People v. Topete, F052969 (Cal. App. 9/24/2008)

• Decision Date: 24 September 2008
• Docket Number: F052969
• Parties: THE PEOPLE, Plaintiff and Respondent, v. MAYRA TOPETE, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

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THE PEOPLE, Plaintiff and Respondent, v. MAYRA TOPETE, Defendant and Appellant.

F052969

Court of Appeals of California, Fifth Appellate District

September 24, 2008

Not to be Published

Appeal from a judgment of the Superior Court of Kern County, No. LF6944A, Louis P. Etcheverry, Judge.

Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Stephen G. Herndon and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THE COURT^*

Appellant, Mayra Topete, pled no contest to transportation of methamphetamine (count 1/Health & Saf. Code, § 11379, subd. (a)) and possession for sale of methamphetamine (count 2/Health & Saf. Code, § 11378).

On appeal, Topete contends: 1) the court violated the terms of her plea bargain; and 2) she was denied the effective assistance of counsel. Additionally, on July 15, 2008, this court sent a letter to the parties asking them to brief several issues that are discussed below. Although we will reject Topete's claims, we will remand the matter to the trial court for further proceedings.

FACTS

On December 5, 2006, Kern County Sheriff's Deputy Mario Magaña was patrolling in the Lamont area when he stopped a vehicle in which Topete was a passenger, after seeing the vehicle make a right turn without signaling. Magaña asked the driver if he could search the car and the driver consented. Magaña found an open purse that contained marijuana in plain view. Topete admitted the purse and marijuana belonged to her. Magaña asked Topete if she had any other illegal contraband on her and Topete stated she had "crystal." Topete pulled out a bag of crystal methamphetamine and was placed under arrest.

On December 22, 2006, the district attorney filed an information charging Topete with one count each of transportation of methamphetamine and possession for sale of methamphetamine.

On January 18, 2007, Topete filed a motion to suppress challenging "the legality of the initial stop of the vehicle, the legality of the search of the purse, and the legality of the subsequent investigation that focused on her." The prosecutor filed a response citing People v. Brendlin (2006) 38 Cal.4th 1107, to allege, in pertinent part, that Topete did not have standing to challenge the stop of the vehicle.

On February 2, 2007, at the start of the suppression hearing, defense counsel changed his position stating, "I am not challenging the lawfulness of the actual stop of the vehicle. I am challenging [the] search of the person and everything that came after that." During the hearing, Deputy Magaña testified only that he stopped the vehicle after seeing it fail to signal before making a right turn. The court subsequently denied the suppression motion.

On February 22, 2007, a jury trial ended in a mistrial on both counts.

On April 23, 2007, Topete entered into a negotiated plea. During the change of plea proceedings the court admonished Topete she could withdraw her plea if the court did not sentence her in accord with her negotiated plea. The following colloquy also occurred:

"THE COURT: All right. She will plead no contest to both counts. The only condition [is] that it will be a felony one year [maximum] lid. Is that correct?

"[DEFENSE COUNSEL]: Correct."

Later, in discussing the consequences of Topete's plea the following conversation occurred:

"THE COURT: Was there a motor vehicle involved?

"[DEFENSE COUNSEL]: She was a passenger in a vehicle.

"THE COURT: So it is still — will it be a suspension?

"[DEFENSE COUNSEL]: I don't think so, she wasn't driving.

"THE COURT: May not. Okay, I won't worry about it. And neither of these are serious felonies. Am I correct?

"[THE PEOPLE]: That's correct.

"THE COURT: Okay.

"[DEFENSE COUNSEL]: Your Honor, might I interrupt briefly for a second. They are three year priors, should she commit another serious drug offense. Okay. The other thing is I don't think she has a driver's license, so there would be no —

"THE COURT: No reason to do —

"[DEFENSE COUNSEL]: No suspension."

On May 21 2007, the court suspended imposition of sentence and placed Topete on probation for three years on condition she serve a year local time. The court also ordered, without objection, Topete's license suspended for one year starting on that date. Later that day, Topete filed an appeal stating that it was based on the denial of her suppression motion. However, Topete did not raise any suppression issues in her opening brief.

DISCUSSION

Topete's Plea Bargain

Topete contends the court violated the terms of her plea bargain when it ordered her license suspended. Alternatively, Topete contends she was denied the effective assistance of counsel if this issue is not properly before the court because of defense counsel's failure to object. We will find that Topete waived this claim and reject her ineffective assistance of counsel claim.

Preliminarily, we note that this issue is moot because the license suspension expired on May 20, 2008. (Cf. People v. Lindsey (1971) 20 Cal.App.3d 742, 743-744.) However, even if the issue were not moot, we would reject it.

"`"[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." [Citation.] [¶] The Supreme Court has thus recognized that due process applies not only to the procedure of accepting the plea [citation], but that the requirements of due process attach also to implementation of the bargain itself. It necessarily follows that violation of the bargain by an officer of the state raises a constitutional right to some remedy.' [Citations.] Although the purpose of a restitution fine is not punitive, we believe its consequences to the defendant are severe enough that it qualifies as punishment for this purpose. Accordingly, the restitution fine should generally be considered in plea negotiations. [¶] ... [¶]

"Whether or not a defendant waives an objection to punishment exceeding the terms of the bargain by the failure to raise the point in some fashion at sentencing depends upon whether the trial court followed the requirements of [Penal Code] section 1192.5. That section provides in pertinent part that when a plea bargain is accepted by the parties and approved by the court, the defendant generally `cannot be sentenced on such plea to a punishment more severe than that specified in the plea and the court may not proceed as to such plea other than as specified in the plea.' The court `shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in such case, the defendant shall be permitted to withdraw his plea if he desires to do so.' [Citation.]" (People v. Walker (1991) 54 Cal.3d 1013, 1024-1025.)

"Absent a [Penal Code] section 1192.5 admonition, we cannot assume defendant knew he had a right to withdraw his plea. But when the admonition is given, and the defendant does not ask to withdraw the plea or otherwise object to the sentence, he has waived the right to complain of the sentence later. (People v. Walker, supra, 54 Cal.3d at p. 1026.)

Here the court gave the required Penal Code section 1192.5 admonition. Therefore, Topete waived this issue by her failure to object to the court's order suspending her license.

Moreover, "`[i]n order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel's performance was deficient because it "fell below an objective standard of reasonableness ... under prevailing professional norms." [Citations.] Unless a defendant establishes the contrary, we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." [Citation.] ... If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice, that is, a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." [Citation.]'" (People v. Salcido (2008) 44 Cal.4th 93, 170.)

Topete did not have a license when she was arrested in this matter. Further, the record is unclear whether Topete ever had a license issued to her or it was merely expired and devoid of evidence that she ever drove. Thus, Topete has failed to show how she was prejudiced by the suspension of a privilege she apparently never exercised. Accordingly, we also reject Topete's ineffective assistance of counsel claim.

The Other Issues

Introduction

In People v. Brendlin, supra, 38 Cal.4th 1107, the California Supreme Court held that a passenger in a car stopped by police is not seized and therefore has no standing to challenge the stop. (Id. at p. 1123; accord, People v. Saunders (2006) 38 Cal.4th 1129, 1134.) In June 2007, the United States Supreme Court issued its opinion in Brendlin v. California (2007) ___ U.S. ___ (Brendlin), reversing the California Supreme Court's decision in People v. Brendlin, supra, 38 Cal.4th 1107 and holding that a passenger does have standing to challenge the stop of a vehicle he or she is riding in. (Brendlin v. California, supra, ___ U.S. ___ .)

In Griffith v. Kentucky (1987) 479 U.S. 314 (Griffith), the United States Supreme Court held that "[a] new rule for the conduct of criminal prosecutions ... applies retroactively to all cases, state or federal, pending on direct review or not yet final[.]" (Ibid.)

Topete's defense counsel may have...