Opinion
H025037. H025798.
11-6-2003
THE PEOPLE, Plaintiff and Respondent, v. NATALIE KATHRYN LOZANO, Defendant and Appellant. In re NATALIE KATHRYN LOZANO, On Habeas Corpus.
Defendant pleaded no contest to one count of grand theft (Pen. Code, §§ 484, 487) and one count of petty theft with a prior (Pen. Code, § 666) based on a single act. She also admitted that she had suffered a prior conviction within the meaning of Penal Code sections 667, subdivisions (b) to (i), and 1170.12 and served prison terms for three prior felony convictions (Pen. Code, § 667.5, subd. (b)). The court refused to strike the prior conviction finding, and it committed her to state prison for a six-year term. On appeal, defendant claims that her petty theft with a prior conviction must be stricken because petty theft is a lesser included offense of grand theft. Because she has failed to obtain a certificate of probable cause, and one is required to raise this claim on appeal, we dismiss her appeal. In her petition for a writ of habeas corpus, defendant asserts that she was unaware that petty theft was a lesser included offense of grand theft and that she could not have been convicted of both counts if she had not pleaded no contest to them. She also claims that her trial counsel failed to apprise her of these facts and therefore was prejudicially deficient. Since her allegations, if true, merit relief, we issue an order to show cause on the petition.
I. Background
On December 8, 2001, defendant filled a shopping cart at Albertsons with bottles of liquor, sweatshirts and a few other items with a total value in excess of $1000. She covered up the many liquor bottles with the sweatshirts and left the store through an entrance door with the full cart without paying for the merchandise. She was apprehended just outside the door by Albertsons employees who had observed her suspicious conduct. She told them that her boyfriend was going to pay for the liquor. He was sitting nearby with several bags of groceries that he had paid for, but he did not verify her claim.
Defendant was arrested and charged by information with one count of grand theft (Pen. Code, §§ 484, 487) and one count of petty theft with a prior (Pen. Code, § 666). Both counts alleged that she had taken "Alcoholic Beverages" from Albertsons. The information alleged that defendant had suffered two prior convictions within the meaning of Penal Code sections 667, subdivisions (b) to (i), and 1170.12. It further alleged that she had served prison terms for three prior felony convictions (Pen. Code, § 667.5, subd. (b)).
On December 17, 2001, the prosecutor dismissed one of the two prior conviction allegations. On April 16, 2002, defendant pleaded no contest to both counts and admitted the remaining prior conviction allegation and the three prison prior allegations. She also admitted that she had violated the probation that had previously been granted to her on her 1998 offenses. She faced a maximum sentence of ten years and four months for her current and 1998 offenses. Defendant had been promised nothing in return for her pleas and admissions.
Her trial counsel asked the trial court to strike the prior conviction finding under Penal Code section 1385. The prosecutor opposed the request, noting that defendants theft from Albertsons was strikingly similar to defendants 1998 offenses. In 1998, she had filled up a shopping cart with groceries worth over $ 500 and left the store with the cart without paying for the groceries. Her 1998 offenses had been "charged as a third strike," but defendant pleaded for leniency. The court in that case "str[uck] the strikes" and granted her probation. She was still on probation for the 1998 offenses in December 2001. The trial court herein refused to strike the prior conviction finding.
The prosecutor agreed with the probation departments recommendation that defendant be committed to state prison for a term of eight years and four months. Defendants trial counsel asked the court to strike the prison priors and impose "the minimal state prison sentence," which would have been 32 months. The court struck the punishment for one of the three prison priors. It imposed the four-year doubled midterm for each count and stayed punishment for the petty theft with a prior count pursuant to Penal Code section 654. The court reinstated and terminated defendants probation in the 1998 case. Defendant was committed to state prison for a term of six years. She filed a timely notice of appeal. She also filed a petition for a writ of habeas corpus which this court decided to consider in conjunction with her appeal.
II. The Appeal
Defendants sole contention on appeal is that her conviction for petty theft with a prior must be stricken because petty theft is a necessarily included offense of grand theft. It is true that "[m]ultiple convictions may not be based on necessarily included offenses" (People v. Pearson (1986) 42 Cal.3d 351, 355) and that petty theft, even when charged under Penal Code section 666 as petty theft with a prior, is a necessarily included offense of grand theft. (People v. Shoaff (1993) 16 Cal.App.4th 1112, 1116.) Here, the information clearly charged the petty theft with a prior count as an included offense of the grand theft since both offenses charged that defendant had taken "Alcoholic Beverages" from Albertsons, and the record unambiguously demonstrates that defendant committed but a single such act. However, the Attorney General asserts that defendant is precluded from raising this contention on appeal because she failed to obtain a certificate of probable cause. Defendant, on the other hand, claims that no certificate was required.
The Attorney Generals position must prevail. In People v. Jones (1995) 33 Cal.App.4th 1087, this court held that a certificate was required where, after pleading no contest to multiple counts, the defendant claimed on appeal that she could not be convicted of both burglary and possession of stolen property where the property was taken in the burglary. Joness sentence on the possession count had been stayed pursuant to Penal Code section 654, and there had been no plea bargain. (Jones at pp. 1088-1090.) Since a plea of no contest itself constitutes a "conviction," this court held that her challenge to her conviction on the possession count was necessarily a challenge to the validity of her no contest plea. (Jones at pp. 1093-1094.) The California Supreme Court subsequently cited Jones with approval when it endorsed the "strict manner" used by Jones to determine whether a certificate was required. (People v. Mendez (1999) 19 Cal.4th 1084, 1097, 1098, fn. 5.)
Defendant argues that she is not challenging the validity of her plea to the petty theft with a prior count but only the "subsequently imposed judgment" on that count. She relies on People v. Tideman (1962) 57 Cal.2d 574. However, Tideman is not helpful to her cause because it did not involve a judgment based on pleas to two counts, one of which was included within the other. Nor did it involve the need for a certificate. Tideman was charged with two counts arising out a single act. He withdrew his not guilty plea to the lesser offense, pleaded guilty to the lesser offense and then claimed that his "conviction" on the lesser offense precluded a conviction for the greater offense. The California Supreme Court rejected his contention.
"Neither can a plea of guilty as to one count bar conviction as to another count in the same prosecution for . . . the defendant may be convicted of any number of the offenses charged. This is technically true even though the authorization to charge two or more different offenses connected together in their commission may be availed of by the prosecutor to plead in separate counts (however unnecessarily) offenses which are necessarily included in other offenses separately pleaded. This does not mean that a person can be punished—nor should he ordinarily be convicted or sentenced—separately for both the greater and the included offense. To punish him separately for such offenses would not involve any question of prior jeopardy but would violate Penal Code section 654. But each charge separately pleaded—both the greater and the less—must be separately disposed of by the jury or court. Hence, if the defendant be convicted of the greater, he should be acquitted on any count of the accusatory pleading charging the lesser. And certainly such acquittal should not operate to vitiate his conviction and sentence for the greater. If he has been convicted and separately sentenced for both offenses, and if conviction of the greater is sustained, the defendant still need not be prejudiced by such overlapping sentences; any reviewing court meeting that situation can and should direct that the sentence for the included offense is as a matter of law merged in the sentence for the greater. However, in the circumstance assumed, reversal or vacation of the sentence for the included offense, and dismissal of the count charging that offense, whether by the trial court or an appellate court, would not affect the integrity of the conviction and sentence for the greater." (Tideman at pp. 581-582, quotation marks omitted, emphasis added.)
Although Tideman acknowledged that a defendant will not " ordinarily " be convicted of both a greater and a lesser included offense, it was speaking in the context of a trial on multiple counts and clearly did not state that such convictions could never be upheld. Indeed, Tideman stated that convictions for greater and lesser included offenses could be remedied on appeal by simply staying the sentence, and it did not state that dismissal of the lesser included offense was mandated. Tideman does not assist us in resolving whether a certificate is required to make an appellate challenge to an included offense conviction.
Defendant simply disagrees with this courts decision in Jones. We believe that this court correctly concluded in Jones that a challenge to a conviction on the ground that it is included in another conviction is a challenge to the validity of the plea to the allegedly included offense and therefore requires a certificate. The California Supreme Courts citation of Jones with approval in Mendez buttresses our belief that Jones correctly decided this issue.
We conclude that a certificate of probable cause is required to raise the only issue that defendant presents on appeal. Defendant asserts that we should grant her relief from her default in failing to timely obtain a certificate. We are precluded from doing so by the California Supreme Courts decision in In re Chavez (2003) 30 Cal.4th 643. Chavez held that an appellate court may not grant a defendant relief from default for failing to obtain a timely certificate of probable cause. (Chavez at p. 657.) Consequently, we must dismiss defendants appeal.
III. The Petition
Defendant claims that her plea to the petty theft with a prior count was involuntary and her trial counsel ineffective because her trial counsel did not inform her, and she was unaware, that she could not be convicted of both petty theft with a prior and grand theft absent her plea. Because she "received no benefit" from her pleas and admissions, she asserts that she would not have pleaded to the petty theft with a prior count if she had been aware of this information.
"If, taking the facts alleged as true, the petitioner has established a prima facie case for relief on habeas corpus, then an order to show cause should issue." (In re Lawler (1979) 23 Cal.3d 190, 194, emphasis added.) An ineffective assistance of counsel claim has two prongs. First, defendant must show that her trial counsels performance "fell below an objective standard of reasonableness." (In re Fields (1990) 51 Cal.3d 1063, 1069, internal quotation marks omitted.) The second prong of an ineffective assistance claim is prejudice. (Id. at p. 1070.) "[D]efendant must show that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 1070, internal quotation marks omitted.)
Defendants petition is supported by her own declaration and her trial counsels declaration. She declares that, until her appellate attorney advised her as much, she was unaware that she could not be convicted of both petty theft with a prior and grand theft. She asserts that she would not have pleaded no contest to the petty theft with a prior count if she had been aware of this fact. Her trial counsel declares that he advised her to plead to both counts and admit the allegations in the hope that her pleas and admissions would influence the court to strike the prior conviction finding. He concedes that he did not tell her that she could not be convicted of both grand theft and petty theft with a prior but that he did inform her that she would not serve separate sentences for each count.
Since defendants allegations appeared to have merit, we requested informal opposition from the Attorney General. The Attorney General conceded that the petition "appears to have merit" and stated "we do not oppose the habeas petition." We find the allegations sufficient to state a prima facie case. No one would voluntarily plead no contest to an offense and a necessarily included offense when only one conviction could otherwise be obtained unless the pleas were offered in exchange for some benefit. Here, there is no indication that defendant offered her pleas in exchange for any benefit. Consequently, her plea to the petty theft with a prior count does not appear to have been knowing and intelligent. An order to show cause is merited.
IV. Disposition
The appeal is dismissed. The Director of Corrections is ordered to show cause in this court, at a time and place to be specified by court order, why defendant is not entitled to the relief requested in her petition. The return shall be filed within ten days of the filing of this opinion. Defendants traverse may be filed no later than ten days after the filing of the return. Any party desiring oral argument shall inform this court of that desire in writing no later than upon the filing of the traverse.
WE CONCUR: Rushing, P.J. and Wunderlich, J.