P. v. Edwards

Filed 8/14/07 P. v. Edwards CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Barry L. Plotkin, Judge. Affirmed as modified.

Stephen S. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Eric A. Swenson and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Robert Edwards appeals after he pleaded guilty to two charges of carjacking and admitted a gang enhancement. He contends that the trial court abused its discretion in denying his motion to withdraw his plea. He further argues there were errors in his sentence concerning fines. We affirm.

FACTS

On the morning of December 18, 2004, Tina Del George was running errands in Rancho Cucamonga. As she was leaving the parking lot of one business, she noticed a blue Honda behind her. After her next stop, she noticed the same car following her again. She saw one person in the blue car. At her third stop, Del George saw the same car parked four spaces away. When she returned to her car, Del George saw that the blue car had been moved and was now two spaces closer. Del George did not see anyone in the blue car at that time.

As Del George was driving home, she received a call from her husband on her cellular telephone. She told her husband about the car that had been following her. Del Georges husband advised her to stay on the phone with him until she arrived home.

As Del George was pulling into her driveway, defendant popped up, jumped over the seat, and held a gun to her head. Defendant told Del George to get out of the car and to leave her purse. Defendant was wearing a Spiderman mask or hat. Del George took her purse and got out of her car. Defendant put the car into reverse and started to back up, knocking Del George to the ground. Del Georges husband tried to stop the car, but backed off when defendant pointed his gun at him. Defendant drove away in Del Georges car. Two neighbors saw the carjacking, and identified defendant as the man who had taken Del Georges car.

Only a few hours later, Gene Petty was sitting in his SUV in a store parking lot, again in Rancho Cucamonga. Defendant approached, holding a pistol, opened the passenger door and got in. Pointing the gun at Petty, defendant ordered Petty to get out of the car and demanded his wallet. Defendant was wearing a black scarf or bandana on his head, and a jacket that said San Francisco. Petty slid out of the drivers seat (without, however, giving defendant his wallet) and defendant drove away.

Police were notified and an officer soon spotted the Petty vehicle. The car refused to yield to the officers lights, and a chase ensued. Eventually, the vehicle stopped. Defendant got out of the drivers side seat and ran away. He was apprehended after a foot chase. Officers found an air pistol or pellet gun in the center console of Pettys vehicle. Three other persons were riding in the car with defendant at the time of the stop. When he jumped out of the car, defendant told his companions, [a]ct like you dont know me, and then ran away.

Upon his arrest, defendant was transported to the police station. Afterward, the transporting officer found a Spiderman mask in the back of the patrol car. When officers recovered and searched the blue Honda, they found a black beanie with eyeholes cut in it. Defendant also had a headscarf and the remote control to Pettys vehicle in his possession when he was arrested.

Detective Henry Jones interviewed defendant at the sheriffs station. Defendant told Detective Jones that he knew a person named Chaos (real name Charles Michael Bell), a member of the Bloods gang, from the area where defendant lived. Defendant denied committing the carjackings himself, but said he was present when Bell committed the crimes.

Defendant told police that he and Bell were riding in a blue-green Honda that Bell had stolen. They followed Del Georges vehicle. At Del Georges final stop, Bell got out and got into the back seat of the Del George vehicle, which had been left unlocked. Del George came out of the business establishment she had entered, got into the car and drove away. Soon, Bell returned, driving the Del George vehicle. Defendant then got in.

Defendant said that he and Bell drove the Del George vehicle away, but they got lost, panicked, and abandoned that car. Defendant eventually admitted to a deputy that he had taken Pettys vehicle. Defendant related that he had approached Petty, brandished a pistol, and told Petty to get out of the car. Defendant then drove away.

Defendant told deputies that he had been wearing a San Francisco 49ers jacket during the first carjacking, but then he had given the jacket to Bell, who wore it during the second carjacking.

Police later interviewed Bell. Bell told officers that he was acquainted with defendant, and identified defendant as a member of the Hoover Criminal gang. They were adversaries, as defendants gang was affiliated with the Crips, while Bell was a member of a Bloods gang. Bell denied that he had participated in the carjackings, and indicated that he could not have done so, as he had been arrested and was in custody on that date.

Defendant told officers that the only reason he had admitted the second carjacking was to protect his young cousin, who was riding in the car with him at the time of his arrest, from getting into trouble. Defendants cousin testified, however, that he had had nothing to do with the theft. Defendant drove the car to his cousins house. Two other persons were already in the car. Defendants cousin also entered the car, and was riding in the back seat when officers stopped them.

Defendants denials notwithstanding, he wrote letters of apology to the victims. In the apology letters, defendant said that he was sorry for what he had done. He admitted committing the Petty carjacking. He did not directly admit stealing the Del George vehicle, but stated that his friend Chaos did it, but he was a part of it, he was a part of the plan to rob her.

Defendant was charged with two counts of carjacking (Pen. Code,^[1] 215, subd. (a)), and two counts of unlawful taking and driving of a motor vehicle. (Veh. Code,  10851, subd. (a).) He was also charged with one count of making a false report of a criminal offense. ( 148.5, subd. (a).) The information also included allegations that the carjacking charges constituted serious or violent (strike) felonies, that defendant had suffered a prior burglary conviction (strike prior), and that the offenses were for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further and assist the gang. ( 186.22, subd. (b)(1).)

Approximately 10 months after he was charged, defendant pleaded guilty to the two counts of carjacking and admitted the gang-enhancement allegations on those counts. He also admitted that he had suffered a strike prior. The remaining charges and allegations were eventually dismissed.

Defendant appeared for sentencing and at that time moved to withdraw his plea. The trial court appointed alternate counsel to represent defendant for purposes of the plea withdrawal motion. At the continued hearing, the court denied defendants motion to withdraw his plea. The court then sentenced defendant to 10 years on the first offense, plus 10 years for the gang enhancement. The court imposed an identical sentence on the second carjacking count, and ordered the sentences to be served concurrently, for an aggregate term of 20 years in state prison.

The court also imposed various fees and fines at the time of sentencing.

Defendant filed a notice of appeal and obtained a certificate of probable cause. He argues that the trial court abused its discretion in denying his motion to withdraw his guilty plea. In addition, he argues that the courts imposition of some of the fines and fees was improper.

DISCUSSION

1.

THE COURT PROPERLY DENIED DEFENDANTS MOTION

TO WITHDRAW HIS PLEA

A defendant who has entered a guilty plea may move to withdraw the plea, upon a showing of good cause, at any time before judgment has been entered. (People v. Sandoval (2006) 140 Cal.App.4th 111, 123.) A defendant establishes good cause if he or she was operating under mistake, ignorance, or any other factor which would overcome the exercise of free judgment. (Ibid.) The burden is on the defendant to show by clear and convincing evidence that the ends of justice would be served by permitting a withdrawal of the guilty plea. (Ibid.)

When the defendant has been represented by counsel at the guilty plea stage, granting or denying a motion to withdraw the plea is a matter committed to the sound discretion of the trial court. (People v. Sandoval, supra, 140 Cal.App.4th at p. 123.) On appeal, we will affirm the trial courts exercise of its discretion unless a clear abuse has been shown.

Defendant asserted below that good cause existed for his withdrawal of his guilty plea. He averred that [m]y attorney and the prosecuting attorney coerced and constantly terrorized me into pleading guilty. I was falsely accused due to the covert tactics and threats by the Sheriffs Department and the District Attorneys office. Despite my statements and responses to the Judge at the time I plead[ed] gui[]lty, I did not enter my plea voluntarily, and in fact, I needed more time to decide if that [was] what I really wanted to do. My family was in the process of saving the money so we could hire an attorney, one who would be honest with me and not force me to do things adverse to my interest.

In addition, defendants notice of appeal requested a certificate of probable cause on the ground that there n[e]ver existed any gang involvement and I was told to admit to being one. This is beyond the court jurisdiction to sentence me to a charge/or enhancement that doesnt exist. This is an I.A.C. violation. I felt tremendous pressur[e] from my P.D. as well as my D.A., I was rushed into a deal that I [didnt quite] understand at the time.

Defendant points to evidence presented at the preliminary hearing which was equivocal on his present active gang membership. Defendants cousin stated that defendant never claimed to be a member of the Hoover Crips or Hoover Criminals, and he never saw defendant wearing that gangs colors. Another relative, Latasha Leach, testified that defendant may have tried to claim membership in the Hoover gang in the past, and he may have tried to dress like a gang member and hang around with gang members, but he was not a member of the gang. She testified that, in her experience, it was common for people to claim membership in a gang even though they were not involved in a gang. Delayna Mathis testified that defendant did not claim association with the Hoover Crips and defendant did not wear their colors. Teeana Newsom testified that she knew that defendant had hung around with the Hoover Crips when [he] was younger, and had worn their colors then, but now he no longer lived in Los Angeles.

A police gang expert testified that defendant had been registered as a member of the Hoover Crips or Hoover Criminals since 1999. Defendants gang moniker was Baby Greedy. One of the subdivisions of the Hoover Crips gang wore San Francisco 49ers gear as part of their gang identification. When the gang expert had first come into contact with defendant, in 1999, defendant did not have any tattoos. Defendant currently had an H tattoo, however, which was a common device adopted by Hoover Crips.

The Hoover Crips were a Los Angeles-based gang, but the gang expert testified that gangs can establish satellite gangs in other locations. The gang expert indicated that extending a gangs territory into satellite cities makes a gang bigger and stronger. Committing crimes, including in the new satellite territory, gives a gang member status with the home gang; defendants showing off the stolen car to his younger relatives not only looks good in front of them, but the word will get back to his gang, and he would look better in the gang, and the whole crime would benefit the gang in the gang culture.

The gang expert also stated that defendants accusation of Bell in the commission of the crimes would benefit the Hoover Crips by potentially taking a member of an enemy gang off the streets. The police interviewed Bell, who denied participating in the carjackings. He was able to show that he was in custody at the time of the offenses. He also identified defendant as a member of the Hoover Criminals gang.

Defendant appears to claim that he should be entitled to withdraw his plea because he received constitutionally ineffective assistance of counsel (IAC) at the pleading stage, because the evidence was overwhelming that defendant was not a gang member at the time of the offenses, and that the gang enhancement, amounting to half the prison commitment time, should not have applied. Defendant urges that the trial court should not have remained silent regarding [defendants] gang enhancement, but rather should have interceded to protect [defendants] fundamental rights.

The matter is not, however, so clear-cut as defendant supposes.^[2] Defendants relatives did present some testimony denying defendants present affiliation with a gang. But other evidence was to the contrary. Even some of defendants relatives admitted that defendant had had a past gang affiliation, or at least had aspired to one. He was wearing a San Francisco 49ers jacket when he committed these crimes; expert evidence identified such branded clothing as gang wear of the Hoover Crips. Defendant had been registered as a member of the gang in Los Angeles since 1999. At that time, defendant did not have a gang tattoo, but presently he did. The gang expert explained how Los Angeles gangs create satellite branches in other cities when gang members move away, and how the commission of crimes in the new city adds to the power and prestige of the gang. Defendants rival gang member, who also no longer lives in Los Angeles, but is affiliated with the Bloods gang, identified defendant as a current member of the Hoover Criminals gang. The trial court had long since ruled at the preliminary hearing that the evidence was sufficient to hold defendant for trial on the gang enhancement allegations. It was by no means obvious or established that defendant was not currently a gang member, such that the gang enhancement allegations were improper. Counsel was not incompetent for failing to recognize what simply is not so.

Defendants remarks to the probation officer indicate, moreover, that this is simply a case of buyers remorse. Although defendant couched his declaration in terms of being coerced into the proffered plea bargain, he identified the source of the coercion merely as his concern or fear over his exposure if he went to trial:

Defendant told the probation officer who interviewed him before sentencing, that he is thinking about withdrawing his plea. He feels that he did not receive adequate legal counsel. He is not a gang member and is not sure why the gang enhancements were put in. This was not a gang activity and had nothing to do with a gang. A long time ago a judge ordered him to register as a gang member and his attorney told him to do it and just mark inactive. He did so, but is not a gang member. He just did that because he was told to. Significantly, defendant also told the probation officer that, The DA told him to choose the 20 years that the plea offered or take the 65 he would have gotten if he went to trial. He was scared by the DA and did what he told him. However, now that he has thought about it, he does not think it was a good idea. He should not have given in just because he was scared. He is getting a new lawyer and wants to withdraw his original plea.

We distinguish involuntary from unwilling acceptance of counsels advice; it is involuntary if done without choice or against ones will, unwillingly done if through only reluctance. [Citation.] [] The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering his decision. [Citation.] Postplea apprehension (buyers remorse) regarding the anticipated sentence, even if it occurs well before sentencing, is not sufficient to compel the exercise of judicial discretion to permit withdrawal of the plea of guilty. [Citation.] (People v. Knight (1987) 194 Cal.App.3d 337, 344.)

That is exactly the case defendant describes here: He made his choice reluctantly, based on his anticipated prison exposure if he went to trial. After he pleaded guilty, he thought better of his bargain. Nonetheless, he received exactly what he bargained for: a sentence limited to 20 years. He received concurrent sentences on the two offenses to which he pleaded guilty. Additional charges were dismissed. At the time of his plea, he averred that he had not been coerced, and his appearance before the court gave no indication that he was under any coercion or duress. Defendant now identifies no source of the alleged coercion other than the penalties to which he would have been subject in the ordinary course of proceedings. That is not coercion.

Defendant presented no good cause to withdraw his guilty plea. The trial court did not abuse its discretion in denying his motion to withdraw his plea.

2.

THE BOOKING FEE AND RESTITUTION FINES

Defendant argues that the trial court erred in imposing a booking fee and some of the restitution fines.

First, he complains that he was not specifically advised, at the time of his guilty plea, of the booking fee and restitution fines as particular consequences of his plea. (People v. Walker (1991) 54 Cal.3d 1013, 1030; People v. Sorenson (2005) 125 Cal.App.4th 612, 618-620.)

At the time of defendants sentencing, the trial court announced, Ill find the defendant lacks the ability to pay appointed counsel fees, probation reimbursement costs. Theres a mandatory . . . $80, for a booking fee, to be paid within 90 days from the defendants release from custody. [] Ill impose $2,000 in restitution fines pursuant to Penal Code section 1202.4, to be collected by the Department of Corrections. And Ill reserve jurisdiction with regard to restitution to the actual victim pursuant to Penal Code section 1202.46.

Defendant failed to object at the time of sentencing to the imposition of the booking fee and restitution fines. Failure to object to sentencing errors generally waives the claim on appeal (People v. Scott (1994) 9 Cal.4th 331, 351, 353), and the waiver doctrine applies to such fees and fines. (People v.Hodges (1999) 70 Cal.App.4th 1348, 1357; People v. Gibson (1994) 27 Cal.App.4th 1466, 1469).

In any case, we reject defendants claims on the merits. Defendants reliance on Sorenson, supra, is misplaced. There, the trial court had advised the defendant generally that he could be subject to fees and fines up to stated amounts. The court imposed fines and fees below the stated maximum. The imposition of the fines and fees did not violate the plea bargain, because there was no showing that any particular amount of fees and fines was included as a term of the bargain. (People v. Sorenson, supra, 125 Cal.App.4th at pp. 618-619.) The implicit agreement was to leave that matter to the discretion of the court. In addition, the imposition of the fees and fines was not improper for failure to advise the defendant of the consequences of his plea. The Court of Appeal stated, [i]t is true that the trial court did not comprehensively advise [the] defendant (id. at p. 621) as to each specific fine that might be imposed. Nevertheless, the trial court had advised the defendant generally of the range of consequences to which he was subject. The trial court was not required to cite every possibly applicable statute in advising defendant. (Id. at p. 622.)

Here, defendant signed a waiver form advising him of a mandatory restitution fine of up to $10,000. The court also asked defendant orally on the record at the time of the guilty plea whether the plea to the two carjacking counts, plus the gang enhancements and strike prior, in exchange for a concurrent sentence of 20 years was the complete and total plea agreement for which defendant had bargained. Defendant responded, Yes. The court then indicated that the matter would be referred to the probation department. Probation will determine, among other things, by law, whether youre required to make any restitution for any harm or damage suffered by the victims and thats mandated by law even though its not expressly stated as a part of the plea agreement. Here, unlike Sorenson (in which the defendant had requested immediate sentencing, so that no probation report was prepared), the probation report made recommendations concerning several fines and fees: (1) that defendant did not have the ability to pay appointed counsel fees, (2) that defendant did have the ability to pay presentence investigation costs, (3) that defendant be ordered to reimburse the arresting agency (booking fee), (4) that the court impose a restitution fine and a suspended parole revocation fine, and (5) that the court reserve jurisdiction to impose a victim restitution fine. Defendant therefore had actual notice of all the proposed fines and fees well before sentencing. He made no objection.

Defendant relies in part on the trial courts specific findings that he did not have the ability to pay reimbursement for the fees of appointed counsel, or for the cost of the presentence investigation and report. Defendant argues that the trial courts statement, that the imposition of an $80 booking fee was mandatory, was contrary to its earlier findings of inability to pay. Not so. There is no necessary inconsistency between finding that defendant did not have the ability to reimburse appointed counsel fees or probation report preparation costs, as these amounts could be substantial, and finding that defendant did have the ability to pay other fees and fines. The booking fee imposed was only $80. The court obviously implicitly found that defendant had the ability to pay that amount. (See People v. Phillips (1994) 25 Cal.App.4th 62, 71-72.)

The court also imposed a restitution fine of $2,000 pursuant to section 1202.4. Defendant complains that the trial court erred in failing to make a finding that he had the ability to pay that fine. Section 1202.4, subdivision (d) provides, however, that A defendant shall bear the burden of demonstrating his or her inability to pay. Given the range of possible fines, and the probation departments recommendation that the court impose an $8,000 restitution fine, the courts imposition of a much reduced fine was within its discretion. Defendant did not object to the reduced fine at the time of sentencing. He failed to make a showing that he had the inability to pay that fine.

Defendant notes that the clerks transcript indicates that the court imposed a stayed parole revocation fine of $2,000 pursuant to section 1202.45, but that no mention of that fine was made on the record in open court. Defendant urges that the reporters transcript should control over the clerks transcript, and that the parole revocation fine must therefore be stricken.

The People counter that the courts failure to impose a parole revocation fine on the record in open court is an unauthorized sentence; because the court imposed a $2,000 restitution fine, it was required by law to impose a like parole restitution fine. The People urge, therefore, that this court must correct the unauthorized sentence, and to impose a parole restitution fine of $2,000.

We agree. (See People v. Turner (2002) 96 Cal.App.4th 1409, 1416.) The People were not required to object, as the trial court had no discretion to refuse to impose the parole revocation fine. Accordingly, we shall order the judgment corrected to impose that fine.

DISPOSITION

The trial court did not abuse its discretion in denying defendants motion to withdraw his guilty plea. The court properly imposed a booking fee and a restitution fine. The court erred in failing to impose a mandatory parole revocation fine. The judgment is therefore modified to impose a parole revocation fine of $2,000, pursuant to section 1202.45. The parole revocation fine is suspended unless defendants parole is revoked. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections. As so modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKINSTER

J.

We concur:

/s/ RAMIREZ

P. J.

/s/ RICHLI

J.

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^[1] Unless indicated, all further statutory references will be to the Penal Code.

^[2] At oral argument, appellate defense counsel invoked People v. Clark (1968) 264 Cal.App.2d 44 (Clark), for the proposition that defendants protestations of innocence as to the gang enhancements should have caused the trial court to refuse to accept his guilty plea. Defense counsel makes much of certain statements in the Clark opinion: The continued acceptance by the court of a guilty plea in the face of a defendants suggestion that in fact he is not guilty runs contrary to all basic conceptions of justice under law. Whenever the superior court has reason to suspect that a defendant has pleaded guilty to a felony as a matter of expediency we think the court has inherent power to set aside the plea on its own initiative prior to the entry of judgment. From these rather broad pronouncements, defendant here seeks to impose a duty on a trial court to set aside a guilty plea (on its own motion, or to grant a motion by the defendant) whenever a defendants statements, or even casual remarks, suggest that the defendant is factually innocent, or whenever the court as much as suspects that the defendant is pleading guilty as a matter of expediency. Clark imposes no such broad duty, and is in any case inapposite here.

In Clark, supra, the defendants agreed to plead guilty to a misdemeanor in exchange for dismissal of other charges. When it came time to impose a sentence, the trial court discovered additional information in the probation reports that cast doubt on their intent to plead guilty. In addition, the defendants denied the gist of the crime, answering that they did not intend to cheat anyone. Defendants declined to move to withdraw their pleas, but the court on its own motion vacated the guilty pleas. The defendants were thereafter tried and found guilty on felony charges. (Clark, supra, 264 Cal.App.2d at pp. 45-46.) The procedural posture on appeal was exactly converse to the proceedings here; there, the defendant objected to the trial courts vacation of their guilty pleas. Here, defendant actively sought to withdraw his plea, and the trial court denied the motion.

The difference between the two cases lies in the area of credibility. In Clark, supra, the trial court credited the defendants professions of innocence. That fully accounted for its decision to vacate the guilty pleas on its own motion. Here, the trial court obviously did not credit defendants claims of innocence. We give great deference to the trial courts resolution of credibility questions. In the first place, defendant never clearly claimed factual innocence as to the carjackings. He admitted the Petty carjacking. He admitted being present at the Del George carjacking, but shaded his statements in a self-serving way to point the finger at Bell, his alleged companion. Bell proved that he could not have been present as defendant claimed. The only factual innocence claim defendant made was as to the gang enhancements, not as to the underlying crimes. The evidence, even from defendants own witnesses, was equivocal, confusing and unclear on the issue of whether defendant was or had been a gang member. The trial court was not required to reject defendants guilty plea on such spotty and ambiguous claims of factual innocence. To hold otherwise would turn the appropriate standard of review on its head. Under that standard of review, the burden rested squarely on defendant to affirmatively demonstrate good cause to withdraw his plea. The trial courts refusal to credit defendants mere suggestion of partial innocence, particularly in light of good reasons to doubt defendants credibility, is not a showing of good cause to withdraw defendants plea.