Filed 3/19/13 P. v. Miller CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D061319

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. JCF26664)

ROBERT MILLER,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Imperial County, William D.

Lehman, Judge. Affirmed.



         Robert Miller appeals from the sentence imposed on him following his violation of

probation in a case in which he pled no contest to possession of a controlled substance

(Health & Saf. Code, § 11350, subd. (a)). Miller contends that defense counsel was

ineffective for failing to alert the sentencing judge to an earlier plea agreement from

which Miller had withdrawn under the mistaken belief that he was not eligible to serve

the indicated sentence in jail rather than in prison. Appealing to principles of equity and
fairness, Miller also contends we should reduce the upper term sentence imposed by the

trial court to the lower term sentence indicated in the plea agreement from which Miller

withdrew. We conclude that Miller's arguments are without merit, and we affirm the

judgment.

                                              I

                   FACTUAL AND PROCEDURAL BACKGROUND

       On January 24, 2011, in the instant action, Miller was charged with possession for

sale of a controlled substance (Health & Saf. Code, § 11351) and simple possession of a

controlled substance (id., § 11350, subd. (a)). Miller entered a no contest plea to the

simple possession count on February 1, 2011, and was placed on three years formal

probation.

       The trial court revoked Miller's probation on July 6, 2011, after Miller failed to

enroll in and complete a drug and alcohol program. On July 15, 2011, the trial court

sentenced Miller to jail for the 92 days that he had already served and reinstated him on

formal probation for three years.

       Miller again violated the terms of his probation by failing to report to his probation

officer and by possessing heroin, and he was charged in a new action — case

No. JCF27756 — with additional drug possession crimes. At a hearing on September 27,

2011, before the Honorable Bert L. Swift, Miller pled guilty in case No. JCF27756 and

admitted to violating probation in the instant action. As explained by Judge Swift on the

record, the plea agreement indicated a sentence of 16 months in county jail for case

No. JCF27756 to run concurrently with a 16-month jail sentence for the probation

                                             2
violation in the instant action. The matter was referred for preparation of a probation

officer's report prior to a sentencing hearing.

       At a hearing on October 25, 2011, before the Honorable Ernest A. Borunda, the

deputy district attorney explained that even though the plea agreement accepted by Judge

Swift provided that Miller would serve two concurrent 16-month jail terms, Miller was

ineligible to be sentenced to jail instead of prison under the recent realignment legislation

because of his criminal record.1 In light of the deputy district attorney's representation,

the trial court permitted Miller to withdraw his guilty plea in case No. JCF27756 and his

admission to a violation of probation in the instant action.

       At a subsequent probation revocation hearing in the instant action, the Honorable

William D. Lehman found that Miller violated his probation. On January 27, 2012, Judge

Lehman held a sentencing hearing in the instant action.2 The deputy district attorney



1        The " '2011 Realignment Legislation addressing public safety' (Stats. 2011, ch. 15,
§ 1) . . . , together with subsequent related legislation, significantly changed the
sentencing and supervision of persons convicted of felony offenses." (People v. Cruz
(2012) 207 Cal.App.4th 664, 671.) Under that law, "[i]f the penal statute specifies the
defendant shall be punished by imprisonment pursuant to [Penal Code] section 1170,
subdivision (h), without specifying a particular term of punishment, the crime is
'punishable by a term of imprisonment in a county jail for 16 months, or two or three
years.' (Id., subd. (h)(1).)" (Cruz, at p. 671.) "Defendants not eligible include those
who: (1) have a current or prior conviction for a serious felony described in
section 1192.7, subdivision (c) or a violent felony described in section 667.5,
subdivision (c) . . . . The sentence for such defendants is to be served in state prison.
(§ 1170, subd. (h)(3).)" (Cruz, at p. 671, fn. 5.)

2      At the time of sentencing in the instant action, the charges in case No. JCF27756
were still pending, with a pretrial conference set for February 2, 2012. The record
contains no subsequent information about the status of case No. JCF27756.

                                              3
informed Judge Lehman that defense counsel had obtained documents concerning

Miller's prior convictions, which showed that, contrary to the parties' prior understanding

at the time Miller withdrew from the plea agreement, Miller did not have a prior

conviction for armed robbery that would prevent the trial court from sentencing him to

jail instead of prison under Penal Code section 1170, subdivision (h).3 The trial court

followed the probation officer's recommendation and sentenced Miller to the upper term

of three years, which the trial court clarified would be served in county jail pursuant to

Penal Code section 1170, subdivision (h)(1).

       Miller filed a notice of appeal.

                                              II

                                          DISCUSSION

A.     Miller Has Not Established Ineffective Assistance of Counsel

       Miller contends that defense counsel was ineffective at the sentencing hearing

before Judge Lehman because he did not bring to Judge Lehman's attention the history of

Miller's withdrawn plea agreement, which indicated concurrent lower term sentences of

16 months in the instant action and case No. JCF27756. According to Miller, if Judge

Lehman had been informed that Miller withdrew from the plea agreement due to a

mistake about whether his prior criminal record required that he serve his sentence in




3      The probation officer's report presented to the trial court before the sentencing
hearing erroneously stated that Miller had a prior conviction for armed robbery, which —
pursuant to Penal Code section 1170, subdivision (h)(3) — would make Miller ineligible
to serve his sentence in county jail.
                                              4
prison, Judge Lehman would have been more likely to impose a lower term sentence of

16 months rather than a three-year upper term sentence.

       "Under both the Sixth Amendment to the United States Constitution and article I,

section 15, of the California Constitution, a criminal defendant has the right to the

assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) A defendant

claiming ineffective assistance of counsel has the burden to show: (1) counsel's

performance was deficient, falling below an objective standard of reasonableness under

prevailing professional norms; and (2) the deficient performance resulted in prejudice.

(Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); Ledesma, at pp. 216,

218.) Prejudice is shown when "there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome." (Strickland, at p. 694.) Further, "[r]eviewing courts reverse convictions on

direct appeal on the ground of incompetence of counsel only if the record on appeal

demonstrates there could be no rational tactical purpose for counsel's omissions."

(People v. Lucas (1995) 12 Cal.4th 415, 442; see also People v. Anderson (2001) 25

Cal.4th 543, 569.)

       Without deciding whether defense counsel acted below an objective standard of

reasonableness or whether there could have been a rational tactical purpose for defense

counsel's failure to bring the history of the withdrawn plea agreement to the attention of

Judge Lehman, Miller's argument fails because he has not shown that he was prejudiced

by defense counsel's failure to raise the issue with Judge Lehman. (Strickland, supra,

                                              5
466 U.S. at p. 697 ["If it is easier to dispose of an ineffectiveness claim on the ground of

lack of sufficient prejudice . . . that course should be followed."].)

       First, Miller has not established the basic predicate for his prejudice argument,

namely, that Judge Lehman was unaware that Miller withdrew from the plea agreement

because of a mistake about whether he was eligible to serve the indicated sentence in jail

rather than in prison. Judge Lehman presided over the December 8, 2011 probation

revocation hearing, at which he expressly reviewed and discussed all of the previous

minute orders in this case, including the minute order from the October 25, 2011 hearing

before Judge Borunda at which Miller withdrew from the plea agreement. That minute

order indicates that "defendant requests to withdraw his plea since the indicated sentence

does not apply to him." Further, at the sentencing hearing Judge Lehman made it clear

that he understood there had been a misunderstanding about whether Miller had a prior

serious or violent felony that required him to serve his sentence in prison.

       In addition, had defense counsel highlighted the fact that Miller withdrew from the

plea agreement based on a mistake, it is entirely speculative whether Judge Lehman

would have assigned any relevance to that fact. Miller must prove that prejudice is a

" 'demonstrable reality,' not simply speculation." (People v. Williams (1988) 44 Cal.3d

883, 937.) Miller points to no legal doctrine requiring Judge Lehman to have considered

the withdrawn plea agreement when imposing sentence. Instead, defense counsel's

argument to Judge Lehman would have been purely equitable, i.e., that it was fair, in

light of the mistake that caused the withdrawal of the plea, to impose the 16-month

sentence that was indicated in the withdrawn plea agreement. There is nothing in the

                                               6
record to indicate that Judge Lehman would have been sympathetic to such an appeal to

equity and fairness. On the contrary, Judge Lehman thoroughly explained his reasons for

selecting the upper term sentence, which included Miller's unwillingness to admit to his

addiction problem, Miller's lack of credibility when insisting that he did not know he was

on probation at the time of the probation violation and Miller's lengthy criminal record.

Judge Lehman also relied on the probation officer's recommendation of an upper term

sentence based on several aggravating factors. In light of Judge Lehman's comments and

the probation officer's recommendation, Miller has not established a reasonable

probability that Judge Lehman would have decided on a different sentence had defense

counsel focused Judge Lehman's attention on the facts surrounding Miller's withdrawal

from the plea agreement. (See People v. Burbine (2003) 106 Cal.App.4th 1250, 1265-

1266 [defendant did not establish reasonable probability, in light of trial court's basis for

sentencing decision, that the court would have imposed a lesser sentence if defense

counsel had brought letters in mitigation to the court's attention].)

B.     There Is No Legal Basis for Miller's Argument that We Should Reduce His
       Sentence Based on Concerns of Equity and Fairness

       Miller also contends that because he withdrew from the plea agreement premised

on a mistake about whether he was eligible to serve the indicated sentence in jail rather

than in prison, we should rely on principles of equity and fairness to reduce his sentence

in this action to the 16-month sentence indicated in the plea agreement.

       We reject Miller's argument because he has cited no authority — and we are aware

of none — giving us the ability to reduce a trial court's legally imposed sentence on the


                                              7
sole basis that it would be fair and equitable in our view to do so. The trial court has the

discretion to select an upper term sentence based on its application of the appropriate

aggravating factors. (People v. Jones (2009) 178 Cal.App.4th 853, 866.) We cannot

substitute our views on the appropriate sentence for that of the trial court. (People v.

Scott (1994) 9 Cal.4th 331, 355.) The trial court conducted a thorough and thoughtful

analysis in arriving at an upper term sentence, and Miller has not shown that that trial

court abused its discretion.

       To the extent that Miller attempts to rely on cases requiring specific performance

of a plea bargain, those cases do not apply here. (See People v. Mancheno (1982) 32

Cal.3d 855, 860-861 [depending on the circumstances, the proper remedy for a breach of

a plea agreement is to allow a defendant to withdraw from the agreement or to order

specific performance of the agreement, directed either to the prosecutor or the trial

court].) Miller is not seeking specific performance of the plea agreement from which he

withdrew. That plea agreement concerned Miller's guilt in case No. JCF27756, as well as

indicating a sentence in the instant action, but Miller does not seek to reinstate any

admission of guilt in case No. JCF27756. Instead, as we have explained, he asks us to

reduce a legally imposed sentence in the instant action solely on the basis of fairness and

equity, but he has identified no authority that would permit such a remedy.




                                              8
                                DISPOSITION

    The judgment is affirmed.



                                              IRION, J.

WE CONCUR:



          MCCONNELL, P. J.



                HUFFMAN, J.




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