Filed 5/29/13 P. v. Simpson CA4/2
TO BE PUBLISHED IN 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
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publication or ordered published for purposes of rule 8.1115.
THE COURT OF APPEAL OF THE STATE OF
APPELLATE DISTRICT
TWO
THE
PEOPLE,
Plaintiff and Respondent,
v.
CALLIE
MARIE SIMPSON,
Defendant and Appellant.
E054072
(Super.Ct.No. FVI1100741)
OPINION
APPEAL from
the Superior Court of
Bernardino County. Lynn
M. Poncin, Judge. Affirmed with
directions.
Jean
Matulis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, William M. Wood and Meagan J.
Beale, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
Callie Marie Simpson appeals a judgment entered after her motion to withdraw
her guilty plea was denied. She contends
that the denial of the motion was an abuse of discretion and, in the
alternative, that she should be allowed to withdraw her plea because the trial
court remanded her into custody pending her motion to withdraw her plea, thus
violating her due process right to the
benefit of her plea bargain, which provided that she could remain free of
custody pending sentencing. She also
contends that her right to equal protection was violated by the trial court’s
failure to award her presentence conduct credits pursuant to the version of
Penal Code section 4019 which became operative on October 1, 2011.
We will
affirm the judgment but will remand for recalculation of defendant’s
presentence custody credits.
PROCEDURAL HISTORY
Defendant
was charged with one count of burglary of
an unoccupied residence. (Pen. Code,
§ 459.)
title="">[1]
She entered a plea of guilty pursuant to a plea agreement which provided
for probation with the condition that she serve 180 days on work release. She was released pending sentencing subject
to a Cruz
which provided that she waived her right to withdraw her guilty plea if the
court did not abide by the agreement.
She agreed that the court would not be bound by the
she failed to report to probation as ordered, committed a new offense or failed
to appear for sentencing.
On the date
set for sentencing, defendant appeared in court with retained counsel. She requested a continuance to permit her
newly retained attorney to determine whether to file a motion to withdraw the
guilty plea. The trial court continued
the sentencing hearing in order to permit counsel to determine whether there
was any viable basis for withdrawing the plea.
However, the court stated that because defendant chose not to proceed
with sentencing as provided for in the plea bargain, she would “return to [her]
status at the time she entered the plea.â€
The court remanded defendant into custody and set bail at $50,000. The court set a new date for sentencing
and/or a motion to withdraw the plea.
Defendant
filed a motion to withdraw her guilty plea.
At the hearing on the motion, both defendant and the deputy public
defender who had represented her at the time she entered in to the plea
agreement testified.
name="_ftnref3" title="">[3]
After argument, the court denied the motion and continued the sentencing
hearing. At the sentencing hearing on
July 22, 2011, the court granted probation, as provided for in the plea
agreement, subject to conditions including service of 180 days on work release.
Defendant
filed a timely notice of appeal and obtained a certificate of probable cause on
the assertion that the plea was illegally obtained based on the grounds
asserted in defendant’s motion to withdraw the guilty plea.
FACTS
At the
entry of plea hearing, the parties stipulated that the police reports contained
a factual basis for the plea. The police
report, in pertinent part, states that on March 31, 2011, while conducting a
patrol around the abandoned housing tracts at George Air Force Base, deputies
Vega and Snyder found defendant loading scrap metal into her vehicle. She was taken into custody. After waiving her Miranda
name="_ftnref5" title="">[5] rights, defendant stated that she had dropped
her boyfriend, David Skaggs, off at the location around 8:00 a.m. She stated that she left the location and
returned around 2:00 p.m. to bring him food and to load the materials that he
had gathered into her vehicle. Skaggs
left to collect scrap metal at another location. Defendant used a pickax, a crowbar and other
tools to “complete the task,†and loaded the scrap metal into her vehicle. She admitted that she knew that her actions
constituted theft. She admitted that she
had removed scrap metal from the location before and had sold it for $80 to
$100 each time. She had planned to sell
the material this time, and expected to receive the same amount for it.
The
deputies were unable to locate Skaggs.
LEGAL ANALYSIS
1.
THE COURT PROPERLY DENIED THE
MOTION
TO WITHDRAW THE GUILTY PLEA
Defendant’s
motion to withdraw her guilty plea rested on the contention that her attorney
provided ineffective assistance of counsel in that he failed to investigate
possible defenses, failed to discuss the case with her adequately, and failed
to obtain a presentence probation report prior to the entry of defendant’s
plea. She also contended that the
probation report recommended some probation terms not contemplated by the plea
agreement. She asserted that she would
not have entered into the plea agreement if she had been properly advised both
of the elements of burglary and of the probation terms to which she objected.
At the
hearing on the motion, defendant testified that her attorney, James Liu, did not
inform her that entry into a building with the intent of committing a crime is
an element of the crime of burglary.
Because she had not entered the building, she testified, she would not
have pleaded guilty if she had known that entry was an element. She testified that the person who did the
entry was a homeless person and that entering a plea was the only way she could
get out of jail to find him. She said
that the deputies who arrested her only did so because they could not find her
accomplice.
Liu
testified that he generally does not explain to clients the specific elements
of charged offenses. He generally goes
over the facts of the case with his clients and lets them know what the merits
of the case are and the likelihood of success at trial. He also discusses their maximum exposure and
whether the offer seems fair. He would,
however, discuss any particular element that he thought might be
problematic. He did not recall
specifically what he had discussed with defendant, but his normal practice
would be to discuss any statements made by the defendant, as reflected in the
police report. He did not contradict
defendant’s testimony that he did not go over the elements with her. Although he did not recall his discussion
with defendant, his normal practice is to discuss possible witnesses with his
clients, and he was certain that defendant did not mention to him that there
was a potential witness and that she did not tell him she wanted to get out of
jail to find that witness. If she had
told him that, he would have told her that pleading guilty was not the way to
go about trying to prove her innocence.
Liu
testified that he was aware from the police report that defendant had made
admissions. He said he did not think it
would be wise to go to trial, in light of the 180-day work release offer.
Defendant
testified that she did not think that Liu provided ineffective assistance of
counsel, and her attorney stated during argument that they were not arguing
that Liu was ineffective. He said, “We
feel that it would have been nice if [he] had discussed these elements, but we
believe he did a competent job.†He then
stated that their argument was that defendant was not advised that entry was an
element of the offense, and that because she did not enter the building, she
would not have pleaded guilty if she had been told of that element. He contended that in the absence of evidence
that defendant entered the building, she was at most an accessory to the
burglary.
The trial
court found that according to defendant’s own testimony, she took the plea in
order to get out of jail, with the idea that she could locate a witness who
could exonerate her. Further, the court
found, defendant stated when she entered her plea that she had had enough time
to discuss the case with her attorney, and that she understood all of her
rights, potential defenses, penalties, punishments and future
consequences. She also stated that she
understood that she was waiving certain rights, and acknowledged that if she
was granted probation, there would be additional terms and conditions that
would be ordered which had not been discussed.
Based on those facts, the court found that defendant had not
demonstrated by clear and convincing evidence that she acted under ignorance,
duress, fraud, or inadvertence, or that there was a mistake which overcame the
exercise of her judgment. Accordingly,
the court denied the motion.
The
Attorney General contends that defendant has forfeited review of the motion
because during the hearing, both defendant and her attorney expressly disavowed
any contention that the public defender who represented her in connection with
the plea agreement was ineffective.
However, defendant now contends that the issue is not one of ineffective
assistance of counsel but of due process. The trial court resolved the motion by
finding that defendant did not meet her burden of demonstrating by clear and
convincing evidence that she entered the plea based on ignorance of the
elements of the offense. It did not
address the original ineffective assistance of counsel contention. We will address the ruling as rendered by the
trial court.
Section
1018 provides, in pertinent part, “On application of the defendant . . . the
court may, . . . for a good cause shown,
permit the plea of guilty to be withdrawn and a plea of not guilty
substituted.†The defendant has the
burden of showing good cause to permit the withdrawal. Good cause requires a showing that the
defendant was acting under mistake, ignorance, or any other factor which
overcame the exercise of the defendant’s free judgment. (People
v. Ravaux (2006) 142 Cal.App.4th 914, 917.)
A decision to deny a motion to withdraw a guilty plea “‘“rests in the
sound discretion of the trial courtâ€â€™ and is final unless the defendant can
show a clear abuse of that discretion.
[Citations.] Moreover, a
reviewing court must adopt the trial court’s factual findings if substantial
evidence supports them.
[Citation.]†(
1223, 1254.)
Here, the
evidence supports the trial court’s finding that defendant did not enter her
guilty plea because she was ignorant of the entry element but did so because
she thought that if she could locate her missing accomplice, he could exonerate
her. That is, after all, exactly what
defendant said under oath. The court was
not required to accept defendant’s further contention that she would not have
entered the plea if she had been told that entry is an element of
burglary: A trial court is not required
to accept self-serving and uncorroborated testimony as to a defendant’s reasons
for seeking to withdraw a guilty plea. (
of demonstrating that the trial court abused its discretion in denying her
motion. (People v. Fairbank, supra,
2.
DEFENDANT’S CONTENTION THAT THE TRIAL COURT VIOLATED
DEFENDANT’S DUE PROCESS RIGHTS BY REMANDING HER INTO CUSTODY PENDING SENTENCING
AND/OR THE MOTION TO WITHDRAW THE GUILTY PLEA IS NOT COGNIZABLE ON APPEAL
Defendant
contends that the trial court violated the plea agreement by remanding her into
custody pending sentencing and/or a hearing on a motion to withdraw the guilty
plea. The plea agreement called for
defendant’s release pending sentencing, and she contends that she complied with
the plea agreement by appearing on the date set for sentencing. Because she was in compliance with the
agreement, she contends, the trial court’s violation of the agreement by
refusing to allow her to remain out of custody until sentencing actually
occurred mandates that she be allowed to withdraw her plea.
The
Attorney General contends that defendant forfeited this claim by not raising it
in her motion to withdraw her plea. She
relies on the well-known rule that a party may not challenge a trial court’s
ruling on a ground not raised in the trial court. Defendant counters that she “objected
strenuously†when she was taken into custody and that it would have been futile
to raise the same claim in her motion to withdraw her guilty plea. She contends that failure to object does not
bar appellate review when an objection would have been futile. In fact, however, defendant did
remanded. In any event, her claim is
barred by her failure to obtain a certificate of probable cause permitting
review of that issue.
Section
1237.5 provides in relevant part: “No
appeal shall be taken by the defendant from a judgment of conviction upon a
plea of guilty or nolo contendere . . . except where both of the following are
met: [¶]
(a) The defendant has filed with the trial court a written statement,
executed under oath or penalty of perjury showing reasonable constitutional,
jurisdictional, or other grounds going to the legality of the proceedings. [¶]
(b) The trial court has executed and filed a certificate of probable
cause for such appeal with the clerk of the court.†Notwithstanding the broad language of section
1237.5, it is settled that “issues regarding proceedings held subsequent to the
plea for the purpose of determining the degree of the crime and the penalty to
be imposed†may be raised without issuance of a certificate. (People
v. Panizzon (1996) 13 Cal.4th 68, 74.)
Any issue which challenges the validity of the plea does require a
certificate of probable cause, however, regardless of how or when the issue
arose. (Id. at p. 76.) For purposes
of determining whether a certificate is required, “‘the crucial issue is what
the defendant is challenging, not the time or manner in which the challenge is
made.’ [Citation.]†(Ibid.) “Hence, the critical inquiry is whether a
challenge to the sentence is in substance
a challenge to the validity of the plea, thus rendering the appeal subject to
the requirements of section 1237.5.†(
Here,
although the trial court’s alleged violation of the plea bargain arose after
the entry of the plea, defendant’s assertion that due process mandates that she
be allowed to withdraw her plea in effect challenges the continuing validity of
the plea, in light of the trial court’s actions. Consequently, defendant was required to obtain
a certificate of probable cause to address this issue. Although she did obtain a certificate of
probable cause, it is limited to review of “the grounds asserted by defendant
in [her] motion to withdraw the [guilty] plea.â€
This limitation precludes us from considering this issue, because it was
not raised in defendant’s motion.
3.
DEFENDANT IS ENTITLED TO
RECALCULATION OF PRESENTENCE CUSTODY CREDITS
Application of the Current Version of Section 4019 to Defendant.
A defendant
is entitled to actual custody credit for “all days of custody†in county jail
and residential treatment facilities, including partial days. (§ 2900.5, subd. (a); see also
523, 526.) Section 4019 provides that a
criminal defendant may earn additional presentence credit against his or her
sentence for performing assigned labor (§ 4019, subd. (b)), and for
complying with applicable rules and regulations of the local facility
(§ 4019, subd. (c)). These
presentence credits are collectively referred to as conduct credits. (People
v. Dieck (2009) 46 Cal.4th 934, 939.)
Section
4019 has been amended multiple times.
Before January 25, 2010, defendants were entitled to one-for-two conduct
credits, which is two days for every four days of actual time served in
presentence custody. (Former
§ 4019, subd. (f), as amended by Stats. 1982, ch. 1234, § 7, pp.
4553-4554.) Effective January 25, 2010,
the Legislature amended section 4019 to provide that prisoners, with some
exceptions, earned one-for-one conduct credits, which is two days of conduct
credit for every two days in custody.
(Stats. 2009, 3d Ex. Sess. 2009–2010, ch. 28, § 50.) Effective September 28, 2010, the Legislature
again amended section 4019. (Stats.
2010, ch. 426, §§ 1-2, 5.) Subdivisions
(b) and (g) restored the one-for-two presentence conduct credit calculation
that had been in effect prior to the January 25, 2010, amendment.
Most
recently, the Legislature amended section 4019 to provide for up to two days
credit for each four-day period of confinement in local custody. (§ 4019, subds. (b) & (c).) This scheme reflects the Legislature’s intent
that if all days are earned under section 4019, “a term of four days will be
deemed to have been served for every two days spent in actual custody.†(§ 4019, subd. (f).) This version of section 4019 became operative
on October 1, 2011. (Stats. 2011, ch.
39, § 53.)
Defendant’s
crime was committed on March 31, 2011, and she was sentenced on July 22, 2011,
before the operative date of the current version of section 4019. She contends, however, that because
“[i]ndividuals subject to the former and current versions of section 4019 are
similarly situated,†the equal protection clause requires that the more liberal
current version of section 4019 applies to her.
We disagree.
In
the California Supreme Court addressed contentions that the version of section
4019 effective on January 25, 2010, must be held to apply retroactively, in
part because prospective application would violate the equal protection clauses
of the state and federal Constitutions.
The court stated:
name="_ftnref8" title="">[8]
“The
concept of equal protection recognizes that persons who are
treated equally. [Citation.] Accordingly, ‘“[t]he first prerequisite to a
meritorious claim under the equal protection clause is a showing that the state
has adopted a classification that affects two or more similarly situated groups
in an unequal manner.â€â€™ [Citation.] ‘This initial inquiry is not whether persons
are similarly situated for all purposes, but “whether they are similarly
situated for purposes of the law challenged.â€â€™
[Citation.] [¶] . . .
[T]he important correctional purposes of a statute authorizing
incentives for good behavior [citation] are not served by rewarding prisoners
who served time before the incentives took effect and thus could not have
modified their behavior in response.
former section 4019 took effect are not similarly situated necessarily follows.†(Brown,
supra, 54 Cal.4th at pp. 328–329,
first italics in original, second italics added.)
The court
rejected the argument that its decision in People
v. Sage (1980) 26 Cal.3d 498 (Sage)
required a contrary conclusion. (
The version of section 4019 at issue in Sage authorized presentence conduct credit for misdemeanants who
later served their sentence in county jail, but not for felons who ultimately
were sentenced to state prison. The
violative of equal protection, as it found no “rational basis for, much less a
compelling state interest in, denying presentence conduct credit to†felons. (Sage,
at p. 508.)
effect of Sage “was to extend
presentence conduct credits retroactively to detainees who did not expect to
receive them, and whose good behavior therefore could not have been motivated
by the prospect of receiving them.†(
Nevertheless, it declined to read Sage
in such a way as to foreclose a conclusion “that prisoners serving time before
and after incentives are announced are not similarly situated.†(Brown,
at p. 330.) Brown explained: “The
unsigned lead opinion ‘by the Court’ in Sage
does not mention the argument that conduct credits, by their nature, must apply
prospectively to motivate good behavior.
A brief allusion to that argument in a concurring and dissenting opinion
[citation] went unacknowledged and unanswered in the lead opinion. As cases are not authority for propositions
not considered [citation], we decline to read Sage for more than it expressly holds.†(Brown,
at p. 330.)
Finally,
before it was controlled by In re
relies in this case. In
protection required retroactive application of a statute granting credit to
felons for time served in local custody before sentencing and commitment to
state prison, despite the fact that the statute was expressly prospective. (Brown,
supra, 54 Cal.4th at p. 330.) Brown
found Kapperman distinguishable: “Credit for time served is given without
regard to behavior, and thus does not entail the paradoxical consequences of
applying retroactively a statute intended to create incentives for good
behavior. Kapperman does not hold or suggest that prisoners serving time
before and after the effective date of a statute authorizing
situated.†(Brown, at p. 330.)
In
of section 4019.
name="_ftnref9" title="">[9] (
that court’s analysis. Accordingly, we
reject defendant’s claim that she is entitled to additional conduct credits at
the rate provided for by current section 4019.
Remand Is Required for Recalculation of
Defendant’s Presentence Custody Credits.
Respondent
points out that although defendant was given credit at sentencing for 14 actual
days spent in custody prior to sentencing, that number encompasses only the
days defendant spent in custody before she entered her guilty plea and was
released pending sentencing. However,
defendant was remanded into custody on May 11 and was released on a date not
reflected in the record. Accordingly,
defendant is entitled to credit for some number of additional days in custody
prior to sentencing. (§ 2900.5, subd.
(a).) Because the record does not
reflect the number of days defendant spent in custody between her remand and the
date of her sentencing, we will remand the cause to the trial court for the limited
purpose of determining and awarding credit for the appropriate number of actual
days defendant spent in custody prior to sentencing, pursuant to section
2900.5, subdivision (a). The court must
also determine and award conduct credits based upon the total number of actual
days defendant spent in custody, pursuant to the version of section 4019 which
was in effect on March 31, 2011.
DISPOSITION
The cause
is remanded for the limited purpose of determining and awarding credit for the
appropriate number of actual days defendant spent in custody prior to
sentencing, pursuant to section 2900.5, subdivision (a), and determining and
awarding conduct credits based upon the total number of actual days defendant
spent in custody, pursuant to the version of section 4019 which was in effect
on March 31, 2011, the date of defendant’s offense. The superior court is directed to conduct a
hearing for this purpose no later than 30 days after the finality of this
opinion and to issue amended sentencing minutes reflecting the corrected award
of presentence custody credits, both actual and conduct.
The
judgment is otherwise affirmed.
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.
Penal Code.
[2] People
v. Cruz (1988) 44 Cal.3d 1247, 1254.
