P. v. Hernandez

Filed 7/19/06 P. v. Hernandez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

After waiving a preliminary examination, appellant Martin Hernandez pleaded no contest to one count of assault with a deadly weapon by means of force likely to produce great bodily injury.[1] (Pen. Code, § 245, subd. (a)(1).) In addition, he admitted a prior strike conviction. (Pen. Code, § 667, subds. (b)-(i).)

In exchange for his pleas, the court indicated that appellant's sentence "appears to be -- the midterm would be the cap [he] would be facing. So that would be a total of six years." Appellant reserved his right to bring a Romero motion[2] to strike his prior conviction.

Thereafter, appellant brought a motion to set aside the plea agreement. The court denied the motion and the case proceeded to sentencing.

Subsequently, appellant filed a Romero motion to strike his prior felony conviction or, alternatively, reduce his current felony to a misdemeanor. The court denied the motion and sentenced appellant to a six year state prison term (the mid-term of three years doubled pursuant to Pen. Code, § 667, subds. (b)-(i)). In addition, the court imposed a $1200 restitution fine pursuant to Penal Code section 1202.4, subdivision (b), and a parole revocation fine pursuant to Penal Code section 1202.45, which the court suspended.

On July 7, 2005, appellant filed a notice of appeal in which he requested and obtained a certificate of probable cause.

On appeal, appellant raises three issues. First, he contends that the trial court abused its discretion in denying his motion to withdraw his plea. Second, the "trial court erred in imposing a restitution fine in excess of the mandatory minimum amount of $200 as that fine was not negotiated and included in the plea bargain." Finally, the trial court abused its discretion by refusing to strike his prior strike conviction.

Facts[3]

Appellant became enraged at his elderly parents because he thought they were laughing at him. He grabbed a kitchen knife and held it to his father's throat for a brief time. He became distracted, which allowed his father to push the knife away from his throat thereby sustaining a small cut on his hand.

Discussion

Motion to Withdraw Plea

Appellant contends that the court abused its discretion in denying his motion to withdraw his plea.

As an exhibit to the motion to withdraw his plea, appellant submitted a psychological evaluation report prepared by Dr. Brian Lippincott. Dr. Lippincott conducted a psychological evaluation of appellant, in which he concluded that appellant "is a very low functioning man. He is at least suffering from borderline intellectual functioning. He is possibly mildly mentally retarded but this cannot be fully diagnosed with [sic] more extensive testing. He is functioning at a mental age of below 10 years old determined by clinical observation. He is experiencing dissociative episodes and reports severe memory problems. He does not appear to be malingering or 'faking bad' with his memory defects as determined by TOMM.[4] He has lost time when his memory is lacking. Mr. Hernandez is very depressed. He has little understanding of legal terms and in unable to aid in his defense according to the test results and clinical observation."

Among other things, Dr. Lippincott's report recommended, "Care must be taken to explain any plea or legal issue to Mr. Hernandez and he requires a person to be appointed to make these decisions for him. This person needs to be someone trusted by Mr. Hernandez."

In the written motion to withdraw appellant's plea, defense counsel asserted two grounds on which to set aside the plea.[5] However, at the hearing on the motion, defense counsel devoted his entire argument to his claim that the court failed to admonish appellant of the rights he was waiving by admitting the strike. After listening to the argument of counsel, the court denied the motion to withdraw the plea. The court reasoned that the "issue is . . . whether or not the language that was used by the Court properly advised the defendant that he had a right to a trial on both the special allegations and the charges and whether or not there's been a showing in this motion that he has been advised . . . ." The court found there had been such a showing. Specifically, the court found that the advisements "clearly indicate not only the charges and allegation, but that when you read the entire transcript in whole and totality, it's clear that the defendant had a right to a trial on those issues. And it wasn't limited, which would have been more confusing. If the Court would have said, [y]ou have a right to a trial on the charges, then I think the reasonable inference would be that maybe not on the allegation. But that's not what was said. It was -- it was expressly not limited. [¶] Deny the motion."

Penal Code section 1018 provides in relevant part: "On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. . . . This section shall be liberally construed to effect these objects and to promote justice."

Thus, Penal Code section 1018 allows a trial court to grant a defendant's application to withdraw a guilty plea "before judgment . . . for a good cause shown . . . ." "Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citations.] But good cause must be shown by clear and convincing evidence." (People v. Cruz (1974) 12 Cal.3d 562, 566.)

Furthermore, "[g]uilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged. [Citations.]" (People v. Hunt (1985) 174 Cal.App.3d 95, 103.) Accordingly, the decision to allow or refuse the withdrawal of a plea is committed to the sound discretion of the trial court and may not be disturbed unless it is clear that the trial court has abused its discretion. (People v. Wharton (1991) 53 Cal.3d 522, 585.) "An abuse of discretion is found if the court exercises discretion in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice. [Citation.]" (People v. Shaw (1998) 64 Cal.App.4th 492, 496.)

Appellant relies on Dr. Lippincott's report in urging us to conclude the trial court abused its discretion in denying the motion to withdraw his plea. Appellant concedes, however, that the trial court may reject the testimony of an expert witness as long as its decision to do so is not arbitrary and capricious.

No abuse of discretion appears in this case. Although the record is devoid of any comment on Dr. Lippincott's report, implicitly the court rejected his opinion in denying appellant's motion to withdraw his plea. While it would have been better practice for the court to state its reasons for rejecting Dr. Lippincott's opinion, it is not required so to do. Appellant fails to point to any authority holding otherwise.

Dr. Lippincott's own opinion implied that appellant could plead intelligently and voluntarily as long as appellant's counselor took care in explaining to appellant the ramifications of his plea and other legal issues. In the absence of any evidence to the contrary, we must presume that defense counsel fulfilled his obligation on this point. During the change of plea hearing, before taking appellant's plea, the court inquired of defense counsel whether he could "assure the court that [appellant's] plea is made both intelligently and voluntarily." Defense counsel so assured the court.

Furthermore, the record supports the trial court's implied finding that the plea was knowing and intelligent. At the change of plea hearing, the court explained to appellant what the terms of the agreement were. Expressly, appellant acknowledged understanding the agreement as well as the constitutional rights he was giving up. Furthermore, appellant acknowledged that he understood the consequences of his plea and that no other promises had been made to him. Appellant stated that he had not been threatened, nor had he taken any medication or drugs. Appellant acknowledged having sufficient time to consult with counsel. Counsel confirmed this. Appellant had no questions for the court. Furthermore, counsel assured the court that he had explained the charges, defenses and consequences of the plea to appellant. Counsel affirmed that the plea was both intelligent and voluntarily given.

Given that the court was able to observe appellant during the change of plea hearing and question appellant on his plea, we cannot say that the trial court's implied rejection of Dr. Lippincott's report was erroneous. Consequently, appellant failed to carry his burden to present clear and convincing evidence that he was operating under mistake, ignorance, or any other factor overcoming his free judgment.

Accordingly, on this record appellant has failed to show the trial court's denial of his motion to withdraw his plea was arbitrary, capricious, or patently absurd.

The Restitution Fine

Before taking appellant's change of plea, the court put the terms of the agreement--a cap of six years in state prison--on the record. The court advised appellant of the consequences of his plea and took appellant's waiver of his rights. Then, the court advised appellant that the court could order him to pay a fine of up to $10,000, a restitution fine of a minimum of $200 to a maximum of $10,000, "along with various other fees required by the statutes." After the court asked counsel whether there was a factual basis for the plea, the court asked appellant if "anybody promised [him] anything different to get [him] to enter [his] plea." Appellant replied, "No, sir." The probation report prepared for sentencing recommended that the court impose a restitution fine of $1200 pursuant to Penal Code section 1202.4, subdivision (b), and an additional parole revocation fine in the same amount imposed pursuant to Penal Code section 1202.45, but suspended unless appellant violated his parole.

Appellant contends that the trial court erred in imposing a restitution fine in excess of the mandatory minimum amount of $200 because the fine was not negotiated and included in the plea bargain.[6] Appellant recognizes that this issue is pending before the California Supreme Court.[7]

Citing People v. Walker (1991) 54 Cal.3d 1013, 1024-1029 (Walker), appellant argues that when a guilty plea is entered as part of a plea bargain, the state must abide by the terms of the agreement. Furthermore, a restitution fine is punishment, which must be part of the plea bargain. Accordingly, when the court imposed restitution fines in the amount of $1200 pursuant to Penal Code section 1202.4, subdivision (b), and $1200 pursuant to Penal Code section 1202.45, the punishment exceeded the plea agreement and violated his due process rights.

Initially, the People assert that because appellant's plea was not part of a plea bargain, but was pursuant to an indicated sentence Walker is inapplicable. We find that the record does not support the People's position. At the change of plea hearing, defense counsel informed the court that appellant would like to change his plea to no contest, admit the prior allegation, but reserve his right to bring a Romero motion. The following exchange took place:

"THE COURT: Correct. And I'd indicated that it looks like the midterm would be the cap.

"[DEFENSE COUNSEL]: Okay. Yes. We're aware of that, your Honor.

"THE COURT: Okay.

"[PROSECUTOR]: So the maximum, based on the cap, would be - -

"THE COURT: Six years. Okay. [¶] [Prosecutor] does that state the discussions we had?

"[PROSECUTOR]: Pardon?

"THE COURT: I said, does that state the discussions that we had?

"[PROSECUTOR]: Yes, your Honor."

The court went on to ask appellant if he understood the proposed resolution. At no time did the prosecutor indicate that he was not in agreement with the terms under which appellant agreed to change his plea. Accordingly, we must presume that this was a plea agreement between appellant, the prosecutor and the court.

Although appellant recognizes that this issue is pending before the Supreme Court, appellant fails to acknowledge that his argument is untenable under this court's decisions in People v. Dickerson (2004) 122 Cal.App.4th 1374 (Dickerson), People v. Knox (2004) 123 Cal.App.4th 1453 and People v. Sorenson (2005) 125 Cal.App.4th 612.

In Dickerson, supra, 122 Cal.App.4th 1374, this court rejected the same claim that appellant asserts. Dickerson negotiated a plea bargain to resolve three separate cases. In announcing the bargain, the court stated that Dickerson would plead no contest to various charges and receive a sentence of 12 years. When asked if he had been made any other promises, Dickerson said he had not. After Dickerson waived his rights, the court advised him that he would be subject to parole when released. Dickerson acknowledged the court's advisements that the court would order him to pay restitution he owed; it could impose fines up to $50,000; and it would impose a restitution fine of between $200 and $10,000. Thereafter, the probation report prepared for sentencing recommended, among other things, a restitution fine in each case, totaling $6,800. It also recommended parole revocation fines in the same amount. At sentencing, the court imposed the 12-year term and the recommended fines. (Id. at p. 1378.)

On appeal, Dickerson claimed the fines violated the plea bargain. He argued that the bargain excluded the imposition of the two $6,800 fines. In support of his claim, Dickerson noted that in reciting the terms of the bargain, the court did not mention restitution. (Dickerson, supra, 122 Cal.App.4th at p. 1384.) However, this court found that "[the lack of reference] simply shows that the parties reached no agreement on the imposition or amount of any fine. '[I]t would appear that [this topic] was not a part of the plea agreement.' [Citation.] Indeed, when asked by the court, defendant denied that any promises had been made other than fixing the prison term. The court's omission of another term cannot transform it 'into a term of the parties' plea agreement.' [Citations.] This omission does not imply that there was an agreement on no fine or a minimum fine." (Id. at p. 1385.) Instead, this court concluded that (1) this omission, (2) the defendant's acknowledgment that the court would have to impose a fine of between $200 and $10,000, (3) the recommendation for substantial fines in the probation report, and (4) the lack of objection when the fines were imposed indicated that the parties were concerned only with reaching an agreement on the term of imprisonment and expressly or implicitly agreed to leave the imposition and amount of restitution fines to the court's discretion. (Id. at pp. 1385-1386.) In other words, the bargain did not encompass an agreement concerning fines.

In addition, this court found Dickerson's reliance on Walker, supra, 54 Cal.3d 1013, to be misplaced. In Walker, the California Supreme Court reiterated the principle that "the parties must adhere to the terms of a plea bargain. [Citation.]" (Id. at p. 1020.) Therefore, "[t]he punishment may not significantly exceed that which the parties agreed upon." (Id. at p. 1024.) The court concluded that a restitution fine "qualifies as punishment for this purpose. Accordingly, the restitution fine should generally be considered in plea negotiations." (Ibid.)

In Dickerson, this court explained that "Walker held that '[t]he court should always admonish the defendant of the statutory minimum $100 and maximum $10,000 restitution fine as one of the consequences of any guilty plea, and should give the section 1192.5 admonition whenever required by that statute.' [Citation.] Walker recommended that '[c]ourts and the parties should take care to consider restitution fines during the plea negotiations.' [Citation.] The court 'implicitly found that the defendant in that case reasonably could have understood the negotiated plea agreement to signify that no substantial fine would be imposed.' [Citations, italics added.] [¶] But Walker should not be understood as finding that the restitution fine has been and will be the subject of plea negotiations in every criminal case. 'The parties to a plea agreement are free to make any lawful bargain they choose.' [Citation.] Walker does not prohibit criminal defendants from striking whatever bargains appear to be in their best interests, including leaving the imposition of fines to the discretion of the sentencing court." (Dickerson, supra, 122 Cal.App.4th at p. 1384.) Thus, this court opined that "Walker did not require [the parties] to negotiate -- whether to resolution or impasse -- regarding the imposition or amount of restitution fines." (Id. at p. 1386.) Rather, as noted, the agreement focused solely on the length of imprisonment, and the parties implicitly agreed that fines would be left to the discretion of the sentencing court.

Finally, this court acknowledged that the court failed to advise Dickerson about a potential parole-revocation fine in an amount equal to the restitution fine. However, since the subject of fines in general was not covered by the bargain, the imposition of the parole revocation fine could not have violated it. (Dickerson, supra, 122 Cal.App.4th at pp. 1386-1387.) We pointed out that "[w]hen the complaint is simply that advisement of a direct consequence of a plea was omitted, and not that the plea bargain was breached, this 'error is waived if not raised at or before sentencing.' [Citation.] Since defendant did not object at sentencing, we conclude that this advisement objection was forfeited." (Ibid.)

This case is virtually indistinguishable from Dickerson. As noted, in reciting the bargain, the court noted the agreed-upon length of incarceration. Appellant indicated that no other promises had been made to him. The court advised appellant of the possibility of a restitution fine in an amount between $200 and $10,000, and appellant acknowledged this. The probation report recommended restitution and parole revocation fines; and, when these were imposed, appellant did not object or otherwise suggest that the fines were not permitted under the plea bargain.

Finally, appellant fails to point to any evidence indicating that the bargain excluded fines greater than the statutory minimum. Under the circumstances, we conclude that the imposition of the restitution and parole revocation fines did not violate appellant's plea bargain.

Romero Motion

Appellant contends that the court abused its discretion in denying his Romero motion.

During the hearing on appellant's Romero motion, Dr. Lippincott testified to the conclusions in his report that defense counsel submitted to the court during the hearing on appellant's motion to withdraw his plea. Furthermore, Dr. Lippincott testified that at the time of the incident appellant was "experiencing a dissociative episode." He opined that if appellant is adequately treated for his mental defect he would not be a danger to the community or his family.

In denying appellant's Romero motion, the court explained that it was "cognizant and mindful of the letters that were provided to the Court by the family members all universally in favor of the defendant.[8] That's to be understood, even though the defendant's action is such that it was a harm, an offense against the family. In addition, society -- it's difficult for family members, even when you treat them in the way that you did, they still care about you, and that comes out, and you're lucky in this regard. But insofar as this matter, that it would be in the furtherance of justice to strike the strike, I disagree, and I'll decline to exercise that. I find that probation's report is thorough, comprehensive and well reasoned."

Penal Code section 1385, subdivision (a) authorizes a trial court to "order an action to be dismissed" if the dismissal is "in furtherance of justice." Case law has construed section 1385 to permit a court to dismiss individual counts in accusatory pleadings, sentencing enhancements, allegations that the defendant has suffered a prior conviction, and allegations that the defendant has suffered a prior strike. (Romero, supra, 13 Cal.4th at pp. 529-530.).

Thus, pursuant to Penal Code section 1385, subdivision (a), a trial court has the discretion to strike a prior serious felony conviction "in furtherance of justice." (Romero, supra, 13 Cal.4th at p. 504.) However, the court's discretion to strike a prior conviction is "limited" and "is subject to review for abuse." (Id., at p. 530; see also People v. Williams (1998) 17 Cal.4th 148, 158.)

In People v. Williams, supra, 17 Cal.4th 148, the Supreme Court concluded that in deciding whether to strike a serious felony allegation, or in reviewing such a ruling, "the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Id. at p. 161.)

On appeal, this court's review is "deferential . . . [b]ut it is not empty. Although variously phrased in various decisions [citation], [this standard] asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts [citations]." (People v. Williams, supra, 17 Cal.4th at p. 162; People v. Garcia (1999) 20 Cal.4th 490, 503.)

We find no abuse of discretion in this case. In denying appellant's Romero motion, the court indicated that it found "that probation's report is thorough, comprehensive and well reasoned." The probation report documents appellant's two prior felony convictions, one of which is a strike. In addition, the report indicates that appellant has five misdemeanor convictions, the most current of which was in 2001. Furthermore, the report documents that previously appellant has failed on probation. As the report notes, appellant's current crime involved placing a knife against an elderly family member's throat. Given appellant's criminal history, and the dangerousness and violence he exhibited in the current offense, we cannot say that the trial court's denial of appellant's Romero motion falls outside the bounds of reason.

Whether we would have reached the same conclusion as the trial court is, of course, not the dispositive question. As the Second District, Division Four explained, "It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance." (People v. Myers (1999) 69 Cal.App.4th 305, 310.)

Since appellant has failed to show that the court's decision was outside the bounds of reason, we must uphold the denial of his section 1385 request.

Disposition

The judgment is affirmed.

_____________________________

ELIA, J.

WE CONCUR:

_____________________________

RUSHING, P. J.

_____________________________

PREMO, J.

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[1] The complaint alleged that the offense is a serious felony pursuant to Penal Code section 1192.7, subdivision (c).

[2] People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

[3] We take the facts from the probation report.

[4] TOMM stands for test of memory malingering. According to Dr. Lippincott's report it is a 50-item recognition test designed to help neuropsychologists discriminate between malingered and bona fide memory impairments.

[5] Appellant's two grounds for setting aside the plea were that the court had failed to admonish him that he was giving up his right to a jury trial with respect to the prior strike and that appellant suffered from cognitive and memory impairment, which prevented him from properly understanding and knowingly waiving his rights to a jury trial. In this appeal, appellant does not renew his claim that the trial court failed to admonish him of the rights he was waiving by admitting the strike.

[6] It appears that appellant does not challenge the imposition of the parole revocation fine, but since the parole revocation fine amount is tied to the restitution fine (Pen. Code, § 1202.45) we presume that he is challenging the amount of the fine.

[7] People v. Crandell, review granted August 24, 2005, S134883.

[8] Appellant's parents asked that the court send appellant to a mental health facility so he could receive proper care. They explained that he could not remember things he had done, that his "mental state" stemmed from birth, but that a subsequent high fever "caused more damage to his brain."