People v. McVay CA3

Filed 2/22/24 P. v. McVay CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Tehama) ----

THE PEOPLE,

Plaintiff and Respondent, C097006

v. (Super. Ct. Nos. 22CR000953, 22CR000225, 17CR002839, JARROD GABRIEL NATHANIEL MCVAY, 18CR000109, 18CR000601)

Defendant and Appellant.

Defendant Jarrod Gabriel Nathaniel McVay pleaded guilty to two felony offenses and admitted an out-on-bail enhancement in two Tehama County cases, case Nos. 22CR000225 and 22CR000953 (the present cases). Defendant also pleaded guilty to a misdemeanor offense in case No. 22CR000918, but that case is not part of this appeal. The plea form signed by defendant indicated he would receive a stipulated sentence of five years eight months local custody. It also indicated the sentence to be imposed in the present cases would run consecutive to the sentence previously imposed in three other cases, case Nos. 17CR002839, 18CR000109, and 18CR000601 (the prior cases). Under such circumstances, as defendant was informed at the change of plea hearing, the maximum sentence to be imposed in the present cases would be three years four months local custody.

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After the trial court accepted defendant’s plea, a determination was made that defendant did not have any time remaining to be served in the prior cases. The trial court sentenced defendant to five years eight months local custody. Defense counsel did not assert an objection to the sentence at the sentencing hearing. Defendant obtained a certificate of probable cause, and now contends (1) we should not dismiss his appeal even though the plea form contained language generally waiving a right to appeal, (2) the trial court should have given him an opportunity to withdraw his plea before imposing a sentence that did not conform to the plea agreement, and (3) if the second contention is forfeited because defendant’s trial counsel failed to object, counsel provided ineffective assistance. We conclude (1) the appeal should not be dismissed, (2) defendant relinquished his right to withdraw the plea, and (3) he has not established ineffective assistance of counsel. We will affirm the judgment. BACKGROUND The Prior Cases In May 2018, defendant pleaded guilty to carrying a concealed dirk or dagger, transportation, sale, or offering a controlled substance for sale, and bringing a controlled substance into the Tehama County Jail. In accordance with the plea agreement, additional charges and special allegations were dismissed. The trial court placed defendant on five years formal probation. In September 2019, the trial court revoked defendant’s grant of probation in the prior cases and sentenced him to a split sentence of four years, with three years to be served in local custody and the final year to be served on mandatory supervision. In March 2021, the probation department filed separate petitions to revoke defendant’s mandatory supervision in the prior cases. Defendant admitted violating the terms and conditions of his mandatory supervision. The following month, defendant’s mandatory supervision was terminated in the prior cases.