People v. Barker CA5

Filed 2/2/16 P. v. Barker CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F068620 Plaintiff and Respondent, (Super. Ct. No. MF010617-A) v.

DONALD EARL BARKER, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. John W. Lua and Brian M. McNamara, Judges.† Eleanor M. Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Kane, Acting P.J., Detjen, J. and Smith, J. † Judge Lua presided over defendant’s readiness hearing; Judge McNamara presided over defendant’s trial and sentencing hearing.

INTRODUCTION On November 8, 2013, a jury convicted defendant on one count of unlawful possession of a firearm by a felon and one count of negligent discharge of a firearm in a manner likely to cause injury or death. The trial court sentenced defendant to an aggregate term of seven years in prison. On appeal, defendant argues his trial counsel was ineffective for misadvising him of his maximum exposure while a plea offer was open. We affirm. FACTS On September 12, 2013, an amended information was filed charging defendant with unlawful possession of a firearm, negligent discharge of a firearm, brandishing a firearm and brandishing a knife. The charges stemmed from a June 6, 2013, dispute when defendant fired a handgun at a residence where approximately 80 people were gathered for a party. After defendant waived his preliminary hearing, the People made a plea offer of two years in prison. The offer was to remain open through the conclusion of defendant’s readiness hearing. At that readiness hearing on September 20, 2013, defense counsel informed the court that defendant had been presented with the plea offer, but had neither accepted nor countered the offer. Upon questioning from the court, defense counsel stated that defendant’s maximum exposure was five years eight months. Defendant rejected the offer before the conclusion of the readiness hearing. On the first day of trial, the following exchange took place: “[DEFENSE COUNSEL]: … I believe it was September 20th, our readiness hearing date, I was asked what was the exposure by the Court and I misspoke. I said 5 years and 8 months. That was based on the original information filed by the district attorney’s office. “Subsequent to that, I spoke with [defendant] regarding his actual exposure. He’s fully aware. He has done at least five prison terms, and I explained to him I misspoke it was 5 years and 8 months. It’s actually 8 years and 8 months so I just want to get the record straight. I did speak with [defendant] regarding his