Filed 2/20/14 P. v. Palmer CA1/1
Received for posting 3/11/14
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A135077
v.
TIMOTHY SCOTT PALMER,                                              (Sonoma County
                                                                   Super. Ct. No. SCR600420 &
         Defendant and Appellant.                                SCR602164)

                                                                 ORDER MODIFYING OPINION
                                                                   DENYING REHEARING
                                                                   [NO CHANGE IN JUDGMENT]



THE COURT1:


The opinion filed January 29, 2014, is hereby modified as follows:

     1. On page 11, the second full sentence of the first paragraph shall be modified to
        read as follows:
               Indeed, had the trial court felt a lesser prison term was appropriate, it could
        have imposed the low term for both convictions.




         1
             Before Margulies, Acting P. J., Dondero, J. and Banke, J.


                                                             1
Defendant’s petition for rehearing is hereby denied.

There is no change in judgment.


Dated: _____________________                    __________________________
                                                Margulies, Acting P. J.




                                            2
Filed 1/29/14 P. v. Palmer CA1/1 (unmodified version)
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A135077
v.
TIMOTHY SCOTT PALMER,                                                (Sonoma County
                                                                      Super. Ct. Nos. SCR600420, &
         Defendant and Appellant.                                     SCR602164)



         Defendant Timothy Scott Palmer pleaded no contest to several felony charges
pursuant to a negotiated disposition. He challenges the sentence thereafter imposed by
the trial court. Specifically, he contends the court was unaware it had discretion under
Penal Code section 13851 to strike an out-on-bail enhancement and thus erroneously
believed it had no choice but to add two years, consecutively, to his prison sentence. He
asks for a remand to allow the court to consider whether to exercise its discretion under
that statute.
         Defendant never asked the trial court to exercise its discretion under section 1385,
however, and therefore has waived the issue on appeal. Alternatively, we have
considered whether defendant has a claim of ineffective assistance of counsel (IAC) for
failure to raise section 1385 that would entitle him to the relief he seeks. We conclude
there is no basis in the record for such a claim, and affirm the judgment.

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


                                                             1
                        FACTUAL AND PROCEDURAL BACKGROUND
       On March 31, 2011, Rohnert Park police officers responded to a call concerning a
suspected intoxicated person in a vehicle and found defendant sitting in the driver’s seat
of a parked truck. Police also found, in the door pocket, two to three ounces of
methamphetamine (54.5 grams net) and, under the driver’s seat, a loaded .45-caliber
pistol and a scale with white powder on it. Defendant was arrested for possessing the
methamphetamine. He later claimed the truck was not his and he was not aware of its
contents.
       On May 7, 2011, while defendant was out on bail, police officers observed him
tailgating a car, speeding, and disobeying traffic signs. The officers turned on their siren.
Defendant turned onto another street, accelerated to 90 miles per hour, and drove for
about a mile in excess of even that speed before pulling over. Defendant’s two-year-old
daughter was in the back of the car at the time. Defendant claimed “he ‘panicked and
took off’ ” and then realized he was being foolish for risking the safety of his daughter.
       The Sonoma County District Attorney filed criminal charges in two cases. On
August 5, 2011, as part of a negotiated disposition wrapping up both, defendant pleaded
no contest to methamphetamine possession while armed with a loaded gun (Health & Saf.
Code, § 11370.1, subd. (a)) and evading a police officer (Veh. Code, § 2800.2, subd. (a)).
He also admitted an out-on-bail enhancement (Pen. Code, § 12022.1) alleged in
connection with the evasion offense.
       At the outset of the change of plea hearing, the prosecuting attorney stated the
terms of the negotiated disposition: “In this case the offer is that with an admission to the
11370.1 in case ending 420 and with the admission to the 2800.2(a), along with the out-
on-bail enhancement pursuant to 12022.1 in case ending 164, there would be the
remaining charges dismissed all with a Harvey[2] waiver and allegations also dismissed

       2
            People v. Harvey (1979) 25 Cal.3d 754.


                                              2
with a Harvey waiver. The defendant is giving an open plea. There would be a RPO
where probation would write a full report and argument made by both counsel.”
       The court asked both defense counsel and defendant “is that your understanding?”
Both replied that it was. The court then stated, and asked defendant if he understood, the
maximum prison terms he was facing in the cases. The prosecuting attorney told the
court he had been the one who had actually written the total maximum time figure on the
advisement form. He had “also explained [to defendant] that the 12022.1 required that if
the defendant is sent to state prison, it would be mandatory consecutive sentencing.” The
court then reiterated, “So you have to get the extra two years because you were out of
custody out on bail when the second offense happened involving the failing to—evading
the police officer. Do you understand that?” Defendant answered, “[y]es.”
       Following full advisement on the record of the rights he was waiving, the trial
court accepted defendant’s pleas of no contest to felony possession of methamphetamine
with a loaded, operable firearm (Health & Saf. Code, § 11370.1, subd. (a)) and felony
evasion of a police officer (Veh. Code, § 2800.2, subd. (a)) and his admission of the out-
on-bail enhancement (Pen. Code, § 12022.1).
       Defense counsel made no objection during this colloquy, nor did he make any
suggestion that at sentencing, the trial court would be asked to exercise its discretion
under section 1385 to strike the just admitted sentencing enhancement. The prosecuting
attorney then moved to dismiss the remaining charges of methamphetamine possession
for sale and child endangerment.
       The trial court ordered the probation department to prepare a sentencing report and
set a sentencing hearing. The probation report recommended defendant be sentenced to
the high term on the possession conviction, and one-third of the midterm on the evasion
conviction, consecutively, for a total sentence, including the two-year out-on-bail
enhancement, of six years eight months. At the sentencing hearing, on November 10,
2011, defense counsel indicated he had just received the probation report but had gone

                                              3
over it, and stated defendant “would only ask that if sentencing is going to be imposed,
that it be concurrent. But he is asking for probation because he has been accepted by
TASC to the program here . . . .” The court indicated it was inclined to follow the
probation department’s sentencing recommendation, but agreed to continue the case so
defendant could submit whatever materials he wanted the court to consider.
       At the next hearing on November 30, 2011, defense counsel asked that the case be
re-referred to the probation department for consideration of section 1170, subdivision
(h).3 A probation department representative said its report found defendant “eligible”
under subdivision (h), and both the representative and district attorney agreed this meant
defendant, if sentenced to prison, would serve his time in a local jail facility. Defense
counsel further advised the court defendant had been interviewed for the Delancey Street
Program. The matter was continued to obtain verification from Delancey Street and to
provide the court with any additional materials.
       Defendant submitted a number of materials for the continued hearing on
January 5, 2012, including a sentencing memorandum and a letter from Delancey Street
accepting defendant if he cleared medically. Defense counsel stated defendant had no
medical condition that would preclude him from the program. The court continued the
matter so it could thoroughly review the materials. It also revisited defendant’s eligibility
for a local jail term under section 1170, subdivision (h), given his possession of
methamphetamine with a firearm conviction. The prosecuting attorney, at this hearing,
stated defendant was ineligible; defense counsel disagreed. The court invited the parties
to submit any additional information before the next hearing.
       On January 19, 2012, defendant requested, and was granted, a further continuance
to submit additional information. The court clarified defendant was ineligible to serve

       3
         Section 1170, subdivision (h), provides defendants convicted of certain crimes
should serve their prison terms in local county jails, not state prison. (§ 1170, subds.
(h)(2)–(3).) Probation remains an option. (§ 1170, subd. (h)(4).)


                                             4
any prison term in local jail under section 1170, subdivision (h). Therefore, defense
counsel wanted “to make sure that all the mitigating circumstances and unusual case
factors can be articulated as thoroughly as possible.” The court then observed “I just
want to let you know that I’m on the fence on this one. I have very, very, very deep
concerns about the safety of the community in this case when Mr. Palmer decides to take
off from the police. The safety issue is my utmost concern. So I realize he has a drug
problem, but I don’t want to give any impression that I am leaning toward one way or the
other at this point. I’m very on the fence on this.” On February 8, 2012, defendant filed
a supplemental sentencing memorandum.
       The sentencing hearing proceeded on February 16, 2012. Defense counsel argued
at length there were numerous mitigating circumstances and urged the court to suspend
sentence and order defendant to attend one of the rehabilitation programs available. The
prosecuting attorney asserted this was “a very clear prison case,” citing defendant’s
significant prison record and nature of his current crimes. He urged the court not to refer
the case for a 90-day diagnostic evaluation and to sentence defendant to six years eight
months in prison as recommended by the probation department. The court agreed with
the observation in the probation report that defendant had “squandered all past
intervention.” The court told defense counsel, however, he had “done an outstanding job,
everything a defense attorney could possibly do for their client in terms of submitting the
information” relevant to sentencing. The court then put the matter over to the afternoon
calendar for defendant to address his reluctance during his interview with the probation
department to take responsibility for all events that occurred on May 7, 2011.
       When the case was recalled, defendant still denied knowing the methamphetamine
was in the vehicle, which he did not own, but took responsibility for all the events that
transpired. The trial court then proceeded to pronounce sentence. As to the Health and
Safety Code section 11370.1, subdivision (a), possession conviction, defendant was
presumptively ineligible for probation and the court found the case not unusual under

                                             5
sections 1203, subdivision (e)(4) and (6). The court imposed the midterm (three years),
however, rather than the high term recommended by the probation department, citing
numerous mitigating circumstances, including that defendant took responsibility for his
actions. The court also listed numerous aggravating factors, including defendant’s
numerous prior convictions and their increasing severity, and his largely unsatisfactory
performance on prior probations and parole. As to the Vehicle Code section 2800.2,
subdivision (a), evasion conviction, the subordinate conviction, the court imposed a one-
third, middle term (eight months) to run consecutively. The court again identified a
number of factors in mitigation, as well as a number of factors in aggravation. With
respect to the out-on-bail enhancement, the court stated, “I’m required by law to run the
two-year out-on-bail enhancement consecutive. That matter was resolved with a plea of
no contest for count I, the 2800.2(a).”
       At no time during the numerous sentencing hearings did defense counsel ever
suggest that, despite the negotiated disposition, the trial court should exercise its
discretion under section 1385 to strike the admitted out-on-bail sentencing enhancement.
       Two weeks later, on March 2, 2012, defendant filed a motion for “reconsideration
of sentencing.” Defendant asked to be sentenced to a “specific” state prison facility, such
as Solano State Prison, that offers “Adult Substance Abuse Treatment Services and an
inmate mentoring program to help him overcome his longtime addiction to
methamphetamine.” (Fn. omitted.) He also asked the court to reconsider a 90-day
diagnostic evaluation and to specify whether his sentence was “enhanced” for “using” a
firearm or being “armed” with such. The motion came on for hearing on April 6, 2012.
With respect to the firearm, the court explained having the loaded firearm was an element
of the possession offense, not an “enhancement.” The prosecutor continued to oppose a
diagnostic evaluation and urged the court to maintain the sentence it had imposed.




                                              6
Stating placement at a CRC,4 “wasn’t addressed at the sentencing,” the court continued
the matter for “an oral report from the probation department” on whether defendant was
eligible for CRC.
       The matter was called again on April 25, 2012. The probation department
concluded defendant was technically eligible for CRC. Defense counsel argued
defendant was not “a violent person” and urged that he be sentenced to CRC. The
prosecutor argued defendant’s criminal history and the nature of his current convictions
would exclude him from CRC, and urged the court to maintain its sentence. Treating
defendant’s motion, with defense counsel’s concurrence, as made pursuant to
section 1170, subdivision (d), to recall the sentence (since he had filed a notice of appeal
which otherwise divested the court of jurisdiction), the trial court denied defendant an
opportunity for CRC “for the same reasons” it was sending him to prison—the
seriousness of the offenses. It refused to “take that chance” he would engage in such
conduct again “should he fail on CRC parole after completing that program.” In addition,
the court considered a number of circumstances, including his criminal history, indicating
he was unsuitable for CRC.
                                        DISCUSSION
       “Section 12022.1, subdivision (b) provides: ‘Any person arrested for a secondary
[felony] offense [that] was alleged to have been committed while that person was


       4
          Though not entirely clear from the record, it appears the parties’ and the court’s
reference to CRC refers to a California Rehabilitation Center commitment as discussed in
People v. Cruz (1990) 217 Cal.App.3d 413, 416, a case the trial court cited. A CRC
commitment pursuant to Welfare and Institutions Code section 3051, no longer available
as of July 1, 2012, is a “commitment of the defendant to the Secretary of the Department
of Corrections and Rehabilitation for confinement in the narcotic detention, treatment,
and rehabilitation facility” which can be granted “unless, in the opinion of the judge, the
defendant’s record and probation report indicate such a pattern of criminality that he or
she does not constitute a fit subject for commitment under this section.” (Welf. & Inst.
Code, § 3051, subds. (a), (d).)


                                              7
released from custody on a primary [felony] offense shall be subject to a penalty
enhancement of an additional two years [in state prison] which shall be served
consecutive to any other term imposed by the court. (Italics added.)’ ” (People v.
Meloney (2003) 30 Cal.4th 1145, 1154 (Meloney).) Despite the mandatory language of
section 12022.1, the trial court nevertheless retains discretion, in the interests of justice,
to strike an out-on-bail enhancement under section 1385. (Meloney, at pp. 1155–1156;
see § 1385, subd. (a) [“The judge or magistrate may, either of his or her own motion or
upon the application of the prosecuting attorney, and in furtherance of justice, order an
action to be dismissed. . . .”].)
       As we have discussed above, however, defendant never suggested that the trial
court exercise its discretion under section 1385 to strike the out-on-bail enhancement
alleged in connection with the evasion charge under Vehicle Code section 2800.2,
subdivision (a) and which he admitted as part of the negotiated disposition. He has
therefore waived any claim on appeal that the trial court failed to understand that it had
discretion under section 1385 to strike the enhancement. (See People v. Carmony (2004)
33 Cal.4th 367, 375–376 (Carmony) [“any failure on the part of a defendant to invite the
court to dismiss under section 1385 . . . waives or forfeits his or her right to raise the issue
on appeal”];5 People v. Lee (2008) 161 Cal.App.4th 124, 129.)
       We therefore consider whether defendant’s trial counsel rendered ineffective
assistance by failing to suggest that the trial court strike the out-on-bail enhancement
under section 1385. To establish an IAC claim, a defendant must show: “(1) his or her
counsel’s performance was below an objective standard of reasonableness under

       5
         While Carmony involved a claim that a motion to dismiss a prior strike under
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529–530, should have been
made, the particular kind of section 1385 motion in question was not the focus of the
Supreme Court’s analysis. Rather, the court’s waiver discussion focused on section 1385
generally and thus is applicable to any section 1385 motion, including to strike an
enhancement.


                                               8
prevailing professional norms and (2) the deficient performance prejudiced the
defendant.” (In re Hill (2011) 198 Cal.App.4th 1008, 1016 (Hill); see Strickland v.
Washington (1984) 466 U.S. 668, 687, 691–692 (Strickland); People v. Ledesma (1987)
43 Cal.3d 171, 216–217 (Ledesma).)
       “ ‘In evaluating a defendant’s claim of deficient performance by counsel, there is a
“strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance” [citations], and we accord great deference to counsel’s tactical
decisions. [Citations.] . . . Accordingly, a reviewing court will reverse a conviction on
the ground of inadequate counsel “only if the record on appeal affirmatively discloses
that counsel had no rational tactical purpose for his act or omission.” ’ (People v. Frye
(1998) 18 Cal.4th 894, 979–980 . . . , disapproved on another ground in People v. Doolin
(2009) 45 Cal.4th 390, 421, fn. 22 . . . .)” (Hill, supra, 198 Cal.App.4th at p. 1016.) “To
show prejudice, a defendant must show there is a reasonable probability that he or she
would have received a more favorable result had his or her counsel’s performance not
been deficient. (Strickland, [supra, 466 U.S.] at pp. 693–694 . . . ; Ledesma, [supra,
43 Cal.3d] at pp. 217–218 . . . .)” (Hill, supra, 198 Cal.App.4th at p. 1017; see also
People v. Roberts (2011) 195 Cal.App.4th 1106, 1129–1130.)
       While an attorney’s “dereliction concerning sentencing matters and plea
bargaining” may constitute ineffective assistance (Wiley v. County of San Diego (1998)
19 Cal.4th 532, 542), the record in this case forecloses any conclusion that “counsel had
no rational tactical purpose” for not suggesting that the trial court exercise its discretion
under section 1385 to strike the out-on-bail enhancement. To the contrary, what the
record shows is that admission of and sentencing on the out-on-bail enhancement was an
important part of the plea deal. Not only was the prosecuting attorney specific that
defendant had to admit the enhancement, he stated at the time he recited the terms of the
deal that the admission would result in a two-year consecutive sentencing term. The trial
court further reiterated the point and asked defendant if he understood and agree to it,

                                               9
which he did. It makes abundant sense that, having reached such a negotiated
disposition, defense counsel would make no suggestion that the trial court strike the
enhancement defendant agreed to admit.
       We also agree with the Attorney General that in light of the negotiated disposition,
the record here does not support any claim that the trial court erred. (See People v.
Gutierrez (2002) 28 Cal.4th 1083, 1140 [no IAC based on failure to object where
evidence was properly admitted].) It is apparent the court understood, and reasonably so,
that defendant’s admission of the out-on-bail enhancement as part of the negotiated
disposition was dispositive as to the imposition of the two-year consecutive term.
Accordingly, this is not a case where the record suggests the trial court was in error as to
the law or its authority. Rather, we must presume the trial court was aware of its
discretion under section 1385, but concluded the negotiated disposition did not
contemplate any exercise of that discretion. (See People v. Fuhrman (1997) 16 Cal.4th
930, 945 [“in a ‘silent record’ case” where the record does not affirmatively show any
misunderstanding of the law, the “appellate court [should] deny the request for
remand”]; People v. Sullivan (2007) 151 Cal.App.4th 524, 549 [“any uncertainty in the
record must be resolved against the defendant”].)
       Finally, even if the trial court erred, which it did not, and even if trial counsel’s
representation was constitutionally deficient, which it was not, the record does not
establish that defendant was prejudiced as a result of counsel’s not raising section 1385.
The trial court stated on the record counsel had done an exceptional job in representing
defendant in connection with sentencing, identifying every possible mitigating factor or
circumstance and strongly advocating for sentencing options substantially less harsh than
that recommended by the probation department. The trial court was persuaded to impose
the midterm, rather than the high term recommended by the probation department, as to
the conviction for possession of methamphetamine with a loaded firearm. But in every
other respect, the trial court consistently returned to the nature of the crimes, defendant’s

                                              10
extensive prior criminal history, his generally poor performance on probation or parole,
and the paramount need to protect the public’s safety to justify the need for a significant
prison sentence and rejection of the lesser punishments defense counsel advocated. We
conclude that on this record there is no probability the trial court would have struck the
out-on-bail enhancement had defense counsel raised the issue. Indeed, had the trial court
felt a lesser prison term was appropriate, it could have imposed the low term for both
convictions and it could have ordered the possession and evasion sentences to run
concurrently. It indicated no inclination to do so. (See People v. Mack (1986)
178 Cal.App.3d 1026, 1033–1034 [given long history of violent behavior, the crime and
danger to community without imprisonment, any error of trial court in failing to realize it
could strike a five-year enhancement was harmless].)
                                       DISPOSITION
       The judgment is affirmed.




                                                  _________________________
                                                  Banke, J.


We concur:


_________________________
Margulies, Acting P. J.


_________________________
Dondero, J.




                                             11
