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People v. Shaw

California Court of Appeals, Fourth District, Second Division
Feb 3, 2011
No. E050331 (Cal. Ct. App. Feb. 3, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County. No. FVI023838, Miriam Ivy Morton, Judge.

Sheila O’Connor, under appointment by the Court of Appeal for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Anthony DaSilva and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

RAMIREZ P.J.

Defendant, John Shaw, appeals from his conviction and eight and one-half year prison sentence. Shaw pled guilty to assaulting a police officer with a deadly weapon, not a firearm (Pen. Code, § 245, subd. (c)) and giving false identification to a peace officer (§ 148.9). Specifically, Shaw argues: 1) he should be allowed to withdraw the guilty plea because no factual basis existed for the plea; and 2) the trial court erred when it imposed the $150 court appointed counsel fee without holding a hearing or determining that Shaw had the ability to pay. The People concede that there was no factual basis for the guilty plea. As discussed below, we agree and direct that Shaw be allowed to withdraw his guilty plea if the People are not able to establish a factual basis. Should the People establish a factual basis for the plea, the court appointed counsel fee is ordered stricken unless, after fulfilling the notice and hearing requirements of section 987.8, the trial court finds Shaw has the present ability to pay.

All further statutory references are to the Penal Code unless otherwise indicated.

Facts and Procedure

On March 15, 2006, San Bernardino County Sheriff Deputy Moody encountered Shaw while on patrol. Shaw falsely identified himself as “Sherwood Shaw.” Moody searched Shaw and found a plastic sandwich bag with five to ten rocks of what appeared to be crack cocaine, along with two such bags of marijuana.

Deputy Moody went to arrest Shaw and told him to put his hands behind his back. Shaw initially complied, but when Deputy Moody went to grab his arm to place him in handcuffs, Shaw put his hands in front of him and jerked away. Shaw ran through Deputy Moody and another officer “at full speed” toward the hood of the patrol car, on which the bag of cocaine had been placed. Although the deputies each grabbed one of his arms, Shaw lunged on top of the hood of the car, grabbed the bag of cocaine and swallowed it.

Deputy Moody pepper-sprayed Shaw. The three of them went down on the ground. Shaw was kicking his legs, screaming and yelling obscenities, as the deputies tried to get his free hand behind his back. Shaw kicked at the deputies, but did not make any contact with the kicks. The deputies eventually subdued Shaw and handcuffed him. They then found another plastic bag of marijuana and $122 in cash in Shaw’s pocket.

Deputy Moody opined that both the marijuana and the cocaine were possessed for sale.

The deputies transported Shaw to a hospital, where he falsely identified himself as Martin Shaw. Several times that day and evening Shaw threatened that he would hurt or kill both deputies if he ever saw them again, and stated he could find out where they lived and kill them at their doorstep. The rock cocaine was never recovered. Shaw told the deputies that they were stupid and had missed the cocaine, that he had spit it out and someone else had picked it up during the struggle.

On April 26, 2006, the People filed an information charging Shaw in count 1 with possessing marijuana for sale (Health & Saf. Code, § 11359); in count 2 with possessing cocaine for sale (Health & Saf. Code, § 11351); and in count 3 resisting an officer (§ 69). The People also alleged that Shaw had three prior strike convictions (§§ 667, subd. (b)-(i) & 1170.12, subd. (a)-(d)).

On July 22, 2009, the People amended the information to add two additional counts: count 4-assault on a peace officer with a deadly weapon other than a firearm (§ 245, subd. (c)); and count 5-misdemeanor providing false identification to a police officer (§ 148.9).

Also on July 22, 2009, Shaw pled guilty to the two newest offenses, admitted one of the strike priors, and agreed to a prison term of eight years and six months. In exchange, the People agreed to dismiss the other counts and allegations. It was stipulated that the preliminary hearing transcript would form the factual basis for the plea.

On December 3, 2009, Shaw moved to withdraw his guilty plea because defense counsel was ineffective and had lied to him. On February 19, 2010, the trial court held a hearing on Shaw’s motion and ultimately denied it. On that same date, the trial court sentenced Shaw according to the plea agreement. Without holding a hearing on the matter, the trial court also found that Shaw had the present ability to reimburse the County of San Bernardino $150 for court-appointed counsel fees and ordered him to do so. Neither Shaw nor defense counsel objected. This appeal followed. The trial court granted Shaw a certificate of probable cause.

Discussion

1. Factual Basis for Guilty Plea

Shaw argues that there was an insufficient factual basis to support his plea of guilty to the charge of assaulting a police officer with a weapon other than a firearm. The People agree with this assertion.

After reviewing the transcript of the preliminary hearing, which furnishes the factual basis for the plea, we also agree. The People charged Shaw with violating section 245, subdivision (c), which makes it a felony to “... commit[] an assault with a deadly weapon or instrument, other than a firearm, or by any means likely to produce great bodily injury upon the person of a peace officer....” Here, the preliminary hearing transcript shows that Shaw ran through the two deputies on his way to the hood of the car, struggled with them to the ground, and “kicked at” them but did not make any contact with the kicks. No deadly weapon was involved, nor were Shaw’s kicks likely to produce great bodily injury on either of the deputies. Thus, we agree with the parties that there was no factual basis for Shaw’s guilty plea to count 4, and he must be given the opportunity to withdraw his plea. (See People v. Willard (2007) 154 Cal.App.4th 1329, 1335 [remanding matter to trial court to allow prosecution an opportunity to demonstrate factual basis for plea; in the event no factual basis could be established, the defendant was to be given the opportunity to withdraw his plea].)

2. $150 Court Appointed Counsel Fee

Shaw contends that the trial court’s failure to hold a hearing to determine his ability to pay $150 towards the cost of his representation requires reversal of that order. He also asserts that the record is devoid of any evidence to support the trial court’s order, and therefore it must be reversed.

Section 987.8 provides in pertinent part, “(b) In any case in which a defendant is provided legal assistance, ... through the public defender..., upon conclusion of the criminal proceedings in the trial court, ... the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof.... [¶]... [¶] (g) As used in this section:... (2) ‘Ability to pay’ means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him... and shall include, but not be limited to... [¶]... [¶] (B) The defendant’s reasonably discernible future financial position.... Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his... defense.” (§ 987.8)

“‘[P]roceedings to assess attorney’s fees against a criminal defendant involve the taking of property, and therefore require due process of law, including notice and a hearing.’ [Citations.]... Under [section 987.8, ]... the defendant must be given notice and afforded specific procedural rights, including the right to present witnesses at the hearing and to confront and cross-examine adverse witnesses.” (People v. Phillips (1994) 25 Cal.App.4th 62, 72-73.)

While we recognize that Shaw’s failure to object at the sentencing hearing may be viewed as a waiver of his argument concerning notice and a hearing (see People v. Whisenand (1995) 37 Cal.App.4th 1383, 1395 and People v. Phillips, supra, 25 Cal.App.4th at p. 75), the order must be supported by substantial evidence and this is not waived by the failure to object below. (People v. Viray (2005) 134 Cal.App.4th 1186, 1217; People v. Lopez (2005) 129 Cal.App.4th 1508, 1537.) Here, because there was no hearing, there was no evidence of Shaw’s ability to pay. Therefore, we order the fee to be stricken unless the trial court complies with the notice and hearing requirements of section 987.8.

Disposition

We reverse the judgment and remand to allow the People an opportunity to demonstrate a factual basis for the plea; if the People cannot establish a factual basis, Shaw must be allowed to withdraw his plea. If the People can establish a factual basis for the plea, the court appointed counsel fee is ordered stricken unless, after fulfilling the notice and hearing requirements of section 987.8, the trial court finds Shaw has the present ability to pay.

We concur: RICHLI J., CODRINGTON J.


Summaries of

People v. Shaw

California Court of Appeals, Fourth District, Second Division
Feb 3, 2011
No. E050331 (Cal. Ct. App. Feb. 3, 2011)
Case details for

People v. Shaw

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOHN SHAW, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Feb 3, 2011

Citations

No. E050331 (Cal. Ct. App. Feb. 3, 2011)