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People v. Sarver8/11/2005
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Wayne Charles Sarver pleaded no contest to a charge of felony driving under the influence (DUI) with three prior DUI convictions. The court sentenced Sarver to a two-year prison term. On appeal, Sarver contends the court erroneously denied his motion challenging the constitutionality of two of the prior convictions, under Penal Code section 41403. (See People v. Superior Court (Almaraz) (2001) 89 Cal.App.4th 1353, 1356-1357.) We affirm.
Sarver's motion was directed at no contest pleas entered on August 10, 2001, which resulted in first-offense DUI convictions. He argued that the maximum penalty for those convictions was six months in jail, and the plea agreement contemplated concurrent terms, yet he was sentenced to serve consecutive one-year terms. Sarver acknowledged that the erroneous sentence was altered by the court to make the terms concurrent after he wrote the commissioner requesting modification. However, he claimed the illegal sentence reflected ineffective assistance of counsel, requiring the prior convictions to be stricken.
The prosecutor opposed the motion, contending the commissioner had properly intended to sentence Sarver to a year in jail, though it was unclear whether the commissioner intended to impose consecutive 6-month terms or concurrent 1-year terms. The prosecutor claimed Sarver's public defender had effectively negotiated a beneficial bargain that included the dismissal of a third DUI charge.
At the hearing on the motion, the commissioner testified that it had indeed been his intention to give Sarver a one-year jail term, which he understood was the maximum sentence. The commissioner conceded he had been in error when he amended the sentence to reflect concurrent one-year terms, instead of consecutive 6-month terms. Defense counsel testified that he remembered the plea bargain as calling for concurrent one-year terms.
The trial court denied Sarver's motion. The court noted that while the commissioner's "correction" did not completely cure the sentencing error, it did reflect the term contemplated by the plea bargain. The court concluded Sarver had failed to establish that but for his counsel's incompetence, he would have rejected the plea bargain and insisted on going to trial. The court's ruling was correct.
When ineffective assistance of counsel is claimed, a court need not determine whether counsel's performance was deficient before examining the prejudice allegedly suffered by the defendant. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Strickland v. Washington (1984) 466 U.S. 668, 697; accord, In re Cox (2003) 30 Cal.4th 974, 1019-1020.) " defendant who [pleads] guilty demonstrates prejudice caused by counsel's incompetent performance in advising him to enter the plea by establishing that a reasonable probability exists that, but for counsel's incompetence, he would not have pled guilty and would have insisted, instead, on proceeding to trial. [Citations.]" (In re Resendiz (2001) 25 Cal.4th 230, 253.) The "assertion he would not have pled guilty if given competent advice `must be corroborated independently by objective evidence.' [Citation.]" (Ibid.)
Here, not only did Sarver present no corroborative evidence, he did not even claim he would have rejected th
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