Filed 6/26/15 P. v. Bizieff CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068090
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF149384A)
                   v.

ANASTASIA NIKOLAYUNIA BIZIEFF,                                                           OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Michael B.
Lewis, Judge.
         Linda J. Zachritz, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-




*        Before Gomes, Acting P. J., Franson, J. and Peña, J.
       Anastasia Nikolayunia Bizieff pled no contest to possession of a firearm while
under the influence of a controlled substance, concealing evidence, and making a false
police report. In exchange for pleading to these counts, the prosecution dismissed other
counts and Bizieff was placed on probation. Bizieff filed a notice of appeal claiming she
did not understand parts of her plea. The trial court granted her request for a certificate of
probable cause.
       Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436
stating that after reviewing the record, she did not identify any arguable issues. By letter
dated May 13, 2014, we invited Bizieff to submit additional briefing. Bizieff did not
respond to our letter.
       We have reviewed the record and find no merit to the arguments in Bizieff’s
request for a certificate of probable cause. Nor did our review of the record reveal any
other substantive issue. We will remand the matter to the trial court for a correction of
the minute order issued at sentencing, which failed to record custody credits that were
awarded to Bizieff in the oral pronouncement of judgment. We affirm the judgment in all
other respects.
                    FACTUAL AND PROCEDURAL SUMMARY
       The complaint charged Bizieff with possession of methamphetamine while armed
with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a)), possession of a firearm
while under the influence of a controlled substance (id., § 11550, subd. (e)), possession of
methamphetamine (id., § 11377, subd. (a)), making a criminal threat (Pen. Code, § 422),
attempting to dissuade a witness from testifying (id., § 136.1, subd. (b)(1)), concealing
evidence (id., § 135), and making a false police report (id., § 148.5, subd. (a)).
       The complaint was filed on July 5, 2013. At the July 18, 2013, hearing Bizieff
pled no contest to possession of a firearm while under the influence of a controlled
substance, concealing evidence, and making a false police report. In exchange, Bizieff


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faced a maximum sentence of one year in county jail, with the trial court indicating it
would sentence her to 90 days on the work release program. The remaining counts were
dismissed. Bizieff was released on her own recognizance.
       Prior to entering her plea, Bizieff completed a plea form that advised her of the
charges to which she would plead and the proposed sentence, and it made a reference to
“Cruz & OR.” The plea form also confirmed Bizieff was entering the plea voluntarily,
she had had adequate time to speak with her attorney, and she understood the
consequences of her plea. The plea form also explained and obtained a waiver of her trial
rights. Bizieff signed the plea form under penalty of perjury. The trial court confirmed
(1) Bizieff had signed and initialed the plea form, (2) no one had made Bizieff any
promises other than as contained in the plea form, and (3) Bizieff had had an adequate
opportunity to discuss the matter with her attorney. Defense counsel then proposed to the
trial court that Bizieff be released on her own recognizance with a “Cruz” waiver,
apparently referring to People v. Cruz (1988) 44 Cal.3d 1247.
       Cruz held that a defendant who enters into a plea agreement, but then fails to
appear at sentencing, must be allowed to withdraw his or her plea pursuant to Penal Code
section 1192.5 if the trial court decides to refuse to follow the plea agreement because of
the defendant’s absence at sentencing. (Cruz, supra, 44 Cal.3d at pp. 1250-1254.) A
Cruz waiver is an agreement by the defendant that if he or she is released from custody
after the trial court accepts the plea, but before sentencing, the defendant promises to not
commit other crimes and to appear for the sentencing hearing. If the defendant breaches
this agreement, he or she will then face the maximum term sentence for the crimes to
which he or she pled. (People v. Vargas (2007) 148 Cal.App.4th 644, 646.)
       The trial court indicated its acceptance of the proposal stating, “[I]f you wish to be
released on your own recognizance and you are willing to enter a Cruz waiver, I will
follow that practice here.” After Bizieff confirmed she wanted to be released pending
sentencing, the trial court explained the Cruz waiver.

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       “THE COURT: … You understand that when we say a Cruz Waiver, what
       we mean by that is that currently the People’s offer is no more than a year
       and the Court’s indication is 90 days in the work release program. If you
       fail to appear on the date of sentencing, that would be August the 15th, or if
       you pick up a new law violation, that limit would be off and the Court may
       sentence you to up to the maximum exposure in this case, I believe, is three
       years.

       “Do you understand that?

       “[BIZIEFF]: Yes, Your Honor.

       “THE COURT: You understand that as part of the release on your own
       recognizance you would be waiving your right to withdraw your plea if the
       Court sentences you to more than what we have discussed?

       “[BIZIEFF]: Yes, Your Honor.”
       The trial court then accepted Bizieff’s no contest pleas to the charges to which she
agreed to plead, the prosecution dismissed the remaining counts, and the trial court
released Bizieff on her own recognizance.
       On August 15, 2013, Bizieff appeared for sentencing. However, she had acquired
a new charge. Bizieff decided she wanted to make a Marsden1 motion, so the sentencing
hearing was continued to the following day because defense counsel who had been
representing Bizieff was busy in another courtroom and could not appear. The trial court,
noting the new charge, revoked the order permitting Bizieff to be released on her own
recognizance and ordered her detained.
       When the matter was called the following day, defense counsel requested a one-
week continuance because Bizieff was ill. The matter was continued to August 23, 2013.
       On August 23 the trial court heard and denied Bizieff’s Marsden motion. When
all parties returned to the courtroom, defense counsel asked the trial court to continue the
sentencing to follow the new matter, apparently hoping that if Bizieff prevailed on the



       1People   v. Marsden (1970) 2 Cal.3d 118.


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new matter then the court would not invoke the Cruz waiver and would sentence Bizieff
to the term originally agreed upon by the parties.
       Defense counsel withdrew her request for a continuance when the trial court
indicated it was willing to sentence Bizieff pursuant to the original agreement. The court
then suspended imposition of sentence on the possession count, placed Bizieff on three
years’ probation, with the condition she serve the first 90 days in jail. The trial court then
authorized Bizieff to complete the remainder of her sentence on the work release
program. Bizieff was required to enroll in the work release program by September 23,
2013, or to report to the main jail to complete serving the 90 days. The trial court also
sentenced Bizieff to concurrent terms of 52 days for the two misdemeanor convictions
(destruction of evidence and making a false police report) and gave her credit for time
served of 52 days (26 actual and 26 goodtime/worktime).
       Bizieff filed a timely notice of appeal. In her request for a certificate of probable
cause, Bizieff contended she received ineffective assistance of counsel because she was
not aware of all of the consequence that accompanied a Cruz waiver. Specifically,
Bizieff contended she did not understand that she waived her right to withdraw her plea if
she failed to appear at sentencing or was accused of a new violation. Bizieff also
contended she did not understand that her plea to possession of a firearm while under the
influence of methamphetamine (Health & Saf. Code, § 11550, subd. (e)) would qualify
her for a prison confinement, and she thought she was pleading to a local custody
confinement. “If Ms. Bizieff had known this charge was not Penal Code, section
1170(h)(3) eligible she would not have accepted the plea agreement.” The trial court
granted the request for a certificate of probable cause.
                                       DISCUSSION
       Our review of the trial court proceedings establishes there is no merit to Bizieff’s
arguments as related in the certificate of probable cause. The trial court explained to
Bizieff, on the record, the Cruz waiver. The court told Bizieff she would lose her right to

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withdraw her plea and could be sentenced to up to three years in prison if she failed to
appear for sentencing or committed a new violation of the law. Moreover, in the hearing
on the Marsden motion filed by Bizieff, Bizieff repeatedly complained that no one had
explained a Cruz waiver to her. Defense counsel stated she explained fully the Cruz
waiver to Bizieff, including all of the potential consequences of the waiver. The trial
court rejected Bizieff’s testimony and accepted defense counsel’s assertions. The fact the
court also had explained the Cruz waiver to Bizieff further establishes Bizieff’s lack of
credibility.
       We also note that Bizieff’s claim of ineffective assistance of counsel cannot
succeed because she cannot establish any prejudice. “Establishing a claim of ineffective
assistance of counsel requires the defendant to demonstrate (1) counsel’s performance
was deficient in that it fell below an objective standard of reasonableness under
prevailing professional norms, and (2) counsel’s deficient representation prejudiced the
defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings,
defendant would have obtained a more favorable result. [Citations.] A ‘reasonable
probability’ is one that is enough to undermine confidence in the outcome. [Citations.]”
(People v. Dennis (1998) 17 Cal.4th 468, 540-541.)
       Bizieff has complained she did not realize her plea would qualify her for a prison
confinement, and she thought she was pleading to a local custody confinement. “If Ms.
Bizieff had known this charge was not Penal Code, section 1170(h)(3) eligible she would
not have accepted the plea agreement.” She was, indeed, sentenced to local custody; in
fact, she was being placed in a work release program. In other words, the sentence she
received is exactly that which she thought she would receive. Accordingly, she could not
possibly establish any prejudice as a result of counsel’s alleged failure to explain fully the
plea to her. Once again, we note in the Marsden hearing that defense counsel, whom the
trial court found credible, testified she did explain the plea fully to Bizieff.



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       We note one omission from the minute order that must be corrected. The trial
court awarded Bizieff 52 days of custody credit (26 actual and 26 goodtime/worktime) in
its oral pronouncement of judgment. The minute order fails to reflect any custody credit.
Accordingly, we will remand the matter to the trial court to correct this omission.
                                     DISPOSITION
       The matter is remanded to the trial court for correction of the minute order to
reflect the custody credits awarded to Bizieff in the oral pronouncement of judgment.
The judgment is affirmed in all other respects.




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