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The People v. Tou Yee Xiong

November 8, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
TOU YEE XIONG, DEFENDANT AND APPELLANT.



(Super. Ct. No. CM034007)

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

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Over a period of several months, the Butte County Sheriff's Department investigated a series of residential burglaries. Several victims saw young Asian males running away from the crime scenes. After executing a search warrant at defendant Tou Yee Xiong's home, officers found a revolver. A felony complaint charged defendant with receiving stolen property. (Pen. Code, § 496, subd. (a).)*fn1

Defendant entered a plea of no contest. The trial court sentenced him to three years in state prison. Defendant appeals, arguing the sentence violates his right to due process, since defense counsel failed to execute the promise that induced defendant to enter his plea. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Sheriff's deputies investigated a series of residential burglaries between September 2010 and December 2010. Several victims observed young Asian males fleeing the area. A search of defendant's home unearthed a .357 caliber Taurus revolver, later determined to be stolen. While ensconced in the back of a patrol car, defendant made several incriminating statements.

An amended felony complaint charged defendant with receiving stolen property: the Taurus revolver. (§ 496, subd. (a).) Defendant entered a plea of no contest. The trial court denied probation and sentenced defendant to three years in state prison. Defendant filed a timely notice of appeal.

DISCUSSION

Defendant argues he was denied his due process rights when defense counsel failed to execute the promise that induced defendant to change his plea. According to defendant, he agreed to enter his plea because counsel agreed to request that the court reduce the charge to a misdemeanor. However, defense counsel failed to make such a request. This failure, defendant contends, amounts to reversible error.

Background

Defendant entered a plea of no contest under the condition that at sentencing, defense counsel would request that the court reduce the felony to a misdemeanor under section 17, subdivision (b) (hereafter § 17(b)). On the plea agreement form, a check mark appears next to the following statement: "I have not been induced to enter the above plea(s) [and admission(s)] by any promise or representation of any kind, except (briefly state any negotiated settlement with the District Attorney)." A handwritten notation follows: "Attorney to make application for reduction under PC § 17(b) at time of sentencing."

The agreement is signed by defendant, defense counsel, the prosecutor, and the trial court. When defendant entered his plea, defense counsel stated "there will be, at time of sentencing, a 17(b). . . . I would ask the court to exercise its discretion at time of sentencing to reduce ...


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