THE PEOPLE,
A166863
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
Filed 1/31/24
CERTIFIED FOR PARTIAL PUBLICATION*
(Mendocino County Super. Ct. Nos. SCUKCRCR202036556-1, SCUKCRCR202037103-1)
BACKGROUND
The details of Dean‘s offenses are set forth in Dean and are irrelevant here, so we need not repeat them. The background relevant to this appeal begins with the pretrial settlement discussions. Before trial, the prosecutor made a plea bargain offer of the low term for the assault charge, doubled, and dismissal of the drug charge. Dean‘s counsel told the court that Dean had rejected the offer.
Two weeks later, before beginning voir dire, the trial court asked Dean whether he was willing to stipulate to the allegation that he had previously been convicted of assault with a deadly weapon.2 The court told Dean, “First thing we need to address is the strike that‘s alleged in the information. Mr. Dean, as you know, you have a right to have a jury trial or a court trial on the truth of that allegation. The strike would only be significant in terms of the consequence today or in this trial if the jury finds you guilty of a felony. It enhances the sentence. I know you and your attorney have talked about that.” The court then asked, “With the understanding you have a right to a jury trial or a court trial on the strike, is it your intention to admit the truth of
The trial court continued, “Mr. Dean, with your rights in mind, having talked with your attorney, I need you to tell me if you admit or deny that you suffered a conviction for assault with a deadly weapon, violation of
After the jury found Dean guilty as charged, the trial court sentenced Dean to the upper term of six years on the assault conviction. The court then doubled it based on the strike that Dean had admitted, for a total of 12 years. The court also sentenced Dean to one consecutive year for a later offense of smuggling fentanyl into the jail. Dean‘s total sentence was therefore 13 years. The court calculated 176 days of actual time served and 26 days of credit pursuant to
Dean appealed, arguing he was entitled to the retroactive application of an intervening amendment to
In the resentencing hearing on remand, Dean asked the trial court to impose the low term and to strike all fines and fees because he was indigent. The court announced its intention to impose the middle term of four years, doubled to eight years because of the strike allegation, with an extra year for the drug charge, for a total of nine years.
Dean personally objected, arguing, among other things, that his prior conviction did not qualify as a strike. The trial court disagreed and said that the hearing was not to challenge the validity of the strike. It viewed our opinion as stating that the strike finding remained and the only purpose for the resentencing hearing was to decide between the middle and upper terms on the assault conviction.
At the continued hearing, Dean began by making a Marsden motion. In a closed hearing, Dean raised various complaints against his counsel, including that his counsel had not challenged the validity of the prior strike. Dean reiterated that he would never have admitted the strike had he known it would double his sentence.
Dean‘s counsel said the admission of the strike was a tactical choice. He also stated that the only remaining matter was the re-calculation of his credits, so that any communication difficulties were no longer significant.
The trial court found Dean‘s counsel had not fallen below a standard of professional representation and could continue to represent him because the only issue remaining concerned Dean‘s credits against his sentence. The trial court therefore denied Dean‘s motion.
Back in open court, the trial court confirmed that Dean‘s prior conviction constituted a strike. The court then sentenced Dean to the middle term of four years, doubled to eight years, with a consecutive year for the drug conviction. In both the assault and drug cases the trial court stayed the $40 court security fees and $30 criminal conviction assessments. The court imposed the statutory minimum fines of $300 under
The trial court then said Dean had earned 761 days actual credit with an additional 114 days pursuant to
DISCUSSION
I. Calculation of additional credits
Dean first argues that, upon resentencing, the trial court should have updated only the calculation of actual time he served in prison and should not
In People v. Buckhalter (2001) 26 Cal.4th 20, 30-31 (Buckhalter), the Supreme Court reviewed the separate and independent conduct credit schemes for presentence custody in jail (
At the original sentencing, the trial court calculated that Dean was entitled to 26 days of additional credit for his time in jail, which reflected a 15 percent cap on presentence or postsentence conduct credit under
Dean appears to be correct that the Public Safety and Rehabilitation Act of 2016 effectively repealed
If this were the only problem with Dean‘s new sentence, we would simply order the abstract of judgment corrected by stating his actual time credits, including his time in prison, and reverting back to the initial calculation of 26 days of additional presentence conduct credits. The CDCR would then be free to determine any additional credits Dean may have earned after his initial sentence beyond his actual time served. However, because we are remanding to correct the other errors discussed below, we will instruct the trial court to calculate Dean‘s credits in line with these principles when it resentences him on remand.
II. Fines and fees
Dean next argues that the trial court abused its discretion by imposing a $300 fine under
“In a nutshell, Dueñas, supra, 30 Cal.App.5th at pages 1168-1169, held that a sentencing court violated the due process rights of a defendant who committed her acts out of poverty when it imposed certain mandatory fees and fines that lack a statutory exception without first making a finding the unemployed defendant (who suffered from cerebral palsy) had the ability to pay while she was on probation.” (People v. Oliver (2020) 54 Cal.App.5th 1084, 1100.) Several decisions have disagreed with Dueñas, and the California Supreme Court is currently considering the issue. (E.g., People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946; People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.)4 In the absence of any guidance from our Supreme Court, we adhere to the view expressed in this Division‘s decision in People v. Cowan (2020) 47 Cal.App.5th 32, review granted June 17, 2020, S261952 (Cowan) that constitutional challenges to fines or fees based on a claim that a defendant cannot pay them should be evaluated under the
The Attorney General notes that Dean challenged all fines and fees in the trial court. However, the parties never actually argued the issue. The Attorney General suggests that this, combined with Dean‘s claims of indigency in the trial court and indications in the original probation report that Dean may have disability or worker‘s compensation income, warrants remanding to the trial court for an inquiry into Dean‘s ability to pay the fines.5 Dean originally asked us to strike the
We agree with the parties that remand for a hearing on Dean‘s ability to pay the fines is necessary. The court indicated it might stay the
III. Stipulation to strike allegation
Dean contends the trial court erred by doubling his sentence during the resentencing because his admission of the strike allegation before his jury trial was invalid. The Attorney General agrees that Dean‘s admission of the strike was flawed, as do we.
The California Supreme Court‘s precedents “‘require, before a court accepts an accused‘s admission that he has suffered prior felony convictions, express and specific admonitions as to the constitutional rights waived by an admission.‘” (People v. Cross (2015) 61 Cal.4th 164, 170 (Cross).) Those rights are “the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one‘s accusers.” (Ibid.) “[A] defendant must also be advised of ‘the full penal effect of a finding of the truth of an allegation of prior convictions.’ [Citation.] . . . [A]n accused, before admitting a prior conviction allegation, must be advised of the precise increase in the prison term that might be imposed, the effect on parole eligibility, and the possibility of being adjudged a habitual criminal.” (Id. at pp. 170-171.) However, a violation of these requirements is not reversible “‘if the record affirmatively shows that [the admission] is voluntary and intelligent under the totality of the circumstances.‘” (Id. at p. 179; see also People v. Farwell (2018) 5 Cal.5th 295, 303-304 [“totality of the circumstances test applies in all circumstances where the court fails, either partially or completely, to advise and take waivers of the defendant‘s trial rights before accepting a guilty plea” (italics omitted)].)
Dean‘s prior strike doubled the punishment for his assault offense, so he was entitled to the proper admonitions. (
This error requires us to set aside the finding on the strike allegation because Dean and the Attorney General are correct that the record does not affirmatively show that Dean‘s admission of the allegation was voluntary and intelligent under the circumstances. (Cross, supra, 61 Cal.4th at p. 179.) When making this determination, we must consider the entire record, not just the plea colloquy, and also Dean‘s previous experience in the criminal justice system. (Id. at pp. 179-180.)
Before admitting the strike, Dean rejected an offer from the prosecutor of the “low term doubled,” which would have meant a four-year prison sentence. (
There is also no indication that Dean was advised that he was waiving his rights against self-incrimination and to confront his accusers. Dean might have learned of these rights in his jury trial for the charge underlying the strike allegation, but that conviction occurred more than twenty years earlier. (See People v. Dean (Oct. 30, 2001, A091496) [nonpub. opn.].) The record suggests Dean faced other charges in the interim, but since the record does not contain any details of those proceedings, they tell us nothing about Dean‘s understanding of his rights.
The trial court stated that it knew Dean had talked with his attorney about the admission. (See Cross, supra, 61 Cal.4th at p. 180 [record did not show stipulation was knowing and voluntary in part because trial court did not ask whether defendant had discussed stipulation with counsel].) But the trial court did not explain the basis for this knowledge, nor did it give any indication that Dean had specifically discussed with his counsel the penal consequences of the plea or the waiver of his self-incrimination and confrontation rights. Dean‘s counsel gave no indication he had explained such issues to Dean when he joined Dean‘s waiver of the right to trial on the admission. In Dean‘s Marsden hearing, Dean asserted directly that he did not understand the impact of the admission and would not have admitted the strike had he known the penal consequences. In response, his counsel said only that the admission was a tactical choice. Dean‘s counsel still did not say that he had explained the penal consequences to Dean in advance of the admission.
The trial court refused to consider this issue in the resentencing hearing because it viewed our prior opinion as establishing the validity of the strike. We declared the strike allegation irrelevant to our holding there, so we did not directly declare the strike allegation valid. But we did affirm the judgment in all respects other than the need for resentencing set out in the opinion, so the trial court‘s interpretation of our opinion is understandable. Nonetheless, we will not find Dean‘s challenge to be forfeited. Because Dean did not raise this issue in his first appeal and we did not consider it, there are no concerns here about giving Dean multiple bites at the apple. In fact, as Dean notes, we are in a better position to consider the issue in this appeal than the prior one, since we can consider the record of the Marsden hearing that further supports Dean‘s position that his counsel did not explain the consequences of the strike admission.
Moreover, considering the issue here serves the interests of judicial economy. (People v. Butler, supra, 31 Cal.4th at p. 1128.) The Attorney General does not dispute that reversal is warranted, so refusing to consider the issue now would require Dean to file a habeas corpus petition alleging ineffective assistance of counsel, to which the Attorney General would presumably accede. This would multiply the proceedings without changing the substantive result. In the interest of avoiding such wasteful effort, we deem it prudent to grant Dean‘s challenge here, notwithstanding Dean. We also note that the Supreme Court has held that a defendant cannot forfeit an argument that an admission of a sentence-prolonging admission was not knowing and voluntary, given that the required admonitions serve a prophylactic constitutional purpose. (Cross, supra, 61 Cal.4th at pp. 171-173.)
IV. Marsden motion
Dean finally argues that the trial court erred when it denied his Marsden motion. The trial court denied the motion in part because it found that Dean‘s counsel could still represent Dean at that point in the resentencing proceedings, when the only remaining issue concerned the number of credits to which Dean was entitled. Because we are remanding for further proceedings, this aspect of the trial court‘s rationale for denying Dean‘s motion no longer holds. Accordingly, if Dean renews his Marsden motion on remand, the trial court should consider again whether Dean‘s trial court counsel adequately represented him and whether he and Dean have an irreconcilable conflict that would substantially impair Dean‘s right to assistance of counsel. (People v. Smith (2003) 30 Cal.4th 581, 604 [standard for Marsden motions].)
DISPOSITION
The true finding on the strike allegation is set aside. The matter is remanded for further proceedings not inconsistent with this opinion. In all other respects, the judgment is affirmed.
BROWN, P. J.
WE CONCUR:
GOLDMAN, J.
SMILEY, J.*
People v. Dean (A166863)
Trial Court: Mendocino County Superior Court
Trial Judge: Hon. Keith Faulder
Counsel: Meredith Fahn, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Jeffrey M. Laurence, Assistant Attorneys General, Catherine A. Rivlin, Gregg E. Zywicke, Deputy Attorneys General for Plaintiff and Respondent.