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People v. Ostrander4/30/2003
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
In this criminal appeal, defendant Larry Chet Ostrander contends his defense counsel was ineffective for failing to advocate for a lesser term of imprisonment. Our review of the record leads us to conclude this issue is more properly raised in a petition for writ of habeas corpus; thus, we shall affirm the judgment without prejudice to defendant's filing a habeas corpus petition raising the issue asserted on appeal.
FACTS AND PROCEEDINGS
Defendant committed an offense of driving under the influence of alcohol in April 1998. (Veh. Code, § 23152.) In August 1998 defendant was arrested for failing to register as a sex offender. (Pen. Code, § 290, subd. (g)(2) (hereafter referred to as "the section 290 violation").) Defendant committed another driving under the influence offense in November 2000.
Defendant was sentenced on all three offenses in March 2001. For the two driving under the influence convictions, defendant received two concurrent 180-day jail terms. For the section 290 violation, the court suspended imposition of sentence and placed defendant on probation for 36 months.
In May 2001 defendant was arrested for yet another violation of driving under the influence (his latest offense). A new felony complaint was filed. Count 1 alleged a violation of Vehicle Code section 23152, subdivision (a) (driving under the influence of alcohol and a drug), while count 2 alleged a violation of Vehicle Code 23152, subdivision (b) (driving with a blood-alcohol level greater that .08 percent). In addition to the felony complaint, the People filed a petition alleging defendant had violated the terms of probation because he had failed to report to his probation officer regularly.
Defendant pleaded no contest to count 2 and admitted the three priors in exchange for dismissal of count 1. Defendant's counsel, Eric Ortner, waived preparation of a probation report and stated: "I think under the sentencing rules between these two cases, that it would result in the imposition of a two-year, eight-month state prison sentence." The court responded: "Three year, eight month?" Defense counsel replied: "Yes." The parties then agreed to trail the matter in order to calculate credits.
When the matter went back on the record, the following colloquy occurred:
"The Court: We'll reconvene the sentencing matter.
"Mr. Ortner, this is a stipulation to the upper term in the new plea.
"Mr. Ortner: Yes."
The court, without objection or argument from defense counsel, proceeded to sentence defendant to the upper term of three years on count 2, with a consecutive sentence of one-third the midterm, or eight months, for the section 290 violation, for a total term of three years eight months.
DISCUSSION
Defendant contends defense counsel was ineffective for failing to argue for the lesser sentence because it is possible the court might have sentenced defendant more leniently.
The People respond that defendant waived this claim by stipulating to the sentence, that he gained a tactical benefit by avoiding the full consequence of his behavior, and that no prejudice has been shown.
Regarding the People's waiver argument, the record is inadequate to establish the sentence was stipulated. The colloquy during the change of plea disclose
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