The People v. Winiarz CA2/6

Filed 9/17/12 P. v. Winiarz CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B247185 (Super. Ct. No. 2012005023, 2011036590, Plaintiff and Respondent, 2010003303, 2009034696) (Ventura County) v.

JON WINIARZ,

Defendant and Appellant.

Jon Winiarz appeals a seven year state prison sentence, imposed after he pled guilty in four cases to felony driving under the influence (DUI) with a prior felony DUI conviction (Veh. Code, §§ 23550.5, subd. (a); 23152, subd. (a)), admitted 1 serving two prior prison terms (Pen. Code § 667.5, subd. (b) and admitted that he was out on bail when he committed the felony DUIs in three case s (§ 12022.1, subd. (b)). The negotiated disposition provided for a seven year-lid indicated sentence. Appellant contends that the trial court erred in not imposing a lesser sentence. We affirm.

1 All further statutory references are to the Penal Code unless otherwise stated.

Procedural History

On October 29, 2012, appellant entered a change of plea in four felony DUI case s in exchange for a seven year-lid indicated sentence and a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754.) Before the change of plea was entered, appellant's trial attorney stated: "[W]e have discussed the cases at length with the court in chambers. It's our understanding that the Court is willing to set a top of seven years. . . . I want to make sure for the record that's noted. I will be arguing for considerably less at.the time of sentencing, but the Court's commitment, package commitment, is understood by the defense. " In case number 2012005023 appellant pled guilty to felony DUI with a prior felony DUI conviction (Veh. Code, §§ 23550.5, subd. (a); 23152, subd. (a)), admitted two prior prison term enhancements (§ 667.5, subd. (b)), and admitted three out-on-bail enhancements (§ 12022.1, subd. (b)). In case number 2009034696 appellant pled guilty to felony DUI with a prior felony DUI conviction and admitted two prior prison term enhancements. In case number 201003303 appellant pled guilty to felony DUI with a priorfelony DUI conviction and admitted an out on bail enhancement and two prior prison term enhancements. In case number 2011036590 appellant pled guilty to felony DUI with a prior felony DUI conviction, and admitted two prior prison term enhancements, and that he was out-on bail in Case number 2009034696 and case number 2010003303 when he committed the DUI. Before sentencing, appellant moved to withdraw his plea and new counsel was appointed. Appellant claimed that his prior attorney told him "that I would probably get four years. [¶] . . . [¶] . . . I entered the pleas believing I would receive 4 years; however, it appears that the Judge actually indicated it would be 7 years." Denying the motion, the trial court concluded that there no mistake about the sentence terms.