P. v. Lyman
Filed 10/11/06 P. v. Lyman CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
THIRD APPELLATE DISTRICT
(Shasta)
----
| THE PEOPLE, Plaintiff and Respondent, v. NONA LOUISE LYMAN, Defendant and Appellant. |
C050743
(Super. Ct. No. 05F1496)
|
Pursuant to a negotiated disposition, defendant Nona Louise Lyman pled guilty to one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378), and admitted a prior narcotics conviction enhancement (id., § 11370.2) in exchange for a stipulated prison sentence of five years, with execution suspended and probation granted, so long as defendant appeared at sentencing, or showed good cause for any absence. After defendant failed to appear at a scheduled sentencing hearing, the court imposed the stipulated prison sentence. On appeal, defendant asserts the court erred by not making an express finding that she failed to establish good cause for her nonappearance; and even if such a finding is implied, the evidence does not support it. We reject these arguments and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant pled guilty on May 26.[1] The court set a sentencing hearing for July 7. Defendant appeared at the July 7 hearing, but sentencing was postponed one week, until July 14, at 8:30 a.m.
Defendant failed to appear at the appointed time on July 14, and the court ordered bail forfeited and issued a bench warrant for her arrest. When defendant arrived thereafter, the court accepted her explanation of transportation difficulties, put a hold on execution of the bail forfeiture and bench warrant, reset the sentencing hearing for July 28, and directed defendant to obtain on that day a letter from her bail bond company reassuming liability on the bail bond.
Defendant did not obtain the letter until July 28, the date of the rescheduled hearing. At that hearing, the court vacated forfeiture of defendant’s bail bond, obtained a time waiver from defendant, and set the matter for “fur[ther] pro[ceedings]” on August 4.
On August 4, the matter was continued one week for further proceedings because the other defendant in the case wished to withdraw his guilty plea.
At the August 11 hearing, the matter was put over two weeks, until August 25, for further proceedings.
At the August 25 hearing, with defendant present, the court reset the matter for August 31, and specified it would be for sentencing.
When defendant failed to appear on August 31, the court ordered bail forfeited and issued a bench warrant for her arrest.
Following defendant’s arrest, the court held the sentencing hearing on September 7. At the outset of the hearing, the court noted it would not be bound to sentence defendant in accordance with the terms of the plea agreement unless she showed good cause for her absence. After inviting the parties to discuss whether defendant had a reasonable explanation, defendant’s attorney argued that defendant had a good record of appearances, and had been late on only one occasion, due to transportation problems.
Defendant personally stated she had missed the August 31 hearing because she was under the mistaken impression that the hearing had been postponed two weeks from August 25, which was the same interval as the most recent continuance, from August 11 to August 25.
The prosecutor responded that defendant had failed to appear on July 14, leading to issuance of a bench warrant.
The prosecutor stated: “I don’t know how the defendant can confuse August 31st with September 7th. It just [does not] seem logical. . . . I think the defendant has demonstrated that she is not going to be amenable to probation based on her history and her noncompliance with the court orders.”
The court did not expressly find that defendant had failed to show good cause for her nonappearance on August 31. Instead, the court proceeded directly to imposition of sentence, stating, “I can see nothing in the current offenses which would warrant a finding that the interest of justice would require admission to probation at this time, so I am going to deny probation.” The court thereupon imposed a two-year midterm sentence on the sales offense in addition to a three-year term for the enhancement, resulting in an aggregate five-year prison sentence.
DISCUSSION
1. Defendant Forfeited the Argument Based on the Court’s Failure to Make an Express Finding that Good Cause Was Not Shown, and Any Error Was Harmless
Defendant asserts the judgment must be reversed because the court neglected to make an express finding that her failure to appear on August 31 was without good cause. She further contends she established good cause for missing the August 31 hearing, so that a contrary finding may not be implied. Since good cause was established, the argument proceeds, the court was bound to honor the terms of the plea agreement and place her on probation.
The plea agreement gave the court the power to determine whether good cause existed for a failure to appear. At the outset of the sentencing hearing, the court identified this as the initial issue to be decided, and the parties addressed it directly during argument. When the court proceeded to sentence defendant upon conclusion of argument, it was apparent that it had concluded good cause was not shown. By failing to object to the absence of an express finding on the good cause issue, defendant forfeited her right to mount an appellate challenge premised on the court’s omission. (People v. Scott (1994) 9 Ca1.4th 331, 356-357 [claims regarding a trial court’s exercise of sentencing discretion may not be raised for the first time on appeal so long as a defendant is given meaningful opportunity to object].)
Defendant next asserts that an implied finding is improper because she established good cause for her nonappearance, based on her mistaken impression that the sentencing hearing had been continued two weeks, which would have been the same interval as the preceding continuance. Defendant also observes that she appeared at six prior hearings, and had no reason to miss the August 31 hearing. Her one tardy arrival was due to transportation difficulties. According to defendant, “the court was motivated to undo the plea bargain based on its view of [defendant’s] record and the current charges, without any consideration of the other factors that went into the plea negotiations,” such as the dubious validity of the search that led to the discovery of the contraband.
“‘”[G]ood cause” means a legally sufficient ground or reason for a certain action.’ [Citation.] . . . [T]he “nucleus” of the concept of “good cause” involve[s] the essential ingredients of reasonable grounds and good faith. [Citation.] ‘The concept of good cause should not be enshrined in legal formalism; it calls for a factual exposition of a reasonable ground . . . [or] a good reason for a party’s failure to perform that specific requirement from which he seeks to be excused . . .’ or, in the converse, to excuse conduct otherwise prohibited. [Citations.]” (People v. McGirr (1988) 198 Cal.App.3d 629, 636.)
Good cause determinations are typically reviewed for abuse of discretion. (See, e.g., People v. Roldan (2005) 35 Cal.4th 646, 670 [motion to continue]; People v. Fairbank (1997) 16 Cal.4th 1223, 1254 [motion to withdraw plea]; People v. Guerra (2006) 37 Cal.4th 1067, 1158 [discharge of juror].)[2] An abuse of discretion occurs when 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.)
Using this standard, we conclude defendant has not shown an abuse of discretion. At best, she has highlighted those facts favoring her position, and drawn all inferences in her favor with respect to the disputed facts, which is contrary to the time-honored rule that “a reviewing court must adopt the trial court’s factual findings if substantial evidence supports them. [Citation.]” (People v. Fairbank, supra, 16 Cal.4th at p. 1254.) The trial court was not obliged to accept defendant’s explanation that she assumed sentencing was put over two weeks instead of six days. (People v. $9,632.50 U.S. Currency (1998) 64 Cal.App.4th 163, 175 [court not required to accept uncontradicted testimony].) Her performance while awaiting sentencing was not unblemished, since she had been late for one hearing, and tardy in obtaining the letter from her bail bond company. These facts undermine the argument that the court’s ruling was arbitrary, capricious, or patently absurd. The court’s implicit finding that defendant failed to show good cause for nonappearance was supported by the evidence and within the lawful exercise of the court’s discretion.
With respect to the assertion the court declined to find good cause because it was predisposed to sentence defendant to prison, the record is to the contrary, since the court made clear that prison would apply only if defendant did not have “a reasonable explanation for her nonappearance.” Defendant’s challenge to the court’s integrity is groundless.[3]
2. Mandatory Fines and Penalty Assessments
The court failed to impose a $50 criminal laboratory analysis fee for defendant’s conviction. (Health & Saf. Code,
§ 11372.5, subd. (a).)[4] The fee is mandatory and is not subject to a finding of defendant’s ability to pay. (People v. Martinez (1998) 65 Cal.App.4th 1511, 1519.) The omission of the fine was unauthorized and may be imposed by the appellate court even though the prosecutor did not object. (People v. Talbideen (2002) 27 Cal.4th 1151, 1157.) The fee is also subject to mandatory state and county penalty assessments. We will modify the judgment to include the fine and penalty assessments.
DISPOSITION
The judgment is modified to impose a $50 criminal laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)), as well as a 100 percent ($50) penalty assessment to be collected by the county and transferred to the State Penalty Fund (Pen. Code, § 1464, subds. (a) & (e)), a 10 percent ($5) penalty to implement the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, which is collected in the same manner as the Penal Code section 1464 penalty assessment (Gov. Code, § 76104.6), and a 70 percent ($35) county assessment (Gov. Code, § 76000). As modified, the judgment is affirmed.
The superior court shall issue an amended abstract of judgment reflecting these changes and shall forward a certified copy thereof to the secretary of the Department of Corrections and Rehabilitation.
SIMS , Acting P.J.
We concur:
MORRISON , J.
BUTZ , J.
Publication Courtesy of California attorney directory.
Analysis and review provided by Oceanside Property line Lawyers.
[1] All events described herein occurred in 2005.
[2] The parties’ agreement does not suggest the trial court’s determination of good cause is subject to an atypical standard of review. (People v. Shelton (2006) 37 Cal.4th 759, 767 [negotiated plea agreement interpreted according to general contract principles].)
[3] Since defendant’s related due process argument depends on a finding that the court acted improperly, and we have concluded otherwise, we have no occasion to reach its merits.
[4] This section provides, in relevant part, as follows: “(a) Every person who is convicted of a violation of Section . . . 11378 . . . shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense.” (Health & Saf. Code, § 11372.5, subd. (a).)
