Opinion
H051593
09-26-2024
THE PEOPLE, Plaintiff and Respondent, v. DANIEL CHRISTOPHER WILLIAM HARDIN, Defendant and Appellant.
NOT TO BE PUBLISHED
(Monterey County Super. Ct. No. 21CR009643)
DANNER, J.
Appellant Daniel Christopher William Hardin appeals from a judgment entered after conviction by plea. Appointed counsel for Hardin filed a brief asking this court to review the record to determine whether there are any arguable issues. (See People v. Wende (1979) 25 Cal.3d 436 (Wende).) After independent review of the record, we requested supplemental briefing on whether the trial court erred in failing to give appellant conduct credits for the time he spent at Metropolitan State Hospital (See Pen. Code, §§ 4019, subd. (a)(8), 2933.1, subd. (c); People v. Orellana (2022) 74 Cal.App.5th 319, 333) (Orellana) and, if so, the appropriate remedy on appeal. We also asked the parties to address the relevance, if any, of the appellate waiver contained in appellant's written plea agreement. Having considered the supplemental briefing and the record, we decide Hardin waived in his plea agreement his right to appeal, including the trial court's award of custody credits. Accordingly, we dismiss the appeal.
Unspecified statutory references are to the Penal Code.
I. FACTS AND PROCEDURAL BACKGROUND
The facts are taken from the probation report prepared for Hardin's sentencing.
On November 14, 2021, Hardin was sitting on a bench located next to a recreational trail in Pacific Grove. A husband and wife walked by Hardin. Hardin stood up, followed the couple for a short distance, and stabbed the husband. Neither the victim nor his wife had ever previously met Hardin.
Hardin was initially charged by complaint in November 2021 with assault with a deadly weapon (a knife) (§ 245, subd. (a)(1); count 1), with allegations that he personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)) and that in the commission of the offense he personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). The trial court arraigned Hardin on the complaint and appointed the public defender to represent him. At a court appearance on December 15, 2021, Hardin's counsel declared a doubt about Hardin's mental competence to stand trial. The trial court found a doubt had arisen about Hardin's mental competence (§ 1368), suspended criminal proceedings, and referred Hardin to a psychiatrist for examination (§ 1369).
At the next court appearance on January 5, 2022, the parties waived their right to a jury trial on Hardin's competency and submitted the question to the trial court for decision on the written reports. The court found Hardin not competent to stand trial, continued the suspension of the criminal proceedings, and referred the matter to the community program director to decide whether Hardin should undergo outpatient treatment or be committed to the state hospital or other treatment facility. (§ 1370.) The matter was continued to January 19, 2022.
On January 19, 2022, the trial court found Hardin unsuitable for outpatient treatment, ordered him committed and placed in a state hospital facility designated by the Department of State Hospitals for treatment, and ordered that Hardin could be involuntarily medicated. The court further found that Hardin's maximum term of confinement was two years, and he had spent 65 actual days in custody. The court continued the matter to April 1, 2022, for a status hearing on Hardin's transportation to the state hospital. As of court dates on April 1, May 13, and June 15, Hardin had not yet been transported to the state hospital. By the court appearance on July 15, 2022, Hardin had been transported to the state hospital. On October 14, 2022, Hardin (who had returned from the state hospital) appeared in court with his attorney. On October 17, 2022, the court received and filed a certification of mental competency (§ 1372) and set a restoration hearing for October 19, 2022.
At the hearing on October 19, 2022, the trial court found Hardin competent to stand trial and reinstated criminal proceedings. On November 30, 2022, Hardin waived his right to a preliminary hearing, the court held him to answer, and the matter was continued for arraignment on the information. In an information filed on December 1, 2022, the district attorney charged the same crimes and allegations appearing in the complaint. Hardin was arraigned on the information on December 14, 2022, and he entered a plea of not guilty and denied the allegations.
On January 18, 2023, Hardin was informed of and waived his right to trial and, pursuant to written plea agreement, entered a plea of no contest to count 1 and admitted the allegation under section 12022.7, subdivision (a).
Among other terms, the plea agreement provided that the trial court had the authority to place Hardin on felony probation, and, if it instead sentenced him to prison, the term could be for no more than five years. In the portion of the written plea agreement described as "specified waivers," Hardin initialed the following waiver: "(Appeal and Plea Withdrawal Waiver) I hereby waive and give up all rights regarding state and federal writs and appeals. This includes, but is not limited to, the right to appeal my conviction, the judgment, and any other orders previously issued by this court. I agree not to file any collateral attacks on my conviction or sentence at any time in the future. I further agree not to ask the Court to withdraw my plea for any reason after it is entered." (Boldface omitted.)
During the plea colloquy with the trial court, Hardin confirmed that he had initialed and signed the written plea agreement. The court orally recited the terms of the plea agreement, and stated, "You're giving up your rights to writs and appeals." At the end of the recitation of the plea terms, the court asked, "Do you understand that?" Hardin answered "Yes." Hardin indicated that he had discussed the charges and possible defenses with his attorney, and that he understood all the rights and potential penalties and consequences explained in the written plea agreement and waiver of rights form. Hardin stated that he did not have any questions for his attorney or for the court. The court accepted Hardin's plea and set a sentencing hearing for February 17, 2023.
On February 17, 2023, the trial court relieved the public defender and noted that a new attorney had substituted into the case as Hardin's attorney of record. The matter was continued to March 10, 2023, for sentencing. On March 6, 2023, Hardin's attorney moved to continue the sentencing for 90 days. Hardin's attorney indicated "there may be several legal grounds to support a [m]otion to [w]ithdraw the [p]lea," including that the public defender did not request diversion for Hardin pursuant to section 1001.35 et seq. On March 10, 2023, the court granted Hardin's motion for a continuance and continued the sentencing hearing to June 16, 2023. Hardin's attorney sought further continuances, which the court granted.
At a subsequent hearing, Hardin's mother testified that she had hired the new counsel.
On August 30, 2023, Hardin filed a motion to withdraw his plea. Hardin asserted that his former counsel, the public defender, failed to retain a mental health expert in assessing a possible not guilty by reason of insanity plea (NGI plea) or eligibility for mental health diversion. Hardin's new counsel hired an expert to conduct a mental health evaluation of Hardin, and she diagnosed him as suffering from schizophrenia. The expert also opined that Hardin's mental health disorders were a significant factor in the charged offense.
In his motion to withdraw his plea, Hardin argued the public defender's "conduct and lack of actions show[] that his performance fell well below" the standard of effective assistance set out in Strickland v. Washington (1984) 466 U.S. 668 (Strickland). Hardin asserted that the public defender's deficient performance affected the outcome of the case because Hardin was denied the benefit of either seeking mental health diversion or entering an NGI plea. Hardin asserted that his mother had attempted to provide the public defender with his mental health records, but the public defender would not accept them. Hardin stated the public defender "conducted no investigation concerning Mr. Hardin's mental health history." Hardin also filed a motion for a hearing on mental health diversion (§ 1001.36) in the event the trial court granted his motion to withdraw his plea.
The district attorney opposed Hardin's motion to withdraw his plea, arguing that he had not shown good cause by a standard of clear and convincing evidence pursuant to section 1018. The district attorney contended that Hardin's public defender was aware of Hardin's mental health status, and counsel's decisions not to seek an NGI plea or mental health diversion were tactical and did not constitute ineffective assistance of counsel. The district attorney also pointed out that Hardin had not proffered any evidence that he was legally insane at the time he committed the crime. The district attorney indicated that he would oppose Hardin's motion for mental health diversion because Hardin could not show that he will not pose an unreasonable risk to public safety if treated in the community. The district attorney contended it was a reasonable tactical decision for Hardin's public defender to "minimize legal exposure through a plea bargain" rather than seeking diversion or entry of a plea of insanity.
On September 27 and 29, 2023, the parties appeared before the trial court for a hearing on Hardin's motions. At the outset of the hearing, Hardin's counsel clarified that he "misidentified this motion to withdraw." He stated, "This is a Strickland motion solely." Hardin presented the testimony of three witnesses: his former public defender counsel, his mother, and Daniel Mayfield, who testified as an expert on criminal defense. The public defender testified that he knew Hardin "had longstanding mental illnesses," including schizophrenia. The public defender spoke with Hardin's father about Hardin's mental health history. The public defender testified that he had spoken with Hardin about the possibility of an NGI plea, but Hardin was not interested in it because he could potentially be institutionalized for a long time. The public defender confirmed he did not hire an expert during his representation of Hardin. The district attorney had told the public defender that he was considering filing attempted murder charges against Hardin. The public defender testified he made tactical decisions to try to keep the maximum sentence to five years and to give Hardin a chance to receive a probationary sentence. The public defender believed the evaluation from the state hospital provided adequate documentation of Hardin's mental health history for use at Hardin's sentencing hearing.
When Hardin's public defender first met with him, Hardin told him that he did not want his counsel to speak with his mother. At some point Hardin apparently gave the public defender permission to speak with his mother.
Hardin's mother testified that Hardin's public defender never responded to her calls or e-mails. Hardin's mother asked the public defender about the possibility of diversion, and he told her the district attorney would oppose it and any request for diversion would not be granted. Hardin's mother did not know he had been diagnosed with schizophrenia, although she knew he suffered from mental illness.
The record indicates Hardin has a prior conviction from Illinois for reckless conduct, which involved him stalking another person. Hardin was also charged in a separate case in Monterey County for approaching a stranger, grabbing him in a chokehold, holding a knife to the man's throat, and punching him several times.
Daniel Mayfield testified as an expert in criminal law and the practice of criminal law. Mayfield opined that Hardin's public defender should have hired an expert, asked for a free mental health expert through Evidence Code section 1017, and spent more time with the family "looking into things." Mayfield did not believe that Hardin's public defender "did everything a reasonable attorney would have done to evaluate Mr. Hardin's mental health, illness, and defenses." Mayfield believed the public defender's actions fell below objective standards because the public defender did not perform an adequate investigation. The trial court did not permit Hardin's expert to opine on whether, absent the public defender's unprofessional conduct, the result of the proceedings would have been different.
The trial court heard argument from the parties and denied Hardin's motion to withdraw his plea. The court noted that, in her 14 years as a judge, "not a single defense attorney in this department ha[d] asked for a [Evidence Code section] 1017 report." The court ruled that, based on the "second prong of the Strickland analysis," Hardin had not shown his public defender was constitutionally ineffective.
The trial court continued the matter to November 15, 2023, for sentencing.
On November 15, 2023, the trial court found Hardin not suitable or amenable for treatment or probation. The court denied probation and sentenced Hardin to prison for the "low term" of two years on count 1 and imposed three years, to be served consecutively, for the section 12022.7, subdivision (a) enhancement, for an aggregate term of five years.
The probation report prepared for Hardin's sentencing stated as to custody credits that Hardin should receive 730 days of actual time, 109 days of "good/work time," (capitalization omitted) for total credits of 839 days. Under "total credits" (capitalization omitted) the report stated, "The defendant also spent time at the state hospital while regaining competency; these dates were not available to [p]robation but will not impact the credits awarded." At the sentencing hearing, the court awarded 839 days of custody credits, which it articulated as "730 actual, 109 good time/work time. Conduct credits are calculated at 15 percent as this is a prison commitment on a violent felony." Hardin's counsel did not object to the court's calculation of Hardin's custody credits.
The trial court ordered a restitution fund fine of $300 (§ 1202.4, subd. (b)) and imposed and suspended a $300 parole revocation fund fine (§ 1202.45). The court ordered a court operations assessment of $40 (§ 1465.8, subd. (a)(1)), a court facilities assessment of $30 (Gov. Code, § 70373), and restitution to the victim in an amount to be determined. The court dismissed the remaining allegation.
On November 15, 2023, Hardin filed a notice of appeal. The notice of appeal is typewritten and does not use the applicable Judicial Council form. It indicates that Hardin is filing "In pro per." The notice states that Hardin "appeal[s] from the judgment, the denial of [his] motion to withdraw [his] plea and the sentence imposed on November 15, 2023." The notice of appeal does not request a certificate of probable cause, and there is no indication in the record that Hardin obtained such a certificate.
II. DISCUSSION
In supplemental briefing, the Attorney General states that the trial court erred in limiting Hardin's conduct credits to 15 percent of the actual days for the time that Hardin was committed to the state hospital. The Attorney General asserts that the trial court should have awarded conduct credits at 50% under section 4019 for the time Hardin spent at the state hospital. The Attorney General acknowledges that ordinarily the proper remedy for the error would be a remand to the trial court to recalculate the conduct credits. But the Attorney General contends remand is not warranted because Hardin waived his right to appeal the sentence imposed by the trial court, including its award of conduct credits. The Attorney General further asserts that Hardin was required to, but failed, to obtain a certificate of probable cause to challenge the court's calculation of conduct credits.
In Hardin's supplemental briefing, Hardin's appellate counsel agrees with the Attorney General that the trial court miscalculated Hardin's conduct credits for the time he spent at the state hospital. However, appellate counsel questions the content of the notice of appeal, which was not prepared on the Judicial Council form, and was filed the day of Hardin's sentencing. Although appellate counsel acknowledges the notice was filed "in pro per" (italics omitted), she argues "it was typewritten by an unidentified individual, [and] it is unlikely that Mr. Hardin was the author of the document." The notice "clearly does not include any request for a certificate of probable cause. If the notice of appeal was prepared by [Hardin's retained trial counsel], then counsel abandoned his duty to help with requesting a certificate of probable cause, if one was required." Alternatively, Hardin cites People v. Jones (2023) 88 Cal.App.5th 818, 821 for the proposition that a certificate of probable cause is not required for a challenge to the miscalculation of presentence custody credits.
As for the plea agreement waiver, Hardin argues that the plea colloquy is "similar" to that in Orellana, supra, 74 Cal.App.5th at page 331, footnote 6, in which this court found the appellate waiver invalid. Alternatively, Hardin argues, citing People v. Jack (1989) 213 Cal.App.3d 913, 917, that the miscalculation of conduct credits is a ministerial duty that can be corrected by a court at any time.
We agree with the parties that the trial court erred in calculating Hardin's conduct credits. As this court previously stated in Orellana, "In October 2021, . . . the Legislature passed Senate Bill [No.] 317, which . . . amended section 4019 and took effect on January 1, 2022. Senate Bill [No.] 317 modified section 4019, subdivision (a)(8) (previously added by Sen. Bill [No.] 1187) to expand eligibility for presentence conduct credit '[w]hen a prisoner is confined in or committed to a state hospital or other mental health treatment facility, or to a county jail treatment facility, as defined in [s]ection 1369.1, in proceedings pursuant to Chapter 6 (commencing with [s]ection 1367) of Title 10 of Part 2.' [Citation.] . . . [¶] . . . [¶] The plain meaning of this provision is that, as of January 1, 2022, defendants undergoing treatment for incompetence in a state hospital are eligible for section 4019 conduct credit on the same terms as those confined to county jails." (Orellana, supra, 74 Cal.App.5th at p. 333.)
Section 2933.1, by contrast, does not mention state hospitals or mental health treatment facilities. By implication, its limitation on the conduct credits otherwise accorded by section 4019 does not apply to state hospitals. Therefore, section 4019 applied to the time Hardin spent in the state hospital, and the trial court should not have applied the conduct credit limitation set out in section 2933.1 to Hardin's time there.
Section 2933.1 provides that individuals convicted of violent felonies (i.e., a felony offense listed in subdivision (c) of section 667.5) shall accrue no more than 15 percent worktime credit. (§ 2933.1, subd. (a).) It further states, "Notwithstanding [s]ection 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in, or commitment to, a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp, following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a)." (Id., subd. (c).)
As far as this court is aware, nothing in the record on appeal sets out the precise time that Hardin spent in the state hospital.
However, we also conclude this error is not cognizable on appeal given Hardin's appellate waiver in his plea agreement. Generally, an appellate waiver entered as part of a plea agreement is enforceable. (People v. Becerra (2019) 32 Cal.App.5th 178, 186 (Becerra).) Thus, "[i]f the defendant's claim is not within the scope of [the] appellate waiver, the waiver does not preclude an appellate court from considering the defendant's underlying claim." (Id. at p. 188.) But "if the defendant's appellate claim falls within the scope of [the] appellate waiver that is part of a plea agreement, the defendant 'must obtain a certificate of probable cause to appeal on any ground covered by the waiver, regardless of whether the claim arose before or after the entry of the plea. Absent such a certificate, the appellate court lacks authority . . . to consider the claim because it is in substance a challenge to the validity of the appellate waiver, and therefore to the validity of the plea.'" (Ibid., italics omitted.)
Hardin waived his right to appeal the "judgment" and "agree[d] not to file any collateral attacks on [his] conviction or sentence at any time in the future," terms that encompass the right to challenge the award of custody credits. (See Becerra, supra, 32 Cal.App.5th at p. 190 [waiver of appeals of" 'judgment'" and" 'sentence'" included appellate challenge to custody credits].) Accordingly, to raise any custody-credits claim on appeal, Hardin would have had to obtain a certificate of probable cause to permit him to argue that the appellate waiver was unenforceable. (People v. Espinoza (2018) 22 Cal.App.5th 794, 803 [holding "when a defendant waives the right to appeal as part of a plea agreement, and the waiver's terms encompass the issue the defendant wishes to raise, the defendant must obtain a certificate of probable cause to avoid dismissal of the appeal"].)
In any event, even if Hardin had sought and received a certificate of probable cause, we perceive no infirmity in the waiver itself. The California Supreme Court upheld the validity of waiver of appellate rights, given certain procedural preconditions, in People v. Panizzon (1996) 13 Cal.4th 68, 80. As this court has previously described, "[c]ourts since Panizzon have operated with the understanding that '[a]bsent something in the record raising a doubt [the] defendant understood and knowingly waived his appeal rights, a written waiver of those rights by [the] defendant, coupled with [the] defendant's and his attorney's attestations to the court that [the] defendant understood and voluntarily relinquished each right, is sufficient to establish a defendant's waiver of his right to appeal was knowingly, voluntarily, and intelligently made.'" (Orellana, supra, 74 Cal.App.5th at p. 329.) The record in this matter includes a written waiver of appellate rights initialed by Hardin that the trial court referred to during the plea colloquy. Further, nothing in the record (beyond contentions already rejected by the trial court in its order denying the motion to withdraw the plea) suggests Hardin did not understand his waiver of his rights. We disagree with Hardin that his situation is similar to that in Orellana, in which this court decided the appellate waiver was invalid. In Orellana, this court found significant that there was no written plea agreement or signed appellate waiver. (Orellana, at p. 330.) Here, we have both.
Finally, we reject Hardin's contention that the trial court's award of custody credits is merely a ministerial action that a court may correct at any time notwithstanding an appellate waiver. We disagree that the calculation of Hardin's custody credits, which involves the legal interplay between sections 4019 and 2933.1 and the calculation of Hardin's days at the state hospital (not contained in the record), constitutes a ministerial duty. We perceive no basis to disregard the appellate waiver in these circumstances, and Hardin does not cite any. (See Becerra, 32 Cal.App.5th at p. 191 [rejecting defendant's argument that the calculation of custody credits can be corrected at any time because it does not involve a discretionary sentencing choice and noting that "[d]efendant fails to provide any legal authority to support the proposition that custody credit error is not waivable by agreement"].)
For these reasons, we decide that Hardin's claim concerning custody credits is barred because it falls within the scope of his appellate waiver. Based on Hardin's appellate waiver, we must dismiss the appeal.
III. DISPOSITION
The appeal is dismissed.
WE CONCUR: Bamattre-Manoukian, Acting P. J. Wilson, J.