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Filed 6/2/14 P. v. Hernandez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

RICHARD JUAN HERNANDEZ,

Defendant and Appellant.

C070895

(Super. Ct. No. 12F00610)

Defendant Richard Juan Hernandez contends the trial court erred when it refused 

to allow him to withdraw his no contest plea. Defendant claims a condition of mandatory 

supervision unknown by him prior to entering his plea that authorized the probation 

department to continue drug treatment for him following his release from custody was a 

direct consequence of his conviction and justified withdrawing his plea. Defendant 

further argues the condition exceeded the court’s jurisdiction to order specific conditions 

of mandatory supervision. Defendant also claims he suffered ineffective assistance of 
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counsel when his attorney failed to object during the plea negotiations. We reject 

defendant’s contentions, and, other than to order the trial court clerk to correct the court’s 

order imposing the condition and to correct a mistake in the abstract of judgment, we 

affirm.

FACTS

By amended complaint, the prosecution charged defendant with felony vehicle 

theft, receiving a stolen vehicle, receiving a stolen license plate, and receiving stolen car 

keys. (Veh. Code, § 10851, subd. (a); Pen. Code, §§ 496d, subd. (a), 496, subd. (a).) The 

complaint alleged as to the vehicle theft count that defendant had four prior felony 

vehicle theft convictions, thereby enhancing his sentence pursuant to Penal Code section 

666.5, subdivision (a). The complaint also alleged defendant had served five prior prison 

terms within the meaning of Penal Code section 667.5, subdivision (b). 

Defendant agreed to settle his case by pleading no contest to the felony vehicle 

theft count and admitting the prior felony vehicle theft convictions, and by admitting the 

five prior prison terms. The sentence would be a split sentence consisting of a five-year 

term of custody in the county jail, and four years on mandatory supervision, calculated as 

follows: the upper term of four years on the vehicle theft conviction as enhanced by the 

prior convictions and an additional one year in custody on one of the prior prison terms. 

The other four prior prison terms, sentenced at one year each, would be completed on 

mandatory supervision. The complaint’s remaining counts would be dismissed with a 

Harvey waiver.1 

The trial court explained the consequences of the plea, and defendant waived all 

relevant constitutional rights. Defendant then entered his pleas and admissions consistent 

with the plea agreement. The court accepted the pleas and pronounced judgment. 

 

1 People v. Harvey (1979) 25 Cal.3d 754.
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The court desired to proceed to sentencing. Defense counsel did not object, but 

she asked to comment on some of the proposed specific conditions of mandatory 

supervision which she had just received and reviewed for the first time. One of the 

proposed conditions, condition No. 2, required defendant to participate in a drug 

rehabilitation program under the direction of his probation officer upon release from 

custody. Counsel stated she had asked the court to order defendant to participate in a 

drug rehabilitation program while in custody. She made the request so that when 

defendant was released from custody, he would have a better chance of remaining free. 

However, because the case was not related to drugs, she asked that all conditions 

regarding the use of drugs be deleted. 

The prosecutor agreed there were no drug allegations in this case. However, he 

asked the court to keep in mind that if defendant needs and receives drug treatment while 

in custody, it probably would continue after he was released from custody. 

The trial court said the case raised an interesting legal issue. The proposed 

sentence was a split sentence allowed under realignment, but the release from custody 

was not really a probation grant. In the court’s opinion, it was more akin to a “parole 

scenario.” Because of that, defendant was not required to accept parole conditions, but if 

he didn’t, he would continue to serve his full sentence in custody. The court believed it 

could inform defendant he would be in custody for nine years if he was not willing to 

accept the proposed specific conditions of mandatory supervision. 

Hearing this, defense counsel asked to put over sentencing until she could research 

the issue further. She also asked to set the case for trial. The court informed her it was 

too late for that; it had already found defendant guilty. Counsel complained she had not 

been able to review the proposed conditions prior to that moment, and they were not what 

she and defendant had agreed to earlier. The court asked defendant if he wanted to 

continue with his sentencing or did he “want the nine years today?” 
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Defense counsel objected and asked to put the matter over. Defendant waived 

time for sentencing and the matter was continued for a month. 

When the hearing reconvened a month later, defendant asked to withdraw his plea. 

Defense counsel admitted she had not been able to file a written motion, and she asked 

that the hearing be continued again to give her time to file it. Defendant did not want to 

proceed with the offer. 

The court stated the prosecution had agreed to strike other drug-related conditions, 

and what remained to be discussed was the condition requiring defendant to enter drug 

treatment upon release from custody. Defense counsel argued defendant would never 

have accepted that condition in the context of a split sentence had he known about it. She 

asserted a split sentence was different from probation or parole because a defendant 

cannot refuse a split sentence, and if defendant did not complete drug treatment while on 

release, he would be recommitted to serve the full term of his sentence. She argued the 

plea was not knowingly entered, as defendant did not know at the time he entered the 

plea he would spend another four years in custody unless he completed a drug program. 

While in pretrial custody, defendant had been placed in administrative segregation 

because he had been classified as a gang member. Defense counsel stated she had 

requested defendant receive some programs so he could be removed from administrative 

segregation, not because they had anything to do with the facts of this case. While on 

administrative segregation, he is in his cell 23 hours a day and receives no programs. He 

would not have agreed to spend nine years in that condition. So he asked to be able to 

receive programs, which would allow him to transfer to a custodial facility that provided 

them. Counsel asserted the proposed condition requiring defendant to participate in a 

drug treatment program after being released from custody would require defendant to 

serve an additional four years in administrative segregation if he did not participate in a 

drug program upon his release. She stated that is not what the parties agreed. 
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The prosecutor reviewed for the court the negotiations regarding the plea. During 

negotiations, defense counsel informed him defendant “had a drug program -- would like 

to do a program . . . . [¶] Defense had asked for an in custody drug program to help him 

overcome his drug problem; therefore, have a better chance when he gets out of custody. 

I was in total agreement with that. When probation suggests he continues to have a drug 

program out of custody, it seems prudent to continue to give him help and mechanisms 

by which he could interrupt his cycle of crime.” The prosecutor, however, did not take a 

position on the proposed condition. 

Defense counsel objected to the prosecutor’s description of the negotiations: “I 

did not state my client has a drug problem and needs help. I said he has had drug issues 

in the past.” Defense counsel claimed that at no time did she state drugs have any nexus 

to this case. 

The trial court believed the issue was whether the condition of drug treatment after 

release was of sufficient consequence to allow defendant to withdraw his plea. The court 

concluded it was not. The court stated: “Well, the issue again is whether there’s legal 

cause [not] to go forward with sentencing at this point. Based upon the record, there is 

no issue about incompetence of counsel, no issue about failure to advise on constitutional 

rights.

“I mean, the issue really is the consequences of the plea. That’s what it’s all 

boiling down to, to -- whether [condition No. 2], the out of custody rehabilitation 

program, is a significant consequence of the plea to allow [defendant] to withdraw his 

plea. And I don’t see it.

“To me, it seems like a collateral occurrence. I mean, this is all up to probation. 

It’s going to happen, if it happens at all, in what, five years? And I don’t see this as a 

direct consequence of the plea that rises to a level we’d have to go through the whole 

process of a motion to withdraw the plea. So the court will proceed with sentencing.” 
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The court accepted the plea bargain. Over defendant’s objection, it imposed a 

total sentence of nine years to be served in the county jail. It then agreed to impose the 

split sentence, ordering defendant to serve the last four years of the sentence on 

mandatory supervision. 

Regarding the contested condition, the court stated: “Condition number two is the 

drug rehabilitation program. [¶] What that means is, after you serve your sentence, 

you’re required to meet with probation within 48 hours of your release. Probation may

order you to participate in a substance abuse program. This is going to be, you know, not 

five years, but with half time probably two and a half years down the road. [¶] So I’m 

not sure ultimately what will happen, but I’ll indicate that probation has the authority to 

impose a substance abuse program after you get out of custody.” (Italics added.) 

The court also informed defendant of his obligation to perform the specific 

conditions of mandatory supervision. It stated: “[Defendant], we spent quite a bit of 

time going through your conditions, and I’ve talked about this with your attorney. I view 

this situation very similar to parole. Your attorney has a difference of opinion, but what 

that means is, this really isn’t a choice. You’re ordered to comply with these conditions. 

[¶] Again, I don’t know what would happen, but there’s a chance if you don’t accept 

those conditions, you could remain in custody. It’s probably a very good chance. So 

those are mandatory conditions under supervision.” 

Defense counsel again objected to the sentencing. She stated defendant had 

agreed to plead because he would be able to participate in a drug program while in 

custody. He had been classified as a gang member and housed in administrative 

segregation in the county jail, and thus was not able to participate in an in-custody drug 

program provided at another facility, a program called HALT (Housing for Accountable 

Living Transitions), provided at the Rio Cosumnes Correctional Center, unless the court 

ordered it. She thought that was the agreement, and defendant would not have pleaded 

had he known it was not. 
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The trial court then ordered defendant to participate in the HALT program. It 

stated: “So the bottom line, [defendant], I’m going to recommend -- I’m familiar with 

HALT, so I’ll recommend you participate in HALT. It’s at the Rio Cosumnes 

Correctional Center, or I’ll order that you participate in that or any other in-custody 

substance abuse program. That’s an order. I don’t know -- but that will be the order in 

this case.” 

The court’s minute order requires “defendant be able to participate in HALT Drug 

Program.” The minute order and the written specific conditions of mandatory 

supervision also require defendant to “participate in a Drug Rehabilitation Program under 

the direction of the Probation Officer . . . .” 

Defendant filed a timely notice of appeal, and the trial court granted his request for 

a certificate of probable cause. 

DISCUSSION

I

Denial of Request to Withdraw Plea

Defendant contends the trial court abused its discretion when it denied his request 

to withdraw his no contest plea. He asserts his plea was not knowing, intelligent, and 

voluntary because the court did not advise him of the plea’s direct consequences before 

he entered his plea; specifically, that under the specific conditions of mandatory 

supervision he would be required to participate in a drug treatment program after his 

release from custody. He claims this condition was a direct consequence of the plea 

because the condition could be interpreted to mean his probation officer could assign him 

to a custodial residential treatment program after he was released from custody in the 

county jail, thereby extending his custodial term beyond what was agreed.

We conclude the court did not abuse its discretion denying defendant’s request to 

withdraw his plea because the drug treatment condition was not a direct consequence of 

the plea. Whether a plea may be withdrawn rests within the trial court’s discretion, but 
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we will presume the motion to withdraw the plea was erroneously denied if the 

advisement at issue was a direct consequence of the plea. (People v. Moore (1998) 69 

Cal.App.4th 626, 629-630.)

“ ‘In all guilty plea and submission cases the defendant shall be advised of the 

direct consequences of conviction.’ (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 

605.) ‘This judicially mandated rule of criminal procedure encompasses only primary 

and direct consequences of a defendant’s impending conviction as contrasted with 

secondary, indirect or collateral consequences.’ (People v. Robinson (1988) 205 

Cal.App.3d 280, 282.) The advice requirement generally extends only to ‘penal’

consequences (People v. Kunkel (1985) 176 Cal.App.3d 46, 53; People v. Myers (1984) 

157 Cal.App.3d 1162, 1168), which are ‘involved in the criminal case itself’ (People v. 

Harty (1985) 173 Cal.App.3d 493, 504).

“A consequence is deemed to be ‘direct’ it if has ‘ “ ‘a definite, immediate and 

largely automatic effect on the range of the defendant’s punishment.’ ” ’ (Torrey v. 

Estelle (9th Cir. 1988) 842 F.2d 234, 236.) Such direct consequences include: the 

permissible range of punishment provided by statute (Bunnell v. Superior Court, supra, 

13 Cal.3d at p. 605); imposition of a restitution fine and restitution to the victim (People 

v. Walker (1991) 54 Cal.3d 1013, 1030 [overruled on another ground in People v. 

Villalobos (2012) 54 Cal.4th 179, 183]); probation ineligibility (People v. Caban (1983) 

148 Cal.App.3d 706, 711); the maximum parole period following completion of the 

prison term (In re Carabes (1983) 144 Cal.App.3d 927, 932); registration requirements 

(Bunnell v. Superior Court, supra, 13 Cal.3d at p. 605); and revocation or suspension of 

the driving privilege (People v. Dakin (1988) 200 Cal.App.3d 1026, 1033).

“A consequence is considered ‘collateral’ if it ‘does not “inexorably follow” from 

a conviction of the offense involved in the plea.’ (People v. Crosby (1992) 3 Cal.App.4th 

1352, 1355.) Collateral consequences include: the possibility of enhanced punishment in 

the event of a future conviction (ibid.); the possibility of probation revocation in another 
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case (People v. Searcie (1974) 37 Cal.App.3d 204, 211); and limitations on the ability to 

earn conduct and work credits while in prison (People v. Cortez (1997) 55 Cal.App.4th 

426, 429-431 [overruled on another ground in People v. Mendez (1999) 19 Cal.4th 1084, 

1097, fn. 7]; see also People v. Reed (1998) 62 Cal.App.4th 593, 597-601).” (People v. 

Moore, supra, 69 Cal.App.4th at p. 630.)

Another collateral consequence that is not required to be disclosed upon receipt of 

a plea is the possibility of the defendant being committed under the Sexually Violent 

Predator Act (Welf. & Inst. Code, § 6600 et seq.) when he concludes his incarceration.

(People v. Moore, supra, 69 Cal.App.4th at pp. 630-631.) Such a possibility is collateral 

because the commitment would depend on additional findings not controlled by the 

defendant’s plea and admissions in the criminal case. (Id. at p. 632.)

The condition imposed on defendant here is not a direct consequence of his plea. 

The possibility of being placed in a drug treatment program after custody is not a penal 

consequence of the criminal case. Like a commitment under the Sexually Violent 

Predator Act, defendant’s placement will depend on additional findings made by his 

probation officer that have nothing to do with his plea of no contest to felony vehicle 

theft. Those findings will be made based upon defendant’s success in completing the 

drug treatment program he asked to receive while he was in custody, which was 

expressly understood not to follow from his crime, but imposed at his and his counsel’s 

request.

Defendant asserts the condition is direct because it requires treatment after release 

as part of his punishment and it could result in a custodial treatment. The court’s oral 

pronouncement of the condition does neither. Postcustody treatment is not mandatory. 

The court stated whether defendant would receive postcustody treatment would be left to 

the probation officer’s discretion. We recognize the minute order and printed specific 

conditions of mandatory supervision state the treatment is mandatory. The court’s oral 
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pronouncement takes precedence (People v. Smith (1983) 33 Cal.3d 596, 599), and we 

order necessary corrections in the written orders to reflect the court’s true order.2

The treatment was also not part of defendant’s punishment. Defense counsel 

admitted defendant “has had drug issues in the past,” but she emphatically stated the incustody treatment was not linked to the crime or its punishment. Rather, she sought it as 

a way either to give defendant a better chance at avoiding incarceration once he was 

released from custody, or to remove him from administrative segregation. The treatment 

thus was not part of the range of punishment provided by statute for defendant’s crimes. 

(Cf. People v. Zaidi (2007) 147 Cal.App.4th 1470, 1485 [possibility of discretionary 

imposition by court of sex registration requirement as part of punishment was a direct 

consequence of a plea court had to relate to defendant].)

Furthermore, the court did not state the postcustody treatment would be a custodial 

or residential placement. It simply said the probation department may order him to 

participate in a substance abuse program. There is no indication the court mandated the 

treatment or intended it to be the functional equivalent of additional custody, as defendant 

contends.

The trial court thus did not abuse its discretion when it denied defendant’s request 

to withdraw his plea. Because the postcustody treatment was not a direct consequence of 

defendant’s plea, the court was not required to inform him of the condition prior to 

entering the plea. 

 

2

In addition, the abstract of judgment incorrectly states the one-year sentence for a 

prior prison term is pursuant to Penal Code section 666.5, subdivision (a). We order it 

corrected to read Penal Code section 667.5, subdivision (b).
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II

Validity of Postcustody Treatment Condition

Defendant argues the court exceeded its jurisdiction by imposing the postcustody 

treatment condition because it allows a probation officer to return him to a custodial 

setting without offering constitutional and statutory due process. As mentioned above, 

the trial court’s order said nothing about defendant having to receive custodial treatment. 

Any potential violation of due process may be addressed if such ever occurs.

III

Ineffective Assistance of Counsel

Defendant contends his trial counsel rendered constitutionally ineffective 

assistance when she failed to object to the prosecutor’s use of counsel’s statements in the 

plea negotiations that defendant had a drug problem. He asserts the statement was 

inadmissible under Evidence Code section 1153 as evidence of an offer to plead guilty to 

a crime. He alleges had counsel objected to the prosecutor’s use of her statement, the 

court would have stricken the statement and been left with no basis for imposing the drug 

treatment program condition of mandatory supervision. We disagree.

To establish ineffective assistance, defendant must show his trial counsel’s 

representation fell below an objective standard of reasonableness, and that there is a 

reasonable probability the result would have been different but for counsel’s errors. 

(Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 698].) Defendant 

has not shown defective performance by counsel.

Any objection by defense counsel to the prosecutor’s statements would not have 

been well received. Evidence Code section 1153 prohibits admitting in any action 

“[e]vidence of a plea of guilty, later withdrawn, or of an offer to plead guilty to the crime 

charged or to any other crime, made by the defendant in a criminal action . . . .” This 

statute did not apply here because the prosecutor’s statements were not admitted as 

evidence, but rather were part of the bona fide plea negotiations the statute was designed 
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to protect. “Bona fide plea negotiations include statements made to the trial court and to 

the prosecuting attorney because those are the participants in a plea bargain. [Citation.]” 

(People v. Magana (1993) 17 Cal.App.4th 1371, 1377, italics added.) The prosecutor 

made his statements when the parties were negotiating the plea with the court. Defense 

counsel thus had no legitimate basis to object.

Moreover, it was defense counsel who first raised the issue of the drug treatment 

program at the hearing. She reminded the court that at the first hearing she had asked for 

defendant to receive drug treatment while in custody so he would have a better chance at 

success once he was released. At the second hearing, counsel stated she had sought drug 

treatment so defendant could be removed from administrative segregation. This 

presented conflicting reasons for the program. The prosecutor referred back to counsel’s 

statements to him for the court’s clarification as the negotiations progressed. Counsel 

had no basis to object to the prosecutor’s remark during negotiations, and thus did not 

render ineffective assistance.

DISPOSITION

The clerk of the trial court is ordered to prepare an amended minute order and an 

amended specific conditions of mandatory supervision that state defendant shall 

participate in a drug rehabilitation program upon release from custody at the discretion of 

the probation officer. The clerk is also directed to correct the abstract of judgment noting 

the one-year custodial enhancement is pursuant to Penal Code section 667.5, subdivision 

(b). In all other respects, the judgment is affirmed.

 NICHOLSON , J.

We concur:

 RAYE , P. J.

 DUARTE , J.