P. v. Galan
Filed 1/30/14 P. v. Galan
CA6
OFFICIAL REPORTS
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
EMMANUEL
BARRERA GALAN,
Defendant and Appellant.
H039526
(Monterey County
Super. Ct. Nos.
SS130110, SS121656)
Defendant
Emmanuel Barrera Galan appeals from a judgment
entered after he pleaded no contest to a count of possession of methamphetamine
(Health & Saf. Code, § 11377, subd. (a)) and a count of residential
burglary (Pen. Code, § 459).
name="_ftnref1" title="">[1] His sole contention on appeal is that the
section 1202.4, subdivision (b) should be reduced from $280 to $240. For the reasons set forth below, we reject
defendant’s arguments and affirm the judgment.
The
underlying facts of defendant’s offenses are not relevant to his arguments on
appeal. We therefore only provide a
pertaining to defendant’s case.
On
August 29,
2012, the district attorney filed a
complaint (No. SS121656A) charging defendant with a count of possession of
methamphetamine (Health
& Saf. Code, § 11377, subd. (a), count 1), a count of possession of
controlled substance paraphernalia (id.
§ 11364.1, subd. (a), count 2), and a count of using or being under the
influence of a narcotic (id. § 11550,
subd. (a), count 3).
On
January 15, 2013, the district attorney
filed a complaint (No. SS130110A) charging defendant with a count of residential
burglary (§ 459, count 1).
Defendant
signed and initialed a waiver of rights and plea form in case Nos. SS121656A
and SS130110A on February 6, 2013. For both cases, defendant placed his initials
next to the statement reading, “I understand that I will be ordered to pay a
state restitution fine of not less than $200 nor more than $10,000 and may have
a like amount suspended.†Defendant also
placed his initials next to the statement reading, “I hereby waive and give up
all rights regarding state and federal writs and appeals. This includes, but is not limited to, the
right to appeal my conviction, the judgment, and any other orders previously
issued by this court. I agree not to
file any collateral attacks on my conviction or sentence at any time in the
future. I further agree not to ask the
Court to withdraw my plea for any reason after it is entered.†During the change of plea hearing on February 6, 2013, the trial court informed defendant that there was a “minimum
restitution fine as to each of the felonies of $280 and a maximum fine of
$10,000.â€
The
trial court suspended imposition of sentence on March 15, 2013, and placed defendant on three years probation for both cases,
subject to various terms and conditions. The court further ordered defendant pay a $280
restitution fund fine pursuant to section 1202.4, subdivision (b) in both
cases. Defendant accepted the terms of probation
and did not object to the imposition of the restitution fund fine.
Defendant
did not seek a certificate of probable cause and filed a timely notice of
appeal.
On
appeal, defendant argues that the trial court specifically intended to impose
the minimum restitution fund fine under section 1202.4, subdivision (b);
therefore, the imposition of the $280 restitution fund fine violates the
prohibition against ex post facto laws.
In the alternative, defendant contends that his trial counsel rendered
ineffective assistance for his failure to object to the $280 restitution fund fine. The People counter that defendant’s failure
to obtain a certificate of probable cause and his waiver of his right to appeal
pursuant to his plea bargain bars this appeal.
The People also assert that defendant’s claims are meritless as the
imposition of the $280 restitution fund fine was authorized under the applicable
law and that there is no evidence the trial court intended to impose the
minimum fine.
Defendant’s
failure to obtain a certificate of probable cause does not bar his claim on
appeal. A defendant must obtain a
certificate of probable cause to challenge the validity of a guilty plea. (§ 1237.5; People v. Panizzon (1996) 13 Cal.4th 68, 74.) However, a defendant need not obtain a
certificate if the appeal does not challenge the validity of the plea, but
instead relates to discretionary sentencing matters that occurred after entry
of the plea. (People v. Mendez (1999) 19 Cal.4th 1084, 1096; People v. Villalobos (2012) 54 Cal.4th 177, 183.) Here defendant challenges the imposition of
the $280 restitution fund fine, which was a discretionary sentencing choice
made by the trial court after defendant entered his plea.
Next,
we address the issue of waiver. Defendant
and the People agree that a defendant may waive the right to appeal as part of
a plea bargain. (People v. Panizzon, supra,
13 Cal.4th at p. 80.) However, such
waivers typically do not apply to future errors that the defendant may not have
contemplated at the time the waiver was executed. (Id.
at pp. 84-86.) At the time defendant
executed the waiver of his right to appeal, he had agreed to pay a restitution
fund fine in an amount to be determined by the trial court. However, the error alleged by defendant (that
the restitution fine violated the prohibition against ex post facto laws)
occurred after defendant executed the waiver.
Given the ambiguity of the scope of defendant’s waiver, we address
defendant’s claims on the merits and explain why we reject them.
At
the time defendant committed his offenses in 2012, section 1202.4, subdivision (b)(1)
provided that starting on January 1, 2012, in every case where a person is
convicted of a crime, the trial court shall impose a restitution fine of not
less than $240 and not more than $10,000.
(§ 1202.4, subd. (b); Stats. 2011, ch. 358, § 1.) Section 1202.4, subdivision (b)(1) also
specified that starting on January 1, 2013, the minimum
restitution fine would be $280. Since
defendant committed his offenses in 2012, the trial court could have imposed a
minimum restitution fund fine of $240.
However, the maximum
restitution fund fine the trial court could have imposed was $10,000. (§ 1202.4, subd. (b)(1).)
The
trial court stated during the change of plea hearing on February 6, 2013, that each of defendant’s offenses carried a “minimum†restitution
fine of $280 and a maximum restitution fine of $10,000. Contrary to defendant’s claims, during the sentencing
hearing on March
15, 2013, which occurred weeks after the
change of plea hearing, the trial court did not state that it intended to
impose the minimum restitution fine. The
trial court simply ordered defendant to “[p]ay a $280 restitution fine,†and
made no mention of a minimum fine. The
prohibition against ex post facto laws applies to restitution fines (
Cal.App.4th 1246, 1248), but the $280 restitution fund fine was well-within the
statutory range. Therefore, the fine was
not an unauthorized sentence or an ex post facto violation.
Furthermore,
defendant’s failure to object to the $280 fine during the sentencing hearing
forfeited this issue on appeal. (
1200, 1207.) Defendant therefore insists
that his trial counsel’s failure to object to the $280 fine rendered his
assistance ineffective. However, in
order to succeed on a claim of ineffective assistance of counsel, defendant
must show that his counsel failed to act in a manner to be expected of a
reasonably competent attorney acting as a diligent advocate and that he was
prejudiced thereby. (
216-217; Strickland v. Washington
(1984) 466 U.S. 668, 684 [discussing federal constitutional rights];
[discussing both state and federal constitutional rights].)
We
“ ‘need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged
deficiencies . . . . If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, . . . that course should be followed.’ †(In re
Jackson (1992) 3 Cal.4th 578, 604, quoting Strickland v. Washington, supra,
466 U.S. at p. 697.)
A
defendant establishes prejudice by demonstrating that without the deficient
performance there is a reasonable probability the result would have been more
favorable. In other words, even if a
defendant’s counsel’s actions fall below the threshold of reasonableness, he
must still show that his counsel’s actions were prejudicial. (People
v. Ledesma, supra, 43 Cal.3d at
p. 218.) Prejudice must be a “ ‘demonstrable
reality,’ not simply speculation.†(
937; People v. Fairbank (1997) 16
Cal.4th 1223, 1241.)
Defendant
fails to carry his burden to establish prejudice, as his contention that the
trial court intended to impose the minimum fine under section 1202.4, subdivision
(b) is speculative. As previously
discussed, during the sentencing hearing the trial court did not state that it
intended to impose the minimum fine. “ ‘A
judgment or order of the lower court is presumed
correct. All intendments and presumptions are indulged to
support it on matters as to which the record is silent, and error must be
affirmatively shown.’ †(
557, 564.) Given that the record does
not unequivocally indicate that the trial court intended to order the minimum
restitution fine under section 1202.4, subdivision (b), defendant has not met
his burden to show that if his trial counsel had objected, it was reasonably
probable that the trial court would have imposed a lower restitution fine. He therefore fails to demonstrate prejudice,
and his claim of ineffective assistance of counsel fails.
The
judgment is affirmed.
Premo, J.
WE CONCUR:
Rushing,
P.J.
Márquez, J.
references are to the Penal Code.
