Filed 3/20/15 P. v. Maher CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064640

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. Nos. SCD237302;
                                                                                     SCD239085)
NATHANIEL JAMES MAHER,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Peter C.

Deddeh, Judge. Affirmed.

         Charles R. Khoury, Jr., under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Lynne G. McGinnis and Joy Utomi, Deputy Attorneys General, for Plaintiff and

Respondent.

         Nathaniel Maher was charged by information in case No. SCD237302 with assault

with a deadly weapon with force likely to cause great bodily injury (Pen. Code, § 245,
subd. (a)(1),1 count one), two counts of making a criminal threat (§ 422, counts two &

three) and stalking (§ 646.9, subd. (a), count four). The information alleged he

personally used a knife in committing the offenses alleged in counts one (§ 1192.7, subd.

(c)(23)) and two (§ 12022, subd. (b)(1)). By a separate information, Maher was charged

in case No. SCD239085 with two counts of vandalism with damage in excess of $400

(§ 594, subds. (a), (b)(1)).

       A court ordered Maher be referred for a competency evaluation and the county

staff physician found he was not competent to stand trial. Maher was committed to a

state hospital. He was reevaluated approximately three months later and it was again

determined he was not competent to stand trial. However, in May 2013 Maher was found

competent to stand trial. Maher waived jury trial in case No. SCD237302 and the court

found him guilty as charged. That same day, Maher pleaded guilty to the charges in case

No. SCD239085. The court sentenced him to a total prison term of seven years four

months. Maher timely appealed.

       On appeal, Maher asserts (1) the court erred when it sentenced him to prison on

the stalking charge without considering the alternative procedures outlined in section

646.9, subdivision (m), and (2) the court erred when it terminated a proceeding at which

the court was considering Maher's potential entry of a guilty plea.




1      All further statutory references are to the Penal Code unless otherwise specified.

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                                             I

                               PROCEDURAL SETTING2

       A. The Change of Plea Hearing

       Prior to trial, a hearing was held on July 26, 2013, at which the court stated Maher

had submitted a change of plea form for both cases. In response to the court's query,

Maher affirmed he had read, understood and signed the plea forms. The plea agreement

contemplated Maher would plead guilty to one count of making a criminal threat and one

count of stalking in case No. SCD237302, would admit the weapons enhancement

appended to the criminal threat charge, and would plead guilty to one count of vandalism

in case No. SCD239085. In exchange he would receive a sentence totaling five years

four months in prison.

       After soliciting Maher's Boykin/Tahl3 waivers and advising him of the

consequences of his plea, the court engaged in the following colloquy:

          "[The Court]: In case ending 085, how do you plead to the charge in
          count one that on November 16, 2011, you violated . . . section
          594(a)(b)(1), guilty or not guilty?

          "[Maher]: Is that the stalking?

          "[The Court]: No, this is the vandalism.

          "[Maher]: Guilty.

2     Because Maher raises only challenges to matters occurring before and after trial,
and does not challenge matters occurring during trial, we do not discuss the facts of the
crimes that formed the basis for the guilty verdict and guilty plea.

3      Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.

                                             3
          "[The Court]: Now on the stalking case, which is case ending 302,
          how do you plead to the charge in count one that on October 26th--
          I'm sorry, count two--that on October 27, 2011, you violated . . .
          section 422, guilty or not guilty?

          "[Maher]: Not guilty--

          "[The Court]: Let me do it again. How do you plead to the charge in
          count two that on October 27, 2011, you violated . . . section 422,
          guilty or not guilty?

          "[Maher]: Guilty.

          "[The Court]: Do you admit that you personally used a deadly
          weapon in furtherance of that offense within the meaning of section
          12022(b)(1)?

          "[Maher]: Not guilty.

          "[The Court]: Do you admit you personally used a weapon in the
          commission of the offense in count two within the meaning of
          12022(b)(1)? Do you admit that? 'Yes' or 'no'?

          "[Defense counsel]: Can I have a minute?

          "[The Court]: Yeah."

       After an off-the-record discussion, the court apparently tried to resume taking

Maher's plea but, when Maher did not respond to the court's inquiry, the court abandoned

that effort and confirmed the trial date.4



4       The record showed that, after defense counsel conferred with Maher, the following
statements occurred: "[The Court]: So how do you plead to the charge--to the allegation
that in connection with count two, . . . in the commission of that offense and the
commission of the threat offense, . . . you personally used a knife within the meaning of
section 12022(b)(1), guilty or not guilty? [¶] We will just confirm it. We are just going
to confirm it."

                                             4
       B. Trial and Sentencing

       The following month, Maher waived jury trial in case No. SCD237302, and the

matter was tried to the court. After hearing the evidence, including Maher's testimony,

the court found him guilty of all charges and allegations. Maher then pleaded guilty to

the charges of vandalism in case No. SCD239085, and both matters were set for

sentencing.

       At the sentencing hearing, the court stated it had read and considered the probation

report, the sentencing recommendations of the prosecution and the defense, and a card

from Maher's mother stating he had severe psychological problems and needed to be

institutionalized. In denying probation, the court stated probation lacked the proper

resources to deal with Maher's mental health issues. The court instead sentenced him to a

total of seven years four months in prison.

                                              II

                                       ANALYSIS

       A. The Court Did Not Abuse Its Discretion in Terminating the Plea Hearing

       Maher asserts on appeal that the court abused its discretion by terminating the

July 26, 2013, hearing at which it was evaluating his entry of a guilty plea. However,

Maher did not object below to terminating the proceeding, and he did not later attempt to

resurrect the plea agreement prior to trial. Under these circumstances, we must deem any

claim of error from the court's decision to terminate the proceeding to be forfeited. (Cf.

People v. Marchand (2002) 98 Cal.App.4th 1056, 1060.)



                                              5
       Indeed, Maher does not suggest on appeal how the court could have proceeded in

any different fashion considering the circumstances presented to it during the July 26,

2013, hearing.5 Maher, after waffling when asked whether he pleaded guilty or not

guilty to the charge in count one of an October 27, 2011, violation of section 422,

expressly responded (when asked about his plea to the allegation of a deadly weapons

enhancement to that charge) that he pleaded not guilty to that allegation. When the court

repeated the question about his plea to the deadly weapon enhancement allegation,

defense counsel asked for and was granted time to confer with his client and, following

that conference and the court's asking a third time about his plea to the deadly weapon

enhancement allegation, Maher remained silent. The court was within its discretion to

terminate a proceeding at which it could not assure itself that Maher was prepared to

enter a knowing, intelligent and voluntary guilty plea. (Cf. People v. Snyder (1989) 208

Cal.App.3d 1141, 1146-1147.)

       B. The Court Did Not Abuse Its Discretion in Sentencing Maher to Prison

       Maher asserts the trial court abused its discretion when it sentenced him to prison

because it did not state, on the record, that it had considered the alternative procedures

outlined in section 646.9, subdivision (m).




5      It appears that Maher's actual argument on appeal is that it was an abuse of
discretion to terminate the plea hearing because it later sentenced Maher to a term longer
than he would have served had the plea been entered. However, because Maher chose
not to abide by the terms of the plea agreement, which required him to plead guilty to the
weapons enhancement, he is not entitled to the lower term contemplated by that
agreement. (Cf. People v. Collins (1996) 45 Cal.App.4th 849, 862-864.)
                                              6
       When a person is convicted of stalking under section 646.9, that statute provides:

"The court shall consider whether the defendant would benefit from treatment pursuant to

Section 2684. If it is determined to be appropriate, the court shall recommend that the

Department of Corrections and Rehabilitation make a certification as provided in Section

2684. Upon the certification, the defendant shall be evaluated and transferred to the

appropriate hospital for treatment pursuant to Section 2684." (§ 646.9, subd. (m).) This

court was informed at oral argument that Maher has been transferred from prison to an

appropriate facility for treatment of his psychological conditions. This issue has

therefore become moot. We nevertheless comment on his appellate argument.

       Maher cites no authority that a court at sentencing must state, on the record, the

reasons for rejecting the alternative procedures outlined in section 646.9, subdivision (m),

and we therefore turn to the general rules governing sentencing decisions. First, because

Maher did not object to the court's statement of reasons, he has forfeited any claim of

error as to the alleged inadequacy of the statement of reasons. As our Supreme Court

explained in People v. Scott (1994) 9 Cal.4th 331, 353, the waiver doctrine applies "to

claims involving the trial court's failure to properly make or articulate its discretionary

sentencing choices," including cases in which the court "failed to state any reasons or

give a sufficient number of valid reasons." Because defense counsel had the opportunity

to object to the court's sentencing choices at the sentencing hearing, we must conclude he

has forfeited this issue by not raising it in the trial court. (Ibid.)

       Maher appears to assert the waiver rule only applies when the court knew it had a

discretionary sentencing choice to make, and the silent record here shows the trial court

                                                7
did not know of the option of the alternative procedures outlined in section 646.9,

subdivision (m). However, on a silent record, a court is presumed to have known and

followed the applicable law (People v. Stowell (2003) 31 Cal.4th 1107, 1114), and that

rule applies to sentencing choices. (People v. Fuhrman (1997) 16 Cal.4th 930, 942-945.)

In an analogous case, the court in People v. Martinez (1998) 65 Cal.App.4th 1511

evaluated whether a sentencing determination, couched in mandatory language analogous

to the mandatory language of section 646.9, subdivision (m), would be upheld when the

record was silent on whether the relevant determination was actually made by the trial

court. Martinez concluded its discretionary sentencing choice would be upheld even

though the court did not state affirmatively on the record that it had made the mandatory

determination. (Martinez, at pp. 1516-1518.) The same rationale applies here, and we

affirm the sentence imposed by the trial court.

                                      DISPOSITION

       The judgment is affirmed.




                                                                McDONALD, Acting P. J.

WE CONCUR:


O'ROURKE, J.


IRION, J.



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