: Mauro , J.
P. v. Elsea 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appointed counsel for defendant Richard Lynn Elsea asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We conclude that the trial court misadvised defendant regarding the consequences of his plea -- specifically, the amount of time he would have to serve on his sentence -- but it is not clear from this record whether the misadvisement was prejudicial, i.e., whether defendant would have declined the plea agreement had he known the actual amount of time he would have to serve. Under the circumstances, we will remand this matter to the trial court for a determination of prejudice.
On August 5, 2010, defendant and Ricky Clark were walking and came to the residence of Robert Looper.*fn1 They began antagonizing Robert's dogs and Robert told them to stop. Words were exchanged and Robert told them to "just keep walking." At that point, Stephanie Looper, Robert's wife, came to the door. Defendant and Ricky began calling her a bitch. Robert asked defendant and Ricky what their problem was. Defendant and Ricky approached Robert, each brandishing a knife. Robert told them to put the knives away and they responded that he should get back in the house or they were going to "cut" or "kill" him. After defendant again threatened Robert with the knife, defendant and Ricky started walking away.
At that point, Cody Looper, the Loopers' nephew, came around the corner. Robert told Cody to call the police. Cody made the call and then Cody, Stephanie and Robert followed defendant and Ricky. Defendant and Ricky confronted the Loopers about calling the police. Defendant kicked and stabbed Robert, and Stephanie was cut on the thumb. The police arrived and arrested defendant and Ricky.
Defendant was charged in counts 1 and 2 with assault with a deadly weapon, a knife (Pen. Code,*fn2 § 245, subd. (a)(1)). In count 1 it was further alleged that he personally inflicted great bodily injury (§ 12022.7). In addition, it was alleged that defendant served a prior prison term within the meaning of section 667.5, subdivision (b).
On September 23, 2010, pursuant to a plea bargain, defendant pleaded guilty to count 1 and admitted the great bodily injury enhancement. In taking defendant's plea, the trial court repeatedly advised defendant that he would have to serve 80 percent of his sentence. The trial court then immediately sentenced defendant to a stipulated six-year term (three years for the assault plus three years for the enhancement), and dismissed count 2 and the prior conviction allegation. The trial court then continued the matter to obtain a probation officer's report and for calculation of presentence custody credit which, if there was no dispute, would be included on the abstract of judgment. The trial court also said that it would direct the probation department to prepare a "short form report" that would accompany defendant to the California Department of Corrections and Rehabilitation and that would include any information required by the department.*fn3
On October 4, 2010, the probation officer's report was filed. The report recommended restitution fines of $220 in accordance with section 1202.4, subdivision (b), and section 1202.45. The report indicated that defendant was entitled to 71 days presentence credit (62 actual plus 9 conduct) as of October 4, 2010.
An abstract of judgment was filed on October 4, 2010. The abstract included the six-year prison term and the 71 days of presentence credit, but it did not include any fines or fees.
Appointed counsel asked this court to review the record to determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) After reviewing the record, we requested supplemental briefing from the parties on whether the trial court, in taking defendant's plea, misadvised defendant regarding the consequences of his plea, and if so whether the misadvisement was prejudicial.
The parties contend, and we agree, that the trial court erred in informing defendant that he would have to serve 80 percent of his sentence. This indicated to defendant that he would receive 20 percent credit. But section 2933.1 limits custody credit to 15 percent of the sentence for violent felonies. Defendant pleaded guilty to a violent felony. (See §§ 245, subd. (a)(1), 12022.7, 667.5, subd. (c)(8).)
Nonetheless, where the trial court misadvises the defendant regarding a consequence of his plea, the defendant is entitled to withdraw his plea only if he can establish prejudice, i.e., "that the defendant would not have entered the plea of guilty had the trial court given a proper advisement." (In re Moser (1993) 6 Cal.4th 342, 352.)
In receiving 15 percent credit, defendant will serve approximately 100 days more in custody than if he received 20 percent credit. This is a significant amount of time. Nevertheless, there are other factors to be considered in determining whether defendant would have entered the plea of guilty. When defendant accepted the plea agreement, he was facing the possibility of nine years in prison on the criminal complaint.*fn4 In addition, the People had filed a motion to amend the complaint to add another count for violation of section 245, subdivision (a)(1) committed against Robert Looper, two counts of witness intimidation (§ 136.1, subd. (a)(2)), and an enhancement to each of the three assault counts for use of a deadly weapon (a knife) (§ 12022, subd. (b)(1)). Excluding the enhancements,*fn5 defendant's potential exposure under the amended complaint could have been 12 years.*fn6 This is also a significant amount of time. In light of all the circumstances, we are unable to say with certainty that the trial court's misadvisement was prejudicial, i.e., that defendant would have declined the plea agreement had he known that he would receive 15 percent credit. Accordingly, we will remand this case to the trial court to determine whether the misadvisement was prejudicial. (See In re Moser, supra, 6 Cal.4th at pp. 352-353.)
In addition to the matters addressed in this opinion, we have undertaken an examination of the entire record, and we find no other arguable error that would result in a disposition more favorable to defendant.
This case is remanded to the trial court to determine whether the misadvisement regarding the consequences of defendant's guilty plea was prejudicial, i.e., whether defendant would have not pleaded guilty had he known that he would receive 15 percent credit.
If the trial court determines that the misadvisement was prejudicial, then the trial court must give defendant the opportunity to withdraw his plea. If defendant decides to withdraw his plea, the judgment must be set aside and the matter set for further proceedings.
If the trial court determines that the misadvisement was not prejudicial, or if defendant, after being given the opportunity to withdraw his plea, declines to withdraw his plea, then the conviction shall stand. If the conviction stands, the trial court shall prepare an amended abstract of judgment setting forth all mandatory fines and fees, and all discretionary fines and fees that were imposed by the trial court. The trial court shall forward a certified copy of the amended abstract of judgment to the Director of the California Department of Corrections and Rehabilitation.
We concur: RAYE , P. J. BLEASE , J.