People v. Couch

Opinion

MIHARA, J.

Defendant pled no contest to a single count of forgery (Pen. Code, § 470) and admitted an allegation that he had suffered a prior serious felony conviction within the meaning of Penal Code section 667, subdivisions (b) to (i) pursuant to a plea bargain under which he agreed to accept a 32-month state prison sentence. Although the court imposed the agreed sentence, defendant filed an appeal asserting that the court “committed sentencing error.” He claims that (1) the court erred in sentencing him under Penal Code section 667, subdivisions (b) to (i) because his prior conviction was incurred prior to the enactment of this statute, (2) the court had and failed to exercise discretion to strike the prior conviction allegation, (3) Penal Code section 667, subdivisions (b) to (i) was not in effect at the time of his offense because it was improperly enacted as urgency legislation, and (4) Penal Code section 667, subdivisions (b) to (i) violates equal protection because it restricts conduct credits for those sentenced under its provisions. Defendant also filed a petition for a writ of habeas corpus in which he asserted that his trial counsel was prejudicially ineffective because she (1) failed to advise him that the prosecution would not be able to prove the prior conviction allegation at trial, and (2) incorrectly advised him that he could admit the allegation and challenge its propriety on appeal. We affirm the judgment, but we issue an order to show cause on the petition.

Proceedings Below

The facts of defendant’s criminal conduct are not material to his appellate contentions. Defendant was charged by information with forgery (Pen. Code,

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§ 470) and petty theft (Pen. Code, §§ 484, 488), and it was alleged that he had suffered a prior serious felony conviction within the meaning of Penal Code section 667, subdivisions (b) to (i). Defendant agreed to enter a plea of no contest to the forgery count, admit the prior conviction allegation and accept a 32-month state prison term in return for dismissal of the petty theft count and the court’s agreement to impose no additional state prison time for unrelated narcotics counts for which defendant had been on probation at the time of the forgery and theft offenses. Before defendant entered his plea, the court elicited defendant’s waiver of his right to a jury trial. “Q [by the court]. All right. Mr. Couch, I’m going to advise you of your basic constitutional rights and ask you if you want to waive or give up those rights to plead no contest to count one and to admit this prior serious felony conviction. [f] The first right you give up, sir, is your right to a jury trial. Do you understand that? [^ A [by defendant]. Yes. [f| Q. Do you at this time give up that right?