Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County., No. BA316400, George G. Lomeli, Judge.
Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
BIGELOW, P. J.
Lorenzo Williams appeals from a judgment that sentences him to 95 years to life for five counts of robbery and one count of attempted robbery. Williams contends that his constitutional rights were violated when the trial court (1) terminated his pro per status; (2) forced him to appear shackled before the jury; (3) admitted certified documents indicating his prior convictions for purposes of three strikes sentencing; and (4) erroneously advised him of the maximum exposure for the charges against him. Williams also contends the trial court erred by forcing him to appear before the prospective jurors after he signed a waiver of presence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Bank Robberies
On July 28, 2006, Williams walked into a Citibank branch located at 787 West 5th Street in Los Angeles and gave the teller a note demanding she give him her large bills, “fifties” and “hundreds, ” or “I’ll shoot you.” The teller gave him $6,495, including “bait money, ” which he stuffed into a manila envelope. The teller testified that she cried after Williams left the bank because she was very frightened. The teller subsequently identified Williams as the bank robber in a photographic lineup.
Bait money is a series of bills with pre-recorded serial numbers.
On the afternoon of January 16, 2007, a Bank of America branch at 100 South Broadway was also robbed. The teller testified that Williams walked up and told her, “this is a robbery.” He then passed her a note that read, “This is a bank robbery. Give me all your hundreds, fifties, twenties, and tens.” He told her there was a gun in a folded newspaper he had on the counter. After the teller put $9,150 in the newspaper, Williams told her to go to the break room and count to 100. If she turned around or made “any type of motion, ” he would start shooting people in the bank. The teller identified Williams as the bank robber in a photographic lineup.
On January 29, 2007, at a different Bank of America branch located at 600 West Wilshire Boulevard, Williams handed the teller a note that said it was a robbery and he had a gun. The robber told the teller, “Don’t press the alarm.” Because the teller worked behind a bullet-proof “Bandit Window, ” she pressed the alarm and alerted her manager to the situation. Williams escaped without any money. The teller later identified Williams as the robber from a photographic lineup.
The next day, another bank robbery occurred at the Bank of America branch at 888 7th Street. The note given to the teller read, “You’re being robbed... put your hands on the top of the counter and give me all your fucking money.” Williams repeated the demand, which frightened the teller because his voice was demanding and aggressive. The teller gave Williams $1,740 from her cash drawer and placed a dye pack in with the cash. The teller pulled the alarm as the robber left. When the police arrived, they showed her one photo of Williams. A few days later she picked the Williams’ photo out of a photographic lineup. At trial, the teller identified Williams from a photograph as the bank robber.
On February 14, 2007, the same Bank of America branch on 7th Street was again targeted by the bank robber. That day, Williams told the teller, “This is a robbery. I have a gun. Give me your money. Give me your hundreds and fifties.” When the teller tried to push the alarm, Williams pushed his hand away and repeated that he had a gun. When the teller opened his cash box, Williams grabbed the money along with a dye pack.
Los Angeles Police Officer Marco Duarte was driving down First Street near Spring Street on the day of the robbery when he saw a security officer flagging him down. As he pulled over, he heard a loud explosion from the corner of First and Spring. The officer saw a large plume of red smoke and drove to the corner to investigate. He saw Williams running down Spring Street with red money and red paint all over his arms and hands. As he radioed for help, another policeman was already in pursuit.
Lawrence Manion, the Chief of Police for the Los Angeles School Police Department, was in an unmarked staff car when he noticed Williams being pursued by a security guard and he saw the dye pack detonate a short time later. He pursued Williams in his car. Williams was apprehended by Chief Manion and Los Angeles Police Department Officers Duarte and Sapien. Williams said, “They know it’s me. I got the same clothes on and I got red dye all over me.”
The Bank of America teller who was robbed identified Williams in a field identification. The teller also identified Williams as the robber at the preliminary hearing. It was stipulated that $532 was missing from the teller’s cash drawer following the robbery; of that amount, $392 was recovered.
II. Pre-Trial Issues
An information alleging four counts of second degree robbery (counts 1, 2, 4, and 5) and one count of attempted second degree robbery (count 3) was filed against Williams on March 15, 2007. (Pen. Code, §§ 211, 664.) It was alleged as to all counts that Williams suffered six prior convictions within the meaning of sections 1170.12, subdivisions (a) – (d) and 667, subdivisions (b) – (i) as well as section 667, subdivision (a).
All further section references will be to the Penal Code unless otherwise specified.
At the arraignment on March 15, 2007, Williams requested to represent himself. The trial court admonished him that “self-representation is almost always an unwise choice, and will not work to his advantage; further, that he will not be helped or treated with special leniency by the court or the prosecutor, and that he will be held to the same standards of conduct as an attorney. Further, if he wishes to represent himself, he will not be able to claim later that he made a mistake, or that he received ineffective assistance of counsel.” Williams signed and initialed a multiple page Faretta waiver that pointed out, amongst other things, “I understand that I must not abuse the dignity of the court. I understand that the judge may terminate my right to self-representation in the event that I engage in serious misconduct or obstruct the conduct and progress of this trial.” After Williams indicated that he was making a voluntary and intelligent choice to represent himself, the trial court granted his request and ordered $40 in indigent funds to be granted to him and approved a court-appointed investigator to provide 20 hours of investigative work. Williams then plead not guilty to all counts and denied the special allegations as to the prior strikes.
Thereafter, Williams filed motions for a continuance pursuant to section 1050 on April 13, 2007, and August 1, 2007. Both motions were granted, but Judge Judith Champagne warned Williams that she would not grant any further continuances. On September 19, 2007, Williams filed an affidavit of prejudice against Judge Champagne pursuant to section 170.6 of the Code of Civil Procedure. The motion was granted and as a result, the matter was transferred to another courtroom.
Williams filed another motion for continuance on September 25, 2007, complaining that his private investigator had not been paid, and that he could not “prepare a adequate [sic] defense until a complete investigation is conducted, in order to suppress certain issues.” The order to pay the investigator was signed and filed on September 19, 2007. Nonetheless, Williams’ motion to continue was granted and the trial court provided Williams with additional funds of $40.
Another motion for continuance was filed on October 16, 2007, on the grounds that Williams had not yet been given the opportunity to hire an investigator; he needed additional funds to buy basic legal books since the Los Angeles County Jail’s law library was inadequate; and he had yet to receive the pro. per. kit ordered by the court. The motion was granted. On November 16, 2007, another motion to continue was granted. Additional investigator fees in the amount of $500 and an additional $40 pro. per. funds was ordered on November 20, 2007. Continuances were also granted on January 9, 2008, February 25, 2008, March 24, 2008, and May 16, 2008 by Judge William Ryan. On May 16, 2008, however, Judge Ryan stated he would grant no further continuances.
On August 28, 2008, Williams again asked for a continuance. He complained that, “My investigator has been waiting 18 months to get paid, so he literally didn’t work on the case and, you know, he hasn’t found the witnesses. I haven’t been able to view the D.V.D.’s. So there’s no way I can be prepared.” The prosecution explained that the D.V.D.’s contained photographs and video of the different bank robberies. The court denied the motion and ordered the prosecution to provide Williams with copies of the discovery D.V.D.’s that he could watch. The matter was transferred for trial to Judge George Lomeli.
When he appeared before Judge Lomeli, Williams again asked for a continuance and when the court was disinclined to grant it, Williams indicated that he would not participate in the trial. The trial court stated, “The case is approximately 18 months old, and as I stated, you’ve had your pro per status from the very beginning. By your behavior and your comments to this court, this court believes that you’re playing games, you’re attempting to unreasonably delay the matter from going to trial.” The court further explained, “I see from the court record and the court file that Judge Ryan has made, or tried to make, special accommodations at the jail to allow you to view these D.V.D.’s, yet you have not done so. [¶] The court this morning advised you that it was willing to accommodate your viewing of the D.V.D.’s—I think they’re under a half hour, and we, fortunately have equipment for you to watch those D.V.D.’s—yet you were not inclined to accept the court’s invitation. [¶] Also your main reason that you stated, and which the court found disturbing, is that you do not wish to give up your pro per status in this case because you need library privileges in conjunction with a civil case that you have. [¶] When all else has failed in terms of your excuses and this court not being willing to entertain your excuses, you then state to this court that you’re not willing to participate in this trial and you want to appear pursuant to Penal Code section 977, and basically you told this court that you would refuse to leave your cell in order to take part in this trial.”
The trial court concluded, “When all is said and done, I don’t think that you, at this point, are in any position to effectively represent yourself on the very serious charges in this case, which, if convicted, would expose you to about 67 years to life. I am therefore going to terminate your pro per privileges at this time.”
After defense counsel was appointed to represent him, the matter was continued several times to allow defense counsel time to prepare for trial and was also continued to accommodate the schedules of the prosecution’s witnesses. On April 22, 2009, all parties announced ready for jury trial and the court ordered the case transferred to another department for trial. On April 24, 2009, Williams again requested to be absent from trial under section 977.
The matter was first referred to the public defenders’ office, who declared a conflict of interest. It was then referred to an alternate public defender. The alternate public defender also declared a conflict and the matter was ultimately tried by a bar panel attorney.
III. The Trial
On the day of trial, defense counsel advised Judge Lomeli that Williams was found with personal information about various judges in the criminal courts, including Judge Lomeli’s “address-type information.” Defense counsel asked Judge Lomeli to recuse himself. The judge declined to do so, stating that he was “not convinced based on what [defense counsel] has stated that [the court] cannot maintain its neutrality or impartiality regarding one party or the other.”
Voir dire began on April 27, 2009, after Williams signed a section 977 waiver. The prospective jurors were introduced to Williams while he was wearing a orange custody jumpsuit and, unbeknownst to the trial court, shackled. When the court was alerted to the fact that Williams was shackled, the court noted that he “didn’t see the restraints, and it wasn’t very obvious to me, they didn’t seem very apparent to me.” However, the trial court stated that “just out of the abundance of caution, I’m going to inquire of the jury, incorporate a question regarding restraints as to whether they can be fair in this case.” The court also admonished the jury, “the fact that Mr. Williams may be wearing a custody jumpsuit, you’re not to consider that for any purpose. It’s not to prejudice this case in any way.” Because Williams declined the court’s offer to change into civilian clothing and the court specifically admonished the jury not to consider what Williams was wearing, William’s motion for a mistrial was denied.
At trial, the jury heard testimony about the bank robberies as detailed above. The jury also viewed photographs and videotapes of the bank robberies. At the conclusion of trial presentation, Williams waived the right to a jury trial on the prior conviction allegations. On April 30, 2009, the jury returned a guilty verdict on all counts after deliberating approximately half an hour. The People presented evidence that Williams suffered five prior convictions within the meaning of sections 1170, subdivisions (a) through (d), 667, subdivisions (b) through (i), 667, subdivision (a) and 667.5, subdivision (b). The trial court found the prior allegations alleged against Williams to be true, stating that “[t]he prequisites [sic] and requirements under those statutes have been satisfied in this court’s eyes, and Mr. Williams has indeed suffered those convictions within the parameters of the code sections.” It denied probation and sentenced Williams on count 1 to a 25 to life term, plus four 5-year terms for the prior serious felonies. Williams was also sentenced to 25 years to life terms on counts two through five. Counts 2 and 4 were ordered to run consecutively to count 1; counts 3 and 5 were ordered to run concurrently with count 1. In total, Williams was sentenced to 75 years to life plus 20 years. Williams timely filed his notice of appeal on June 29, 2009.
DISCUSSION
I. The Termination of Williams’ Pro. Per. Status Did Not Violate His Rights
Williams contends that his right to represent himself was violated when the trial court revoked his pro. per. privileges and appointed counsel. According to Williams, his conduct did not amount to deliberate dilatory or obstructive behavior that threatened to subvert the trial, or to compromise the court’s ability to conduct a fair trial. (Faretta v. California (1975) 422 U.S. 806, 834 (Faretta).) Instead, “all he was trying to do was to conduct his own defense by trying to present a defense witness and by trying to view prosecution evidence in a timely manner.” Williams further argues that the trial court could have implemented less egregious alternatives such as appointing standby or assisting counsel. We disagree.
The Supreme Court in Faretta, supra, 422 U.S 806 determined that a criminal defendant has a right to represent himself. However, the High Court in Faretta also noted that there are limits on the right to act as one’s own attorney: “the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.” (Id. at p. 834, fn. 46.)
When determining whether to terminate a defendant’s right to represent himself, the trial court is directed to consider several factors in addition to the nature of the misconduct and its impact on the trial proceedings. They include: (1) the availability and suitability of alternative sanctions; (2) whether the misconduct is removed from the trial proceedings; (3) whether the misconduct is subject to rectification or correction; (4) whether the misconduct is likely to affect the fairness of the trial; and (5) whether the defendant has been warned that his misconduct will result in termination of his in pro. per. privileges. (People v. Carson (2005) 35 Cal.4th 1, 10 (Carson).)
“Additionally, the trial court may assess whether the defendant has ‘intentionally sought to disrupt and delay his trial.’ ” (Carson, supra, 35 Cal.4th at p. 10; see, e.g., People v. Clark (1992) 3 Cal.4th 41, 117; State v. Whalen (1997) 961 P.2d 1051, 1055.) For example, the court in People v. Fitzpatrick (1998) 66 Cal.App.4th 86, upheld a trial court’s order revoking the appellant’s pro. per. status, highlighting “[a]ppellant’s feigned mental illness (four months’ delay), escape (seven and one-half months’ delay), continuous motions for continuance, and ‘over a year’ readiness estimate.” (Id. at p. 93.)
We review the trial court’s ruling for an abuse of discretion. (Carson, supra, 5 Cal.4th at p. 12.) Thus, we “accord due deference to the trial court’s assessment of the defendant's motives and sincerity as well as the nature and context of his misconduct and its impact on the integrity of the trial in determining whether termination of Faretta rights is necessary to maintain the fairness of the proceedings.” (Ibid.) We find the trial court did not abuse its discretion.
The trial court properly terminated Williams’s tenure as his own counsel in this case. Williams was a veteran of the trial court system and he used the knowledge he gained from his many prior convictions to manipulate the proceedings so as to delay his trial. Williams was intent upon delaying his trial because knew he would be readily identified from video tapes, photographs and live witnesses as the perpetrator of numerous robberies and then sentenced to prison for life as a result of his many prior strikes. When Williams realized he was not going to be successful in procuring yet another continuance, he flatly informed the trial judge he would not participate in the proceedings. Williams had been warned that serious misconduct or obstructing the progress of trial would result in a termination of his right to represent himself. Faced with such circumstances, we find the trial court did not abuse its discretion.
As in People v. Fitzpatrick, the record plainly documents Williams’ continued and unrelenting attempts to delay his trial. By our count, Williams made at least nine requests for a continuance, all of which were granted. When Judge Champagne warned him that she would not grant any further continuances, Williams filed an affidavit of prejudice against her and the matter was transferred. He was then granted additional continuances by Judge Ryan. When he came before Judge Lomeli for trial, Williams attempted to force Judge Lomeli to recuse himself by obtaining the judge’s personal information. In total, Williams had approximately 16 months from the time he made the decision to represent himself to the time his pro. per. status was revoked to prepare for trial. A review of the record amply supports the conclusion that Williams was intent upon unjustifiably delaying a trial where he knew the result would be a life sentence.
A review of the Carson court’s factors further supports our conclusion that the trial court acted appropriately. First, we can think of no alternative sanction to revoking Williams pro. per. privileges that would have curtailed his behavior, nor has he presented us with any. Indeed, when Williams finally understood he was not going to be granted yet another continuance, he told the court he would not take part in the proceedings. While Williams now says appointing standby or assisting counsel would have helped, it is beyond us just exactly how such counsel would have assisted a defendant who would do nothing to participate in the proceedings. While all of his misconduct occurred during pretrial proceedings, it is very unlikely Williams would have completely changed his ways had trial commenced. Further, Williams’ obstructionist behavior and delay tactics were not correctable, despite three separate judge’s efforts. His campaign to prevent the commencement of trial was affecting the fundamental fairness of the justice system itself – by delaying it from even beginning. As the trial court concluded, Williams’ conduct was “all... aimed at setting up obstacles and preventing this case from progressing to trial. [His] behavior [was] nothing more than a vehicle for delay.” Finally, Williams was warned and signed a Faretta waiver that stated, “I understand that the judge may terminate my right to self-representation in the event that I engage in serious misconduct or obstruct the conduct and progress of this trial.” Faced with a defendant who refused to participate in the proceedings, who wished to remain in pro. per. only because of an unrelated pending civil case, who had purposefully delayed trial and who had been warned that misconduct or obstructing the progress of trial would result in termination of his pro. per. privileges, we find no abuse of discretion in the trial court’s decision to revoke his’ pro. per. status.
II. The Trial Court Did Not Err When it Required Williams to Be Present in Court
Williams next contends that the trial court erred when it forced him to be present at the beginning of voir dire after he had signed the section 977 waiver. We find no error.
A defendant can waive his personal presence and allow the trial to proceed in his absence under section 977, subdivision (b). Specifically, section 977(b) states that “[i]n all cases in which a felony is charged, the accused shall be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of imposition of sentence.” In all other proceedings, the accused may execute and file a written waiver of his right to be personally present. “However, the court may specifically direct the defendant to be personally present at any particular proceeding or portion thereof.” (§ 977, subd. (b)(2).)
By its own terms, section 977 permits the trial court to specifically direct Williams to be present “at any particular proceeding or portion thereof.” (§ 977, subd. (b)(2).) Williams argues that “case law has made that provision less absolute than respondent contends, ” relying on cases that do not address the trial court’s powers under subdivision (b)(2) of section 977. (People v. Concepcion (2008) 45 Cal.4th 77 [holding that a voluntary absence under section 1043 includes the time reasonably required to return an escapee to court after apprehension]; People v. Gutierrez (2003) 29 Cal.4th 1196 [comparing waiver of personal presence under section 977(b)(1) to a defendant’s voluntary absence under section 1043, subdivision (b)(2)].)
We find the trial court was well within its powers to require Williams’ presence at the commencement of trial when the prospective jurors were assembled.
III. Williams Was Not Visibly Restrained Before The Jury
Relying on People v. Duran (1976) 16 Cal.3d 282, 290, Williams contends it was error for the trial court to force him to be present in front of the jury in shackles without a showing of manifest need for the restraints or a jury instruction to disregard the restraints. Appellant misapprehends the facts; his argument that follows from that confusion falters.
On Friday afternoon, April 24, 2009, before the jury was called into the courtroom, the trial judge asked Williams if he would like to change into civilian clothing in lieu of his county jail issued jumpsuit. Williams declined and the court then inquired, “You’re waiving your right, then, to appeal any prejudice that may come out of the fact that you’re wearing the county jail jumpsuit?” Williams said “yes.” The jury was then called into the courtroom and initial voir dire took place. After the jury left for the day, defense counsel said, “Your Honor, as the court knows, my client is shackled, hands and feet. You know, he’s present over objection and by order of the court. But I think the fact that he’s not only in his jailhouse orange, that it’s beyond the pale to allow him to be here shackled in front of the jury. He has not demonstrated any propensity to be violent or to be physically out of control, and I think that the error in itself is so prejudicial that it should be a mistrial in this case.” The court made brief comments about how Williams had chosen to wear his county jail jumpsuit and then recessed for the day. On the following Monday morning, before the jury was called back into the courtroom, the trial court stated, “All right. [¶] And then Friday, also, it came to my attention after the jurors left that the defendant was wearing restraints. I’ve got to tell you, I didn’t see the restraints, and it wasn’t very obvious to me, they didn’t seem very apparent to me. However, just out of the [sic] abundance of caution, I’m going to inquire of the jury, incorporate a question regarding restraints as to whether they can be fair in this case.”
It is undisputed that the trial court did not expressly make a determination of manifest need before subjecting Williams to physical restraints in the jury’s presence and subsequently did not provide the proper jury instruction. (People v. Cox (1991) 53 Cal.3d 618, 651.) However, the Supreme Court has consistently held that “courtroom shackling, even if error, [is] harmless if there is no evidence that the jury saw the restraints, or that the shackles impaired or prejudiced the defendant’s right to testify or participate in his defense. [Citations.]” (People v. Anderson (2001) 25 Cal.4th 543, 596, People v. Tuilaepa (1992) 4 Cal.4th 569, 583-584 (Tuilaepa).) “The guidelines imposed by People v. Duran, supra, 16 Cal.3d 282, 290, are intended, in large part, to avoid prejudice in the minds of jurors where a defendant appears or testifies in obvious restraints, or where the restraints deter him from taking the stand in his own behalf.” (Tuilaepa, supra, at p. 583.)
Here, nothing in the record establishes that the jury saw the restraints. Indeed, the court noted that he “didn’t see the restraints, and it wasn’t very obvious to me, they didn’t seem very apparent to me.” Williams was already at counsel table when the prospective jurors were brought in and he remained there until they were dismissed for the day. Although the trial court introduced Williams, there is no indication in the record that he stood when introduced. In fact, the trial court instructed both the prosecutor and defense counsel to stand, but did not instruct Williams to do so.
In any event, we do not find prejudicial error in this case given the overwhelming evidence against Williams. (Tuilaepa, supra, 4 Cal.4th at pp. 584-585.) Not only did each one of the bank tellers identify Williams as the robber, Williams was literally caught “red-handed” by the police.
IV. The Trial Court Properly Admitted Certified Documents to Establish Williams’ Prior Convictions
At the bifurcated trial on the prior conviction allegations, several packets from the Department of Corrections were admitted as evidence that Williams had suffered five prior convictions, including fingerprint cards and booking photographs. The prosecution presented testimony from a fingerprint identification expert with the Los Angeles Police Department that the fingerprints on the cards from the Department of Corrections matched those of Williams. The trial court admitted the certified documents into evidence and found that Williams had suffered those five prior convictions.
Williams contends that he received ineffective assistance of counsel because his attorney failed to object to the admission of the packets on hearsay and Sixth Amendment grounds. According to Williams, the packets should not have been admitted because, under the Supreme Court’s decision in Crawford v. Washington (2004) 541 U.S. 36 (Crawford), testimonial evidence could not be admitted unless the declarant was unavailable and the defendant had the opportunity to cross examine the person who prepared the documents.
It is well established that these types of documents are not testimonial evidence subject to Crawford analysis. (People v. Taulton (2005) 129 Cal.App.4th 1218, 1224 (Taulton); People v. Morris (2008) 166 Cal.App.4th 363, 370.) In Taulton, supra, 129 Cal.App.4th at page 1221, the court held that the admission of similar evidence did not violate Crawford because they were “prepared to document acts and events relating to convictions and imprisonments. Although they may ultimately be used in criminal proceedings, as the documents were here, they are not prepared for the purpose of providing evidence in criminal trials or for determining whether criminal charges should issue. Therefore, these records are beyond the scope of Crawford, and the court properly admitted them and considered them for the statutory purposes.” (Id. at p. 1225.)
We find the packets were properly admitted under section 969b and not subject to Crawford analysis. As a result, there was no ineffective assistance of counsel for failure to object to its admission based on Crawford.
Section 969b provides that “records or copies of records of any state penitentiary, reformatory, county jail, city jail, or federal penitentiary in which [defendant] has been imprisoned” may be used to establish prima facie evidence of prior convictions, provided “such records or copies thereof have been certified by the official custodian of such records....”
V. The Erroneous Advisement of His Maximum Exposure Did Not Violate Williams’ Rights
Before trial, the prosecution offered Williams a plea bargain of 40 years. Williams rejected the offer and countered with 10 years. The counter-offer was rejected and Williams was ultimately sentenced to 75 years to life with an additional 20 years. During a colloquy with Williams about the offer, the trial court stated Williams faced a maximum sentence of 67 years to life. Because the trial court was wrong when it advised Williams of his maximum exposure, Williams now contends that reversal is required because he rejected the more favorable plea bargain due to the misadvisement. (People v. Goodwillie (2007) 147 Cal.App.4th 695, 734.) We disagree.
We find reversal is not warranted because it is not reasonably probable that Williams would have accepted the plea bargain even if he had been correctly advised about his potential maximum sentence. In People v. Miralrio (2008) 167 Cal.App.4th 448, 461 (Miralrio), the defendant rejected a pretrial plea offer of 30 years to life. The trial court and the prosecutor told him that his potential maximum sentence if he went to trial was 68 years to life. In fact, the maximum sentence was 120 years to life. (Id. at p. 459.) Placing the burden on the defendant to show prejudice, the court found that “nothing in the record on appeal suggests defendant would have accepted the 30-year proffered deal if he had been correctly advised of penal consequences.” (Id. at p. 463.) “At sentencing, the defense made no objection and showed no surprise at the 90-year sentence, nor did the defense claim the earlier misadvisement caused defendant to reject the plea offer.” (Ibid.) The court further noted that 68 years was not ‘a world away’ from 120 years to a 31 year old, who would be 99 years old at the end of 68 years. (Id. at p. 464.)
Similarly, Williams was present at sentencing and the record does not show that he was surprised when the trial court issued its sentence. Neither did he claim the earlier misadvisement caused him to reject the offer of 40 years. Moreover, Williams is 52 years old. At the end of a 40 year prison term, he would be 92 years old. As the court in Miralrio observed, “[s]uch a person might consider [40] years as a life sentence, such that [145 years] would have made no difference.” (Miralrio, supra, 167 Cal.App.4th at p. 464.) This case is unlike Miralrio, where the defendant clearly stated on the record that he would accept the plea bargain if he received all his credits. There is nothing in the record here that reflects Williams would have accepted the plea under any terms – in fact, he rejected the offer out of hand. Here, there is simply nothing that indicates Williams would have accepted the offer if he knew he was facing a longer sentence.
Given a maximum exposure of 225 years, Williams argues the disparity between the 40 year plea offer and his maximum exposure was significant. If he had accepted the plea bargain, he would have served 85 percent of his term in 34 years. Thus, he “would have been a free man at age 86.” “It was reasonable for appellant to have thought that if he were convicted of all counts, the court would (as it ended up doing) sentence at least one count concurrently... But starting from a maximum exposure of 67 years, the running of sentences concurrently might have resulted in less of a sentence than the 40 years being offered.” If he had known what the maximum exposure actually was, Williams contends, he would have known that he could not possibly receive a lesser sentence than the plea bargain of 40 years. Thus, “it was reasonably probable that appellant in this case would have accepted the plea bargain had he been properly advised of the maximum potential exposure.”
Williams argues his maximum exposure was 145 years because the court could have ordered all the sentences to run consecutively. We disagree. The maximum sentence was actually 225 years. To each indeterminate 25-to life term, the court was required to add the four five-year priors pursuant to Section 667, subdivision (a). (People v. Williams (2004) 34 Cal.4th 397, 403-404.) Thus, each of the five counts carried a potential sentence of 45 years to life. Had the court run each count consecutively, Williams sentence would have been 45 years for each of the five counts, or 225 years in the aggregate.
We find this calculation is insufficient to show Williams would have accepted the plea offer had he been properly advised about the potential sentence. Whether Williams went to trial or accepted a plea offer, he knew that the Three Strikes law mandated a prison sentence that would result in his incarceration for the rest of his life. Had Williams accepted the People’s offer of 40 years, he would be lucky to be alive when he became eligible for release from prison at age 86. Contrary to his contentions now, the differential between the plea offer and the incorrect maximum sentence the trial court informed him about had no effect on his decision. Williams had nothing to lose by going to trial -- one way or another, his recidivism had finally caught up to him. Whether by plea or conviction, he was headed to prison for life. Williams was a veteran of the system and knew this full well.
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, J., GRIMES, J.