People v. TurnerPeople v. Turner
SIMS, Acting P.J.
On September 18, 2000, defendant Jesse Dee Turner pled guilty to possession for sale of methamphetamine (
On October 16, 2000, the day set for sentencing, defendant was granted a continuance to allow him to file a motion to withdraw his guilty plea.
On November 6, 2000, the sentencing hearing was reset because defendant had not filed the motion to withdraw his guilty plea. Defendant never moved to withdraw his plea.
On December 5, 2000, defendant was sentenced to a total of five years in state prison.
On December 21, 2000, defendant filed a notice of appeal and a request for a certificate of probable cause. The request for the certificate was supported by a declaration from defendant. In his declaration, defendant averred that a parole agent, who had participated in the search of a truck in which defendant had been a passenger, lied in his report when the agent described the truck as being owned by the defendant. In fact, according to a police report prepared by a police officer, the truck had been owned by defendant‘s brother. Defendant acknowledged that he received the parole agent‘s report two days after he entered his guilty plea.
The trial court granted defendant a certificate of probable cause.
On appeal, defendant contends this court should set aside his guilty plea because it was not knowingly and intelligently made (and was therefore involuntary), in that defendant was not made aware of the alleged falsehood in the parole agent‘s report until after he entered his plea.
Defendant has forfeited this claim on appeal because he never made a motion to withdraw his plea in the trial court.
Thus, as a general rule, “an appellate court will not consider claims of error that could have been—but were not—raised in the trial court. [Citation.]” (People v. Vera (1997) 15 Cal.4th 269, 275, 62 Cal. Rptr.2d 754, 934 P.2d 1279; see People v. Simon (2001) 25 Cal.4th 1082, 1103, 108 Cal.Rptr.2d 385, 25 P.3d 598, and authorities cited therein; People v. Saunders (1993) 5 Cal.4th 580, 589-590, 20 Cal. Rptr.2d 638, 853 P.2d 1093.)
Here, Penal Code section 1018 expressly authorized defendant to move to withdraw his plea “at any time before judgment.”1 (See People v. Cruz (1974) 12 Cal.3d 562, 566, fn. 5, 116 Cal.Rptr. 242, 526 P.2d 250.) The record demonstrates defendant was aware of the circumstances that allegedly
In our original opinion in this case, we said that, “the trial court failed to impose the mandatory $50 laboratory analysis fee that accompanies defendant‘s conviction for violation of
We therefore modified the judgment to impose a $50 laboratory analysis fee, a $50 penalty assessment pursuant to
Correctly pointing out that we had not given the parties an opportunity to brief the question of the imposition of the fee and penalty assessments,3 defendant filed a petition for rehearing. Pursuant to the directive of
Having considered the supplemental briefing, we shall again modify the judgment to impose the same laboratory analysis fee and related penalty assessments (total $135) as we did originally.
Defendant objects to this result on several grounds.
Defendant first contends that since he was not advised of this fee when he entered his plea, imposition of the fee and penalties would violate his plea agreement. He says that the court cannot impose the fee and penalties or, if it does, must give him the opportunity to withdraw his plea. However, a court violates a plea bargain only where it imposes a statutorily-mandated punishment that is significantly greater than that bargained for. (People v. Walker (1991) 54 Cal.3d 1013, 1026, 1 Cal.Rptr.2d 902, 819 P.2d 861.) The total amount of the laboratory analysis fee plus penalties is $135. This amount is de minimis and does not violate defendant‘s plea bargain. (Walker, supra, 54 Cal.3d at p. 1027, 1 Cal.Rptr.2d 902, 819 P.2d 861 [$100 restitution fine is de minimis and not “significant“].)
Defendant next argues that imposition of the fee and penalties violates the doctrine of separation of powers because the People did not request that the fee be imposed, either in the trial court or this court. We do not agree. Failure to impose the mandatory laboratory analysis fee constituted an unauthorized sentence. (People v. Martinez, supra, 65 Cal.App.4th at pp. 1519-1520, 77 Cal.Rptr.2d 492.) An unauthorized sentence may be corrected by an appellate court “regardless of whether an objection or argument was raised in the trial and/or reviewing court.” (People v. Welch (1993) 5 Cal.4th 228, 235, 19 Cal.Rptr.2d 520, 851 P.2d 802, and authorities cited therein; followed in People v. Smith (2001) 24 Cal.4th 849, 852, 102 Cal.Rptr.2d 731, 14 P.3d 942.) There is no violation of the doctrine of separation of powers.
Defendant contends this result violates his federal constitutional right to the equal protection of the laws. (
Defendant contends that even if the laboratory analysis fee can be imposed, the related penalty assessments cannot be imposed because, according to defendant, the trial court had discretion not to impose the penalty assessments if payment would work a hardship on the person or his immediate family. Defendant asserts that since the trial court had discretion not to impose the penalty assessments, and since the People failed to object to the trial court‘s failure to impose the assessments, the penalty assessments cannot be imposed in the first instance by this court. (See People v. Tillman, supra, (2000) 22 Cal.4th 300, 303, 92 Cal.Rptr.2d 741, 992 P.2d 1109.)
Defendant claims the trial court had discretion to refuse to impose the penalty assessments pursuant to
“In any case where a person convicted of any offense, to which this section applies, is in prison until the fine is satisfied, the judge may waive all or any part of the state penalty, the payment of which would work a hardship on the person convicted or his or her immediate family.”
According to defendant, this language gave the trial court discretion to waive the penalty assessment provided by
Defendant and the Attorney General do not read
Even assuming for the sake of argument that the trial court could lawfully direct that defendant be imprisoned until the fee5 is satisfied (but see In re Antazo (1970) 3 Cal.3d 100, 116-117, 89 Cal.Rptr. 255, 473 P.2d 999; People v. Ralph (1944) 24 Cal.2d 575, 582-583, 150 P.2d 401; People v. Brown (1896) 113 Cal. 35, 36-37, 45 P. 181), the simple fact is that the trial court made no such order in this case. Thus, “the circumstance specified in
Because the trial court had no discretion to refuse to impose the laboratory analysis fee and related penalty assessments (People v. Martinez, supra, 65 Cal.App.4th at pp. 1521-1522, 77 Cal.Rptr.2d 492; People v. Sierra (1995) 37 Cal.App.4th 1690, 1695, 44 Cal.Rptr.2d 575; People v. Heisler (1987) 192 Cal.App.3d 504, 507, 237 Cal. Rptr. 452, 62 Ops. Cal.Atty.Gen. 13, 17 (1979)), we shall modify the judgment to impose them, as we did in our original opinion. (People v. Smith, supra, 24 Cal.4th at p. 852, 102 Cal.Rptr.2d 731, 14 P.3d 942; People v. Martinez, supra, 65 Cal.App.4th at p. 1522, 77 Cal.Rptr.2d 492.)
The judgment is modified by imposing a $50 laboratory analysis fee pursuant to
We concur: MORRISON and HULL, JJ.
Notes
“Before the Supreme Court, a court of appeal, or the appellate division of a superior court renders a decision in a proceeding other than a summary denial of a petition for an extraordinary writ, based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing. If the court fails to afford that opportunity, a rehearing shall be ordered upon timely petition of any party.”