Opinion
C087784
01-31-2020
THE PEOPLE, Plaintiff and Respondent, v. VERNON LEE SIMON, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F1651)
Defendant Vernon Lee Simon pleaded no contest to second degree murder and admitted one prior strike in return for a 30-years-to-life "lid" and the right to request that the strike be stricken. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).) The trial court subsequently denied Romero relief and imposed a state prison sentence of 30 years to life. The court also imposed the statutory maximum restitution fine ($10,000), plus the standard court security fee ($40) and criminal conviction assessment ($30).
Defendant contends: (1) The trial court abused its discretion by refusing to strike defendant's strike. (2) Defendant received ineffective assistance of counsel in that trial counsel misadvised him about the consequences of his plea. (3) Defendant's waiver of his right to jury trial was involuntary. (4) Under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant is entitled to a remand for a hearing on his ability to pay the fines and fees imposed by the trial court.
We affirm the judgment.
FACTS AND LEGAL PROCEEDINGS
The complaint
A felony complaint filed March 30, 2015, charged defendant with second degree murder (count 1; Pen. Code, §§ 187, subd. (a)/189 (statutory section references that follow are to the Penal Code)); gross vehicular manslaughter while intoxicated (count 2; § 191.5, subd. (a)); and driving under the influence (DUI) causing injury with priors (count 3; Veh. Code, §§ 23153, subd. (a)/23560). As to all counts, the complaint alleged a prior strike (a 1996 first degree burglary), a prior serious felony (the same burglary), and four prior prison terms. As to count 3, the complaint alleged defendant personally inflicted great bodily injury upon the victim.
The preliminary hearing
Evidence at the preliminary hearing showed the following:
On March 26, 2015, at around 6:50 a.m., Redding Police Officer Gary Meadows responded to a reported collision at the intersection of State Route 273 and Canyon Road in Shasta County. Officer Meadows found two vehicles in the intersection, both with major damage. The driver of vehicle number two was deceased. The driver of vehicle number one was identified as defendant. There was no evidence that defendant had braked before the collision.
An eyewitness informed law enforcement that as he was driving toward State Route 273, he saw a car on that road (vehicle number one) run a red light, continue at a high rate of speed, and repeatedly drift back and forth across lanes. As he tried simultaneously to watch it and to call 911, he saw the car collide with vehicle number two.
Shortly after 7:00 a.m., Redding Police Officer Michael Caldwell saw defendant at the hospital, receiving treatment and answering questions from hospital staff while drifting in and out of consciousness. Defendant said he did not know his speed before the collision, but it could have been "70 to 75." Defendant indicated he thought he had been on Interstate 5 and had a passenger in the car. The officer concluded defendant was under the influence of alcohol and possibly heroin. Defendant consented to a blood draw.
Redding Police Officer Jacob Provencio contacted defendant at the jail later, advised defendant of his rights, and obtained his consent to talk. He claimed to have no memory of the accident.
Defendant said he was in a state of bereavement because an aunt had recently died and had received Clonazepam for anxiety early that morning. He had also been taking "anything that was available to him," including Oxycodone, methamphetamine, and heroin; he was "straight binging."
Defendant said he knew he should not have been driving, based on his prior reaction to Clonazepam. He had been given informal probation after a prior "wet reckless" conviction that stemmed from a collision. He had received an admonishment in court about drinking and driving, and he knew driving under the influence was dangerous.
Defendant's performance on field sobriety tests showed impairment. Officer Provencio concluded defendant was under the influence of multiple substances, including a central nervous system stimulant, a narcotic analgesic, and a central nervous system depressant.
Defendant's blood draw showed positive results for marijuana, methamphetamine, amphetamine, and Clonazepam.
California Highway Patrol Officer John Crouch testified that he arrested defendant after a collision in May 2011, having determined that defendant was under the influence of prescription medication.
The trial court held defendant to answer on all counts.
The information
The People thereafter filed an information which omitted the vehicular manslaughter count and renumbered count 3 (DUI causing injury with priors) as count 2.
Defendant's plea
On February 26, 2018, defendant pleaded no contest to count 1 and admitted the prior strike allegation in return for a 30-years-to-life "lid," the dismissal of the balance of the charges, and the right to seek Romero relief.
The trial court asked defendant: "Anything other than what's [been] discussed on this form that's been promised to you in order to get you to enter this plea?" Defendant replied: "Just that I got a good chance of the Romero being granted." The trial court responded: "Okay. And that's a good point to bring up. The agreement is that you would have the opportunity to run that motion. In other words, . . . your attorney's going to file it. Your attorney's going to argue it. The D.A. will argue it, but nothing has been guaranteed to you as far as what the Court's decision is going to be with regard to that motion; is that right?" Defendant answered: "Yeah, no guarantee." The trial court summed up: "Okay. In other words, if it's me that's going to be hearing this motion, I'm not giving you any indication, one way or the other, as to what's going to happen with that motion. It's completely up in the air." Defendant said: "Right." (Italics added.)
The probation report
On March 29, 2018, the probation department filed its presentence report, which recommended denying probation and imposing the maximum sentence under the plea agreement, along with a $10,000 restitution fine, a matching suspended parole revocation restitution fine, a $40 court operations fee, and a $30 criminal conviction assessment fee. The report stated erroneously that defendant's subsequent period of parole would be five years. (Cf. § 3000.1, subd. (a) (in any murder sentence with a maximum life term of imprisonment, period of parole shall be the remainder of the inmate's life).)
Defendant now claimed the accident happened because he was distraught from searching for his missing girlfriend. He acknowledged taking anti-anxiety medication but denied being under the influence of any other substance. He expressed genuine remorse about the accident.
Defendant had been diagnosed at some time with posttraumatic stress disorder and schizophrenia. He had longstanding substance abuse habits, including alcohol, methamphetamine, and marijuana, continuing until near the date of the accident; he had also abused opioids, but claimed to have discontinued them after 2013.
Defendant was statutorily ineligible for probation due to his prior strike. Having four prior felony convictions, and having committed murder after a prior felony conviction, also made him presumptively ineligible for probation. Defendant could not overcome these presumptions. Although his current offense might be less serious than others of its kind, and his latest prior felony conviction might be subject to redesignation as a misdemeanor under section 1170.18, his current offense was not less serious than a prior felony conviction that was the cause of the probation limitation, he had not been free from incarceration and serious law violation for a substantial time before the current offense, and his prior arrests involved similar behavior. Moreover, his DUI conduct was worse than the average, since he was a longtime substance abuser and was on probation for a DUI offense when he committed the current crime.
Defendant's request to strike his strike
On May 14, 2018, defendant filed his Romero request. He argued: (1) The current offense was substantially less serious than the typical offense of its class because it involved a mens rea of implied malice, not express malice; only defendant's prior DUI conviction raised it to a murder charge. (2) Defendant's four prior felonies over a 30-year span did not involve violence, and three were "lower-level felonies"; the only serious felony was a 1996 burglary conviction. (3) That his felony was not violent and was remote in time; since then defendant had had only one more felony conviction (for receiving stolen property in 2004) and three misdemeanor convictions. (4) Defendant was suffering from a mental condition at the time of the offense, which reduced his culpability. He had been taking numerous prescribed medications for depression and anxiety, although he stopped taking them over a year before the present offense. The night before the offense, he went to the emergency room due to extreme anxiety, panic attacks, and difficulty in breathing, and was prescribed Klonopin (Clonazepam). The illicit substances he was also taking probably exacerbated his condition. He was not in his right mind immediately after the accident. (5) According to the probation officer, defendant expressed genuine remorse for his conduct. (6) One event in his past, when he left the Aryan Brotherhood voluntarily and assisted in the prosecution of some of the Brotherhood's members, demonstrated strength of character and the willingness and ability to rehabilitate himself. (7) If the strike were not stricken, defendant's possible punishment would be disproportionate to the severity of the current offense and defendant's criminal history.
The People opposed the Romero request. They argued: (1) The present offense, a DUI causing death, was committed while defendant was on probation for DUI. (2) His prior strike, a residential burglary, was very serious and was committed while he was on parole. He had three other felonies that resulted in prison sentences (one committed after the prior strike), 10 misdemeanor convictions (including his prior DUI), 16 parole violations, and no five-year period of freedom from custody since 1984. (3) Defendant's criminal history showed that his character and prospects were poor.
Defendant's motion to withdraw his plea
On July 9, 2018, defendant moved to withdraw his plea, alleging that prior counsel failed to specify the plea's direct consequences and improperly induced defendant to take the plea. The motion was supported by declarations from defendant and from three deputy public defenders and a private conflict counsel who claimed firsthand knowledge of prior counsel's advice to defendant.
First, prior counsel had wrongly advised defendant that his chances for Romero relief were "very good," that the prosecutor would not oppose his Romero request, and that the prosecutor would also not oppose defendant's consideration for parole or write a statement in aggravation for parole. This advice led defendant incorrectly to believe that his sentence would be halved (by striking the strike) and he would be eligible for parole in 15 years. Thus, defendant was induced to enter his plea in reliance on an illusory promise.
Second, uncorrected mistakes appeared on the plea form, including among other things the statement that the agreement entailed a parole period of five years (rather than life).
The People opposed the motion, arguing: (1) The record of defendant's entry of plea reflected that he was properly advised of the plea's consequences. (2) The offer conveyed by the prosecutor before defendant entered the plea was the same as what was stated on the record. To support the second point, the People attached a declaration by the prosecutor and photocopies of pre-plea e-mail exchanges between himself and defendant's prior counsel.
The trial court heard defendant's motion to withdraw his plea and his Romero request on July 20, 2018.
Evidence and argument on the motion to withdraw the plea
Defendant testified that his prior counsel had told him that the agreement entailed accepting a 15 years to life sentence (because he had a "good likelihood" of obtaining relief under Romero) and that he would appear before the parole board in 12 years. Counsel never advised him he would have a lifetime period of parole; nor did counsel advise him of the consequences of violating lifetime parole. Furthermore, counsel told him that the prosecutor would not participate in future parole hearings or object to his release on parole, and that he would not oppose the request for Romero relief. When the judge stated at the plea hearing that Romero relief was not guaranteed, counsel told defendant not to worry about it and pointed out that the judge had formerly been a defense attorney. If defendant had known that counsel's statements were false or misleading, he would have rejected the offered deal and gone to trial.
Defendant acknowledged that counsel had told him the case against him was very strong, he was unlikely to prevail at trial, and he could receive 37 years to life if convicted. But counsel had also said, "[J]ust give [me] one juror that says not guilty"; that was "all he needed."
Shown the transcript of the plea hearing, defendant admitted that it indicated the offer was for 30 years to life with the opportunity to file for Romero relief, and the trial court would decide on the appropriate sentence. Defendant also admitted that the plea offer (described on the record) did not state that the People would not oppose the Romero request or a subsequent request for parole in 15 years. Lastly, defendant admitted that the trial court had not guaranteed anything as to Romero.
Defendant's former counsel, Bruce Kapsack, testified that he had practiced criminal defense law for over 30 years; for 20 years he had concentrated on DUI defense, including six cases with murder charges. When he represented defendant, he was Assistant Public Defender for Shasta County (i.e., second only to the Public Defender).
According to Kapsack, he had told defendant that "the actual underlying event is virtually non-defensible given the facts and the witnesses." Jurors might have found grounds for mitigation in defendant's panicky state of mind as he searched for his missing girlfriend, but once he had found her, dropped her off, and continued to drive, that would have been "a long shot for the jury." When Kapsack explained this to defendant, he agreed. Defendant's maximum exposure at trial was 35 years to life, because the allegations included a "nickel prior."
Kapsack advised defendant that a judge would be more likely to strike a strike pursuant to a pretrial plea agreement, rather than after a trial at which the judge had heard the emotionally wrenching evidence in the case. His notes from that time indicated that he considered it likely the trial court would grant the request to strike a strike. Having discussed the plea offers with the prosecutor, Kapsack also advised defendant that he believed the prosecutor would not oppose that request. Knowing otherwise now, Kapsack thought defendant's plea must be withdrawn.
Kapsack still thought defendant had "a good Romero case" on the "facts" based on the age of the prior strike, the fact that it was "a property-type crime," the fact that the current offense was "an addiction crime" with a "virtually nonexistent" mens rea, and defendant's "relatively minor" additional contact with law enforcement. In Kapsack's view, the Three Strikes law was aimed at people who commit the same type of crime again and again or "mov[e] up the ladder" of offenses, whereas defendant's current offense was "sort of a one off." Finally, his age, his present freedom from substance abuse, and his "corrective behavior" should entitle him to Romero relief.
Kapsack admitted that defendant had never been out of custody for more than two and a half years at a time between 1982 and 2011, when he incurred his "wet reckless" conviction (the facts of which Kapsack did not review), and he was still on probation for that offense when he committed this one. Kapsack also admitted that defendant had incurred a probation violation in 2015 for failing to complete a court-ordered program including substance abuse treatment.
Kapsack acknowledged that the written plea form showed a five-year period of parole and that he would have advised defendant that that was the actual parole period under the agreement. He also acknowledged that the plea form included a waiver of appellate rights which he had not discussed with defendant, but it was his understanding that the District Attorney would not accept a plea without that term.
The parties stipulated that during pre-plea discussions, the prosecutor told Kapsack that when a plea was entered, he would not customarily file a statement with the trial court pursuant to section 1203.01, as he would normally do in a "life case"; however, he did not tell Kapsack that the District Attorney would not oppose a request for parole in a plea case. According to the prosecutor, the plea agreement was favorable to defendant because it allowed him to seek Romero relief, an opportunity not always offered in a negotiation for less than the maximum possible term.
Defense counsel argued that Kapsack did not have the knowledge or experience to advise defendant properly, since he was misinformed about defendant's record and the applicable law. No reasonable attorney would have told defendant his claim for Romero relief was strong. A reasonable attorney would have told him that accepting the plea offer would mean spending the rest of his natural life in prison. Defendant relied on Kapsack's contrary advice to his detriment.
The prosecutor argued that under the totality of the circumstances, despite any misadvisement by Kapsack, defendant's plea deal was favorable to him, and the trial court sufficiently advised him of its actual consequences. Thus, defendant had not shown good cause to withdraw his plea.
Ruling on the motion to withdraw the plea
The trial court made an extensive oral ruling on the motion, as follows:
"The burden on this [m]otion is by clear and convincing evidence, and that's to be borne by the [d]efendant. He also must show prejudice by demonstrating that he would not have accepted the plea had it not been for the mistake.
"With regard to . . . the main issue in this case, . . . the terms of the plea agreement, the Court received evidence of the various negotiations between the parties. And there was extensive evidence regarding Mr. Kapsack's advice to the [d]efendant regarding various aspects of the plea. In particular, the overall disposition of the plea was a maximum sentence of 30 years to life. Defendant would have the opportunity to file and argue a Romero [m]otion. And if granted, the sentence could be 15 years to life. That was set explicitly on [the] plea form itself.
"It was also discussed explicitly when [the prosecutor] announced the plea agreement during the plea, and it was reiterated to the [d]efendant during the taking of the plea. And, in fact, [d]efendant stated his understanding of the Romero issue . . . by stating, quote, 'Just that I got a good chance of the Romero being granted' unquote.
"At that point the Court very explicitly informed him of the plea agreement and the fact that a Romero [m]otion would be filed and would be argued by both sides. The Court stated that nothing was guaranteed as to the Court's decision on that [m]otion. The Court stated that it was not giving any indication as to what was going to happen and that it was completely up in the air. And the [d]efendant replied . . . 'Right.'
"Defendant testified that he received advice from his [c]ounsel that Romero would be granted and that [the prosecutor] would not oppose it. However, any misconceptions about what had been understood should have been cleared up at the time of the plea by the comments of the Court. There should have been no misunderstanding at all about the terms of the plea at that point.
"I'm also going to note that there really is no such thing as a Romero [m]otion in the strictest of sense. There is a case by the name of Romero, and that essentially holds that the Court has discretion under [] [s]ection 1385 to . . . strike a strike for purposes of sentencing.
"The Romero [m]otion . . . is more of an invitation to the Court to exercise that discretion. I think that's significant in that even if a [m]otion . . . were to be unopposed, that doesn't mean the Court is bound by that . . . lack of opposition, and that the Court must grant that. The Romero [m]otion is always in the Court's lap with regard to its exercise of discretion.
"[T]hat was explicitly made clear to the [d]efendant that the [m]otion was not any kind of under the table deal. There was nothing that was a wink or a nod with regard to that. And so on that basis, the [m]otion [to withdraw the plea] is denied.
"It was clear to this Court during [defendant]'s testimony that that issue we just discussed was his primary concern about the plea, and that he wanted a chance of receiving a sentence of 15 years to life rather than 30 years to life.
"He also mentioned . . . the issue about whether the D.A. would oppose the parole. But the thrust of the concern to me . . . appeared to be the term of his sentence.
"During the taking of the plea, the Court asked whether there was anything else that was promised to him in order to get him to take this plea. That's when he mentioned the Romero [m]otion. He mentioned no other promises that were made during the plea agreement.
"The [d]efense has now raised the issue of the period of parole being erroneously listed on the plea form where the [number] 5 had been written in the blank by Mr. Kapsack where the [d]efendant had initialed [it].
"I have reviewed the authority cited from the [d]efense. . . . Both [cited] cases [say] that the [d]efense has a burden to show that it was reasonably probable the [d]efendant . . . would not have pleaded guilty had he been correctly advised.
"And in my mind, . . . the key issue in this case . . . [i]s whether or not . . . [d]efendant would not have accepted the plea had he known that the true and legal period of parole was lifetime rather than five years.
"And I think it's undisputed that a couple things occurred. No. 1, the period of parole was not subject to the plea agreement. That wasn't part of it.
"And No. 2, I don't think it's disputed that for this sentence, whether it be 15 years to life or 30 years to life, that the period of parole pursuant to 3000.1 of the Penal Code would be a lifetime period . . .
"And so in my mind, the Court must decide whether or not the [d]efendant has actually met his burden with regard to demonstrating that prejudice. And I viewed the testimony of . . . Mr. Kapsack [and defendant and] have listened to his testimony very carefully and . . . I don't believe the [d]efendant has met this burden. And the reason being is . . . the big dispute in this case and in this plea was the Romero [m]otion and whether the [d]efendant was going to get 15 years to life or 30 years to life.
"I think it was made clear through the testimony of the defense witnesses and Mr. Kapsack that [defendant] truly and honestly wanted to resolve this case rather than going to trial because of his own wishes and also the merits of the case. I don't think he was concerned about what was going to happen after he was sentenced, after he was paroled, and how long he was going to be on parole. I think he was concerned about the sentence itself. I think he was somewhat concerned about whether or not [the prosecutor] was going to oppose his parole.
"But as far as the length of parole, while it is a significant right in this particular case under these facts and listening to [defendant]'s testimony in particular, I don't find it credible that that was a driving issue in this plea. And so on that basis, I'm going to deny the [m]otion [to withdraw the plea]."
The Romero request
The parties submitted on their pleadings. The trial court then ruled:
"The Court makes the following findings: The nature of this particular offense as compared with others is somewhat less serious than a normal instance of a second degree murder case in a very academic sense in that it involves . . . implied rather than express[] malice.
"The Court also does find that the offense is both a serious and violent felony crime.
"The Court also finds that the facts and circumstances of this current offense obviously indicate a great degree of danger to society.
"The Court is also finding that there was an injury. Obviously a death caused by the [d]efendant . . .
"The Court also finds that the [d]efendant in this case was an active participant.
"[T]he prior . . . strike . . . is approximately 22 years old, which mathematically would present it as somewhat remote in time. But the [d]efendant does have a very consistent record of criminality both prior to and after that strike. Prior to the strike, he had two felonies, along with multiple violations of probation and parole.
"After the 1996 commission of the strike, he's been convicted of a felony in 2004; a misdemeanor in 2008; another misdemeanor in 2014; and another misdemeanor, that being the wet and reckless conviction, in 2014. Throughout all of this there are many parole violations and indications that the [d]efendant was incarcerated for much of that time.
"The Court also considered the fact that this does not appear to be a single period of aberrant behavior. The [d]efendant's criminal record appears to be increasing in severity. His progress on probation or parole obviously has been very poor at this point. And I did consider his age. He is not youthful. I believe he is unlikely to change his behavior at this point in his life.
"Therefore, I am not inclined to exercise my discretion to strike the strike. I do feel the [d]efendant does fall within the spirit of the Three Strikes Law and I will deny the Romero [m]otion."
Sentence
The trial court imposed the sentence recommended by probation, including the $10,000 restitution fine and matching suspended parole revocation fine plus the $40 court operations fee and the $30 criminal conviction assessment fee. As to the restitution fine, the court stated: "The Court has considered the sentence as it relates to the [d]efendant's ability to pay, but the Court is going to impose the maximum fine because of the seriousness of the offense and the circumstances of its commission." Defense counsel did not object.
DISCUSSION
I
The Romero Request
Defendant contends the trial court abused its discretion by denying his request to strike his strike.
The three strikes law " 'establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court "conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme." ' [Citation.]" (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) A trial court may exercise its discretion to dismiss prior strike allegations pursuant to section 1385 it if finds that "in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [three strikes] scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
When a trial court declines to dismiss a prior strike allegation, we review its decision for abuse of discretion. (Carmony, supra, 33 Cal.4th at pp. 374-375.) In the context of sentencing decisions, "a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.) Reversal is justified where the trial court was unaware of its discretion to strike a prior strike or refused to do so at least in part for impermissible reasons. (Id. at p. 378.) But where, the trial court, aware of its discretion, " 'balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the . . . ruling, even if we might have ruled differently in the first instance.' [Citation.]" (Ibid.)
Here, the trial court was aware of the permissible reasons for refusing to strike defendant's strike and balanced the relevant facts to reach a decision in conformity with the spirit of the three strikes law. Defendant, a man in his 50s, had a nearly unbroken criminal history going back 30 years, including three felonies aside from his strike. His performance on probation and parole was dismal. He had not been free of custody for five years at a time since 1984. He was on probation for a DUI resulting in a collision when he committed the present offense, and before that offense, he had violated probation by failing to comply with a court order that included obtaining substance abuse treatment, despite longstanding addiction to numerous drugs. The current offense was by far his most serious. Nothing about his history, his current offense, or his prospects put him outside the spirit of the three strikes law.
Defendant asserts his prior strike "should be given negligible weight in the Romero calculus" because of its age. The authorities he relies on hold the opposite. In People v. Humphrey (1997) 58 Cal.App.4th 809, 813, the court found it was an abuse of discretion to strike a prior strike merely because it was remote in time: "Where, as here, the defendant has led a continuous life of crime after the prior, there has been no 'washing out' and there is simply nothing mitigating about a 20-year-old prior." (Accord, People v. Pearson (2008) 165 Cal.App.4th 740, 749.)
Defendant asserts his present offense "did not not involve malice or even intentionality." Defendant is wrong. Killing in the course of driving under the influence can constitute second degree murder on a theory of implied malice where the evidence shows the defendant, knowing the risks of driving under the influence, acted with a conscious disregard for human life. (People v. Watson (1981) 30 Cal.3d 290, 300-301.) It is not necessary to prove, as defendant claims, that he "deliberately caused the collision." Defendant was on probation for causing a collision while driving under the influence, and he admitted he had been warned of the risks of such driving. He also admitted that after the accident, he knew he should not have been driving after taking Clonazepam (let alone the other substances found in his blood test). Those facts are sufficient to show that the Watson theory of implied malice fit his case.
Defendant relies on People v. Banks (1997) 59 Cal.App.4th 20, where the court remanded for a Romero hearing. Banks has little relevance under current law. Before Romero, supra, 13 Cal.4th 497, was decided, the trial court denied a request to strike a prior strike, thinking it had no discretion to do so. (Banks, at p. 23.) Banks merely took note that Romero had changed the law and required a remand, without expressing any view on whether the defendant was entitled to relief. (Id. at p. 24.) So far as Banks enumerates factors for the trial court to consider on a Romero request, it has been superseded by Williams and Carmony.
The rest of defendant's argument merely asserts that the trial court decided the issues in dispute incorrectly. This is insufficient to show abuse of discretion under the Carmony standard. (Carmony, supra, 33 Cal.4th at pp. 377-378.)
II
Withdrawal of Defendant's Plea
Defendant contends this court should remand the matter to the trial court so as to allow him to withdraw his plea. According to defendant, he received ineffective assistance of counsel, justifying the withdrawal of his plea, because trial counsel misadvised him about the plea's consequences. We reject defendant's contention because he cannot show prejudice.
Where ineffective assistance of counsel results in a guilty plea, the defendant is entitled to relief. But to prove that he should be allowed to withdraw the plea, he must establish not only counsel's incompetence but also a reasonable probability that if not for counsel's incompetence, he would not have pleaded guilty and would have proceeded to trial. (In re Alvernaz (1992) 2 Cal.4th 924, 934; People v. Maguire (1998) 67 Cal.App.4th 1022, 1028.)
First, as the trial court found, whatever attorney Kapsack might have led defendant to believe about his chances for Romero relief, the court plainly told him before he entered his plea that such relief was not guaranteed, and defendant acknowledged the court's advice on the record. Thus, defendant cannot show that he would not have entered his plea absent Kapsack's misadvise on this point.
Second, if defendant had been convicted after trial, he faced a maximum exposure greater than his plea gave him: the plea eliminated all of the allegations, other than the alleged strike, that would have increased his sentence. The evidence at the hearing on defendant's motion to withdraw his plea showed that Kapsack made plain to him, and he understood, that he had no defense to the charges against him. Thus, for purposes of this issue it is immaterial whether defendant thought he would be facing a sentence of 15 years to life or 30 years to life based on his plea: even the second option was better than the consequences of trial and conviction. Therefore, defendant cannot show a reasonable probability that if he had understood he was unlikely to obtain Romero relief, he would have insisted on proceeding to trial.
So far as defendant alleges Kapsack was not ineffective in any respect other than his misadvice as to Romero, we agree with the trial court that Kapsack's other alleged mistakes, such as the purported five-year parole period, were not significant factors in defendant's decision to enter his plea. The only misadvice that was material to defendant's decision to enter his plea was Kapsack's overly optimistic assessment of the Romero issue -- which the court corrected, with defendant's acknowledgment of the correction on the record, before the court took defendant's plea.
For all the above reasons, defendant cannot show he is entitled to a remand in order to withdraw his plea.
III
Waiver of the Right to a Jury Trial
Defendant contends his change of plea must be vacated and the matter remanded for retrial because it was not shown that he waived his right to jury trial knowingly and intelligently.
In determining whether a defendant voluntarily, knowingly, and intelligently waived his right to jury trial when entering a guilty plea, we consider the totality of the circumstances. (People v. Marlow (2004) 34 Cal.4th 131, 147; People v. Howard (1992) 1 Cal.4th 1132, 1175; see People v. Sivongxxay (2017) 3 Cal.5th 151, 164-170 (Sivongxxay) [waiver of jury trial in favor of bench trial].) Here, those circumstances include the following:
Having incurred four prior felonies and numerous misdemeanors over the 30 years before this case arose, defendant was familiar with the criminal justice system. (See Sivongxxay, supra, 3 Cal.5th at pp. 167-168, and cases cited.)
Advised by counsel at all times before entering his plea, defendant signed a written plea agreement that specified the constitutional rights he would be waiving by entering the plea, and initialed all those that applied, including "[t]he right to a speedy and public jury trial." He also signed the bottom line, stating that he had read and understood the contents of the plea form and was making this agreement freely.
At the plea hearing, the trial court asked defendant, before accepting the plea, whether he had gone over the agreement form, initialed it, and signed it, whether he had discussed it with counsel, and whether he understood it; defendant answered all of those questions: "Yes." The court then asked: "And you understand that by signing this form and entering this plea you're going to be giving up the rights that are summarized within this form, correct?" Defendant answered: "Yes." The court continued: "And you're agreeing to waive those rights in order to enter this plea?" Defendant answered: "Yes, sir." The court asked: "Any last questions about those rights?" Defendant answered: "No, sir." Finally, the court asked: "Do you, in fact, waive those rights contained within this form in order to enter this plea?" Defendant answered: "Yes."
After the colloquy about Romero quoted in part I of the Discussion, the trial court asked whether anyone had threatened defendant to get him to enter his plea; he answered: "No." The court asked: "So you're doing this voluntarily?" Defendant answered: "Yes, sir." The court asked if defendant was under the influence of anything that could interfere with his thinking; defendant said he was not. The court reiterated: "You think you're thinking clearly today?" Defendant answered: "Yes."
After determining that there was a factual basis for the plea and obtaining defendant's admission of his prior strike, the trial court accepted the plea and stated: "I'm going to make a finding that you knowingly, expressly and intelligently waived your rights. Further, find that your plea was free and voluntary." The court asked if defense counsel concurred; counsel did so.
Finally, when defendant later moved to withdraw his plea, his then counsel did not raise the claim that defendant had not voluntarily, knowingly, and intelligently waived his right to jury trial, even though counsel presumably raised all points she considered valid grounds for the motion; nor did counsel raise this claim at argument on the motion. On appeal, defendant has not argued that counsel, on the motion to withdraw his plea, provided ineffective assistance by failing to raise this claim.
Under the totality of the circumstances, we disagree with defendant's contention that his waiver was not voluntary, knowing, and intelligent because the trial court did not ask questions expressly discussing jury trial and spelling out the rights defendant was waiving. Sivongxxay, supra, 3 Cal.5th 151, which he cites to support this contention, does not do so. Sivongxxay is not on point: it discusses the waiver of jury trial in favor of bench trial, not pursuant to entering a plea, and the decision makes clear that its "guidance" is restricted to that situation. (Id. at pp. 166-167, 170; see People v. Jones (2018) 26 Cal.App.5th 420, 428-434 [same].) And even in that situation, Sivongxxay plainly states that the questioning of defendants that it recommends to trial courts is "advisory," and a departure from the advised litany "will not necessarily render an ensuing jury waiver invalid." (Sivongxxay, at p. 170.)
Defendant also cites People v. Blackburn (2015) 61 Cal.4th 1113, 1130, which holds that the failure to obtain a valid jury trial waiver from a mentally disordered offender (MDO) defendant in a commitment extension proceeding is reversible error per se. Since defendant was not an MDO, defendant and this case did not involve an MDO commitment extension proceeding, Blackburn is not on point.
IV
Ability to Pay Hearing
As noted above, the trial court imposed the statutory maximum restitution fine ($10,000), plus the standard court security fee ($40) and criminal conviction assessment ($30).
Citing Dueñas, defendant contends he is entitled to a remand for a hearing on whether he can afford to pay the various fines and fees assessed by the trial court. The Attorney General argues, among other things, that defendant's assertion of error in this regard has been forfeited.
We need not decide the forfeiture issue because we hold that Dueñas was wrongly decided regarding the issue of hearings on the ability to pay fines and fees before they may be ordered by the trial court.
Dueñas held "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under []section 1465.8 and Government Code section 70373." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The Dueñas court also held "that although []section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Ibid.)
The Dueñas opinion relies on a line of authorities beginning with Griffin v. Illinois (1956) 351 U.S. 12, which itself rested on the "constitutional guaranties of due process and equal protection" and struck down a state practice of granting appellate review only to individuals who could afford a trial transcript. (Griffin, supra, at pp. 13, 17; see Dueñas, supra, 30 Cal.App.5th at pp. 1166-1169.) As recent appellate court cases have illustrated, the authorities Dueñas cites involving the right of access to courts are inapplicable because the imposition of the fine and assessments at issue in Dueñas and in this proceeding do not deny defendants access to the courts. (People v. Hicks (2019) 40 Cal.App.5th 320, 326, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1068-1069; People v. Caceres (2019) 39 Cal.App.5th 917, 927; see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1039 (conc. opn. of Benke, J.).) Griffin also stated broadly, "There can be no equal justice where the kind of trial a man gets depends on the amount of money he has." (Griffin, supra, at p. 19.) Another line of cases relied upon by Dueñas is related by this "principle of 'equal justice' " and prohibits imprisonment based on the failure to pay criminal penalties where the nonpayment was due to indigence. (Bearden v. Georgia (1983) 461 U.S. 660, 661-662, 664; accord In re Antazo (1970) 3 Cal.3d 100, 103-106, 109-110; see Dueñas, supra, at pp. 1166-1168.)
The fine and assessments at issue in Dueñas and this appeal subject an indigent defendant "only to a civil judgment that she [or he] cannot satisfy." (Dueñas, supra, at p. 1167; see also id. at p. 1169.) Thus, the authorities prohibiting incarceration for indigence alone are inapplicable. (People v. Hicks, supra, 40 Cal.App.5th at p. 326, review granted Nov. 26, 2019, S258946; People v. Caceres, supra, 39 Cal.App.5th at p. 927.) Indeed, in In re Antazo, supra, 3 Cal.3d 100, our Supreme Court granted the petition for the writ of habeas corpus only to discharge the petitioner from his imprisonment resulting from his inability to pay the fine and penalty assessment imposed as a condition of probation, but did not relieve him from any obligations in his probation order. (Id. at p. 117.) The court explained, "[w]e do not hold that the imposition upon an indigent offender of a fine and penalty assessment, either as a sentence or as a condition of probation, constitutes of necessity in all instances a violation of the equal protection clause." (Id. at p. 116, italics added.) In other words, "Dueñas does more than go beyond its foundations; it announces a principle inconsistent with them." (People v. Hicks, supra, 40 Cal.App.5th at p. 327, review granted Nov. 26, 2019, S258946.)
Further, "the fundamental policy question presented in Dueñas is a nettlesome one -- namely, under what circumstance is it appropriate to require criminal defendants, many of whom are people of little or no means, to pay assessments that help defray the costs of operating the court system and restitution fines that pour into a statewide fund that helps crime victims?" (People v. Hicks, supra, 40 Cal.App.5th at p. 328, review granted Nov. 26, 2019, S258946.) This "is a question to which . . . the federal and California Constitutions do not speak and thus have left to our Legislature." (Id. at p. 329, review granted Nov. 26, 2019, S258946.)
We join those authorities that have concluded that the principles of due process do not supply a procedure for objecting to the fines and assessments at issue in Dueñas and in this proceeding based on the present ability to pay. (People v. Hicks, supra, 40 Cal.App.5th at p. 329, review granted Nov. 26, 2019, S258946; People v. Aviles, supra, 39 Cal.App.5th at p. 1069; People v. Caceres, supra, 39 Cal.App.5th at p. 928.) To the extent it announced this broad rule, Dueñas was wrongly decided and defendant's claim pursuant thereto is without merit.
DISPOSITION
The judgment is affirmed.
/s/_________
HULL, Acting P. J. We concur: /s/_________
ROBIE, J. /s/_________
DUARTE, J.