Filed 6/2/14 P. v. Hernandez CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C070895

                   Plaintiff and Respondent,                                     (Super. Ct. No. 12F00610)

         v.

RICHARD JUAN HERNANDEZ,

                   Defendant and Appellant.




         Defendant Richard Juan Hernandez contends the trial court erred when it refused
to allow him to withdraw his no contest plea. Defendant claims a condition of mandatory
supervision unknown by him prior to entering his plea that authorized the probation
department to continue drug treatment for him following his release from custody was a
direct consequence of his conviction and justified withdrawing his plea. Defendant
further argues the condition exceeded the court’s jurisdiction to order specific conditions
of mandatory supervision. Defendant also claims he suffered ineffective assistance of



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counsel when his attorney failed to object during the plea negotiations. We reject
defendant’s contentions, and, other than to order the trial court clerk to correct the court’s
order imposing the condition and to correct a mistake in the abstract of judgment, we
affirm.
                                            FACTS
          By amended complaint, the prosecution charged defendant with felony vehicle
theft, receiving a stolen vehicle, receiving a stolen license plate, and receiving stolen car
keys. (Veh. Code, § 10851, subd. (a); Pen. Code, §§ 496d, subd. (a), 496, subd. (a).) The
complaint alleged as to the vehicle theft count that defendant had four prior felony
vehicle theft convictions, thereby enhancing his sentence pursuant to Penal Code section
666.5, subdivision (a). The complaint also alleged defendant had served five prior prison
terms within the meaning of Penal Code section 667.5, subdivision (b).
          Defendant agreed to settle his case by pleading no contest to the felony vehicle
theft count and admitting the prior felony vehicle theft convictions, and by admitting the
five prior prison terms. The sentence would be a split sentence consisting of a five-year
term of custody in the county jail, and four years on mandatory supervision, calculated as
follows: the upper term of four years on the vehicle theft conviction as enhanced by the
prior convictions and an additional one year in custody on one of the prior prison terms.
The other four prior prison terms, sentenced at one year each, would be completed on
mandatory supervision. The complaint’s remaining counts would be dismissed with a
Harvey waiver.1
          The trial court explained the consequences of the plea, and defendant waived all
relevant constitutional rights. Defendant then entered his pleas and admissions consistent
with the plea agreement. The court accepted the pleas and pronounced judgment.




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

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       The court desired to proceed to sentencing. Defense counsel did not object, but
she asked to comment on some of the proposed specific conditions of mandatory
supervision which she had just received and reviewed for the first time. One of the
proposed conditions, condition No. 2, required defendant to participate in a drug
rehabilitation program under the direction of his probation officer upon release from
custody. Counsel stated she had asked the court to order defendant to participate in a
drug rehabilitation program while in custody. She made the request so that when
defendant was released from custody, he would have a better chance of remaining free.
However, because the case was not related to drugs, she asked that all conditions
regarding the use of drugs be deleted.
       The prosecutor agreed there were no drug allegations in this case. However, he
asked the court to keep in mind that if defendant needs and receives drug treatment while
in custody, it probably would continue after he was released from custody.
       The trial court said the case raised an interesting legal issue. The proposed
sentence was a split sentence allowed under realignment, but the release from custody
was not really a probation grant. In the court’s opinion, it was more akin to a “parole
scenario.” Because of that, defendant was not required to accept parole conditions, but if
he didn’t, he would continue to serve his full sentence in custody. The court believed it
could inform defendant he would be in custody for nine years if he was not willing to
accept the proposed specific conditions of mandatory supervision.
       Hearing this, defense counsel asked to put over sentencing until she could research
the issue further. She also asked to set the case for trial. The court informed her it was
too late for that; it had already found defendant guilty. Counsel complained she had not
been able to review the proposed conditions prior to that moment, and they were not what
she and defendant had agreed to earlier. The court asked defendant if he wanted to
continue with his sentencing or did he “want the nine years today?”



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       Defense counsel objected and asked to put the matter over. Defendant waived
time for sentencing and the matter was continued for a month.
       When the hearing reconvened a month later, defendant asked to withdraw his plea.
Defense counsel admitted she had not been able to file a written motion, and she asked
that the hearing be continued again to give her time to file it. Defendant did not want to
proceed with the offer.
       The court stated the prosecution had agreed to strike other drug-related conditions,
and what remained to be discussed was the condition requiring defendant to enter drug
treatment upon release from custody. Defense counsel argued defendant would never
have accepted that condition in the context of a split sentence had he known about it. She
asserted a split sentence was different from probation or parole because a defendant
cannot refuse a split sentence, and if defendant did not complete drug treatment while on
release, he would be recommitted to serve the full term of his sentence. She argued the
plea was not knowingly entered, as defendant did not know at the time he entered the
plea he would spend another four years in custody unless he completed a drug program.
       While in pretrial custody, defendant had been placed in administrative segregation
because he had been classified as a gang member. Defense counsel stated she had
requested defendant receive some programs so he could be removed from administrative
segregation, not because they had anything to do with the facts of this case. While on
administrative segregation, he is in his cell 23 hours a day and receives no programs. He
would not have agreed to spend nine years in that condition. So he asked to be able to
receive programs, which would allow him to transfer to a custodial facility that provided
them. Counsel asserted the proposed condition requiring defendant to participate in a
drug treatment program after being released from custody would require defendant to
serve an additional four years in administrative segregation if he did not participate in a
drug program upon his release. She stated that is not what the parties agreed.



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          The prosecutor reviewed for the court the negotiations regarding the plea. During
negotiations, defense counsel informed him defendant “had a drug program -- would like
to do a program . . . . [¶] Defense had asked for an in custody drug program to help him
overcome his drug problem; therefore, have a better chance when he gets out of custody.
I was in total agreement with that. When probation suggests he continues to have a drug
program out of custody, it seems prudent to continue to give him help and mechanisms
by which he could interrupt his cycle of crime.” The prosecutor, however, did not take a
position on the proposed condition.
          Defense counsel objected to the prosecutor’s description of the negotiations: “I
did not state my client has a drug problem and needs help. I said he has had drug issues
in the past.” Defense counsel claimed that at no time did she state drugs have any nexus
to this case.
          The trial court believed the issue was whether the condition of drug treatment after
release was of sufficient consequence to allow defendant to withdraw his plea. The court
concluded it was not. The court stated: “Well, the issue again is whether there’s legal
cause [not] to go forward with sentencing at this point. Based upon the record, there is
no issue about incompetence of counsel, no issue about failure to advise on constitutional
rights.
          “I mean, the issue really is the consequences of the plea. That’s what it’s all
boiling down to, to -- whether [condition No. 2], the out of custody rehabilitation
program, is a significant consequence of the plea to allow [defendant] to withdraw his
plea. And I don’t see it.
          “To me, it seems like a collateral occurrence. I mean, this is all up to probation.
It’s going to happen, if it happens at all, in what, five years? And I don’t see this as a
direct consequence of the plea that rises to a level we’d have to go through the whole
process of a motion to withdraw the plea. So the court will proceed with sentencing.”



                                                5
       The court accepted the plea bargain. Over defendant’s objection, it imposed a
total sentence of nine years to be served in the county jail. It then agreed to impose the
split sentence, ordering defendant to serve the last four years of the sentence on
mandatory supervision.
       Regarding the contested condition, the court stated: “Condition number two is the
drug rehabilitation program. [¶] What that means is, after you serve your sentence,
you’re required to meet with probation within 48 hours of your release. Probation may
order you to participate in a substance abuse program. This is going to be, you know, not
five years, but with half time probably two and a half years down the road. [¶] So I’m
not sure ultimately what will happen, but I’ll indicate that probation has the authority to
impose a substance abuse program after you get out of custody.” (Italics added.)
       The court also informed defendant of his obligation to perform the specific
conditions of mandatory supervision. It stated: “[Defendant], we spent quite a bit of
time going through your conditions, and I’ve talked about this with your attorney. I view
this situation very similar to parole. Your attorney has a difference of opinion, but what
that means is, this really isn’t a choice. You’re ordered to comply with these conditions.
[¶] Again, I don’t know what would happen, but there’s a chance if you don’t accept
those conditions, you could remain in custody. It’s probably a very good chance. So
those are mandatory conditions under supervision.”
       Defense counsel again objected to the sentencing. She stated defendant had
agreed to plead because he would be able to participate in a drug program while in
custody. He had been classified as a gang member and housed in administrative
segregation in the county jail, and thus was not able to participate in an in-custody drug
program provided at another facility, a program called HALT (Housing for Accountable
Living Transitions), provided at the Rio Cosumnes Correctional Center, unless the court
ordered it. She thought that was the agreement, and defendant would not have pleaded
had he known it was not.

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       The trial court then ordered defendant to participate in the HALT program. It
stated: “So the bottom line, [defendant], I’m going to recommend -- I’m familiar with
HALT, so I’ll recommend you participate in HALT. It’s at the Rio Cosumnes
Correctional Center, or I’ll order that you participate in that or any other in-custody
substance abuse program. That’s an order. I don’t know -- but that will be the order in
this case.”
       The court’s minute order requires “defendant be able to participate in HALT Drug
Program.” The minute order and the written specific conditions of mandatory
supervision also require defendant to “participate in a Drug Rehabilitation Program under
the direction of the Probation Officer . . . .”
       Defendant filed a timely notice of appeal, and the trial court granted his request for
a certificate of probable cause.
                                        DISCUSSION
                                                  I
                             Denial of Request to Withdraw Plea
       Defendant contends the trial court abused its discretion when it denied his request
to withdraw his no contest plea. He asserts his plea was not knowing, intelligent, and
voluntary because the court did not advise him of the plea’s direct consequences before
he entered his plea; specifically, that under the specific conditions of mandatory
supervision he would be required to participate in a drug treatment program after his
release from custody. He claims this condition was a direct consequence of the plea
because the condition could be interpreted to mean his probation officer could assign him
to a custodial residential treatment program after he was released from custody in the
county jail, thereby extending his custodial term beyond what was agreed.
       We conclude the court did not abuse its discretion denying defendant’s request to
withdraw his plea because the drug treatment condition was not a direct consequence of
the plea. Whether a plea may be withdrawn rests within the trial court’s discretion, but

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we will presume the motion to withdraw the plea was erroneously denied if the
advisement at issue was a direct consequence of the plea. (People v. Moore (1998) 69
Cal.App.4th 626, 629-630.)
       “ ‘In all guilty plea and submission cases the defendant shall be advised of the
direct consequences of conviction.’ (Bunnell v. Superior Court (1975) 13 Cal.3d 592,
605.) ‘This judicially mandated rule of criminal procedure encompasses only primary
and direct consequences of a defendant’s impending conviction as contrasted with
secondary, indirect or collateral consequences.’ (People v. Robinson (1988) 205
Cal.App.3d 280, 282.) The advice requirement generally extends only to ‘penal’
consequences (People v. Kunkel (1985) 176 Cal.App.3d 46, 53; People v. Myers (1984)
157 Cal.App.3d 1162, 1168), which are ‘involved in the criminal case itself’ (People v.
Harty (1985) 173 Cal.App.3d 493, 504).
       “A consequence is deemed to be ‘direct’ it if has ‘ “ ‘a definite, immediate and
largely automatic effect on the range of the defendant’s punishment.’ ” ’ (Torrey v.
Estelle (9th Cir. 1988) 842 F.2d 234, 236.) Such direct consequences include: the
permissible range of punishment provided by statute (Bunnell v. Superior Court, supra,
13 Cal.3d at p. 605); imposition of a restitution fine and restitution to the victim (People
v. Walker (1991) 54 Cal.3d 1013, 1030 [overruled on another ground in People v.
Villalobos (2012) 54 Cal.4th 179, 183]); probation ineligibility (People v. Caban (1983)
148 Cal.App.3d 706, 711); the maximum parole period following completion of the
prison term (In re Carabes (1983) 144 Cal.App.3d 927, 932); registration requirements
(Bunnell v. Superior Court, supra, 13 Cal.3d at p. 605); and revocation or suspension of
the driving privilege (People v. Dakin (1988) 200 Cal.App.3d 1026, 1033).
       “A consequence is considered ‘collateral’ if it ‘does not “inexorably follow” from
a conviction of the offense involved in the plea.’ (People v. Crosby (1992) 3 Cal.App.4th
1352, 1355.) Collateral consequences include: the possibility of enhanced punishment in
the event of a future conviction (ibid.); the possibility of probation revocation in another

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case (People v. Searcie (1974) 37 Cal.App.3d 204, 211); and limitations on the ability to
earn conduct and work credits while in prison (People v. Cortez (1997) 55 Cal.App.4th
426, 429-431 [overruled on another ground in People v. Mendez (1999) 19 Cal.4th 1084,
1097, fn. 7]; see also People v. Reed (1998) 62 Cal.App.4th 593, 597-601).” (People v.
Moore, supra, 69 Cal.App.4th at p. 630.)
       Another collateral consequence that is not required to be disclosed upon receipt of
a plea is the possibility of the defendant being committed under the Sexually Violent
Predator Act (Welf. & Inst. Code, § 6600 et seq.) when he concludes his incarceration.
(People v. Moore, supra, 69 Cal.App.4th at pp. 630-631.) Such a possibility is collateral
because the commitment would depend on additional findings not controlled by the
defendant’s plea and admissions in the criminal case. (Id. at p. 632.)
       The condition imposed on defendant here is not a direct consequence of his plea.
The possibility of being placed in a drug treatment program after custody is not a penal
consequence of the criminal case. Like a commitment under the Sexually Violent
Predator Act, defendant’s placement will depend on additional findings made by his
probation officer that have nothing to do with his plea of no contest to felony vehicle
theft. Those findings will be made based upon defendant’s success in completing the
drug treatment program he asked to receive while he was in custody, which was
expressly understood not to follow from his crime, but imposed at his and his counsel’s
request.
       Defendant asserts the condition is direct because it requires treatment after release
as part of his punishment and it could result in a custodial treatment. The court’s oral
pronouncement of the condition does neither. Postcustody treatment is not mandatory.
The court stated whether defendant would receive postcustody treatment would be left to
the probation officer’s discretion. We recognize the minute order and printed specific
conditions of mandatory supervision state the treatment is mandatory. The court’s oral



                                             9
pronouncement takes precedence (People v. Smith (1983) 33 Cal.3d 596, 599), and we
order necessary corrections in the written orders to reflect the court’s true order.2
       The treatment was also not part of defendant’s punishment. Defense counsel
admitted defendant “has had drug issues in the past,” but she emphatically stated the in-
custody treatment was not linked to the crime or its punishment. Rather, she sought it as
a way either to give defendant a better chance at avoiding incarceration once he was
released from custody, or to remove him from administrative segregation. The treatment
thus was not part of the range of punishment provided by statute for defendant’s crimes.
(Cf. People v. Zaidi (2007) 147 Cal.App.4th 1470, 1485 [possibility of discretionary
imposition by court of sex registration requirement as part of punishment was a direct
consequence of a plea court had to relate to defendant].)
       Furthermore, the court did not state the postcustody treatment would be a custodial
or residential placement. It simply said the probation department may order him to
participate in a substance abuse program. There is no indication the court mandated the
treatment or intended it to be the functional equivalent of additional custody, as defendant
contends.
       The trial court thus did not abuse its discretion when it denied defendant’s request
to withdraw his plea. Because the postcustody treatment was not a direct consequence of
defendant’s plea, the court was not required to inform him of the condition prior to
entering the plea.




2      In addition, the abstract of judgment incorrectly states the one-year sentence for a
prior prison term is pursuant to Penal Code section 666.5, subdivision (a). We order it
corrected to read Penal Code section 667.5, subdivision (b).

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                                              II
                       Validity of Postcustody Treatment Condition
       Defendant argues the court exceeded its jurisdiction by imposing the postcustody
treatment condition because it allows a probation officer to return him to a custodial
setting without offering constitutional and statutory due process. As mentioned above,
the trial court’s order said nothing about defendant having to receive custodial treatment.
Any potential violation of due process may be addressed if such ever occurs.
                                             III
                             Ineffective Assistance of Counsel
       Defendant contends his trial counsel rendered constitutionally ineffective
assistance when she failed to object to the prosecutor’s use of counsel’s statements in the
plea negotiations that defendant had a drug problem. He asserts the statement was
inadmissible under Evidence Code section 1153 as evidence of an offer to plead guilty to
a crime. He alleges had counsel objected to the prosecutor’s use of her statement, the
court would have stricken the statement and been left with no basis for imposing the drug
treatment program condition of mandatory supervision. We disagree.
       To establish ineffective assistance, defendant must show his trial counsel’s
representation fell below an objective standard of reasonableness, and that there is a
reasonable probability the result would have been different but for counsel’s errors.
(Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 698].) Defendant
has not shown defective performance by counsel.
       Any objection by defense counsel to the prosecutor’s statements would not have
been well received. Evidence Code section 1153 prohibits admitting in any action
“[e]vidence of a plea of guilty, later withdrawn, or of an offer to plead guilty to the crime
charged or to any other crime, made by the defendant in a criminal action . . . .” This
statute did not apply here because the prosecutor’s statements were not admitted as
evidence, but rather were part of the bona fide plea negotiations the statute was designed

                                             11
to protect. “Bona fide plea negotiations include statements made to the trial court and to
the prosecuting attorney because those are the participants in a plea bargain. [Citation.]”
(People v. Magana (1993) 17 Cal.App.4th 1371, 1377, italics added.) The prosecutor
made his statements when the parties were negotiating the plea with the court. Defense
counsel thus had no legitimate basis to object.
       Moreover, it was defense counsel who first raised the issue of the drug treatment
program at the hearing. She reminded the court that at the first hearing she had asked for
defendant to receive drug treatment while in custody so he would have a better chance at
success once he was released. At the second hearing, counsel stated she had sought drug
treatment so defendant could be removed from administrative segregation. This
presented conflicting reasons for the program. The prosecutor referred back to counsel’s
statements to him for the court’s clarification as the negotiations progressed. Counsel
had no basis to object to the prosecutor’s remark during negotiations, and thus did not
render ineffective assistance.
                                      DISPOSITION
       The clerk of the trial court is ordered to prepare an amended minute order and an
amended specific conditions of mandatory supervision that state defendant shall
participate in a drug rehabilitation program upon release from custody at the discretion of
the probation officer. The clerk is also directed to correct the abstract of judgment noting
the one-year custodial enhancement is pursuant to Penal Code section 667.5, subdivision
(b). In all other respects, the judgment is affirmed.

                                                        NICHOLSON             , J.

We concur:

      RAYE                  , P. J.


      DUARTE                , J.


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