People v. Chaklader

• Decision Date: 25 April 1994
• Docket Number: No. B074233,B074233
• Citation: 29 Cal.Rptr.2d 344,24 Cal.App.4th 407
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Subir CHAKLADER, Defendant and Appellant.

Page 344

29 Cal.Rptr.2d 344

24 Cal.App.4th 407

The PEOPLE, Plaintiff and Respondent, v. Subir CHAKLADER, Defendant and Appellant.

No. B074233.

Court of Appeal, Second District, Division 4, California.

April 25, 1994.

Review Denied Aug. 10, 1994.

[24 Cal.App.4th 408] Rebecca Donaldson, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., Marc E. Turchin and James William Bilderback II, Deputy Attys. Gen., for plaintiff and respondent.

CHARLES S. VOGEL, Acting Presiding Justice.

Appellant Subir Chaklader appeals (Pen.Code, § 1237, subd. (b)) from an order denying appellant's petition for a writ of error coram nobis to vacate a judgment resulting The writ of error coram nobis is an appropriate procedure for a postjudgment challenge to a guilty plea allegedly induced by mistake, fraud, or coercion. (People v. Wadkins (1965) 63 Cal.2d 110, 113, 45 Cal.Rptr. 173, 403 P.2d 429; Appeals and Writs in Criminal Cases (Cont.Ed.Bar 1982) § 2.151, p. 372.) Appellant has alleged that his plea was induced by statements of the prosecutor and court that his sentence would be concurrent, which condition was unfulfilled when the federal court later sentenced him. ¹ The fact that we disagree with appellant's interpretation of the statements does not necessarily mean appellant has chosen the wrong procedure to raise the issue. (People v. Wadkins, supra, 63 Cal.2d at pp. 114-115, 45 Cal.Rptr. 173, 403 P.2d 429.)

from his guilty plea to assault with a deadly weapon with infliction of great bodily injury. Appellant contends that his guilty plea was induced by a promise that his sentence would run concurrently with his sentence on a federal conviction for which he was on probation, a promise which was not kept because the federal court subsequently sentenced him consecutively to his California term. We conclude that the record of appellant's guilty plea shows to the contrary, that [24 Cal.App.4th 409] appellant was aware the federal court could sentence him consecutively, and he voluntarily pleaded guilty. Therefore we affirm the trial court's order denying appellant's petition.

FACTUAL AND PROCEDURAL BACKGROUND

By information appellant was charged with assault with a deadly weapon and by means of force likely to produce great bodily injury (Pen.Code, § 245, subd. (a)(1)) and with an enhancement for personally inflicting great bodily injury (Pen.Code, § 12022.7). The preliminary hearing evidence showed that on May 7, 1990, appellant stabbed the victim with a knife in the jaw, stomach, and thigh.

On June 27, 1990, appellant pleaded guilty and admitted the enhancement. At the time, appellant was on federal probation for his 1987 conviction in the United States District Court in Boston for fraud and mail fraud. The federal court had given him a five-year suspended sentence and placed him on probation. After his probation was transferred to the New York City area, appellant absconded from federal probation and came to California. At the time of appellant's California sentencing, federal authorities had placed a probation hold on him.

As discussed in more detail post, appellant was warned during the guilty plea proceedings that although the superior court was amenable to concurrent sentences and the serving of the California sentence in either a state or federal facility, it was up to the federal court whether appellant would serve the federal time consecutively. Appellant agreed to plead guilty and to a sentence of four years. The court sentenced appellant to a term of four years, consisting of an upper term for assault and a stayed three-year enhancement.

Shortly after being committed to state prison in 1990, appellant, with the cooperation of state prison authorities, commenced efforts to compel resolution of his federal probation status and to be transferred to federal custody. These efforts were largely unsuccessful, due to discretion of federal authorities in the timing of proceedings to revoke appellant's federal probation. According to appellant's coram nobis petition, appellant was not transferred to federal custody until May 21, 1992, shortly before his parole release date of June 13, 1992, on his California sentence. On June 2, 1992, the federal district court in Boston revoked appellant's federal probation and committed appellant to the Federal Bureau of Prisons for five years "to be served on and after the sentence imposed in California." ²

Appellant filed in Los Angeles Superior Court a motion to vacate his judgment and sentence, which was denied on November 20, 1992. Appellant filed his petition for writ of error coram nobis on January 12, 1993, which was denied after being reviewed by the same judge who sentenced appellant. Appellant appeals from this order denying coram nobis relief.

PLEA PROCEEDINGS

The record contains the reporter's transcript of the June 27, 1990, proceedings on appellant's guilty plea. Appellant was represented by Mr. Weiss; the People were represented by Mr. Wells. Upon the court's invitation to the People to "take the waivers and the pleas," the prosecutor advised appellant as follows:

"Mr. Wells: In information SA003277 you're charged with the crime of 245(a)(1) of the Penal Code, assault with a deadly weapon, specifically a knife. And also there's a special allegation which alleges that during the commission of that offense you with the specific intent to do so, committed a great bodily injury within the meaning of Penal Code section 12022.7. [p] Your attorney, Mr. Weiss has indicated that based on our discussions and the court's discussions, that as to that charge and the enhancement section you're willing to change your plea to guilty with an agreement that you be sentenced to four years in the state prison. [p] Do you understand that?

"The defendant Chaklader[:] Yes.

"Mr. Wells: I want you to understand that the maximum liability in this case if you were to go to trial is seven years in state prison. [p] Is that clear?

"The defendant Chaklader: Yes.

"Mr. Wells: This court has also indicated at the urging of the District Attorney's Office and the request of your attorney Mr. Weiss, that this time as far as we're concerned, we the superior court, is that it may be served concurrent with any other federal case that you may have. Meaning at the same time. [p] Is that clear?

"The defendant Chaklader: That's clear.

"Mr. Wells: But I want ... to caution you, if the federal court decides to sentence you consecutive, that's up to them. [p] Is that clear?

"The defendant Chaklader: Yes.

"Mr. Wells: Also, if you are on probation or parole in any other matter a plea of guilty to this charge constitutes a violation of that status and Judge Perez is making no promises or recommendations with respect to any other case that may exist anywhere else. [p] Is that clear?

"The defendant Chaklader: Yes.

"Mr. Wells: Other than what I've told you out of my mouth today on the record, have there been any other promises made to you of lesser sentence, probation, reward, immunity or anything else in order to have you change your plea to guilty?

"The defendant Chaklader: No.

"Mr. Wells: Is this the deal as you understand it, what you heard from me? [p] Don't look at him, look at me. [p] Is this the deal as you understand it?

"The defendant Chaklader: Yes." (Emphasis added.)

In pronouncing sentence the court stated, "This sentence may run concurrent with any time that you're doing currently in any state or federal custody and you may be housed in any [penal] institution to serve your time or any federal time that might be imposed in the future." The court's minute order stated, "Sentence may be served in any state or federal facility." The abstract of judgment stated, "This sentence is to run concurrent with any prior uncompleted sentences."

DISCUSSION

Appellant points out that because of dual sovereignty, the Los Angeles Superior Court had no power to control the United States Appellant contends that if he had been informed the superior court had no power to control consecutive sentencing, he would not have pleaded guilty. The transcript of the sentencing proceeding refutes this contention. ³ The purpose of the requirement that plea bargains be placed on the record is to facilitate review of postjudgment attacks on the plea. (People v. West (1970) 3 Cal.3d 595, 611, 91 Cal.Rptr. 385, 477 P.2d 409; People v. Vallejo (1991) 1 Cal.App.4th 760, 764, 2 Cal.Rptr.2d 413.)

                District Court's [24 Cal.App.4th 412] sentencing discretion.  (United States v. Sackinger (2d Cir.1983) 704 F.2d 29, 32;  see Del Guzzi v. U.S.  (9th Cir.1992) 980 F.2d 1269, 1270.)   Even under California law, the choice between concurrent and consecutive sentences lies in the court which pronounces judgment second.

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