Filed 1/15/15 P. v. Mitchell 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.



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




THE PEOPLE,                                                                                  C072566

                   Plaintiff and Respondent,                                    (Super. Ct. Nos. CRF11-241
                                                                                      & CRF11-630)
         v.

JAMES CHESTER MITCHELL,

                   Defendant and Appellant.




         Defendant James Chester Mitchell contends the trial court abused its discretion
when it denied his motion to withdraw his no contest plea. He asserts the court erred
because he was not informed prior to entering his plea that a 15 percent limitation on
conduct credits under Penal Code section 2933.1 would apply to his sentence.
         Defendant also contends the court erred when it failed to dismiss a weapon
enhancement as part of the plea, but on which he was not sentenced.



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       We disagree with defendant’s contentions and affirm the judgment.
                        FACTS AND PROCEDURAL HISTORY
       In May 2011, in case No. CRF11-241 (hereafter case No. 241), defendant pleaded
no contest to transporting hydrocodone. (Health & Saf. Code, § 11352, subd. (a).) He
was placed on Proposition 36 probation. However, in October 2011, the trial court
revoked defendant’s probation after the probation department filed a petition accusing
defendant of violating probation.
       In November 2011, apparently over a dispute for payment of tattoo work
defendant had performed, defendant pointed a knife at the victim’s side and threatened to
kill him if he did not pay defendant $100. The victim gave defendant $100. He sustained
a superficial cut on his neck. For this crime, the People charged defendant in case No.
CRF11-630 (hereafter case No. 630) with first degree robbery (count 1), assault with a
deadly weapon (count 2), and making criminal threats (count 3). (Pen. Code, §§ 211;
245, subd. (a)(1); 422.1) The complaint also alleged as an enhancement to counts 1 and 3
that defendant used a knife in the crime. (§ 12022, subd. (b)(1).)
       Under a plea bargain in case No. 630, defendant pleaded no contest to counts 1
and 2, stipulating to six years on count 1 and four years on count 2. Count 3 was
dismissed. The parties agreed the maximum term of imprisonment under the plea
agreement was seven years four months. Under a Cruz2 waiver, defendant was released
on his own recognizance. If he complied with the waiver’s terms, count 1 would be
dismissed at sentencing. Any time imposed in case No. 241 would run concurrently to
the time imposed in case No. 630. Also, based on his no contest plea in case No. 630,




1      Undesignated section references are to the Penal Code.
2      People v. Cruz (1988) 44 Cal.3d 1247, 1254, footnote 5.

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defendant admitted violating the terms of his Proposition 36 probation in case No. 241,
and he stipulated this disqualified him from additional Proposition 36 treatment.
       Two of the Cruz waiver’s conditions required defendant to keep appointments
with his probation officer and to appear at sentencing. Defendant failed to keep his
appointment with his probation officer, and he failed to appear at sentencing. The trial
court issued a bench warrant for defendant’s arrest.
       Defendant was arrested. After his Faretta3 motion to represent himself was
granted, defendant filed a motion to withdraw his no contest plea in case No. 630. He
contended his plea agreement was not voluntary and knowing because he was not
informed section 2933.1’s limitation on custody credits would apply to him if, after
violating the Cruz waiver, he was convicted on count 1. He also claimed he had a
hearing disorder which prevented him from understanding the terms of the plea
agreement. The trial court denied the motion.
       The court sentenced defendant to six years in prison, calculated as follows: the
upper term of six years on count 1, with the middle term on count 2 stayed under section
654. His conviction on count 1, a serious felony, triggered section 2933.1’s 15 percent
limitation on custody credits. In case No. 241, the court sentenced defendant to the
middle term of four years to be served concurrently. The court did not sentence
defendant on the weapon enhancement.
       Defendant obtained the requisite certificates of probable cause.




3      Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562].

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                                       DISCUSSION
                                              I
                            Denial of Motion to Withdraw Plea
       Defendant contends the trial court abused its discretion when it denied his motion
to withdraw his plea in case No. 630. He asserts he demonstrated good cause because the
record shows his trial attorney and the court did not advise him of section 2933.1’s
custody credit limit, and it shows his attorney, the prosecutor, and the court implicitly
indicated the 15 percent limitation would not apply to him. He claims he would not have
entered the plea agreement had he known his sentence would be subject to section
2933.1’s credit limit.
       Defendant also asserts he did not voluntarily and knowingly enter the plea
because, due to hearing loss, he did not understand all that was told him about the plea.
       We conclude the trial court did not abuse its discretion when it denied his motion.
A.     Additional background information
       At the plea hearing in case No. 630, the prosecutor explained the plea bargain to
the court. Defendant would plead to count 2, assault with a deadly weapon, as charged,
“exposing him to four years,” and he would plead to count 1, robbery, stipulating to the
upper term of six years. This exposed defendant to a maximum sentence of seven years
four months. However, if defendant complied with the terms of the Cruz waiver, count 1
would be dismissed, and any time imposed in case No. 241 would run concurrently with
his sentence in case No. 630. The parties also stipulated that defendant’s plea constituted
a violation of his Proposition 36 probation in case No. 241.
       After the proposed plea bargain had been explained, the trial court asked
defendant whether there was “anything that you’ve been told that you would get that we
did not put on the record right now?” Defendant answered, “No.”




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       The court asked defendant if he had reviewed the agreement with his attorney, and
if he understood the agreement. Defendant had reviewed it and he understood it.
Defendant also stated he understood the terms of the Cruz waiver, and that if he violated
those terms, he faced a maximum exposure of seven years four months in prison.
       Defendant’s attorney told the court he had reviewed with defendant the
consequences of the plea and any defenses defendant may have had. When asked if he
was confident defendant understood those matters, counsel replied, “Yes. Very much
so.” Counsel joined in the waiver of rights and entry of the plea.
       The plea form used by the parties allows someone, preferably defense counsel, to
place a check in a box next to each item or statement that applies to the plea. The form
directs the defendant to write his initials in a separate box at the end of each statement or
item with which he agrees. For any item that does not apply to him or that he does not
understand, he is asked to leave the box blank. No one checked the box on the form next
to the statement “I understand that jail or prison conduct/work-time credit I may accrue
will not exceed 15%.”
       Defendant indicated on the form he had had a full opportunity to discuss with his
attorney, among other matters, the consequences of his plea and anything else defendant
thought was important to his case. He also indicated he had no further questions of the
court or his attorney regarding his plea and admissions, any of his rights, or anything else
on the plea form.
       Defendant acknowledged his understanding of the plea agreement in other related
forms. In a plea addendum, defendant indicated he understood that if he was convicted
of a serious or violent felony, the conviction would mandate he serve his sentence in state
prison “with substantially increased penalties.” In the Cruz waiver form, defendant
agreed he would timely report to probation and would appear for sentencing. He also
agreed that if he violated any of the conditions of the Cruz waiver, the court would not be



                                              5
bound by his plea bargain or any conditions placed on his plea, and he would not have the
right to withdraw his plea.
       The trial court ruled defendant made a knowing, intelligent, and voluntary waiver
of his constitutional rights, and it accepted the plea. It asked the prosecutor and defense
counsel whether there was anything further it had not covered. The prosecutor said there
was not. Defense counsel asked the court to order defendant not to obtain any new gang
tattoos, but he raised no other issues.
       Months later, when defendant moved to withdraw his plea, he contended he had
not entered his plea knowingly and intelligently. He asserted he suffers from hearing
loss, which rendered it difficult for him to understand the court as well as his counsel in
the holding room. He attached as an exhibit to his papers an unauthenticated document
that purported to be the results of a hearing examination. The examiner concluded
defendant suffered from “mild-moderate sensorineural hearing loss” that would make it
difficult for him to understand speech, particularly in the presence of background noise.
       Defendant asserted he was not informed that if he violated the Cruz waiver, he
would be convicted of robbery and that, as a result, he would be subject to section
2933.1’s conduct credit limitation. He knew violating the Cruz waiver would subject him
to a sentence of seven years four months, but he mistakenly believed count 1 would be
dismissed as part of the plea bargain with or without a Cruz waiver. Had he known the
true effects of violating the Cruz waiver, he asserts he would not have entered into the
plea bargain.
       The trial court denied defendant’s motion to withdraw his plea. Citing People v.
Barella (1999) 20 Cal.4th 261 (Barella), the court held defendant was not entitled to
withdraw a plea where the court failed to advise him of a conduct credit limit, a collateral
consequence of the plea. The court recalled that at the plea hearing, the courtroom was
not crowded. There was no one in the courtroom except the parties. The court had



                                              6
conversations with defendant, and he responded to them several times. He asked
questions and made his points known.
       The court reviewed the transcript of the plea hearing. Defendant had consistently
stated no one had promised him anything other than what was discussed in court, and he
understood that if he violated the Cruz waiver, he would be facing the full sentence of
seven years four months. The court found defendant “was advised of the direct
consequences of his plea. He was advised of everything that the Court has to advise him
of. And he never once indicated that he had any questions or that any other offer had
been made to him other than the offer stated on the record.”
B.     Analysis
       To withdraw his plea, defendant must establish good cause with clear and
convincing evidence. (§ 1018.) We review the trial court’s denial of a motion to
withdraw a plea for an abuse of discretion. (People v. Fairbank (1997) 16 Cal.4th 1223,
1254.) We find no abuse of discretion here.
       “A defendant’s guilty plea must be knowing, intelligent, and voluntary. (People v.
Smith (2003) 110 Cal.App.4th 492, 500.) A plea with those qualities presupposes the
defendant knows of all the ‘direct consequences’ of his plea. (People v. Zaidi (2007) 147
Cal.App.4th 1470, 1481.) . . . [¶] A plea’s direct consequences are those that ‘ “follow
inexorably” ’ from the plea, and may include the permissible range of punishment,
imposition of a restitution fine, ineligibility for probation, a maximum parole period,
registration as a criminal offender, and revocation or suspension of one’s driver’s license.
([Barella, supra, 20 Cal.4th at p.] 270; People v. Moore (1998) 69 Cal.App.4th 626, 630;
see also People v. Arnold (2004) 33 Cal.4th 294, 309.) A court need not, however, advise
a defendant of ‘ “collateral consequences” ’ that do not inexorably follow from a plea.
(Arnold, at p. 309; Moore, at p. 630.) Examples of collateral consequences include the
possibility of enhanced punishment in the event of a future conviction, and limitations on



                                              7
one’s ability to earn conduct and work credits while in prison. (Ibid.)” (People v.
Aguirre (2011) 199 Cal.App.4th 525, 528, italics added.)
       As defendant admits, our Supreme Court in Barella “concluded that a trial court’s
failure to advise a defendant of the collateral consequences of entering into a plea bargain
-- such as a limitation on conduct credits -- does not entitle a defendant to withdraw his
no contest plea.” Thus, even if defense counsel, the prosecutor, and the court omitted
advising defendant on section 2933.1’s credit limits, a point we assume for the sake of
argument, defendant would not be entitled to withdraw his plea, as none of those parties
were obligated to inform him of the limits.
       Defendant contends Barella does not apply because here, defense counsel and the
court did more than just not inform him; they allegedly misinformed him -- albeit
implicitly. Because neither counsel nor the court checked the box on the plea form next
to the statement “I understand that jail or prison conduct/work-time credit I may accrue
will not exceed 15%,” defendant asserts counsel and the court implicitly told him the
limitation would not apply.
       Defendant’s argument fails. An affirmative misrepresentation regarding eligibility
for conduct credits may be grounds for withdrawing a plea. (People v. Goodwillie (2007)
147 Cal.App.4th 695, 733-737.) However, the mere fact counsel did not indicate the
credit limitation would apply does not prove he affirmatively advised defendant the
limitation would not apply. There could be other reasons why counsel did not check the
box, and there is no evidence put forth by defendant that establishes counsel or the court
affirmatively misinformed him the limitation would not apply. Absent evidence of an
affirmative misstatement, the holding of Barella governs this case.
       In any event, defendant knew he was pleading no contest to a serious felony, and
that if he violated his Cruz waiver, he would be convicted of that felony and sentenced
accordingly. He specifically understood and agreed that such a conviction would subject
him to “substantially increased penalties.” He also knew that if he violated his Cruz

                                              8
waiver, he lost any right to file a motion to withdraw his plea. Nevertheless, he violated
his Cruz waiver, which triggered the consequences to which he had agreed. And his
alleged hearing disorder could not have affected his understanding of the written waiver
form. Under these circumstances, we conclude the trial court did not abuse its discretion
in following Barella, enforcing the terms of the Cruz waiver, and denying defendant’s
motion.
         In the alternative, defendant contends his attorney rendered ineffective assistance
of counsel by not informing him of section 2933.1’s application. However, counsel’s
apparent failure to inform a client of section 2933.1’s credit limits before the client enters
a plea of no contest is not ineffective assistance. (People v. Reed (1998) 62 Cal.App.4th
593, 597-601 (Reed).) “[A]n attorney’s failure to inform his or her client of the collateral
consequences of the client’s plea does not constitute incompetent representation under
the Strickland4 criteria, and . . . a defendant’s lack of information about parole eligibility
does not undermine the voluntariness of his or her plea because under federal law such
eligibility is a collateral consequence of the plea.” (Reed, supra, at p. 597.)
         Defendant contends Reed has been undermined by the United States Supreme
Court’s reasoning in Padilla v. Kentucky (2010) 559 U.S. 356 [176 L.Ed.2d 284]
(Padilla). In that case, the high court ruled the defendant, a permanent resident,
successfully stated a claim for ineffective assistance by alleging his counsel both failed to
advise him his guilty plea on drug charges would result in his deportation and told him he
would not be deported because he had been a resident for a long time. The court stated it
had never applied a distinction between direct and collateral consequences to define the
scope of constitutionally reasonable professional assistance, but it chose not to address
that issue because deportation was an integral part of a penalty imposed on a noncitizen



4        Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693-
694].)

                                               9
resident. (Id. at pp. 359, 364-365.) Because deportation was “uniquely difficult to
classify as either a direct or a collateral consequence,” the distinction did not apply to a
claim of ineffective assistance concerning the risk of deportation. (Id. at p. 366.)
       Because Padilla held only the collateral versus direct distinction does not apply to
a claim of ineffective assistance in a deportation case, the distinction, as relied upon by
Reed, remains valid law in California on a claim of ineffective assistance for failing to
advise on a collateral matter. Padilla does not apply here, and under Reed, defendant
cannot raise ineffective assistance in this matter.5
                                              II
                       Failure to Dismiss Weapon Use Enhancement
       Defendant contends the court erred and violated the plea agreement by not
dismissing the weapon use enhancement allegations in counts 1 and 3 when the court
accepted his plea. The Attorney General agrees the enhancement should have been
dismissed pursuant to the plea bargain. Defendant asks us to correct the clerical error and
dismiss the enhancement, or allow him to withdraw his plea. We conclude the trial court
impliedly dismissed the enhancement in both counts 1 and 3, and find there is no clerical
error to correct.




5      Padilla went on to hold an attorney has a duty under the Sixth Amendment to
advise a client regarding the risk of deportation due to the client’s plea. (Padilla, supra,
559 U.S. at pp. 367-369.) The Solicitor General in that case argued ineffective assistance
should not lie unless the attorney affirmatively misadvised a client. The high court
rejected this argument, holding there was no relevant difference between an act of
commission and an act of omission in the context of deportation. (Id. at pp. 369-370.)
Based on this holding in Padilla, defendant asserts the distinction we drew above
between affirmative misadvising and omitting to advise should not apply in cases
involving the failure to advise on custody credit limits. Padilla’s discussion was limited
to cases involving deportation, a matter of “great importance” to clients “least able to
represent themselves.” (Id. at pp. 370-371.) Padilla does not apply here.

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       During the plea hearing, the trial court asked the prosecution whether the weapon
use enhancement would be admitted as part of the plea on count 1, the robbery count.
The prosecutor replied, “No, Your Honor. It’s just the knife itself is an element of the
crime.” The prosecutor’s statement can be read to indicate he was no longer pursuing an
enhancement on count 1 based on defendant’s use of the knife. The court’s subsequent
actions confirm this understanding. Other than that reference, the enhancement was not
discussed in the plea hearing. The court dismissed count 3, and it did not impose the
enhancement as part of accepting the plea of no contest on count 1. It also did not
impose the enhancement as part of defendant’s sentence on count 1 for his Cruz waiver
violation. The enhancement is not referenced in the sentencing minute order or the
abstract of judgment.
       These facts lead us to conclude the trial court dismissed the enhancement as to
both counts 1 and 3. Upon receiving the prosecutor’s response and thereafter not
imposing the enhancement when it sentenced on count 1, the trial court impliedly
dismissed the enhancement as to that count. Also, by dismissing count 3 as part of the
plea bargain, the court dismissed the enhancement as to that count, as an enhancement
cannot stand alone. (People v. Anderson (2009) 47 Cal.4th 92, 115.)
       Because the sentencing minute order and the abstract of judgment do not reflect
the enhancement, they contain no clerical error to correct. The plea agreement was
fulfilled, and defendant has suffered no violation of rights.
                                      DISPOSITION
       The judgment is affirmed.


                                                         NICHOLSON           , Acting P. J.

We concur:


      ROBIE                 , J.

                                             11
DUARTE   , J.




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