Opinion
C088989
06-15-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVID MICHAEL MURR, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17CR002557)
Defendant David Michael Murr stabbed a man through a window screen during an argument. He pleaded guilty to assault with a deadly weapon and admitted one prior strike and three prior serious felonies. The trial court later denied defendant's motion to withdraw his plea and sentenced him to the upper term, doubled for the strike, and imposed five-year enhancements for each prior serious felony along with various fines and fees.
On appeal, defendant contends: (1) Senate Bill No. 1393 requires remand for the court to consider its new discretion to strike the five-year enhancements; (2) imposition of the fines and fees violated his constitutional rights because he had no ability to pay them, relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas); (3) the trial court abused its discretion in denying his motion to withdraw his plea; and (4) he suffered from ineffective assistance of counsel. We remand for the trial court to consider its discretion to impose the five-year enhancements and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On September 25, 2017, the victim came to defendant's house to free a woman he thought was being held against her will. Defendant argued with the victim before stabbing him through a window screen. The victim survived but a doctor considered his injuries life threatening. Defendant was charged with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and special allegations that he caused great bodily injury (§ 12022.7, subd. (a)) and that he had four prior serious or violent felony convictions, justifying enhancements (§ 667, subd. (a)(1)) and strikes (§ 1170.12).
Undesignated statutory references are to the Penal Code. --------
On December 21, 2017, the day his trial was set to begin, defendant pleaded guilty to the assault and admitted the special allegations for great bodily injury, three prior serious felonies, and one prior strike. The remaining special allegations were dismissed. At the plea hearing, defendant's counsel informed the court that the previous night defendant went to the hospital after hitting his head when he collapsed from pain due to gallstones. Defendant's counsel explained defendant "is still experiencing pain and a desire to remain in the fetal position as we currently sit here in court. I have informed him that we will proceed as long as he is able to and the Court is willing to proceed and if there are any issues with him unable to participate or remain in court that he should alert me, court staff, so that way we can address those issues appropriately." The court asked "to keep [it] informed about any condition that would affect this trial in any way."
The court confirmed defendant's understanding of the plea and twice confirmed with defendant there was nothing affecting his ability to think clearly or use good judgment. Defendant also twice stated he did not need further time to consult with his counsel. The court ensured defendant understood the maximum penalty was 26 years in prison and up to $20,000 in fines. The court originally misstated the possible fees to be $30,000 and defendant said, "If I have restitution, I got to pay $30,000, forget about it." The court and counsel confirmed the maximum fees were actually $20,000 and the court told defendant he should talk with his attorney about this issue. Defendant ignored this offer, confirmed he understood the consequences of his plea, and pleaded guilty. Defendant had also signed a plea form indicating he understood the maximum sentence could be 26 years in prison. The court confirmed on the record defendant had understood and signed the plea form.
Defendant was sentenced on February 20, 2018. At the sentencing hearing, defendant first moved to withdraw his plea based on his medical situation the night before the plea hearing that had made him "not in the right state of mind at the entry of plea and [he] was not fully aware of his consequences and did not fully comprehend the nature of his actions." The court denied the motion, finding it had gone in depth to make sure defendant entered "a knowing and intelligent waiver. The court wanted to make sure it did that at that time."
The court declined to strike defendant's remaining strike and imposed the upper term sentence. The sentence was 26 years based on the aggravating term of four years for the assault, doubled with the strike to eight years (§§ 667, subd. (e), 1170.12, subd. (c)(1)), three years for the great bodily injury enhancement (§ 12022.7, subd. (a)), and 15 years for the then-mandatory three prior serious offense enhancements of five years each (§ 667, subd. (a)(1)). The court also adopted the probation report's recommended fees of a $40 court operations assessment (§ 1465.8), $30 conviction assessment (Gov. Code, § 70373), $900 restitution fine (§ 1202.4, subd. (b)), and $900 restitution fine stayed upon successful completion of parole (§ 1202.45).
Defendant timely appealed and the trial court granted his request for a certificate of probable cause.
DISCUSSION
I
Senate Bill No. 1393
The parties agree that the law at the time of defendant's sentencing did not allow the trial court to strike the three serious felony priors each used to impose a five-year enhancement under section 667, subdivision (a)(1). Senate Bill No. 1393 (2017-2018 Reg. Sess.) removed this prohibition effective January 1, 2019. (Stats. 2018, ch. 1013, §§ 1, 2.)
Relying on In re Estrada (1965) 63 Cal.2d 740, defendant argues and the Attorney General agrees that these amendments apply to him because his judgment is not yet final. We agree with the parties that under Estrada, absent evidence to the contrary, we presume the Legislature intended a statutory amendment reducing punishment to apply retroactively to cases not yet final on appeal. (Id. at pp. 747-748; People v. Brown (2012) 54 Cal.4th 314, 324.)
Although the Attorney General concedes the rule of Estrada requires retroactive application of Senate Bill No. 1393 to defendant's case, he argues remand is nevertheless unnecessary. He maintains the trial court indicated it would not have dismissed the priors because it declined to strike defendant's remaining strike and sentenced defendant to the upper term for assault. We are not persuaded. As our colleagues in the Second Appellate District have observed, "what a trial court might do on remand is not 'clearly indicated' by considering only the original sentence." (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110-1111; see also People v. McDaniels (2018) 22 Cal.App.5th 420, 425, 426 [remand is required unless the record shows that the sentencing court clearly indicated that it would not have exercised its discretion].) We shall remand.
II
Ability to Pay Fines and Fees
Defendant next contends the court improperly imposed fines and fees without conducting an ability to pay hearing, relying on Dueñas and also arguing the excessive fines clause of the Eighth Amendment to the United States Constitution mandates an ability to pay hearing for those costs.
Defendant's "excessive fines" claim is forfeited because he did not raise it below, and the argument could easily have been raised before a recent United States Supreme Court opinion extending that provision to the state courts. (See Timbs v. Indiana (2019) ___ U.S. ___ ; Cal. Const., art. I, § 17 ["Cruel or unusual punishment may not be inflicted or excessive fines imposed," italics added]; People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 726-728 [discussing the applicability of both the Eighth Amendment and the California Constitution's "excessive fines" clauses to a California court judgment]; People v. Urbano (2005) 128 Cal.App.4th 396, 406 [considering defendant's claim that a restitution fine was "a constitutionally excessive fine" and referencing both Eighth Amendment case law and the California Constitution]; People v. Baker (2018) 20 Cal.App.5th 711, 720 [defendant forfeited his Eighth Amendment claim].)
We agree with defendant that an objection based on the due process argument accepted in Dueñas would be "based on a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial," and the failure to object on that basis is not forfeiture. (People v. Castellano (2019) 33 Cal.App.5th 485, 489; see contra, People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 ; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154-1155.) However, under the law at the time of sentencing, defendant could object to the amount of the restitution fine and claim inability to pay in order to secure a reduction to the minimum fine. Ability to pay clearly may be considered in increasing the fine over the minimum, and here the $900 fine imposed was three times the minimum. (§ 1202.4, subd. (c).)
Defendant was in the best position to know his ability to pay, so it was incumbent on him to raise the issue if he could not pay above the minimum restitution fine. (See People v. Avila (2009) 46 Cal.4th 680, 729.) Because defendant failed to raise the issue of his inability to pay when he could, he has forfeited the issue with respect to the restitution fine. As for the remaining minimum fees at issue, in Dueñas a panel of the Court of Appeal held that due process prohibits a trial court from imposing court assessments under section 1465.8 and Government Code section 70373, and requires the trial court to stay execution of any restitution fines unless it conducts an ability to pay hearing and ascertains the defendant's ability to pay those assessments and fines. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) To support this conclusion, Dueñas relied on two lines of due process precedent. First, it cited authorities addressing access to courts and waiving court costs for indigent civil litigants. Second, it relied on due process and equal protection authorities that prohibit incarceration based on a defendant's indigence and inability to pay a fine or fee. (Id. at pp. 1165-1166, 1168.) The court also concluded that imposing costs on indigent defendants "blamelessly" unable to pay them transformed a "funding mechanism for the courts into additional punishment." (Id. at p. 1168.)
People v. Hicks (2019) 40 Cal.App.5th 320, review granted November 26, 2019, S258946, rejected the reasoning of Dueñas, under both lines of due process authority. Hicks observed that imposition of fees after a determination of guilt does not deny a criminal defendant's access to the courts and does not interfere with a defendant's right to present a defense or challenge a trial court's rulings on appeal. (Id. at p. 326.) Further, imposition of fees, without more, does not result in incarceration for nonpayment of fines and fees due to indigence; thus, it does not infringe on a fundamental liberty interest. (Ibid.)
We find the reasoning in Hicks sounder and more persuasive than Dueñas. Accordingly, we conclude the imposition of fines, fees, and assessments on an indigent defendant without consideration of ability to pay does not violate due process and there is no requirement the trial court conduct an ability to pay hearing prior to imposing these fines, fees, and assessments.
III
Plea Withdrawal
Defendant also argues the trial court abused its discretion denying his motion to withdraw his plea because his medical condition rendered him unable to intelligently and knowingly waive his rights. We disagree.
Section 1018 permits a defendant to move to withdraw his plea for good cause at any time before judgment is entered. To establish good cause, a defendant must show by clear and convincing evidence that his plea was the result of mistake, ignorance, or any other factor overcoming the exercise of free judgment. (People v. Cruz (1974) 12 Cal.3d 562, 566.)
A trial court's decision to grant or deny a defendant's motion to withdraw his plea is reviewed for abuse of discretion. (People v. Mickens (1995) 38 Cal.App.4th 1557, 1561.) In determining whether a defendant has shown good cause for granting a motion to withdraw his plea, the reviewing court must adopt the trial court's factual findings if they are supported by substantial evidence. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)
Here, although defendant told the court he was in substantial pain, defendant twice confirmed to the court there was nothing affecting his ability to think clearly or use good judgment. There is no evidence defendant's pain rendered these clear affirmations meaningless. Further, defendant initially balked at the plea when he heard the maximum restitution amount. This strongly evidences defendant was listening and understanding the advisements and terms of the plea despite his medical condition. The trial court did not abuse its discretion finding defendant entered a knowing and intelligent waiver.
IV
Ineffective Assistance of Counsel
Lastly, defendant argues he suffered ineffective assistance of counsel because his attorney permitted his plea to proceed knowing defendant was unable to intelligently waive his rights. We are not persuaded.
To challenge a plea based on an ineffective assistance claim, a defendant must prove two elements: (1) " 'counsel's representation fell below an objective standard of reasonableness' " under prevailing professional norms, and (2) "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." (Hill v. Lockhart (1985) 474 U.S. 52, 57, 59; In re Alvernaz (1992) 2 Cal.4th 924, 936-937.)
Here, defendant cannot establish either element because the record contains no evidence that counsel knew or should have known defendant could not intelligently waive his rights, even assuming that was the case. As discussed above, there is substantial evidence to the contrary, that defendant knowingly and intelligently entered his plea. Defendant also confirmed twice that he did not need further consultation with his attorney and declined the court's invitation to confer further with his attorney regarding the maximum restitution. Thus, defendant's ineffective assistance of counsel claim fails.
DISPOSITION
The matter is remanded for exercise of discretion regarding the five-year sentencing enhancements and possible resentencing if applicable. The judgment is otherwise affirmed.
/s/_________
DUARTE, J. We concur: /s/_________
BUTZ, Acting P.J. /s/_________
HOCH, J.