P. v. Lowe CA5 ( 2013 )

Filed 6/21/13 P. v. Lowe 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F062767
Plaintiff and Respondent,
(Super. Ct. No. F10902709)
v.
TRENELL ANTHONY LOWE, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt,
Judge.
Emry J. Allen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and
Heather S. Gimle, Deputy Attorneys General for Plaintiff and Respondent.
-ooOoo-
A jury convicted defendant Trenell Anthony Lowe of possession of
methamphetamine. Lowe admitted that he had a prior felony strike conviction and had
served two prior prison terms. The trial court sentenced him to two years eight months in
state prison.
On appeal, Lowe contends that the trial court erred by denying his motion to
suppress because his detention and search by the police were illegal. In addition, he
argues: (1) In admitting the enhancement allegations, he did not affirmatively waive his
right to confront witnesses and his privilege against self-incrimination; (2) the trial court
improperly offered a 28-month sentence in exchange for a guilty plea and therefore his
sentence after jury trial should be no more than 28 months; (3) he is entitled to additional
presentence conduct credits; and (4) the abstract of judgment must be corrected. The
People concede that the abstract of judgment should be corrected but otherwise disagree
with Lowe.
We conclude that the detention and search were legal. We agree with the parties
that the abstract of judgment must be corrected. In all other respects, we affirm the
judgment.
FACTUAL AND PROCEDURAL HISTORIES
On the morning of April 29, 2010, Fresno police detectives working in the street-
level narcotics enforcement team conducted a search of an apartment on North Peach
Avenue pursuant to a search warrant. Inside the apartment, the police found marijuana
packaged in individual plastic baggies in a manner that appeared to be prepared for $5
sales. There were also two people in the apartment; both were initially detained and one
was arrested.
After the search was completed, detectives Tomas Cantu and Brannon Kirkland
waited in the apartment for a police wagon to transport the arrestee. As the detectives
waited, they observed people walk up to the apartment in an apparent attempt to purchase
narcotics. Cantu locked the security screen door to the apartment, while the wooden front
door remained open. Lowe approached the apartment and tried to open the screen door.
Cantu opened the door; he was wearing a bulletproof vest with a police badge and a thigh
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holster holding his duty weapon. Upon seeing Cantu, Lowe turned around and placed his
hands behind his back. Lowe had a $10 bill in his right hand.
Kirkland noticed a bulge in Lowe‟s right sock. Kirkland asked about the bulge
and Lowe responded that it was nothing. Cantu patted Lowe down for weapons and
removed an item from Lowe‟s sock which turned out to be about two feet of toilet paper
wrapped around a plastic baggie containing an off-white substance. Cantu suspected that
the off-white substance was cocaine base. At that point, Cantu arrested Lowe and
Kirkland read him his Miranda1 rights. Lowe was handcuffed and placed on the floor
against the living room wall. About five minutes after being arrested, Lowe sighed and
said he was only there “to buy a nickel to roll a cabbie.” Cantu explained that a “nickel”
refers to an amount of something (in this case, marijuana) that is sold for $5, and a
“cabbie” is a marijuana cigarette that is laced with cocaine. Later testing showed that the
off-white substance found in Lowe‟s sock was .14 gram of methamphetamine, a usable
amount.
The Fresno County District Attorney filed an information alleging a single count
of possession of a controlled substance in violation of Health and Safety Code
section 11377, subdivision (a). The information also alleged that Lowe had a prior
serious or violent felony (strike) conviction (Pen. Code,2 §§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d)) and had served two prior prison terms (§ 667.5).
Lowe filed a motion to suppress “all evidence and observations obtained without
an arrest or search warrant.” In his motion papers, Lowe argued that his detention was
outside the scope of the search warrant for the apartment on North Peach Avenue, and the
detectives did not have sufficient reasonable suspicion to detain and search him.
1Miranda v. Arizona (1966) 384 U.S. 436.
2Subsequent statutory references are to the Penal Code.
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Therefore, he argued, the detention and search were illegal and the fruits of the illegal
search—the drugs found in his sock and his postarrest statements—must be suppressed.
At the hearing on Lowe‟s suppression motion, Cantu and Kirkland testified. Cantu
explained that, prior to the search, the apartment on North Peach Avenue had been under
surveillance and, on two occasions, a confidential informant purchased narcotics at the
apartment. At least eight police officers participated in the search. After the search was
completed and Cantu and Kirkland were waiting for the police wagon, Cantu noticed
“people were coming up to the door, what appeared to be attempting to purchase
narcotics.” Cantu locked the security screen door “for officer safety reasons, [so] people
don‟t walk in and find us in there.”
According to Cantu, Lowe “kind of half jogged up” to the apartment and “seemed
to be in a hurry.” Lowe tried to open the door. Cantu stated that Lowe did not knock on
the door, “he went directly for the doorknob.” Kirkland, however, believed that Lowe
knocked and at the same time tried to open the door. Cantu opened the door, and Lowe—
without any instruction from Cantu—“immediately turned around and placed his hands
behind his back.” According to Kirkland, Cantu asked Lowe, “what do you need?” or
“what do you want?” or words to that effect. At the suppression hearing, Cantu could not
recall what he said to Lowe when he opened the front door, but it could have been
something like, “what‟s going on” or “what are you looking for.”
Cantu testified that he then took custody of Lowe because he did not know
whether Lowe was a resident of the apartment. Cantu saw that Lowe had a $10 bill in his
hand and a bulge in one of his socks. Cantu searched Lowe because he “didn‟t know if
he was a resident” of the apartment subject to the search warrant and also “just for officer
safety reasons” since Lowe could have been armed. Cantu testified, “It‟s always possible
to have a weapon, that‟s why when he turned around … [and] put his hands like if he‟s
going to be arrested, I merely went down and grabbed him and patted him down for
weapons.” During the pat-down, Cantu removed the item causing a bulge in Lowe‟s
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sock. Cantu described it as “being a ball,” “about a ball size, tangerine size.” Kirkland
testified that the bulge was probably the diameter of a 50-cent piece or slightly larger.
Lowe‟s attorney elicited testimony that Kirkland had described the bulge as the size of a
nickel at the preliminary hearing.
After the witnesses were excused, the court heard argument from counsel. Lowe‟s
attorney argued that a person who knocks on the door of a house that is being searched is
not automatically subject to search. Further, when a police officer conducts a pat-down
search for weapons, if the officer feels something, it must be reasonable to suspect that it
is a weapon. Lowe‟s attorney argued, “[I]n this case, a small bulge of soft tissue in a sock
would not be reasonable for a person to believe that that‟s a weapon, therefore, [an
officer] cannot place their hands within that sock to remove [it] .… [This] is now a
search, an actual complete search, not just a pat-down anymore.”
The deputy district attorney argued that the detectives had sufficient reason to
detain and search Lowe. She cited the facts that the apartment was a known “drug house”
selling $5 bags of marijuana, Lowe went to the door “prepared” with $10 in his hand, and
he reached for the doorknob “to enter as if he had been there before .…” These
circumstances gave Cantu reason to detain Lowe. The deputy district attorney continued:
“And then based upon the totality of everything, I believe he had the reasonable suspicion
to actually search the Defendant based upon the knowledge of the house, the money in his
hand, and this … was called … a noticeable bulge on the Defendant‟s sock, that based
upon all of that, the officers had their own reason to believe the Defendant was
attempting to engage in criminal activity, and based upon that, had their own authority,
then, to search the Defendant above and beyond the warrant.” Lowe‟s attorney responded
that the circumstances of Lowe approaching the apartment with money in his hand might
raise a suspicion that he wanted to buy drugs but not that he had drugs.
After hearing the parties‟ arguments, the court denied Lowe‟s motion to suppress.
The court explained:
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“The Court is mindful of the directives of the California Supreme Court in
the 1995 case of [People v. Glaser (1995) 11 Cal.4th 354]. Defense
counsel does recognize, rightfully so, that under the circumstances
presented in this case, Officer Cantu, Officer Kirkland, and any other
officer on the premises did have the absolute right to detain Mr. Lowe for
questioning. In addition, they had the absolute right to conduct at least a
minimal search for their own protection.
“There was no sufficient evidence presented that Mr. Lowe was an
occupant of the premises. That being said, Glaser stands for the proposition
that if the person detained—in this case, Mr. Lowe—is not an occupant,
further detention is proper only if justified by other specific articulable facts
connecting him to the criminal activity suspected to be occurring on the
premises or establishing a danger to the officers if the person is released.
“The Court finds that there was, in fact, specific … articulable facts
connecting Mr. Lowe to the premises being searched. His prolonged
detention, the subsequent search, and the arrest without a warrant were all
reasonable under the circumstances given the totality of the circumstances,
and the Court denies the motion.”
The case went to trial, and a jury found Lowe guilty of the single charge of
possession of a controlled substance. In a bifurcated proceeding, Lowe admitted that he
had been convicted of a prior serious felony and had served prior prison terms.
The trial court imposed a mitigated term of 16 months, doubled to 32 months
because of the prior serious felony conviction. (§§ 667, subd. (d)(1), 1170.12.)
Exercising its discretion, the court struck the two enhancements for prior prison terms “in
the interest of justice.” Lowe received two days‟ credit for time spent in custody and no
additional conduct credit.
DISCUSSION
I. Motion to suppress
“On appeal from the denial of a motion to suppress, we defer to the trial court‟s
factual findings, express or implied, where supported by substantial evidence and exercise
our independent judgment in determining whether, on the facts found, the search or
seizure was reasonable under the Fourth Amendment.” (People v. Lucatero (2008) 166
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Cal.App.4th 1110, 1114; see also People v. Glaser, supra, 11 Cal.4th at p. 362 (Glaser).)
We will affirm if the ruling is correct on any theory of law applicable to the case, even if
different from the reasons given by the trial court. (People v. Evans (2011) 200
Cal.App.4th 735, 742; People v. McDonald (2006) 137 Cal.App.4th 521, 529.)
Lowe contends the circumstances of this case did not permit the detectives to
detain him in the apartment. We disagree.
In Glaser, cited by the trial court in making its ruling, a team of six police officers,
including an investigator assigned to a narcotics task force, executed a search warrant at a
house. (Glaser, supra, 11 Cal.4th at p. 362.) When the officers arrived at the house, the
defendant‟s pickup truck was parked in the driveway. The defendant had just arrived; he
had gotten out of his truck and walked to a gate to the backyard of the house, and he was
about to open that gate. (Id. at p. 360.) The defendant heard the officers yell something
at him, but he did not understand. Eventually, he understood that officers were ordering
him to lie face down on the gravel driveway at gunpoint. An officer handcuffed the
defendant and led him into the house. (Id. at p. 361.)
The defendant argued that the police did not have a reason to detain him as a mere
visitor at a house being searched, but our Supreme Court disagreed. (Glaser, supra, 11
Cal.4th at pp. 363-365.) The court concluded that the “brief detention of defendant was
justified by the need to determine what connection defendant, who appeared to be more
than a stranger or casual visitor, had to the premises, and by the related need to ensure
officer safety and security at the site of a search for narcotics.” (Id. at p. 365.) The court
outlined the following general rule:
“When, in the course of initiating a search under warrant of a private
residence for illegal drugs or related items, police officers encounter on the
premises a person whose identity and connection to the premises are
unknown and cannot immediately be determined without detaining the
person, the officers may constitutionally detain him or her for the period of
time required and in the manner necessary to make those determinations
and to protect the safety of all present during the detention.… If the person
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is determined not to be an occupant, further detention is proper only if
justified by other specific, articulable facts connecting him or her to the
criminal activity suspected to be occurring on the premises or establishing a
danger to the officers if the person is released.” (Glaser, supra, 11 Cal.4th
at p. 374.)
Here, Lowe approached an apartment where marijuana was being sold. He
appeared to be in a hurry, he had $10 in his hand, and he grabbed the doorknob of the
screen door, suggesting familiarity with the location. When Lowe saw the police
detective, he turned around and put his hands behind his back, which, under the
circumstances, could reasonably be interpreted as showing consciousness of guilt. We
conclude these were sufficient facts to justify Lowe‟s initial detention.
This case is distinguishable from People v. Gallant (1990) 225 Cal.App.3d 200,
relied upon by Lowe. In Gallant, police officers executed a search warrant that
authorized the search of a woman and the single-family residence where she lived. While
the officers were at the residence, they saw the defendant, a man, park in front of the
residence, walk up to the front of the house, and knock on the door. (Id. at p. 203.)
“[T]he police did not observe any weapons or anything else about defendant which
suggested criminality,” and “[t]here was nothing in the manner of defendant‟s approach
to the door which made the police suspect him of any criminal conduct.” (Ibid.) An
officer opened the door with his gun drawn and detained the defendant. (Id. at p. 204.)
Under those circumstances, the appellate court concluded there were no facts connecting
defendant to the house being searched or to the criminal activity suspected at the house,
and his detention was unlawful. (Id. at pp. 208, 210-211.) In contrast, specific facts in
this case—including Lowe‟s familiarity with the apartment, the $10 in his hand, and his
reaction to seeing the police—connected Lowe to the apartment and the suspected
criminal activity. Despite his claim that he was an “innocent bystander,” Lowe also
recognizes that the facts suggest he went to the apartment to buy marijuana, but he argues
that this affirmatively demonstrates he was not involved in the sale of marijuana. Even
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so, the circumstances indicate a connection to the criminal activity occurring at the
apartment, and Cantu and Kirkland were justified in detaining Lowe to investigate.
As part of the initial detention, the detectives were also permitted to check Lowe
for weapons. (See Terry v. Ohio (1968) 392 U.S. 1, 27; Glaser, supra, 11 Cal.4th at
pp. 363-364.) Lowe concedes that, assuming the initial detention was warranted, a “Terry
search” was also permitted. Cantu testified that he checked Lowe for weapons and
removed the item causing a bulge in his sock. Lowe contends that the wad of toilet paper
was, in effect, a closed container, and the detective was not allowed to open and search it
because there was no evidence indicating that Cantu believed the bulge was a weapon.3
Although Cantu did not testify about why he removed the item causing a bulge in Lowe‟s
sock, we hesitate to conclude that it was improper to remove the item to determine
whether it was dangerous. “„The judiciary should not lightly second-guess a police
officer‟s decision to perform a patdown search for officer safety. The lives and safety of
police officers weigh heavily in the balance of competing Fourth Amendment
considerations. [Citations.]‟ [Citation.] The Fourth Amendment has never been
interpreted to „“require that police officers take unnecessary risks in the performance of
their duties.” [Citation.]‟ [Citation.]” (People v. Collier (2008) 166 Cal.App.4th 1374,
1378.)
In any event, we agree with the Attorney General that the search was reasonable
under the circumstances. When an officer lawfully pats down a suspect‟s outer clothing
“and feels an object whose contour or mass makes its identity immediately apparent” as
3Asa preliminary matter, we reject the Attorney General‟s claim that Lowe has
forfeited this issue because he did not raise it in his motion or develop testimony on the
issue. Lowe‟s attorney sufficiently raised the issue during oral argument. He argued:
“[E]ven if the detention was justified … there has been no testimony whatsoever from the
People to show that that pat-down search would have led them to believe that that bulge
was a weapon. In a Terry pat-down, an officer, when they feel an object, say any type of
object, soft object, a wallet, something like that, in that case, once they feel the object, it
has to be reasonable for them to think that it is a weapon.”
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contraband, the officer may nevertheless lawfully remove the object. (Minnesota v.
Dickerson (1993) 508 U.S. 366, 373, 375-376.) In reaching the determination that an
object is contraband, the officer may take into account surrounding circumstances.
(People v. Dibb (1995) 37 Cal.App.4th 832, 836-837.) “The critical question is not
whether [the officer] could identify the object as contraband based on only the „plain feel‟
of the object, but whether the totality of the circumstances made it immediately apparent
to [the officer] when he first felt the lump that the object was contraband.” (Ibid.) Here,
the detectives were at an apartment where drugs were sold, people were coming up to the
apartment apparently trying to buy drugs, Lowe arrived with $10 in his hand, and when he
saw a police officer at the apartment, he turned around and put his hands behind his back.
Lowe had a bulge in his sock, which the Attorney General points out is an unusual
location not commonly utilized to carry everyday items. When asked about the bulge,
Lowe said it was nothing. We conclude these circumstances supported Cantu‟s apparent
determination that the bulge contained contraband. As a consequence, the removal of the
item was permissible, and the trial court properly denied the motion to suppress. (See,
e.g., ibid.; In re Lennies H. (2005) 126 Cal.App.4th 1232, 1238-1239 [motion to suppress
car keys found in minor‟s pocket properly denied where circumstances included officer
feeling car keys during pat-down search after minor previously denied knowledge of
them].)
II. Admission of enhancement allegations
After the jury was sent out to deliberate, the court asked both counsel for “a more
definitive status on the possible trial of the bifurcated issues.” Lowe‟s attorney
responded, “I discussed those issues with my client. He, at this point, he would be
waiving jury trial and he admits to those priors.” The following discussion then occurred:
“THE COURT: Now, you have a constitutional right, in the event
that you are found guilty of Count One in this case, you have the
constitutional right to have this very same jury decide whether it‟s true that
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you suffered the prior convictions that are alleged in the case. [¶] Do you
understand that?
“THE DEFENDANT: Yeah.
“THE COURT: Okay. Now, if you waive the right to have that jury
decide those issues, then that leaves several options. It can be submitted to
me and I will decide whether those have been proved beyond a reasonable
doubt or you can admit them. [¶] Now, as of right now I‟m not going to
make you make that decision as to admitting or just submitting the matter
on a court trial. What I‟m interested in right now is, do you give up your
right to have this jury decide the issue of those prior convictions?
“THE DEFENDANT: Yes. [¶] … [¶]
“THE COURT: Okay. [Defense counsel], you‟ve already made
comments on this issue, but at this moment do you join in the waiver of the
right to have this jury try the issue of prior convictions?
“[Defense counsel]: I do, your Honor.
“THE COURT: Okay. Then, the court does find a knowing,
intelligent, and voluntary waiver of the right to jury trial on the issue of any
prior convictions alleged in the Information. [¶] Now, the next step is in
the event that you are convicted of Count One in this case the Court does
need to make determinations on the issues of those prior convictions. There
are two ways that can happen. The People can present proof of the prior
convictions in a proceeding that would, first of all, identify you as … the
subject of records that they would introduce into evidence. I would then
review those documents and determine if you have in fact been convicted of
the offenses as stated and whether you have served prior prison terms for
them. I would be the sole trier of fact. [¶] The other option is that after
you and [defense counsel] review all of those records, if you agree that that
is a true and accurate record of your prior convictions, then you can simply
admit that those are true.
“THE DEFENDANT: All right.
“THE COURT: Okay. Now, if you are going to have [the
prosecutor] prove those priors up as opposed to admitting them, then I‟m
going to instruct [the prosecutor] to be prepared to proceed with the
evidentiary hearing on identification and then the matter can be submitted to
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me on the basis of the written documents that he will admit into evidence.
[¶] How do you wish to proceed?
“THE DEFENDANT: I‟m willing to admit them. They‟re true.
“THE COURT: You‟re going to admit that they‟re true?
“THE DEFENDANT: Yeah.
“THE COURT: Then, let me go through those with you now. In the
event that you are convicted, then these findings will become part of the
process of this trial. If you are found not guilty, then these admissions have
no meaning and … the record of them will be stricken, okay.”
The court then went through each enhancement allegation. The information
alleged one felony “strike” conviction and two prison priors. Lowe admitted the
allegations and his attorney stipulated to the factual bases for the admissions.
Generally, before accepting a defendant‟s guilty plea, the trial court must advise a
defendant and obtain waivers of (1) the privilege against self-incrimination; (2) the right
to trial by jury; and (3) the right to confront one‟s accusers before accepting a guilty plea.
(People v. Mosby (2004) 33 Cal.4th 353, 359.) These three rights are referred to as
Boykin-Tahl rights. (See Mosby, supra, at p. 360.) On appeal, Lowe contends that, since
he was not specifically advised of his right to confront witnesses and his privilege against
self-incrimination, his admissions must be set aside. We conclude that, under the totality
of the circumstances, Lowe voluntarily and intelligently admitted the enhancement
allegations.
In People v. Mosby, supra, 33 Cal.4th at page 364, after a jury found the defendant
guilty of selling cocaine, he was told that he had the right to a jury trial on the allegation
that he had a prior conviction. The defendant waived that right and admitted the truth of
the allegations. On appeal, the defendant argued that the trial court committed reversible
error by not advising him of his rights to remain silent and to confront witnesses. “The
Court of Appeal disagreed, stating: „It would exalt a formula (Boykin-Tahl) over the very
standard that the formula is supposed to serve (that the plea is intelligent and voluntary) to
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suggest that a defendant, who has just finished a contested jury trial, is nonetheless
unaware that he is surrendering the protections of such a trial‟ when after being advised
of the right to a trial on an alleged prior conviction the defendant waives trial and admits
the prior.” (Ibid.) Our Supreme Court agreed with the Court of Appeal, observing that,
during the trial, the defendant had exercised his right to remain silent and, through
counsel, had confronted witnesses. (Ibid.) Under the totality of the circumstances, it was
not error to conclude that the defendant voluntarily and intelligently admitted his prior
conviction despite being advised of and having waived only his right to a jury trial. (Id. at
p. 365.)
Likewise in this case, Lowe had just undergone a jury trial, at which he did not
testify and his attorney cross-examined witnesses. Lowe points out that there is no
evidence in the record that he had entered a guilty plea in the past. He did, however, have
extensive previous experience with the criminal justice system. (See People v. Mosby,
supra, 33 Cal.4th at p. 365 [prior experience with criminal justice system relevant to
whether defendant knowingly waived constitutional rights].) Under the totality of the
circumstances, we conclude Lowe voluntarily and intelligently admitted his prior
convictions and prison terms.
III. Alleged judicial plea bargain
This case was assigned to Judge Vogt the day before the jury trial began. Prior to
deciding pretrial motions, Judge Vogt asked both counsel whether there had been
previous settlement negotiations in front of other judges. The deputy district attorney
stated that it was his understanding that Lowe “was offered 28 months by Judge Conklin
when Judge Conklin had jurisdiction over the matter” and later, “Judge Tharpe renewed
that 28-month offer, which the defendant turned down .…” The deputy district attorney
then told the court, “I do not have an offer for the defendant today.” Judge Vogt asked
how the 28-month sentence was calculated, and Lowe‟s attorney explained that he was
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“pretty positive” it was a “16-month mitigated term plus one prison prior [one year] and
the strike being Romeroed.”
Lowe‟s attorney then asked for a treatment program and a stayed sentence. The
deputy district attorney responded that this was a prison case, given Lowe‟s criminal
history and “the sheer number of violations of parole.” Lowe‟s attorney next asked the
court, “Is there a possibility then that we can get the previous indicated back so that I can
discuss that with my client to see maybe if he changes his mind because at trial, of course,
clients do get nervous when they face the reality?”
The court responded:
“Well, I understand that. But I happened to look through the minute
orders and I think based on the consistency of the offer from Judge Conklin
through Judge Tharpe in light of the facts of this case that does appear to
this court to be something that I could in fact honor without reservation.
Those judges, obviously factored in all of the relevant issues that would
apply to a sentencing determination here, so at this time, [deputy district
attorney], I am inclined to put that indicated back on the table before we
bring a jury up, before you call witnesses.”
The deputy district attorney disagreed with the court‟s assessment of the case. The
court then addressed both counsel: “I will go ahead and renew that 28-month offer that
was extended by Judge Conklin originally.… I‟m not going to in any way undercut it, but
if that‟s the last offer that was made by both judges, I‟ll leave it on the table for a little
while longer.”
After Lowe spoke with his attorney during a recess, the court asked about “the last
offer that was—or indicated that was put there by the Court.” Lowe‟s attorney stated that
Lowe had “decided to reject the offer or indicated .…” The case went to trial and Lowe
was subsequently sentenced to 32 months in prison.
On appeal, Lowe claims that the case must be remanded so that a sentence of no
more than 28 months is imposed. It appears that Lowe‟s argument is that the trial court
engaged in improper plea bargaining by offering to sentence Lowe to 28 months if he
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were to plead guilty. Lowe contends that he “was improperly punished for rejecting the
court‟s offer and for exercising his right to proceed to trial.” We reject Lowe‟s claim.
A trial court may properly indicate what sentence would be imposed if a given set
of facts is confirmed, but it may not engage in plea bargaining over prosecutorial
objection. (People v. Clancey (2013) 56 Cal.4th 562, 570.) Our Supreme Court recently
discussed the difference between proffering an appropriate indicated sentence and
engaging in improper judicial plea bargaining. In Clancey, supra, 56 Cal.4th 562, the
court explained, “„[A] court may not offer any inducement in return for a plea of guilty or
nolo contendere. It may not treat a defendant more leniently because he foregoes his right
to trial or more harshly because he exercises that right.‟ [Citations.].” (Id. at p. 575.)
Instead, “the indicated sentence must be the same punishment the court would be
prepared to impose if the defendant were convicted at trial.” (Ibid.)
Lowe seems to believe he is entitled to a sentence no greater than the indicated
sentence proffered by Judge Vogt before trial. An indicated sentence, however, is not a
promise from the court. (People v. Clancey, supra, 56 Cal.4th at p. 575.) By indicating a
sentence, “the court has merely disclosed to the parties at an early stage—and to the
extent possible—what the court views, on the record then available, as the appropriate
sentence so that each party may make an informed decision.” (Ibid., italics added.) After
trial and with the benefit of the probation report and any other submissions from the
parties, the court was under no obligation to impose the sentence it had indicated before
trial.
We agree with the Attorney General that Lowe‟s claim the trial court “punished”
him for choosing to go to trial is mere speculation. Lowe cites nothing in the record to
suggest the trial court intended to punish him for choosing to go to trial, and our own
review of the record reveals that the court sentenced Lowe based on a careful review of
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the facts of the case.4 Consequently, we reject Lowe‟s claim that the case must be
remanded for resentencing.
IV. Presentence conduct credit
Section 4019, which governs the rate at which defendants can earn presentence
conduct credit while they are in local custody, has been changed legislatively many times
in the recent past. (People v. Ellis (2012) 207 Cal.App.4th 1546, 1549.) Section 4019,
subdivision (f), currently provides that prisoners receive four days‟ credit for every two
days spent in actual custody. This statute expressly provides that it applies prospectively
to prisoners whose crimes were committed on or after October 1, 2011. (§ 4019,
subd. (h).) Lowe committed his crime on April 29, 2010. Nonetheless, he argues that,
based on equal-protection principles, he is entitled to presentence conduct credit under the
current statute.
After the parties filed their opening briefs in this appeal, our Supreme Court
rejected a similar argument, holding that applying an earlier version of section 4019
prospectively did not violate the equal-protection clause of either the state or federal
Constitution. (People v. Brown (2012) 54 Cal.4th 314, 328-330.) Since then, we
addressed Lowe‟s exact argument. In People v. Ellis, supra, 207 Cal.App.4th at
page 1552, we concluded: “We can find no reason Brown‟s conclusions and holding with
respect to the January 25, 2010, amendment should not apply with equal force to the
October 1, 2011, amendment. [Citation.] Accordingly, we reject defendant‟s claim he is
entitled to earn conduct credits at the enhanced rate provided by current section 4019 for
the entire period of his presentence incarceration.” Given our conclusion in Ellis, Lowe‟s
argument that he is entitled to additional presentence conduct credit is without merit.
4At the sentencing hearing, Judge Vogt stated, “[Counsel], I want you both to
understand that quite frankly I have put a great deal of thought into this sentencing ever
since Mr. Lowe was convicted. And I have put considerable thought into the anticipated
Romero motion.”
16.
IV. Abstract of judgment
Finally, Lowe points out that the box for section 2933.1 is marked on the abstract
of judgment. The parties agree that this is incorrect because section 2933.1 does not
apply. Rather, section 4019 governs the local conduct credit calculation in this case. We
order the court to correct the error.
DISPOSITION
The superior court shall modify the abstract of judgment to reflect that
section 4019 applies to this case, not section 2933.1. The superior court shall forward the
amended abstract to the appropriate prison authorities. The judgment otherwise is
affirmed.
_____________________
Wiseman, Acting P.J.
WE CONCUR:
_____________________
Levy, J.
_____________________
Detjen, J.
17.