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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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. 2012005023, 2011036590, 

2010003303, 2009034696) 

(Ventura County) 

 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 

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 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. 
2

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. 
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 trial and he can go to trial." 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. [¶] [Defense counsel] I think that [appellant] would be 

agreeable to that." Appellant agreed to be sentenced but stated that "my decision is not 

based on your offer and on your 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 and 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 court and his trial attorney erroneously 

assumed that the plea agreement was for a fixed 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 court imposed a two-year midterm on the felony 

DUI, plus four years on two out-on-bail enhancements, 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 court when the change of plea was entered and 

at the hearing on the motion 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 court erred in not considering a lesser 

sentence, remand for sentencing is not required. On these facts, there is no possibility 

that the trial court would impose a lesser sentence. Appellant was convicted of felony 

DUI in four different cases, admitted serving two prior prison terms, and admitted that 

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

 The trial court stated: "I remember this case very well" and for good 

reason. Appellant was on parole when he committed three of the DUIs. and his blood 

alcohol level was .24 percent in case number 2010003303, .25 percent in Case 

number 2011036590, and .22 percent in case number 2012005023, which is an 

aggravating sentence factor. (Veh. Code, § 23578.) Case number 2012005023 

occurred at the Ventura County Courthouse when appellate appeared on another 

matter, extremely intoxicated. A deputy waited for appellant to exit the courtroom and 

heard a gentleman warn appellant, "You have to call a cab, you can't drive." The 

probation report stated that appellant's "prior record consists of two misdemeanor 
5

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 indicated 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 probable 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 appointment by the Court of Appeal, 

Jonathan B. Steiner, Executive Director and Richard Lennon, Staff Attorney, for 

Defendant and Appellant. 

 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Lance E. Winters, Senior Assistant Attorney General, Stephanie 

C. Brenan, Esther P. Kim, Deputy Attorneys General, for Plaintiff and Respondent.