People v. Aragon

• Decision Date: 10 December 1992
• Docket Number: No. A053546,A053546
• Citation: 11 Cal.App.4th 749,14 Cal.Rptr.2d 561
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Omar E. ARAGON, Defendant and Appellant.

Page 561

14 Cal.Rptr.2d 561

11 Cal.App.4th 749

The PEOPLE, Plaintiff and Respondent, v. Omar E. ARAGON, Defendant and Appellant.

No. A053546.

Court of Appeal, First District, Division 2, California.

Dec. 10, 1992.

Martin James Elmer, Berkeley, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Acting Sr. Asst. Atty. Gen., Stan M. Helfman, Supervising Deputy Atty. Gen. and Violet M. Lee, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

KLINE, Presiding Justice.

Defendant Omar E. Aragon pleaded guilty to possessing cocaine. On appeal he raises various objections based on his previous conviction of, and punishment for, a charge concerning sale of phencyclidine. While the highly unusual history of the case poses some difficult issues, we will ultimately reject defendant's contentions. We will also hold that respondent has not preserved for appeal its belated objection to the allowance of credit for time served on the previous conviction.

BACKGROUND

Defendant was charged in April 1987 with selling phencyclidine (Health & Saf.Code, § 11379.5) and possessing cocaine (Health & Saf.Code, § 11350). Evidence at the preliminary hearing indicated that defendant was involved, with two others, in a sale of phencyclidine to undercover officers. When arrested and searched he was carrying a bundle of cocaine weighing 0.14 grams.

Defendant originally pleaded guilty to the cocaine count and not guilty to the sales count. On June 1, 1987, pursuant to a plea bargain, he pleaded guilty to possessing phencyclidine for sale and withdrew his guilty plea to the cocaine count, which was dismissed along with the phencyclidine sale charge and accompanying allegations of probation ineligibility. In July 1987, the court suspended imposition of sentence and placed defendant on three years' probation conditioned on (among other things) serving one year in the county jail. Defendant apparently completed this sentence, including 170 actual days in jail.

In 1990 defendant moved to withdraw his 1987 guilty plea on the ground that he had not been advised that conviction could subject him to deportation. (See Pen.Code, § 1016.5.) None of the moving papers are included in the present record, but the court treated the motion as a petition for writ of error coram nobis and habeas corpus. On September 12, 1990, the court granted the petition, set aside the guilty plea, vacated the conviction, and reinstated all dismissed counts. No appeal was taken from that order.

Defendant failed to appear at a trial date set for November 5, 1990, and a bench warrant issued. He was arrested in January and the case was called for trial on March 6, 1991. Defendant offered to enter a guilty plea, "open to the court," to the cocaine possession charge. Before accepting the plea the court stated to defendant, among other things, "There is no guarantee at all, Mr. Aragon, you're going to receive probation. [p] You may be sent to state prison for this offense." Defendant nonetheless pleaded guilty. The court accepted the plea and granted a defense motion to exclude the resulting conviction from evidence in the trial of the phencyclidine sales charge.

The jury acquitted defendant of selling phencyclidine. ¹ The matter proceeded to sentencing on the cocaine charge. The probation report stated that in March 1990, defendant took a urinalysis test which was positive for phencyclidine. Defendant expressed perplexity at this result and denied using drugs. The probation officer did not appear to accept this denial, but nonetheless recommended that imposition of sentence be suspended, that no jail time be imposed, and that defendant be placed on probation for the "shortened term" of two years, "since the defendant did perform well under formal supervision from 1987 until 1990...."

In written arguments, the defense urged the court to (1) place defendant on diversion, (2) place him on probation for a brief period followed by immediate discharge so that he could seek dismissal under Penal Code section 1203.4, or (3) impose a jail term of less than 120 days. Any other disposition could be "devastating," the court was told, because it would increase the likelihood that defendant would be deported despite the fact that he had generally maintained employment and his family lived with him in San Francisco. The defense also asserted that credit was due for time served on the 1987 conviction.

At the sentencing hearing the prosecutor recommended that defendant be sentenced to the mitigated term of 16 months in prison. He stated that although the probation report failed to so note, defendant had been charged in 1987 with a violation of Health and Safety Code section 11350 and had completed diversion in connection with that offense. He also emphasized that defendant had been "bench-warranted" in this case "and was rearrested for lording [sic] with a weapon and giving a false name to a police officer." ² The prosecution did not dispute, and appeared to agree with, defendant's assertions concerning his entitlement to credit for time served under the 1987 conviction.

The court said that it was "considering probation in this case," but noted that "some defendants would not normally want probation." ³ In response to the court's question whether defendant wanted probation, defense counsel said, "He would like probation. I strongly urge probation." The prosecutor alluded to defendant's positive drug test in March 1990, and the court stated, "I'm aware of that. The man's got a drug problem. [p] It may be that perhaps a stiff sentence and a probationary term might be valuable."

The court proceeded to impose a sentence of state prison for the middle term of two years, but suspended execution of sentence and placed defendant on three years probation, subject to conditions including one year in the county jail. The court stated that this jail term was subject to credit for time served, including 170 days served under the 1987 phencyclidine conviction.

I. DEFENDANT'S APPEAL

A. Introduction

Virtually all of defendant's arguments revolve around the fact that when the present sentence was imposed he had already served three years on probation, with one year in jail, on the 1987 phencyclidine conviction. There is no doubt that in the usual course of things, that conviction would have barred further prosecution or punishment for the acts underlying that charge. (Pen.Code, §§ 654, 687, 1023; see U.S. Const., amend. 5; Cal. Const., art. 1, § 15.) It goes without saying that dismissal of the cocaine charge as part of the 1987 plea bargain would ordinarily bar any further prosecution on that charge as well.

These consequences would have accrued here but for the fact that defendant chose in 1990 to obtain an order vacating the 1987 conviction and setting aside the underlying guilty plea. Such an order "nullifies any proceedings taken under the guilty plea, and restores the defendant to the position of an accused who first presents a plea of not guilty." (4 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) Proceedings Before Trial, § 2177, p. 2553.) When a guilty plea is invalidated, the parties are generally restored to the positions they occupied before the plea bargain was entered. (People v. Romanoski (1984) 157 Cal.App.3d 353, 363, 204 Cal.Rptr. 33; People v. Hill (1974) 12 Cal.3d 731, 769, 117 Cal.Rptr. 393, 528 P.2d 1, overruled on another point in People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5, 135 Cal.Rptr. 786, 558 P.2d 872.) The defendant may withdraw the plea and the prosecution may reinstate any charges that were dismissed in consequence of the plea. (People v. Webb (1973) 36 Cal.App.3d 460, 471, 111 Cal.Rptr. 524; People v. Romanoski, supra, 157 Cal.App.3d at pp. 362-363, 204 Cal.Rptr. 33; People v. Fry (1969) 271 Cal.App.2d 350, 359, 76 Cal.Rptr. 718.)

As applied here, these principles produce consequences which may appear anomalous. Defendant had already "done his time" on the phencyclidine charge and, but for his own resurrection of the case, was effectively immune from further prosecution. Ordinarily a defendant in this position would have no reason to seek vacation of the prior conviction; indeed, it is the last thing he would be expected to do. We can only assume that the prior conviction here had collateral consequences which made it appear worthwhile for defendant to set it aside. ⁴ In any event, it is not suggested that in seeking to vacate the 1987 plea he lacked the effective assistance of counsel, acted inadvertently, or misunderstood the consequences of his actions. We must assume that he acted knowingly and intelligently.

We also observe that so far as the record shows, most of the arguments raised here were never presented to the court below in any form. Defendant was explicitly advised before entering his plea that the court might sentence him to prison, and he did not contend then or later that such a disposition was impermissible. At the sentencing hearing his attorney "strongly urged" the court to place him on probation. Aside from the question of credit for time served and an argument addressed purely to the court's discretion, it was never suggested that the 1987 sentence had any legal effect on the issues before the court in 1991.

We could hold that the failure to raise these points below precludes their presentation on appeal. (See People v. Moore (1983) 140 Cal.App.3d 508, 511, 189 Cal.Rptr. 487 [double jeopardy defense not raised before trial].) If the points were meritorious, however, the failure to raise them might constitute ineffective assistance of counsel. (Ibid.) Accordingly, we deem it appropriate to analyze these issues on their merits.

B. Multiple Punishment

Contrary to defendant's contentions he is not now being punished for conduct "for which he ha[s] already been fully and completely punished." He was...