Opinion
F072445
03-02-2018
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW CISNEROS, Defendant and Appellant.
Robert F. Kane, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF291401)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. Robert F. Kane, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Detjen, J. and Meehan, J.
-ooOoo-
Appellant Matthew Cisneros appeals following his sentencing after pleading no contest to one count of voluntary manslaughter (Pen. Code, § 192, subd. (a)), with enhancements for using a firearm (§ 12022.5, subd. (a)) and committing the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). Cisneros contends his plea bargain was faulty because he could not properly waive his right to a parole hearing under section 3051. He further contends the trial court abused its discretion in issuing the maximum restitution fines available. For the reasons set forth below, we affirm.
All future statutory references are to the Penal Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
On November 14, 2013, two alleged Norteño gang members walked by a home located on Northeast Fourth Street in Tulare County. The home and the one next to it belonged to Cisneros's family. It had been the target of several recent shootings. As the alleged gang members passed by, they saw Cisneros and the group exchange what a witness described as dirty looks. Cisneros then pulled out a shotgun and shot one of the passersby in the back, killing him.
Evidence at the preliminary hearing suggested Cisneros was a member of the Oriental Troops—as part of a group referred to as MOT or Mexican Oriental Troops—a Norteños rival. Conflicting evidence of Cisneros's gang membership also emerged which showed he had no gang tattoos and was housed in a unit for Sureño dropouts.
Cisneros was charged with first degree murder, with enhancements for using a firearm and committing the crime to benefit a gang. The complaint noted Cisneros was a minor, at least 16 years of age, at the time he committed the offense.
The parties engaged in plea negotiations, which ultimately resulted in Cisneros pleading no contest to the charges. As part of those negotiations, Cisneros agreed to waive his appellate rights, along with his statutory rights to a juvenile offender parole hearing under section 3051, among others. He further agreed to plead guilty to one count of voluntary manslaughter with enhancements for using a firearm and committing the crime to benefit a gang, and accept a determinate 31-year sentence. The People agreed to amend the complaint in this manner, reducing from the original charges his total exposure of 50 years to life, and dismiss all other pending charges.
Cisneros agreed to these terms when questioned by the court. The court then took and accepted his no contest plea to the amended charges. At sentencing, the court sentenced him to the agreed-upon 31 years and indicated its intent to issue a restitution fine in the amount of $10,000. Cisneros's objection, requesting the minimum, was overruled and the restitution fine issued. A separate parole revocation restitution fine in the amount of $10,000 was suspended pending successful completion of parole.
This appeal timely followed. However, no certificate of probable cause issued and none appears to have been requested, as Cisneros indicated in the notice of appeal that the appeal "is based on the sentence or other matters occurring after the plea that do not affect the validity of the plea."
DISCUSSION
Cisneros requests this court consider two allegations of error. First, he contends the court must strike the portion of his guilty plea waiving his right to a juvenile offender parole hearing because such a provision is invalid. Second, he contends the trial court abused its discretion in issuing the maximum restitution fine amount of $10,000. Cisneros Cannot Challenge His Parole Hearing Waiver on Appeal
Cisneros asserts waiving his right to a parole hearing as part of his negotiated plea deal was invalid for several reasons and asks this court to strike that provision of the plea agreement. Although ultimately contesting the merits of his positions, the People respond that Cisneros's challenge requires a certificate of probable cause and conflicts with his additional and noncontested waiver of his appellate rights in this matter. Cisneros replies that he "is not seeking to overturn his plea or 31-year sentence for which a certificate of probable cause would be required. Rather he seeks to have the impermissible waiver of mandatory early parole eligibility under Penal Code section 3051 stricken that is mandated by statute to implement important public policies." We agree with the People that a certificate of probable cause was required.
Standard of Review and Applicable Law
"A defendant may not appeal 'from a judgment of conviction upon a plea of guilty or nolo contendere,' unless he has obtained a certificate of probable cause. [Citations.] Exempt from this certificate requirement are postplea claims, including sentencing issues, that do not challenge the validity of the plea. [Citations.] For example, 'when the claim on appeal is merely that the trial court abused the discretion the parties intended it to exercise, there is, in substance, no attack on a sentence that was "part of [the] plea bargain." [Citation.] Instead, the appellate challenge is one contemplated, and reserved, by the agreement itself.' " (People v. Cuevas (2008) 44 Cal.4th 374, 379-380 (Cuevas).)
As explained in Cuevas, "For purposes of the certificate of probable cause requirement, the critical question is whether defendant's . . . challenge to his sentence is in substance a challenge to the validity of his plea. [Citations.] In other words, the question is whether defendant 'seeks only to raise [an] issue[] reserved by the plea agreement, and as to which he did not expressly waive the right to appeal.' " (Cuevas, 44 Cal.4th at p. 381, first bracketed insertion added.) A broad range of issues, including such fundamental concerns as mental competency, are considered attacks on the validity of the plea, subject to the requirement of a certificate of probable cause. (People v. Mendez (1999) 19 Cal.4th 1084, 1100.) Raised first at the appellate level, we consider the certificate requirement independently. (Ibid.)
Cisneros's Arguments Require a Certificate of Probable Cause
Cisneros's core argument is that, under the contract principles used to evaluate plea bargains, his waiver is invalid because a person cannot waive a right that belongs to the public generally. This argument, and those others supporting his position, all ultimately claim that his waiver cannot withstand scrutiny and must be set aside. While Cisneros seeks to convince the court it is merely protecting his statutory rights, and not challenging the legality of his plea, we do not agree.
Appellant requests we take judicial notice of several documents relating to section 3051's legislative history. We note the court need not take judicial notice of published portions of the legislative history. Further, as there is no relevant dispute concerning the nature of the state's interest requiring consideration of these materials, we DENY the motion as moot.
Cuevas provides a compelling analogy. In Cuevas, the defendant entered into a plea agreement whereby the charges against him were reduced and, therefore, his maximum sentence was capped at 37 years 8 months. (Cuevas, supra, 44 Cal.4th at p. 383.) When the court imposed this maximum sentence, the defendant appealed, alleging the maximum term was improper because section 654 barred the imposition of multiple sentences for a single act. (Cuevas, at pp. 379-381.) Our Supreme Court, noting that the maximum available sentence was " 'part and parcel' " of the plea bargain, found the defendant was "not challenging the court's exercise of sentencing discretion, but attacking its authority to impose consecutive terms for these counts[,] . . . a challenge to the plea's validity, requiring a certificate of probable cause." (Id. at p. 384.)
Cisneros's position is consistent with the issue presented in Cuevas, and thus foreclosed by its logic. Here, Cisneros negotiated a specific sentence—31 years minus good time credits—and asked the court to implement that term while recognizing it required a waiver of his right to an early parole hearing. The specific sentence was a substantial reduction in the charges and the total potential confinement time from his original indictment and, thus, was "part and parcel" of the plea bargain. Now, relying on statutory authority regarding how that sentence should be served, Cisneros attacks the court's authority to impose a 31-year sentence because one of the terms required when implementing that agreement violated statutory law. Such a claim requires a certificate of probable cause. The Court Did Not Abuse Its Discretion When Determining Restitution Fines
Although not reaching the merits, we do recognize the seriousness of the flaw alleged in this case. "The prosecution and criminal court . . . do not have unfettered discretion in determining the subject matter of a plea bargain. The court must exercise its sentencing authority in accordance with the Penal Code, public policy, and decisional law." (People v. Renfro (2004) 125 Cal.App.4th 223, 230.) Like the mentally disordered offender hearings in Renfro, the parole hearings here are unique proceedings instituted by a separate governmental agency and are not discretionary aspects of sentencing. They are very likely not within the purview of the court and the prosecution's bargaining authority. (Id. at pp. 231-232.) Should Cisneros's parole hearings not occur, habeas proceedings might best remedy this potential error, most likely through withdrawing the plea. (See People v. Jackson (1981) 121 Cal.App.3d 862, 869 [proper remedy for illegal plea bargain is withdrawal].) --------
Cisneros also contests the $10,000 restitution fines imposed in this case. Relying on his age, lack of a high school education, and indigence, along with the circumstances of the crime and principles of proportionality for youth punishment and the ability to reenter society, he alleges the fines constitute an abuse of discretion by the trial court. We do not agree.
Applicable Law
Restitution fines in criminal cases are governed by sections 1202.4 and 1202.45. Under section 1202.4, upon conviction of a crime the court "shall order the defendant to pay" a "restitution fine" in line with the statutory guidance. (§ 1202.4, subd. (a)(2), (3)(A).) Under section 1202.45, in every case where there is a conviction and the sentence includes a period of parole, the court must enter an additional restitution fine in the same amount as that ordered under section 1202.4. (§ 1202.45, subd. (a).)
Section 1202.4, subdivision (b)(1) provides that "[t]he restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000)." Subdivision (b)(2) provides a formula for calculating the restitution fine, as follows: "In setting the felony restitution fine, the court may determine the amount of the fine as the product of the minimum fine pursuant to paragraph (1) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted." (Id., subd. (b)(2).) Finally, under subdivision (d), when setting the amount of the restitution fine "in excess of the minimum fine pursuant to paragraph(1) of subdivision (b), the court shall consider any relevant factors, including, but not limited to, the defendant's inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in the crime." (Id., subd. (d).)
The Trial Court Acted Within Its Discretion
In this case, the statutorily identified formula would have resulted in a $9,300 fine. In addition, Cisneros's crime involved what appeared to be an unprovoked attack predicated on some past action toward his family or friends. While there were several factors that could be viewed as supporting a lower fine, the trial court was well within its discretion to impose a maximum fine in the circumstances presented here. In abuse of discretion situations, the trial court is granted leeway to weigh the various factors and impose a reasonable fine provided the result is neither so irrational nor arbitrary that no reasonable person could agree with it. (See People v. Carmony (2004) 33 Cal.4th 367, 377.) While it is possible other courts could have found Cisneros's circumstances—including his youth and present inability to pay the fine—warranted a reduced fine, the decision to increase the fine slightly above the statutorily proposed amount was not so unreasonable given the facts of the crime as to constitute an abuse of discretion. (See People v. Urbano (2005) 128 Cal.App.4th 396, 405 ["Unless there are ' "compelling and extraordinary reasons," ' the defendant's 'lack of assets' and 'limited employment potential' are 'not germane' to his or her ability to pay the fine. [Citations.] In the absence of a contrary showing, the court is entitled to presume the defendant will pay the restitution fine out of future earnings."].)
DISPOSITION
The judgment is affirmed.