P. v. Kamakani
Filed 11/6/13 P. v. Kamakani CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
FRANCISCO KAMAKANI,
Defendant and
Appellant.
H037675
(Santa Clara County
Super. Ct. No. C1065803)
In July 2011, defendant Francisco
Kamakani, pursuant to a negotiated disposition, pleaded guilty to
§§ 187, 664).
title="">[1]
He also admitted allegations of
premeditation (§ 189); that the crime was committed for the benefit of a
(b)(1)(C)); and that he was 16 years of age or older when the offense was
committed within the meaning of Welfare and Institutions Code section 707,
subdivision (d) and that the offense was one enumerated in subdivision (b) of
that statute. Defendant was promised in
exchange for this plea that the seven remaining felony counts in the
information (including premeditated murder and four additional counts of
attempted premeditated murder) would be dismissed, and that he would receive a
prison term of 15 years to life. The
court--after advising defendant of the constitutional rights he was waiving and
confirming that he was voluntarily waiving those rights in pleading guilty
under the agreement--advised defendant that he would be on parole for a period
of three years after his release from prison.
At the sentencing hearing two and one-half months later, defendant,
although represented by counsel, personally requested leave to withdraw his
guilty plea; he claimed, inter alia, that he had been pressured by his family
into agreeing to the plea bargain. The
court denied the request. It then
sentenced him to prison for 15 years to life on the one attempted premeditated
murder conviction. It indicated that
defendant, upon his release, would be on parole for a term of seven years to
life.
Defendant asserts two claims of
error on appeal. First, he argues that a
three-year parole period was promised to him when he entered his guilty plea,
but the court could not legally impose it and was required to impose a more
lengthy parole term. Therefore (he
contends), the court was required to give him a chance to withdraw his plea
before the imposition of this more severe sentence. And, defendant argues, to the extent that he
may have forfeited this challenge because it was not raised below, he was
deprived of effective assistance of counsel.
Second, defendant argues that the court erred in imposing a $129.75
criminal justice administration fee (booking fee), pursuant to Government Code
section 29550.1, without first determining that he had the ability to pay the
fee. He asserts that this statute should
be read as impliedly requiring an ability-to-pay determination, or,
alternatively, the absence of such a requirement constituted a violation of his
constitutional right to equal protection under the law.
We reject defendant’s claim that he
should have been afforded the opportunity to withdraw his plea. In doing so, we conclude that defendant
forfeited his claim that the sentence violated the terms of his plea bargain,
and his trial attorney’s failure to assert the claim did not constitute
ineffective assistance of counsel. We
also reject defendant’s statutory and constitutional challenges to the
imposition of the booking fee. But to
the extent the abstract of judgment reflects an incorrect term of parole, we will
direct the trial court to correct it. We
will affirm the judgment as so modified.
FACTS
name="_ftnref2" title="">[2]
In July 2006, a longtime member of
the El Hoyo Palmas Norteño street
gang was killed at a party. In December
2006, the brother of a member of that Norteño gang was also killed. “These murders sparked an onslaught of
murders directed at Sureño gang members.â€
On February 5, 2007, defendant and another El Hoyo Palmas Norteño
gang member approached three male Sureño gang members who were seated in a car
in a known Sureño neighborhood. Defendant
and his associate fired at the three Sureño males, and one was shot in the
hand. Defendant was arrested 10 days
later, and the police found in his possession a nine-millimeter Manurhin
handgun with the serial numbers obliterated.
From a ballistics test, the police determined that defendant’s handgun
was involved in the February 5, 2007 shooting incident. Defendant was also identified through a photo
lineup. A search of defendant’s home
yielded a shotgun and gang paraphernalia.
Defendant was 16 at the time of the incident.
PROCEDURAL BACKGROUND
Defendant was charged with eight
felonies in an information filed March 3, 2011, i.e., conspiracy to commit
murder (§ 182, subd. (a)(1); count 1); five counts of attempted murder (§§ 664,
187; counts 2, 4, 6, 7, & 8); murder (§ 187; count 3); and shooting at an
inhabited dwelling (§ 246; count 5). The
information included the following special allegations: each of the eight crimes was committed for
the benefit of, at the direction of, and in association with a criminal street
gang (§ 186.22, subd. (b)(1)(C)); defendant was a minor, 16 years old, within
the meaning of Welfare and Institutions Code section 707, subdivision (d)(1) at
the time the offenses alleged in counts 1 through 4, and 6 through 8 were
committed, and that the offenses were ones enumerated under section 707, subdivision
(b) of the Welfare and Institutions Code; defendant committed the crimes
alleged in counts 2, 3, 4, 6, 7, and 8, by personally discharging a firearm (§ 12022.53);
the murder as alleged in count 3 was carried out to further the activities of a
criminal street gang (§ 190.2, subd. (a)(22)); and as to count 8, defendant
personally inflicted great bodily injury in the commission of the offense (§ 12022.7).
On July 1, 2011, pursuant to a
negotiated disposition, defendant pleaded guilty to attempted murder charged in
count 8; admitted the allegation that the crime was committed willfully,
deliberately, and with premeditation (§ 189); admitted the gang allegation (§ 186.22,
subd. (b)(1)(C)); admitted the allegations under subdivisions (b) and (d) of
Welfare and Institutions Code section 707; and admitted the personal infliction
of great bodily injury allegation (§ 12022.7).
He entered the plea with the understanding that the remaining counts and
enhancements (including the firearm enhancement in count 8) would be dismissed
and that he would receive a 15-years-to-life prison sentence.
On September 23, 2011, the trial court
sentenced defendant to 15 years to life in prison, and dismissed counts 1
through 7 and the remaining enhancements.
Defendant filed a timely notice of appeal challenging the validity of
the plea.
DISCUSSION
I.
Plea Agreements
As the high court has explained: “Plea bargaining is an accepted practice in
American criminal procedure. [Citation.]
The process is not only constitutionally
permissible [citation], but has been characterized as an essential and
desirable component of the administration of justice. [Citation.]
Concomitant with recognition of the necessity and desirability of the
process is the notion that the integrity of the process be maintained by
insuring that the state keep its word when it offers inducements in exchange
for a plea of guilty.†(
in the waiver of important constitutional rights, ‘is an accepted and integral
part of our criminal justice system.’
[Citations.] Such agreements
benefit the system by promoting speed, economy and finality of judgments.†(People
v. Panizzon (1996) 13 Cal.4th 68,
79-80.)
Before accepting a guilty plea
pursuant to a negotiated disposition, the court must admonish the defendant of
the constitutional rights he or she is waiving (Boykin v. Alabama (1969)
395 U.S. 238; In re Tahl (1969) 1
Cal.3d 122), and must advise the defendant of the direct consequences of the
plea (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605 (Bunnell)). The matter of
parole is one such plea consequence of which the defendant must be advised by
the court under Bunnell. (In re
Moser (1993) 6 Cal.4th 342, 351-352 (Moser).)
At the time the plea is taken, if the
court approves the plea, “it shall inform the defendant prior to the making of
the plea that (1) its approval is not binding, (2) it may, at the time set for
the hearing on the application for probation or pronouncement of judgment,
withdraw its approval in the light of further consideration of the matter, and
(3) in that case, the defendant shall be permitted to withdraw his or her plea
if he or she desires to do so. The court
shall also cause an inquiry to be made of the defendant to satisfy itself that
the plea is freely and voluntarily made, and that there is a factual basis for
the plea.†(§ 1192.5.) If the plea agreement is not accepted by the
People and approved by the court, the guilty or no contest plea is “deemed
withdrawn.†(Ibid.)
“[W]hen a plea rests in any
significant degree on a promise or agreement of the prosecutor, so that it can
be said to be part of the inducement or consideration, such promise must be
fulfilled.†(Santobello v. New York (1971)
404 U.S. 257, 262.) Due process applies
not only to the acceptance of the plea; “the requirements of due process attach
also to implementation of the bargain itself. It necessarily follows that violation of the
bargain by an officer of the state raises a constitutional right to some
remedy.†(Mancheno, supra, 32
Cal.3d at p. 860.) Where a violation of
a plea bargain occurs, the typical remedy is “to allow [the] defendant to
withdraw the plea and go to trial on the original charges.†(Ibid.) Alternatively, the court may specifically
enforce the bargain, but will find the plea withdrawal remedy more appropriate
“when specifically enforcing the bargain would have limited the judge’s
sentencing discretion in light of . . . additional information or changed
circumstances between acceptance of the plea and sentencing.†(Id.
at p. 861.)
II. Court Was Not Required to Permit Defendant to
Withdraw His Plea
A.
At the commencement of the
hearing on July 1, 2011, defense counsel and the prosecution advised the court
that the parties had arrived at a negotiated disposition. Under the terms of the plea bargain as
recited by counsel, defendant agreed to plead guilty to count 8 (premeditated
attempted murder) and to admit the gang enhancement associated with that
charge. In exchange, defendant would receive
“guaranteed 15[-]to[-]life top/bottom†prison sentence. The plea bargain included the agreement that
the People would dismiss the remaining counts and enhancements.
After the court advised defendant
of the rights he was giving up as a result of his guilty plea and confirmed
that he was knowingly and voluntarily pleading guilty, it indicated, with
confirmation from the People, that “[u]pon your release from state prison, you
will be placed on parole for up to three years . . . .†The court also advised defendant that it had approved
the disposition, but that it could withdraw that approval at the time of the
pronouncement of judgment, in which case defendant would be allowed to withdraw
his guilty plea. After the court
confirmed the terms of the plea bargain and advised defendant of the rights he
was waiving by pleading guilty, defendant pleaded guilty to count 8, admitted
the premeditation and gang allegations, and admitted that he was a minor, 16
years of age or older, at the time of the commission of the offense as alleged
under Welfare and Institutions Code section 707, subdivision (d)(1). The court found defendant to have (1) been
properly advised of the charges against him, the elements of those charges and
of the possible defenses thereto; (2) been informed of the consequences of his
plea and admissions; (3) been fully informed of his constitutional rights; and
(4) made a knowing, intelligent, free, and voluntary waiver of his
constitutional rights. The court also
found the existence of a factual basis for the plea, pursuant to counsel’s
stipulation thereof.
At the sentencing hearing on
September 23, 2011, defense counsel, upon the court’s asking counsel whether
there was any legal cause as to why judgment could not then be imposed, advised
the court that “[t]he only legal cause [is that] Mr. Kamakani desires to make
an oral motion to withdraw the plea.†The
court then, without further comment by defense counsel, allowed defendant
himself to make an oral statement. Defendant
advised the court that on the day of the change of plea hearing, he had
received an extreme amount of pressure from his family; at the time of the
hearing, he had not received discovery about which he had informed his attorney;
his attorney had told him that the plea deal would not be on the table if he
did not accept it that day; afterwards, he received discovery that led him to
conclude that his chances of proceeding to trial were improved; and had he not
talked with his family, he would not have accepted the plea deal. The court denied defendant’s oral motion to
withdraw his guilty plea.
The trial court then sentenced
defendant on the count 8 conviction to 15 years to life in prison. The court advised defendant that upon his
release from prison, he would be subject to parole for a period of seven years
to life. The court also dismissed all
remaining charges and enhancements.
B. Contentions of the Parties
Defendant contends that the trial
court was required to give him the opportunity to withdraw his guilty
plea. His central point is that the
court’s imposition of a sentence that included a parole term of seven years to
life after his release from prison constituted a more severe sentence than the
three-year parole term promised by the court and concurred in by the People. In support of this position, defendant cites
court ultimately rejects a plea bargain and announces an intention to impose a
sentence more severe than the one the defendant originally agreed to, section
1192.5 requires that the defendant be permitted to withdraw his guilty
plea. (Johnson, supra, at pp. 872-873.) Defendant argues further that when the court
is jurisdictionally unable to impose the agreed upon sentence and must impose a
more severe sentence (i.e., because the agreed-upon sentence is unauthorized
under the law), a defendant must be allowed to withdraw his or her plea. (See People
v. Baries (1989) 209 Cal.App.3d 313,
319 (Baries).)
Defendant concedes that he did
not object below to the imposition of a sentence he contends was more severe
than the one promised him by the court and thus was at variance with his plea
bargain. But he argues that he should
not be deemed to have forfeited his appellate challenge. Defendant argues that, in the alternative, if
the claim was forfeited, his attorney’s failure to object to the sentence and
to move to withdraw his client’s guilty plea constituted ineffective assistance
of counsel.
The Attorney General responds
that the record “reflects that the potential parole term was not a negotiated
term of the negotiated disposition.†She
also argues that defendant “failed to alert the trial court that the mistaken
admonishment on the potential parole term was a basis for withdrawal of the
plea and [he therefore] forfeited that appellate claim.†The Attorney General asserts further that
defendant’s alternative ineffective assistance of counsel claim must fail
because he cannot show prejudice.
C. There Was No Breach of the Plea Bargain
1. The Claim Was Forfeited
In support of his contention that
his claim was not forfeited, defendant argues:
“It was clear that Mr. Kamakani’s counsel was not pursuing any attempt
to withdraw the guilty plea. At the
beginning of the hearing, counsel made clear that Mr. Kamakani would be making
his own oral motion to withdraw [the plea]. After rejecting Mr. Kamakani’s oral motion,
the trial court told Mr. Kamakani that it was going ‘forward with the
negotiated disposition . . . .’ So Mr.
Kamakani may very well have believed this and been mislead [
imposing the same sentence it had promised at the guilty plea hearing . . . . Under these circumstances, where defendant
was effectively representing himself in connection with any motion to withdraw
the plea, and where the trial court’s statements could have mislead [
address the merits of this claim.â€
We disagree with defendant’s
position. “ ‘The purpose of the general
doctrine of waiver [or forfeiture] is to encourage a defendant to bring errors
to the attention of the trial court, so that they may be corrected or avoided
and a fair trial had.’ †(
54 Cal.4th 177, 180.) That principle
applies here. Defendant, upon hearing
the sentence announced by the court, could have easily raised an objection
thereto by asserting that the seven-years-to-life parole term constituted a
material variance from the plea bargain to which he agreed. The court then could have heard argument from
both defense counsel and the prosecutor on the matter and could have rendered a
decision as to whether the proposed sentence, in fact, was more severe than the
bargain to which the parties agreed, thereby permitting defendant to withdraw
his plea. The claim was forfeited.
2. Defendant’s Ineffective Assistance of Counsel
Claim
a. Ineffective
Assistance of Counsel Claims
A criminal defendant has the
right to the assistance of counsel.
(U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) This constitutional right to counsel entitles
a defendant not simply to “ ‘bare assistance’ †but rather to effective
assistance. (People v. Jones (1991) 53
Cal.3d 1115, 1134.) There are two
elements to an ineffective assistance of counsel claim: (1) deficient performance, and (2) prejudice
resulting from such deficient performance.
(People v. Weaver (2001) 26 Cal.4th 876, 961.) The deficient performance element consists of
“a showing that ‘counsel’s representation fell below an objective standard of
reasonableness.’ †(In re Marquez (1992) 1 Cal.4th 584, 602-603, quoting
determining whether counsel’s performance was deficient, a court must in
general exercise deferential scrutiny . . .’ and must ‘view and assess the
reasonableness of counsel’s acts or omissions . . . under the circumstances as
they stood at the time that counsel acted or failed to act.’ †(People
v. Scott (1997) 15 Cal.4th 1188,
1212.) Moreover, “[i]f the record does
not shed light on why counsel acted or failed to act in the challenged manner,
we must reject the claim on appeal unless counsel was asked for and failed to
provide a satisfactory explanation, or there simply can be no satisfactory
explanation.†(Ibid.) To satisfy the second
element of “prejudice,†the defendant must show “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result would
have been more favorable to defendant, i.e., a probability sufficient to
undermine confidence in the outcome.†(
201.)
The burden of establishing
ineffective assistance of counsel is upon the party claiming it. (People
v. Pope (1979) 23 Cal.3d 412,
425.) This means that defendant here
“must show both that his counsel’s performance was deficient when measured
against the standard of a reasonably competent attorney and that counsel’s
deficient performance resulted in prejudice to [the] defendant in the sense
that it ‘so undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result.’ †(People
v. Kipp (1998) 18 Cal.4th 349,
366, quoting Strickland,
“Surmounting Strickland’s high bar is never an easy task.†(Padilla
v. Kentucky (2010) 559 U.S. 356,
371.) And in deciding an ineffective
assistance of counsel claim, the reviewing court need not inquire into the two
components (deficient performance and prejudice) in any particular order; in
the event the defendant’s showing on one component is insufficient, the court
need not address the remaining component.
(In re Cox (2003) 30 Cal.4th
974, 1019-1020.) “The object of an
ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.†(Strickland,
b. Defendant’s Ineffective Assistance of Counsel Claim Fails
As we discuss,
of counsel claim must be resolved against him because he cannot demonstrate
prejudice. We therefore do not address the
first prong of his ineffective assistance of counsel claim, i.e., whether the
failure of his counsel to object to the proposed sentence constituted deficient
performance. (In re Cox,
Defendant claims that he
sustained prejudice because of his attorney’s failure to object that the
sentence imposed was contrary to, and more severe than, the sentence he “was
promised in obtaining the guilty plea.†He
argues that “the correct prejudice inquiry must ask whether that motion [to
withdraw the guilty plea] would have been successful. If the motion would have been successful,
prejudice has been shown. If the motion
would have failed, there is no prejudice.â€
Accordingly, in the context of deciding whether defendant has
established prejudice--i.e., whether “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result would have been more
favorable to defendant†(In re Ross, supra, 10 Cal.4th at p. 201)--we examine
the underlying merits of defendant’s claim that the sentence constituted a
breach of what was promised him when he pleaded guilty, thereby entitling his
withdrawal of the guilty plea.
In analyzing whether the sentence
imposed was in violation of what was promised him when he pleaded guilty, we
follow the two-step approach enunciated by our high court in
namely, whether (1) the defendant has been properly admonished before pleading
guilty under a negotiated plea, and (2) there has been adherence to the terms
of the plea bargain. (
Here, we ask (1) whether defendant was properly admonished when he
entered his guilty plea, insofar as the court’s recital that he would receive a
three-year parole term upon completion of his prison sentence; and (2) whether
the imposition of the seven-years to life parole term constituted a violation
of the plea agreement?
It is clear that the answer to
the first question is “No.†The trial court
erroneously advised defendant that one consequence of his guilty plea was that
he would receive a three-year parole term upon being released from prison. Because, defendant argues, the three-year
parole term applies to those sentenced to a term of less than life in prison,
and defendant here was sentenced to a life term (15 years-to-life), under
section 3000, subdivision (b)(1), he was in fact subject to a five-year parole
term; the court misadvised defendant that the parole term would be three years. The Attorney General concedes that the court
misadvised defendant concerning the length of the parole term.
misadvisement, of the parole consequences of a guilty plea is a violation of
the court’s obligation under Bunnell,
supra, 13 Cal.3d at page 605, to
advise a criminal defendant of the direct consequences of his or her conviction
upon entry of a guilty plea. (
56 Cal.4th 601, 609.)
But as the high court has
explained, establishing that the trial court failed to advise or gave an
incorrect advisement of the consequences of a defendant’s plea does not
automatically entitle him or her to relief; the defendant must also show that prejudice
resulted from the error, namely, that he or she “would not have entered the
plea of guilty had the trial court given a proper advisement.†(Moser,
supra, 6 Cal.4th at p. 352.) Here, defendant has made no such
showing. Nor does he argue that he is
entitled to relief based upon the court misadvising him of the consequences of
his plea. Rather, he bases his claim on
the fact that the sentence imposed was more severe than the one promised him in
the plea bargain because it included a parole term of more than three years. We therefore turn to the second question
under Walker, supra, 54 Cal.3d at pages 1019 to 1020, namely, whether there has
been adherence to the terms of the plea bargain.
As the high court has explained,
“ ‘A court may not impose punishment significantly greater than that
would have agreed to the [additional] punishment had it been made a part of the
plea offer. “Because a court can only
speculate why a defendant would negotiate
for a particular term of a bargain, implementation should not be contingent
on others’ assessment of the value of the term to defendant.†’ †(Moser,
supra, 6 Cal.4th at p. 354, quoting
Thus, in order for defendant to prevail on his assertion that the
sentence imposed was materially at variance with the sentence he was promised
when he pleaded guilty, he must establish that the three-year parole term to
which the trial court alluded was a specific term of the bargain. The record reflects that it was not.
As noted, at the outset of the
change of plea hearing, defense counsel announced that there had been “a
proposed disposition. That disposition
is to enter a plea to Count 8. The
arming enhancement I believe is going to be dismissed. He will admit. Of course, it will be a strike offense in the
future. This is guaranteed 15 to life
top/bottom.†The prosecutor then
acknowledged that this comported with her understanding of the plea agreement; she
added that “in exchange for his plea of guilty to the premeditated attempted
murder with the gang enhancement and admission to the [Welfare and Institutions
Code section] 707[, subdivision] (d) [allegation] in Count 8, the People will
be dismissing all other charges and the [section] 12022.53 [allegation] on the
Count 8 charge, which is the gun enhancement.â€
Neither counsel mentioned the term of parole as a term of the plea
bargain.
The trial court then asked
defendant whether (1) he was thinking clearly; (2) he had consumed alcohol,
drugs, or medication that might have impaired his ability to think clearly; (3)
he had enough time to consult with his attorney and had discussed with him the
charges, possible defenses thereto, his constitutional rights, and the
consequences of his decision to plead guilty; and (4) he was satisfied with his
attorney’s advice. The court then asked
defendant: “Besides what has been stated
on the record, have there been any other promises or conditions made to you in
exchange for your plea of guilty this afternoon?†Defendant responded, “No, sir.†Following the court’s advising defendant of
the constitutional rights that he would be waiving by pleading guilty, the
following exchange between the court and defendant occurred: “The Court:
The maximum possible state prison sentence for the charges and
allegations for which you will enter a change of plea . . . . [¶] . . . [¶] [i]s
15 years to life that has already been stated on the record. You must serve 15 years before you are
eligible for parole. Do you understand that?
[¶] Defendant: Yes, sir. [¶] The Court: Obviously, you will not be considered for
probation or for a lesser term in state prison.
That’s essentially the only promise that is being made to you other than
all charges and allegations will be dismissed.
Is that your understanding? [¶] Defendant: Yes, sir.â€
It is only after this entire exchange occurred that the court
erroneously advised defendant that upon his release from prison, he would be
placed on parole for three years.
It is clear that a three-year
period of parole was not a term of “ ‘punishment . . . that [was]
prosecution. (Moser, supra, 6 Cal.4th at
p. 354.) Nor could the length of
defendant’s parole be a proper subject of the plea bargain. “[T]he length of a parole term is
negotiations. . . . Neither the
prosecution nor the sentencing court has the authority to alter the applicable
term of parole established by the Legislature.â€
(Id. at p. 357; cf. People v.
[rejecting claim that inclusion of sex offender registration in sentence
violated the plea agreement; registration was a statutory requirement and not a
permissible subject of plea agreement negotiation].)
In People v. Avila (1994) 24
Cal.App.4th 1455 (Avila), we were
faced with a question nearly identical to the matter raised here. In Avila,
the defendant pleaded guilty to second degree murder pursuant to a negotiated
plea in which he would receive a 15-years-to-life prison sentence. (Id.
at p. 1457.) The court advised him at
the time he pleaded guilty that after completion of his prison term, he would
be on parole for a period of up to three years.
(Id. at p. 1458.) The defendant moved to withdraw his plea
prior to sentencing; he argued that he had been misadvised as to the parole
period, which was in fact a life term, and that this error constituted a
violation of his plea bargain. (
The trial court denied the motion, concluding that the parole period was
not a term of the plea bargain. (
We rejected the defendant’s appellate challenge.
We concluded first that although
the misadvisement constituted error under Bunnell,
supra, 13 Cal.3d 592, the defendant
had failed to show prejudice. (
that he should have been allowed to withdraw his guilty plea because there was
a breach of the plea bargain. We reasoned: “[W]e cannot agree that such a violation
occurred. First, there is no evidence
that a three-year maximum parole period was ‘a subject of negotiation (or even
discussion) during the plea-negotiation process, or that the prosecutor made
any promises or inducements relevant to the challenged element. [Citation.]’ [Citation.]
Second, the parole period was a statutorily mandated consequence of
defendant’s conviction; it therefore could not have been the subject of
negotiations or a condition of the final agreement. [Citations.] We must conclude, therefore, that the trial
court’s erroneous advisement regarding the parole period did not violate a term
of the plea bargain.†(
Similarly, in
pleading guilty pursuant to a plea bargain and was placed on parole, challenged
the Department of Corrections and Rehabilitation’s action of increasing the
term of his parole from three years to five years. He argued that the three-year parole period
“was an integral term of his plea agreement.â€
(Id. at p. 893.) Relying in part on Avila, supra, 24
Cal.App.4th 1455, the court rejected the claim, finding that there was no
evidence that the length of parole was a subject of negotiation. (Berman,
supra, at p. 893.) The court reasoned: “The [trial] court . . . summarized the terms
of the negotiated plea, stating only that petitioner would receive a three-year
prison sentence in exchange for his guilty plea and waiver of accumulated
credits. No mention of any promised term
of parole upon release was made. When
asked if petitioner had been promised anything else in exchange for his plea,
petitioner replied in the negative. This
. . . strongly reflects that the referenced parole term was merely an
advisement of the consequences of his plea, not a term that induced or provided
consideration for petitioner to enter his plea.†(Id.
at p. 894.) The Berman court also noted that a number of courts had held that “ ‘the
length of a parole term is not a permissible subject of plea negotiations.’ †(Ibid.,
quoting Moser, supra, 6 Cal.4th at p. 357.)
We find our reasoning in
District Court of Appeal, Division Two, in Berman
to be equally sound here. And we
reject defendant’s assertion that we should disregard Avila because “the legal claims Mr. Kamakani is making are far
different from the claims made in Avila.†Defendant argues that he, unlike the
defendant in Avila, is not the
asserting “that the length of parole was a ‘term’ of the negotiated plea.†But elsewhere, he argues repeatedly that he
should have been permitted to withdraw his guilty plea because the sentence
imposed was more severe than the one he was “promised†when he pleaded guilty. We see no distinction between the contention
that defendant was “promised†a more lenient sentence than what he ultimately
received, and the claim that the more lenient sentence was a term of the plea
bargain that was breached. In either
case, we view the controlling question to be this: When the court misadvises defendant about the
anticipated length of his parole (but that parole length is not part of the
plea bargain), must he be afforded the opportunity to withdraw his guilty plea when
the ultimate parole term at sentencing is less favorable? Here, as in Avila and Berman, this
question must be answered in the negative.
Defendant argues that
have been permitted to withdraw his guilty plea because “the court promised him
something that it was unable to deliver--a three-year parole term.†In Baries,
both the People and the defendant appealed from the judgment after the trial
court imposed a prison sentence for offenses committed in Santa Clara County to
run concurrently with a prison term the defendant received for offenses
committed in Merced County. (
unauthorized because consecutive sentencing was required under section 12022.1,
and the defendant agreed with that position but argued that the court’s
imposition of a concurrent sentence was in effect an exercise of its discretion
under section 1385 in striking an enhancement.
(Baries, supra, at p. 316.) We
concluded in Baries that the concurrent
sentence was unauthorized. (
condition of the [parties’] plea [agreement]†(id. at p. 316), we held that the defendant had to be given the
opportunity to withdraw her plea if she so desired. (Id.
at p. 319.)
Here, as we have concluded, the
three-year parole term was merely an advisement by the court; it was not “an
express condition of the plea,†unlike concurrency in Baries, supra, 209
Cal.App.3d at page 316. Defendant’s
reliance upon Baries is therefore
misplaced.
Defendant’s reliance on
prior approval of a negotiated plea bargain but failed to advise [the]
defendant of his statutory right to withdraw his guilty plea made in
consideration of the rejected bargain.â€
(Id. at p. 870.) The key element of the plea bargain that the
court ultimately rejected was receiving a county jail sentence instead of
incarceration in state prison. (
The court withdrew its approval of the plea bargain after learning that
the defendant had concealed his true identity and his prior criminal
record. (Id. at pp. 870-871.) The
high court concluded that the trial court erred by failing to comply with
section 1192.5, in that it should have informed the defendant at the time he
pleaded guilty of his right to withdraw
his plea if it ultimately rejected the plea bargain, and once it rejected the
bargain, it should have given him the right to withdraw his plea. (Johnson,
supra, at pp. 871-873.) Here, the court did not reject the plea
bargain, as the three-year parole term of which the court misadvised defendant
when he pleaded guilty was not a term of the bargain. Accordingly, Johnson does not assist defendant.
“[I]n order to be deemed a term
of a plea agreement, the circumstances must show that the ‘ “ ‘plea rest[ed] in
[a] significant degree on a promise or agreement . . . so that it can be said
to be part of the inducement or consideration . . . .’ †’ †(Berman,
supra, 187 Cal.App.4th at p. 893,
quoting Walker, supra, 54 Cal.3d at p. 1024.)
The three-year parole period the court erroneously advised defendant
here was a purported consequence of his guilty plea. It was not a term of the plea bargain,
because defendant’s plea did not rest on it and it was not an inducement or
consideration in his agreement to plead guilty to the attempted premeditated
murder count alleged in the information.
Accordingly, since any motion to withdraw defendant’s plea on the ground
that the sentence allegedly deviated from the terms of the plea bargain would
have lacked merit, defendant cannot establish the prejudice prong of his
ineffective assistance of counsel claim.
(In re Cox, supra, 30 Cal.4th at pp. 1019-1020.)
III.
A.
At sentencing, the trial court
imposed a booking fee of $129.75, payable to the City of San José. It noted that it was being “imposed pursuant
to Government Code [sections] 29550[,] . . . 29550.1 and [29550.2].†The court neither inquired about defendant’s
ability to pay the fine nor made a specific finding about defendant’s ability
to pay. Beyond identifying the three
Government Code sections, the court did not specify the statutory authority
under which this booking fee was being imposed.
But the parties agree that because defendant was arrested by city
authorities (specifically, the City of San José police), Government Code
section 29550.1 was the statute under which the booking fee was imposed.
Defendant claims that the trial court
erred because it did not make a determination of defendant’s ability to pay the
booking fee, and he is, in fact, indigent.
He acknowledges that the statute under which the booking fee was imposed
here (Gov. Code, § 29550.1) does not specifically require the court to determine
that the defendant has the ability to pay the fee. But he contends that because comparable
booking fee statutes (id., §§ 29550,
subd. (d)(2) & 29550.2, subd. (a)) contain an ability-to-pay condition, we
should imply such a requirement under Government Code section 29550.1. In the alternative, if the statute cannot be
so construed, the imposition of the booking fee here without such an
ability-to-pay determination violated his equal protection rights under the
federal and state Constitutions.
The Attorney General contends
that defendant forfeited this challenge.
She argues further that even were the claim not forfeited, the equal
protection claim fails.
B. Forfeiture
We consider as a threshold matter
whether defendant’s equal protection claim has been forfeited because he failed
to assert it below.
title="">[6] We conclude that even were the constitutional
claim forfeited--a finding we do not make here--we will address it on its
merits as a question of law submitted on undisputed facts.
“ ‘ “No procedural principle is
more familiar to this Court than that a constitutional right,†or a right of
any other sort, “may be forfeited in criminal as well as civil cases by the
failure to make timely assertion of the right before a tribunal having
jurisdiction to determine it.†’ †(
(1993) 507 U.S. 725, 731.) The purpose
of the forfeiture doctrine “ ‘is to encourage a defendant to bring errors to
the attention of the trial court, so that they may be corrected or avoided and
a fair trial had. . . .’ †(
Our high court has applied the
doctrine of forfeiture in a variety of contexts to bar claims not preserved in
the trial court in which the appellant had asserted an abridgement of
fundamental constitutional rights. (See,
e.g., People v. Williams (1997) 16 Cal.4th 153, 250; People v. Rodrigues
(1994) 8 Cal.4th 1060, 1116, fn. 20.)
Courts in a number of instances have found that the appellant’s
unpreserved equal protection claim, such as the one made by defendant here, was
forfeited. (See, e.g.,
29 Cal.4th 833, 861, fn. 3.) Application
of the forfeiture doctrine to the area of sentencing “is of recent
vintage.†(People v. McCullough (2013)
56 Cal.4th 589, 594 (McCullough); see
also People v. Scott (1994) 9 Cal.4th 331, 354
[challenge to sentence forfeited where sentence “though otherwise permitted by
law, [was] imposed in a procedurally or factually flawed mannerâ€];
reasonableness of probation conditions forfeited].)
Defendant did not raise any
challenge below to the imposition of the booking fee. Were defendant’s challenge here one based simply
upon the insufficiency of the evidence of defendant’s ability to pay the
booking fee the court imposed, such challenge would be forfeited under the high
court’s recent decision in McCullough. There, the defendant challenged the
sufficiency of the evidence to support a booking fee imposed under Government
Code section 29550.2, subdivision (a). (
The high court held “that because a court’s imposition of a booking fee
is confined to factual determinations, a defendant who fails to challenge the
sufficiency of the evidence at the proceeding when the fee is imposed may not
raise the challenge on appeal.†(
But
the nature of defendant’s challenge here is a constitutional one. Therefore, we do not find that under McCullough,
he forfeited this challenge by failing to assert it below. An appellate court may reach the merits of a
constitutional claim when it is “ ‘one of law presented by undisputed facts in
the record before us that does not require the scrutiny of individual
circumstances, but instead requires the review of abstract and generalized
legal concepts--a task that is suited to the role of an appellate court.’ †(People v. Delacy (2011) 192
Cal.App.4th 1481, 1493; see In re Sheena K. (2007) 40 Cal.4th 875, 885 (Sheena
K.).) Moreover,
even were we to find that defendant forfeited his equal protection challenge,
we nonetheless elect to decide it on the merits. (Sheena K., supra, at p. 887, fn. 7 [appellate courts may exercise their
discretion to review otherwise forfeited claims, generally ones involving
important constitutional issues or substantial rights].)
C. Constitutional Challenge
There are two requirements for a
successful equal protection challenge.
First, there must be “ ‘a showing that the state has adopted a
classification that affects two or more similarly
situated groups in an unequal manner.’ â€
(People v. Hofsheier (2006) 37 Cal.4th 1185, 1199 (Hofsheier), quoting In re
Eric J. (1979) 25 Cal.3d 522,
530.) Secondly, the party asserting the
claim must show that there is no rational relationship to a legitimate state
purpose for the state’s having made a distinction between the two similarly
situated groups. (Hofsheier, supra, at pp.
1200-1201.)
title="">[8] Defendant’s equal protection challenge to Government
Code section 29550.1 fails because neither prerequisite is satisfied.
With respect to the first--“similarly
situated groupsâ€--prerequisite (Hofsheier,
supra, 37 Cal.4th at p. 1199), persons
who are subject to the imposition of booking fees under Government Code section
29550.1 are not similarly situated to criminal defendants who are potentially
subject to booking fees imposed under Government Code sections 29550 and
29550.2. The statutory scheme here
provides for payment orders and probation conditions effecting the
reimbursement of counties for at least part of their costs in booking persons
arrested by their own officers and the officers of other entities such as
municipalities and the state. (
identity of the entity whose employees arrest them. Government Code section 29550.1 applies to
persons arrested by an officer or agent of a “city, special district, school
district, community college district, college, university, or other local
arresting agency.†Government Code section
29550, subdivision (d) applies to defendants arrested by officers of a
county. And Government Code section 29550.2,
subdivision (a) applies to arrests by a “governmental entity not specified in
Section 29550 or 29550.1.â€
Defendant’s challenge is based
upon the fact that on the face of the statutes, a local arrestee (as to whom
Gov. Code, § 29550.1 applies) may be required to pay a booking fee without any
showing that he is able to pay it; in contrast county and state arrestees (as
to whom Gov. Code, §§ 29550 or 29550.2 may apply) may only be subjected to such
a fee if they are shown to have an ability to pay it. For purposes of the statutes challenged here,
local arrestees are not “similarly situated†to county and state
arrestees. The lack of similarity arises
from the fact that under Government Code section 29550.1, a local arrestee is
only liable for the fee “imposed by a county.â€
The quoted phrase is manifestly a reference to the charge described in Government
Code section 29550, subdivision (a)(1), which entitles a county to “impose a
fee†on a local arresting agency “for reimbursement of county expenses incurred
with respect to the booking or other processing of persons arrested by an
employee†of that agency. Under that
statute, the fee so imposed by the county “shall not exceed one-half†of the
county’s actual administrative costs.
(Gov. Code, § 29550, subd. (a)(1).)
And it is this charge which is passed on to the local arrestee by Government
Code section 29550.1. Therefore, a local
arrestee, such as defendant here, is liable for only one-half of the amount of
booking fees for which county or state arrestees are potentially liable under
Government Code sections 29550 and 29550.2, respectively. Therefore, local arrestees who are
potentially liable for booking fees imposed under Government Code section
29550.1 are not similarly situated to county or state arrestees.
Even if we were to conclude that defendant
has satisfied the “similarly situated†test, the considerations we have
discussed above establish a rational basis for the differential treatment of
which he complains. Government Code section
29550.1 denies local arrestees, such as defendant, a benefit granted to other
arrestees, i.e., the possibility of avoiding an assessment because he lacks the
ability to pay it. But in conjunction
with Government Code section 29550, subdivision (a)(1), it also grants local
arrestees a benefit denied to county and state arrestees: local arrestees are effectively granted automatic
forgiveness of half of their debt. The
Legislature could have rationally concluded that this arrangement justified the
exclusion of an ability-to-pay condition as to local arrestees because other
arrestees are exposed to a potential debt double the size. A statutory classification “ ‘ “must be
upheld . . . if there is any reasonably
conceivable state of facts that could
provide a rational basis for the classification. [Citations.] Where there are ‘plausible reasons’ for [the
classification] ‘our inquiry is at an end.’ †’ †(Kasler
v. Lockyer (2000) 23 Cal.4th 472,
482; see also Hofsheier,
For
the foregoing reasons, we reject defendant’s claim that the imposition of the
booking fee under Government Code section 29550.1 violated his constitutional
right to equal protection.
D. Statutory Interpretation Challenge
In
conjunction with his claim that Government Code section 29550.1 constitutes a
violation of his equal protection rights, defendant contends that the statute
should be read as containing an implied ability-to-pay finding by the trial
court. He argues that “the omission of
language requiring consideration of a defendant’s ability to pay may have been
a drafting oversight.†We reject this
contention.
As
defendant acknowledges, Government Code section 29550.1 contains no requirement
that the court, in imposing a booking fee, make a finding of the defendant’s
ability to pay the fee. The statute
reads flatly: “A judgment of conviction
shall contain an order for payment of the amount of the criminal justice
administration fee by the convicted person . . . .†(Gov. Code, § 29550.1.) Defendant’s argument that the absence of an
ability-to-pay condition “may have been a drafting oversight†is simply
speculation. He cites no legislative
history or evidence of legislative intent, or any other matter (other than Gov.
Code, §§ 29550 & 29550.2) to support his contention. “ ‘If the words of the statute are clear, the
court should not add to or alter them to accomplish a purpose that does not
appear on the face of the statute or from its legislative history.’ †(California Teachers Assn. v.
San Diego Community College Dist. (1981) 28 Cal.3d 692, 698.) And as also applicable here, “ ‘ “[a]n intent
that finds no expression in the words of the statute cannot be found to exist. The courts may not speculate that the
legislature meant something other than what it said. Nor may they rewrite a statute to make it
express an intention not expressed therein.†’ †(Mutual Life Ins. Co. v.
City of Los Angeles (1990) 50 Cal.3d 402, 412.) Finding no intent or evidence of a drafting
oversight, we will not imply an ability-to-pay condition here.
We
acknowledge that “statutes or statutory sections relating to the same subject
must be harmonized, both internally and with each other, to the extent
possible.†(Dyna-Med, Inc.
v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.) But we see no disharmony between the
requirements under Government Code sections 29550 and 29550.2 that the court
make an ability-to-pay determination before assessing the booking fee, and the
absence of such a requirement under Government Code section 29550.1. Indeed, the absence of an ability-to-pay
required finding in Government Code section 29550.1, in light of express
requirements under Government Code sections 29550 and 29550.2, are indicative
that the Legislature did not intend there to be such an ability-to-pay
requirement under the former code section.
“[T]he Legislature has demonstrated that, if it intends to establish [this]
requirement[], it knows how to draft statutory language expressly doing so. The Legislature’s omission of this language . .
. therefore suggests that it did not intend to establish [the
requirement].†(Estate of Joseph (1998)
17 Cal.4th 203, 220 (dis. opn. of Chin, J.); see also Jarrow Formulas,
Inc. v. LaMarche (2003) 31 Cal.4th 728, 735 [Legislature has shown
it “knows how to create an exemption from the anti-SLAPP statute when it wishes
to do soâ€].) And as we have stated, ante,
the Legislature could have rationally concluded that the
exclusion of an ability-to-pay condition as to a local arrestee (under Gov.
Code, § 29550.1) was appropriate, while requiring such a condition for other (county
and state) arrestees, because each of the latter arrestees is potentially
liable for a booking fee double the amount of the fee for which the local
arrestee is potentially liable.
As
the Second District Court of Appeal, Division Six, held in rejecting a
statutory interpretation argument (adapted to our case here): “In essence, [the defendant] asks us to
rewrite [Government] Code section [29550.1 to include a requirement that the
court find the defendant to have an ability to pay the fee]. We decline the invitation.†(Unzueta v. Ocean View School Dist.
(1992) 6 Cal.App.4th 1689, 1696-1697.)
DISPOSITION
The trial court is directed to prepare
an amended abstract of judgment, striking the sentence, “Advised of 7 years to
life parole/appeal rights,†and replacing it with the following: “Advised of appeal rights. Length of parole following release from
prison shall be set by the Board of Parole Hearings as provided by California law.†As modified, the judgment is affirmed.
Premo,
Acting P.J.
WE
CONCUR:
Elia,
J.
Bamattre-Manoukian,
J.
name="_ftn1" title="">[1] Further statutory references are to the Penal Code unless
otherwise stated.
name="_ftn2" title="">[2] We present an abbreviated discussion of the facts underlying the
conviction, derived from the probation report, because they are not germane to
the appellate claims.
