Filed 9/17/12 P. v. Winiarz CA2/6
                 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.111.5.


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                 2d Crim. No. B247185
                                                                  (Super. Ct. No. 2012005023, 2011036590,
     Plaintiff and Respondent,                                            2010003303, 2009034696)
                                                                               (Ventura County)
v.

JON WINIARZ,

     Defendant and Appellant.



                   Jon Winiarz appeals a seven year state prison sentence, imposed after he
pled guilty in four cases to felony driving under the influence (DUI) with a prior
felony DUI conviction (Veh. Code, §§ 23550.5, subd. (a); 23152, subd. (a)), admitted
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serving two prior prison terms (Pen. Code § 667.5, subd. (b) and admitted that he was
out on bail when he committed the felony DUIs in three case s (§ 12022.1, subd. (b)).
The negotiated disposition provided for a seven year-lid indicated sentence. Appellant
contends that the trial court erred in not imposing a lesser sentence. We affirm.




1
    All further statutory references are to the Penal Code unless otherwise stated.
                                   Procedural History

              On October 29, 2012, appellant entered a change of plea in four felony
DUI case s in exchange for a seven year-lid indicated sentence and a Harvey waiver
(People v. Harvey (1979) 25 Cal.3d 754.) Before the change of plea was entered,
appellant's trial attorney stated: "[W]e have discussed the cases at length with the
court in chambers. It's our understanding that the Court is willing to set a top of seven
years. . . . I want to make sure for the record that's noted. I will be arguing for
considerably less at.the time of sentencing, but the Court's commitment, package
commitment, is understood by the defense. "
              In case number 2012005023 appellant pled guilty to felony DUI with a
prior felony DUI conviction (Veh. Code, §§ 23550.5, subd. (a); 23152, subd. (a)),
admitted two prior prison term enhancements (§ 667.5, subd. (b)), and admitted three
out-on-bail enhancements (§ 12022.1, subd. (b)).
              In case number 2009034696 appellant pled guilty to felony DUI with a
prior felony DUI conviction and admitted two prior prison term enhancements.
              In case number 201003303 appellant pled guilty to felony DUI with a
priorfelony DUI conviction and admitted an out on bail enhancement and two prior
prison term enhancements.
              In case number 2011036590 appellant pled guilty to felony DUI with a
prior felony DUI conviction, and admitted two prior prison term enhancements, and
that he was out-on bail in Case number 2009034696 and case number 2010003303
when he committed the DUI.
              Before sentencing, appellant moved to withdraw his plea and new
counsel was appointed. Appellant claimed that his prior attorney told him "that I
would probably get four years. [¶] . . . [¶] . . . I entered the pleas believing I would
receive 4 years; however, it appears that the Judge actually indicated it would be 7
years." Denying the motion, the trial court concluded that there no mistake about the
sentence terms.


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              At sentencing, the trial court advised counsel: "I am either going to give
him the seven years that I committed to or I am going to allow him to withdraw his
plea and I'll set all these matters for jury trial and he can go to trial." The prosecution
objected and argued that appellant was facing "a potential maximum exposure of
around 20 years for all of the cases."
              Appellant's trial attorney stated: "I am willing to honor seven years at
this particular point in time. [¶] [Defense counsel] I think that [appellant] would be
agreeable to that." Appellant agreed to be sentenced but stated that "my decision is not
based on your offer and on your consideration. My decision is based on the fact that I
don't believe that the full package has been rendered to the Court and full
recommendation has been complied with."
              The trial court denied probation and sentenced appellant to seven years
state prison in case number 2012005023, a concurrent two-year term in case number
2010003303, a concurrent two-year term in Case number 2009034696, and a two
                                                     2
year concurrent term in case number 2011036590. Appellant was awarded 649 days
presentence credit.
                           Seven Year-Lid Indicated Sentence
              Appellant claims that the trial court and his trial attorney erroneously
assumed that the plea agreement was for a fixed seven year sentence rather than a
seven year lid. "[W]hen a plea agreement includes a specified maximum sentence, a
provision recognizing the defendant's right to 'argue for a lesser term' is generally
understood to mean only that the defendant may urge the trial court to exercise its
sentencing discretion in favor of imposing a punishment that is less severe than the


2
 In case number 2012005023 the trial court imposed a two-year midterm on the felony
DUI, plus four years on two out-on-bail enhancements, plus one-year on a prison prior
enhancement, for an aggregate sentence of seven years. In case number 2010003303,
case number 2009034696, and case number 2011036590 appellant received two year
midterm sentences to be served concurrent to the seven year sentence in case number
2012005023.


                                             3
maximum punishment authorized by law." (People v. Shelton (2006) 37 Cal.4th 759,
768.)
              It is appellant's burden to show that the trial court misunderstood its
sentencing discretion. (People v. Davis (1996) 50 Cal.App.4th 168, 172.) The trial
court clearly understood that the change of plea was for a seven year-lid indicated
sentence. The terms were discussed in court when the change of plea was entered and
at the hearing on the motion to withdraw the plea.
              At the sentencing hearing, the trial court stated that the sentence would
be seven years as indicated but that appellant could withdraw his plea and set the
matter for trial if he so desired. (§ 1192.5; see e.g., People v. Cruz (1988) 44 Cal.3d
1247, 1253-1254.) Appellant elected to proceed with sentencing and was not
prejudiced. "For a defendant's point of view, the purpose of a sentence lid is to protect
the defendant from a greater sentence." (People v. Shelton, supra, 37 Cal.App.4th at p.
768.)
              Assuming, arguendo, that the trial court erred in not considering a lesser
sentence, remand for sentencing is not required. On these facts, there is no possibility
that the trial court would impose a lesser sentence. Appellant was convicted of felony
DUI in four different cases, admitted serving two prior prison terms, and admitted that
he was out on bail when he committed three of the four felony DUIs.
              The trial court stated: "I remember this case very well" and for good
reason. Appellant was on parole when he committed three of the DUIs. and his blood
alcohol level was .24 percent in case number 2010003303, .25 percent in Case
number 2011036590, and .22 percent in case number 2012005023, which is an
aggravating sentence factor. (Veh. Code, § 23578.) Case number 2012005023
occurred at the Ventura County Courthouse when appellate appeared on another
matter, extremely intoxicated. A deputy waited for appellant to exit the courtroom and
heard a gentleman warn appellant, "You have to call a cab, you can't drive." The
probation report stated that appellant's "prior record consists of two misdemeanor



                                            4
batteries and nine DUI convictions, and that he served a prison sentence in two of the
prior DUI convictions."
              Appellant's trial attorney agreed that the indicated seven year sentence
"is a low commitment." We agree. "An indicated sentence is just that: an indication.
Until sentence is actually imposed, no guarantee is being made." (People v. Delgado
(1993) 16 Cal.App.4th 551, 555.) Remanding for resentencing would be an idle act
because it is not reasonably probable that the trial court would impose a different
sentence. (People v. Coelho (2001) 89 Cal.App.4th 861, 889.)
              The judgments are affirmed.
              NOT TO BE PUBLISHED.



                                                        YEGAN, J.
We concur:


              GILBERT, P.J.


              PERREN, J.




                                            5
                             Ken W. Riley, Judge

                      Superior Court County of Ventura

                    ______________________________


   California Appellate Project, under appointment by the Court of Appeal,
Jonathan B. Steiner, Executive Director and Richard Lennon, Staff Attorney, for
Defendant and Appellant.


          Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Stephanie
C. Brenan, Esther P. Kim, Deputy Attorneys General, for Plaintiff and Respondent.




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