Filed 9/17/12 P. v. Winiarz CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.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,

Plaintiff and Respondent,

v.

JON WINIARZ,

Defendant and Appellant. 2d Crim. No. B247185 (Super. Ct. No. 2 012005023, 20 11036590, 2010003303, 2009034696) (Ventura County)

Jon Winiarz appeals a seven year st ate prison sentence, imposed after he pled guilty in four cases to felony driving under the in fluence (DUI) with a prior felony DUI conviction (Veh. Code, §§ 23550.5, su bd. (a); 23152, subd. (a)), admitted serving two prior prison terms (Pen. Code § 667.5, subd. (b) 1 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 provide d for a seven year-lid indi cated 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.2 Procedural History

On October 29, 2012, appellant entere d 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 th e change of plea was entered, appellant's trial attorney stated: "[W]e ha ve 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 th e record that's noted. I will be arguing for considerably less at.the time of sentenci ng, but the Court's commitment, package commitment, is understood by the defense. " In case number 2012005023 appellant pled guilty to fe lony 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 enhancem ents (§ 12022.1 , subd. (b)). In case number 2009034696 appellant pled guilty to fe lony DUI with a prior felony DUI conviction and admitted two prior prison term enhancements.

In case number 20100 3303 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 fe lony 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 m oved to withdraw his plea and new counsel was appointed. Appellant claimed th at 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 th e Judge actually indicated it would be 7 years." Denying the motion, the trial court concluded that there no mistake about the

sentence terms.3 At sentencing, the trial court advised counsel: "I am either going to give him the seven years that I committed to or I am going to allow him to withdraw his plea and I'll set all these matters for jury tria l and he can go to tria l." The prosecution objected and argued that appellant was facing "a potential maximum exposure of around 20 years for all of the cases." Appellant's trial attorney stated: "I am willing to honor seven years at this particular point in time. [¶] [Defen se counsel] I think that [appellant] would be agreeable to that." Appellant agreed to be senten ced but stated that "my decision is not based on your offer and on you r consideration. My decision is based on the fact that I don't believe that the full package has been rendered to the Court and full recommendation has been complied with." The trial court denied probation a nd sentenced appellant to seven years state prison in case number 2012005023, a concurrent two-year term in case number 2010003303, a concurrent two-year term in Case number 2009034696, and a two year concurrent term in case number 2011036590. 2 Appellant was awarded 649 days presentence credit.

Seven Year-Lid Indicated Sentence Appellant claims that the trial cour t and his trial attorney erroneously assumed that the plea agreement was for a fi xed seven year sentence rather than a seven year lid. "[W]hen a plea agreement includes a specified maximum sentence, a provision recognizing the defendant's right to 'argue for a lesser term' is generally understood to mean only that the defendant may urge the trial court to exercise its sentencing discretion in favor of imposing a punishment that is less severe than the

2 In case number 2012005023 the trial cour t imposed a two-year midterm on the felony DUI, plus four years on two out-on-bail enha ncements, plus one-year on a prison prior enhancement, for an aggregate sentence of seven years. In case number 2010003303, case number 2009034696, and case number 2011036590 appellant received two year midterm sentences to be served concurrent to the seven year sentence in case number 2012005023.4 maximum punishment authorized by law." ( People v. Shelton (2006) 37 Cal.4th 759, 768.) It is appellant's burden to show that the trial court misunderstood its sentencing discretion. ( People v. Davis (1996) 50 Cal.App.4th 168, 172.) The trial court clearly understood that the change of plea was for a seven year-lid indicated

sentence. The terms were discussed in cour t when the change of plea was entered and at the hearing on the moti on to withdraw the plea. At the sentencing hearing, the trial court stated that the sentence would be seven years as indicated but that appellant could withdraw his plea and set the matter for trial if he so desired. (§ 1192.5; see e.g., People v. Cruz (1988) 44 Cal.3d 1247, 1253-1254.) Appellant elected to proceed with sentencing and was not prejudiced. "For a defendant's point of view, the purpose of a sentence lid is to protect the defendant from a greater sentence." ( People v. Shelton
, supra, 37 Cal.App.4th at p. 768.) Assuming, arguendo, that the trial c ourt erred in not considering a lesser sentence, remand for sentencing is not requir ed. On these facts, there is no possibility that the trial court would impose a lesser se ntence. Appellant was convicted of felony DUI in four different cases, admitted servin g two prior prison term s, and admitted that

he was out on bail when he committed th ree of the four felony DUIs.

The trial court stated: "I remember this case very well" and for good reason. Appellant was on paro le when he committed three of the DUIs. and his blood alcohol level was .24 percent in case num ber 2010003303, .25 percent in Case number 2011036590, and .22 percent in case number 2012005023, which is an aggravating sentence factor. (Veh. Co de, § 23578.) Case number 2012005023 occurred at the Ventura County Courthous e when appellate appeared on another matter, extremely intoxicated. A deputy waited for appellant to exit the courtroom and heard a gentleman warn appe llant, "You have to call a ca b, you can't drive." The probation report stated that appellant's "p rior record consists of two misdemeanor5 batteries and nine DUI convictions, and that he served a prison sentence in two of the prior DUI convictions." Appellant's trial attorney agreed that the indicated seven year sentence "is a low commitment." We agree. "An indica ted sentence is just that: an indication. Until sentence is actually imposed, no guarantee is being made." ( People v. Delgado (1993) 16 Cal.App.4th 551, 555.) Remanding for resentencing would be an idle act because it is not reasonably pr obable that the trial court would impose a different sentence. ( People v. Coelho (2001) 89 Cal.App.4th 861, 889.) The judgments are affirmed.

NOT TO BE PUBLISHED.

YEGAN, J. We concur:

GILBERT, P.J.

PERREN, J.6 Ken W. Riley, Judge

Superior Court County of Ventura

________________ ______________

California Appellate Project, under ap pointment by the Court of Appeal, Jonathan B. Steiner, Executive Director and Richard Lennon, Staff Attorney, for Defendant and Appellant.

Kamala D. Harris, Attorney Gene ral, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Seni or Assistant Attorney General, Stephanie C. Brenan, Esther P. Kim, Deputy Attorney s General, for Plaintiff and Respondent.