Opinion
C088207 C088209
07-19-2021
THE PEOPLE, Plaintiff and Respondent, v. CHELSIE ANN FEE, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. CHELSIE ANN FEE, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. Nos. CR035821, CR035822
HOCH, J.
Defendant Chelsie Ann Fee attempted to murder two men on separate occasions by stabbing each man in the neck. In case Nos. CR035821 and CR035822, she was charged with premeditated attempted murder and assault with a deadly weapon, with various enhancement allegations attached to each count. Defendant ultimately pleaded guilty to one count of attempted murder in each case and also admitted inflicting great bodily injury on the victim in case No. CR035821. In accordance with the plea agreement, the trial court sentenced defendant to serve a determinate prison term of 12 years (upper term sentence of nine years for attempted murder plus three years for the great bodily injury enhancement) in case No. CR035821, plus a consecutive term of two years four months (one-third the middle term) for attempted murder in case No. CR035822. The trial court also imposed various fines and fees, including a $1,000 restitution fine in each case.
Defendant appeals from the judgment in each case. After briefing was complete, we issued an order consolidating the appeals for purposes of oral argument and disposition. Defendant argues: (1) the trial court violated the terms of the plea agreement in both cases by imposing a $1,000 restitution fine when the plea forms listed that fine to be $300; and (2) with respect to case No. CR035822, the minutes of the plea proceeding, sentencing minutes, and abstract of judgment must be corrected.
As we shall explain, defendant's first contention is forfeited for failure to withdraw her plea when the trial court imposed the additional punishment. Anticipating this conclusion, defendant argues in the alternative that she received constitutionally deficient assistance of counsel. This argument fails for lack of prejudice. We therefore need not modify the judgments to strike the $1,000 restitution fine. (Pen. Code, § 1202.4, subd. (b).) The judgments must, however, be modified to impose a parole revocation fine of $1,000 that the trial court neglected to impose. (§ 1202.45.) As so modified, we shall affirm the judgments. Finally, we do agree the minutes of the plea proceeding in case No. CR035822 must be corrected to remove the erroneous notation that defendant admitted inflicting great bodily injury in that case.
Undesignated statutory references are to the Penal Code.
BACKGROUND
The facts underlying defendant's convictions may be briefly stated. In November 2017, she was drinking alcohol and using drugs with a friend, B., at his apartment. After dropping a knife on the floor, she asked B. what would be the best way to kill someone. B. pointed near her jugular vein and said, “ ‘This spot right here.' ” Later that night, defendant told B., “ ‘I value your friendship,' ” and then stabbed him in the neck. About three months later, in February 2018, defendant stabbed another man, J., in the neck while riding in a car with him. J. was seated in the front passenger seat and defendant was seated directly behind him in the backseat. According to the driver, he and J. were taking defendant home after hanging out that night when defendant appeared to punch J. several times. When she stopped, J. had blood coming from his neck. Defendant later admitted stabbing J. and said she did so because she was “very high on meth and felt like [J. and the driver] were going to set her up and do something to her.” Both B. and J. sustained serious injuries but survived their encounter with defendant.
As previously stated, in case Nos. CR035821 and CR035822, defendant was charged with premeditated attempted murder and assault with a deadly weapon, with various enhancement allegations attached to each count. Pursuant to negotiated plea agreement, she agreed to plead guilty to one count of attempted murder in each case and admit inflicting great bodily injury on J., the victim in case No. CR035821. In exchange, the remaining charges and enhancements would be dismissed, the matter would be referred to the probation department for a sentencing recommendation with respect to case No. CR035821, and defendant would receive a consecutive sentence of one-third the middle term for attempted murder in case No. CR035822.
With respect to restitution, statutory fees, and assessments, the plea forms signed by defendant and the prosecutor provided: “I understand that the court will order me to pay the following amounts (if an amount is not yet known, ‘TBD' for ‘to be determined' is entered next to the $); I must prepare financial disclosure statements to assist the court in determining my ability to pay; and refusal or failure to prepare the required financial disclosure statements may be used against me at sentencing: [¶] 1. [checked box] $ 300.00 to the Victim Restitution Fund.” Next to items 2 through 9, involving direct victim restitution and other fines and assessments, “TBD” was written.
At the time of the guilty pleas, with respect to case No. CR035821, after receiving defendant's acknowledgment that she understood she would be pleading guilty to one count of attempted murder and admitting she inflicted great bodily injury on the victim, the following colloquy occurred:
“THE COURT: Do you also understand the maximum term of confinement that you could face based upon this plea would be 12 years in state prison?
“THE DEFENDANT: Yes, sir.
“THE COURT: And the fine amount of $29,000 is a possibility.
“THE DEFENDANT: Yes, sir.
“THE COURT: By entering the plea, the matter -- once the plea is accepted, the matter is going to be referred to the probation department of Lassen County to prepare a pre-sentence investigation report. It is what we term an open plea. There is no stipulated sentence or it's not a conditional plea. The Court will receive a pre-sentence investigation report from probation and from that report and other input, the Court will make an independent decision as to what your sentence may be.
“THE DEFENDANT: Yes, sir.”
The trial court then received defendant's acknowledgement that she understood and agreed to the terms of the plea form. Following this discussion, the trial court advised defendant of her constitutional rights, accepted her waiver of those rights, and also accepted her plea of guilty to one count of attempted murder and admission to inflicting great bodily injury on the victim.
Turning to case No. CR035822, after asking defendant whether she understood she would be pleading guilty in that matter as well, the following colloquy occurred:
“THE COURT: And although the plea form indicates correctly that the minimum and maximum amount of time you're looking at is five years to nine years pursuant to [section] 1170.1 of the Penal Code, your maximum exposure would be two and one third years consecutive to the prior case. You understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: Okay. You also understand that you have the same fine parameters of up to $29,000?
“THE DEFENDANT: Yes, sir.”
The trial court again received defendant's acknowledgement that she understood and agreed to the terms of the plea form. Following this discussion, the trial court again advised defendant of her constitutional rights, accepted her waiver of those rights, and accepted her plea of guilty to one count of attempted murder.
At sentencing, in accordance with the plea agreement, the trial court sentenced defendant to serve an aggregate determinate prison term of 14 years 4 months. The trial court also imposed various fines and fees, including a $1,000 restitution fine in each case. There was no objection to this fine despite the fact that the plea forms signed by defendant and the prosecutor listed the restitution fine amount to be $300.
DISCUSSION
I
Violation of the Plea Bargain
Defendant contends the trial court violated the terms of the plea agreement in both cases by imposing a $1,000 restitution fine when the plea forms listed that fine to be $300. We conclude the contention is forfeited. Anticipating this conclusion, defendant argues in the alternative that she received constitutionally deficient assistance of counsel. This argument fails for lack of prejudice.
A.
Forfeiture
Section 1202.4, subdivision (b) provides: “In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record.” This fine “shall be set at the discretion of the court and commensurate with the seriousness of the offense, ” and where “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).” (§ 1202.4, subd. (b)(1).) “A restitution fine is not paid by the defendant directly to the victim. Instead, it ‘shall be deposited in the Restitution Fund in the State Treasury' [citation], from which crime victims may obtain compensation through an application process [citation].” (People v. Villalobos (2012) 54 Cal.4th 177, 181 (Villalobos).)
“In addition, section 1202.45 requires every person who ‘is convicted of a crime and whose sentence includes a period of parole' to pay ‘an additional parole revocation restitution fine in the same amount as' the restitution fine under section 1202.4, subdivision (b). [Citation.] The parole revocation fine is also paid into the state Restitution Fund, and the fine ‘shall be suspended unless the person's parole is revoked.' [Citation.]” (Villalobos, supra, 54 Cal.4th at p. 181.)
Although the trial court is statutorily vested with discretion to set the amount of the restitution fine, “ ‘defendants are free to negotiate the amount of restitution fines as part of their plea bargains.' [Citations.] The parties to a criminal proceeding may choose to agree on a specific amount between the statutory minimum and maximum, or they may leave it up to the sentencing court's discretion. [Citation.]” (Villalobos, supra, 54 Cal.4th at p. 181.)
Here, the parties agreed to the statutory minimum restitution fine. Defendant argues she was denied this specific benefit of her plea bargain because the trial court instead imposed a restitution fine of $1,000. In response, the Attorney General argues defendant forfeited this contention by failing to object to the fine at sentencing or withdraw her plea in response to the additional punishment. We agree with the Attorney General.
Our Supreme 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.” (People v. Mancheno (1982) 32 Cal.3d 855, 859-860, fn. omitted (Mancheno).) Quoting the United States Supreme Court's decision in Santobello v. New York (1971) 404 U.S. 257 at page 262 [30 L.Ed.2d 427, 433], the court continued: “ ‘This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when 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.' ” (Mancheno, at p. 860.) Thus, “violation of the bargain by an officer of the state raises a constitutional right to some remedy.” (Ibid.)
However, as our Supreme Court has also explained, a claim that a restitution fine violates the plea bargain amounts to a claim that the punishment imposed exceeds the terms of the plea bargain, and a defendant “forfeits” such a claim “when the trial court gives a section 1192.5 admonition and the defendant does not withdraw [her] plea at sentencing.” (Villalobos, supra, 54 Cal.4th at p. 182.) Section 1192.5 provides in relevant part: “If the court approves of 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.” This advisement was provided in the plea forms signed by defendant. She initialed the box next to the advisement on both forms. She also verbally confirmed that she both understood and agreed to the terms of the plea forms.
While the trial court did not verbally provide the section 1192.5 advisement, or ask defendant whether she understood that specific provision of the plea forms, this court held in People v. Townsend (1985) 171 Cal.App.3d 900 (Townsend) that the right to withdraw the plea in the event of judicial disapproval of the sentence is not one of the “specified constitutional rights, ” i.e., the “ ‘right to confrontation, to a jury trial, and against self-incrimination,' ” that a criminal defendant must be verbally made aware of, and explicitly waive, prior to the taking of the plea; these constitutional rights, “ ‘as well as the nature of the charge and the consequences of [the] plea... must be enumerated and responses elicited from the person of the defendant....' [Citation.]” (Id. at p. 904.) This Boykin-Tahl requirement does not extend to the right to withdraw a guilty plea and proceed to trial in the event the trial court should seek to impose greater punishment than that set forth in the plea bargain. (Townsend, at pp. 904-905.)
In Boykin v. Alabama (1969) 395 U.S. 238 , the United States Supreme Court held “an appellate court may not presume from a ‘silent record' that a defendant has voluntarily and intelligently waived the constitutional rights which he implicitly relinquishes by entering a plea of guilty.... [¶] Shortly thereafter, in In re Tahl (1969) 1 Cal.3d 122, our [Supreme Court] undertook an extensive analysis of the Boykin decision and determined that in order to satisfy Boykin's requirements a trial court record must explicitly reveal ‘on its face' that before a defendant entered a plea of guilty, he was aware of the three major constitutional rights he was foregoing by pleading guilty-namely, the privilege against self-incrimination, the right to confrontation and the right to a jury trial-and that he knowingly and voluntarily waived such rights.” (Mills v. Municipal Court (1973) 10 Cal.3d 288, 291.)
In so concluding, we noted language in Mancheno, supra, 32 Cal.3d 855, suggested otherwise. (Townsend, supra, 171 Cal.App.3d at p. 905.) In that case, a self-represented defendant pleaded guilty to two counts of robbery and admitted he was armed with a firearm when he committed the offenses. Part of the plea bargain involved the trial court ordering a diagnostic study. (Mancheno, at p. 858.) At sentencing, having not ordered the promised diagnostic study, the trial court asked the defendant whether there was any legal cause why sentence should not be pronounced, defendant said there was not, and the trial court imposed sentence. (Id. at p. 859.) Rejecting the Attorney General's argument that the defendant “ ‘expressly waived' ” his right to the diagnostic study by answering the foregoing question in the negative, our Supreme Court stated: “That study was one of the privileges that defendant had bargained for in exchange for his plea of guilty and waiver of his constitutional rights. Of course, there can be no waiver of a constitutional right absent ‘an intentional relinquishment or abandonment of a known right or privilege.' [Citation.] No less should a court presume from mere silence that defendant is waiving implementation of the consideration that induced him to waive his constitutional rights. Finding a waiver under the circumstances of this case would undercut the requirement that defendant's waiver of constitutional rights be intelligently made.” (Id. at p. 864, fns. omitted.) The court concluded: “[S]ome affirmative expression or conduct by the defendant acknowledging relinquishment of the bargained for term is essential before we could find that he had waived his right to that term. Mere silence or acquiescence is insufficient to extinguish the bargained for term underlying defendant's waiver of constitutional rights.” (Id. at p. 865.)
Returning to Townsend, we explained: “The reference to ‘some affirmative expression or conduct by the defendant... [beyond] mere silence or acquiescence' is suggestive of a Tahl-like waiver made personally by the defendant. We are persuaded, however, that language was not intended to announce an extension of the Tahl rule but was simply referable to the particular facts of the Mancheno case in which the defendant appeared in the trial court in propria persona. Therefore, any waiver of necessity would have to have been made by defendant personally. [¶] It is also fair to conclude, we believe, that the Supreme Court would not have extended its Tahl ruling in such an offhand fashion. Tahl is a carefully worked-out analysis and the court's later decisions refining the application of the rule have been developed with equal precision. [Citations.]” (Townsend, supra, 171 Cal.App.3d at p. 905.)
We further explained that “there is authority allowing waiver of a right vested by a plea bargain even when not expressly stated by a defendant, ” specifically the right under People v. Arbuckle (1978) 22 Cal.3d 749 to be sentenced by the same judge who accepted the guilty plea. (Townsend, supra, 171 Cal.App.3d at pp. 905-906.) Recent cases have more properly referred to a defendant's failure to object when sentenced by a different judge as a “forfeiture” of the Arbuckle claim rather than a “waiver” of the right to be sentenced by the same judge. (People v. Cardenas (2020) 53 Cal.App.5th 102, 125 [“multiple cases have held that Arbuckle claims are forfeited when not raised at sentencing”]; contra, People v. Bueno (2019) 32 Cal.App.5th 342, 348-351 .) However, regardless of the proper terminology, we are persuaded by the Townsend court's analogy to the Arbuckle context. Indeed, as already noted, our Supreme Court has more recently held a defendant “forfeits a claim that [her] punishment exceeds the terms of a plea bargain” by failing to withdraw her plea at sentencing after being advised of her right to do so under section 1192.5. (Villalobos, supra, 54 Cal.4th at p. 182.)
Here, despite the fact that defendant was not verbally informed by the trial court of her right to withdraw the plea, either at the time her plea was taken or at sentencing, she nevertheless received a sufficient section 1192.5 advisement of this right on both plea forms, which defendant initialed. (Cf. People v. Silva (2016) 247 Cal.App.4th 578, 588 [trial court failed to orally advise defendant of § 1192.5 right to withdraw and advisement on plea form was insufficient].) Defendant was also asked by the trial court whether she understood and agreed to the terms of the plea forms. She said she did. We conclude defendant's failure to withdraw her plea when the trial court imposed the $1,000 restitution fines forfeits her claim that these fines violated the terms of the plea bargain.
B.
Ineffective Assistance of Counsel
Defendant argues in the alternative that her trial counsel provided constitutionally deficient assistance by failing to object to the $1,000 restitution fines. This argument fails for lack of prejudice.
A criminal defendant has the right to the assistance of counsel under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) This right “entitles the defendant not to some bare assistance but rather to effective assistance. [Citations.] Specifically, it entitles [her] to ‘the reasonably competent assistance of an attorney acting as [her] diligent conscientious advocate.' [Citations.]” (Ibid.) The burden of proving a claim of ineffective assistance of counsel is squarely upon the defendant. (People v. Camden (1976) 16 Cal.3d 808, 816.) “ ‘In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was “deficient” because [her] “representation fell below an objective standard of reasonableness... under prevailing professional norms.” [Citations.] Second, [she] must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown when there is a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”' ” (In re Harris (1993) 5 Cal.4th 813, 832-833; Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].)
We need not determine whether defendant's trial counsel's failure to object to the $1,000 restitution fines fell below an objective standard of reasonableness because we conclude defendant has failed to carry her burden of establishing prejudice.
People v. Nystrom (1992) 7 Cal.App.4th 1177 is instructive. There, the defendant pleaded guilty to one count of auto theft and was ordered to pay $12,866 in direct victim restitution despite the fact that the plea form inaccurately listed $10,000 as the maximum amount that could be ordered for “ ‘[r]estitution and/or a restitution fine.' ” (Id. at pp. 1179-1180.) The defendant argued both that he was not adequately advised that direct victim restitution, as opposed to a restitution fine, was a potential consequence of his guilty plea, and that the $12,866 amount violated the terms of the plea bargain. The appellate court concluded defendant forfeited both claims by failing to object at sentencing. (Id. at pp. 1180-1181.) The court also concluded a “lack of prejudice preclude[d] his complaining about the $12,866 restitution order” because the plea form advised him “that his maximum monetary liability might be as much as $30,000.” (Id. at p. 1181.)
While the Nystrom court did not elaborate on its conclusion that the defendant did not establish prejudice, the reason is apparent. A defendant who is misadvised of the consequences of his or her guilty plea “ ‘is entitled to relief... only if the defendant establishes that he or she... would not have entered the plea of guilty had the trial court given a proper advisement.' [Citations.]” (People v. McClellan (1993) 6 Cal.4th 367, 378.) In Nystrom, the defendant was advised the maximum amount of monetary liability was far greater than the amount he was challenging on appeal. In such a case, there is no reasonable probability the defendant would not have pleaded guilty had the trial court properly advised him that direct victim restitution could exceed $10,000. And while the Nystrom defendant's alternative claim that the amount of victim restitution ordered by the trial court violated the terms of the plea bargain is not subject to harmless error analysis, at least where the claim is preserved for appellate review (see Mancheno, supra, 32 Cal.3d at p. 865), in that case, the claim was forfeited. Accordingly, as in this case, review of the claim would necessarily come under the rubric of ineffective assistance of counsel, where prejudice must be shown.
Similarly, here, defendant was advised by the trial court that the total amount of her fines could be $29,000. We conclude there is no reasonable probability that defendant would not have pleaded guilty had she known the restitution fines would be $1,000 instead of $300. For this reason, we must reject her assertion that she was prejudiced by her counsel's failure to object to the $1,000 fines at sentencing.
II
Correction of the Minutes and Abstract of Judgment
With respect to case No. CR035822, defendant claims the minutes of the plea proceeding, sentencing minutes, and abstract of judgment must be corrected.
The Attorney General concedes the minutes of the plea proceeding should be corrected. We accept the concession. As defendant accurately observes, these minutes incorrectly state that she admitted a great bodily injury enhancement in case No. CR035822. We shall therefore direct the trial court to correct the minutes of the plea proceeding in that case to remove the notation: “Admits enhancement 12022.7(a) PC & enhancement alleged in Count 1.” (See People v. Zackery (2007) 147 Cal.App.4th 380, 386.)
Defendant's argument with respect to correcting the sentencing minutes and abstract of judgment regarding the parole revocation restitution fine fail. Both documents state that a $1,000 parole revocation restitution fine was imposed and stayed pursuant to section 1202.45. Defendant is correct that the trial court did not orally impose this fine when sentencing her in case No. CR035822. Nor did it orally impose the fine when sentencing defendant in case No. CR035821. However, it was statutorily required to do so. As previously stated, “section 1202.45 requires every person who ‘is convicted of a crime and whose sentence includes a period of parole' to pay ‘an additional parole revocation restitution fine in the same amount as' the restitution fine under section 1202.4, subdivision (b). [Citation.] The parole revocation fine is also paid into the state Restitution Fund, and the fine ‘shall be suspended unless the person's parole is revoked.' [Citation.]” (Villalobos, supra, 54 Cal.4th at p. 181.)
Where, as here, the trial court imposes a restitution fine under section 1202.4, but no parole revocation restitution fine under section 1202.45, “the appropriate and expedient remedy is for the reviewing court to modify the judgment to reflect a parole revocation fine in an amount identical to that imposed for the restitution fine.” (People v. Terrell (1999) 69 Cal.App.4th 1246, 1256, fn. omitted.) We shall do so. With the judgments in case Nos. CR035821 and CR035822 so modified, the sentencing minutes and abstract of judgment in both matters need no correction regarding the parole revocation restitution fine.
We do note the abstract of judgment lists defendant's first name as “Chelie” instead of “Chelsie.” From our review of the record, this appears to be a typographical error. We will order amendment of the abstract of judgment to correct the error.
DISPOSITION
The oral judgments in case Nos. CR035821 and CR035822 are modified to impose and stay a parole revocation restitution fine of $1,000. (§ 1202.45.) As so modified, the judgments are affirmed. We additionally direct the trial court to (1) prepare an amended abstract of judgment to reflect defendant's first name as “Chelsie” and forward a certified copy to the Department of Corrections and Rehabilitation, and (2) correct the minutes of the plea proceeding in case No. CR035822 to remove the notation: “Admits enhancement 12022.7(a) PC & enhancement alleged in Count 1.”
We concur: BLEASE, Acting P. J., MURRAY, J.