People v. Simon CA2/6

Filed 12/18/13 P. v. Simon CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B246350 (Super. Ct. No. 2010045768) Plaintiff and Respondent, (Ventura County)

v.

MICHAEL CHARLES SIMON,

Defendant and Appellant.

Michael Charles Simon appeals his conviction, by guilty plea, of petty theft with three or more priors. (Pen. Code, § 666, subd. (a).)1 In connection with his guilty plea, appellant admitted that he had been convicted of burglary in five separate cases, two of which involved multiple counts. Consistent with an indicated sentence it had earlier provided, the trial court sentenced appellant to eight years in state prison. After obtaining a certificate of probable cause, appellant contends on appeal that he was induced to plead guilty by improper judicial plea bargaining and the representation that he could appeal the validity of his strike priors. Appellant contends the trial court should have resolved the question of whether his prior convictions were valid "strikes" before accepting his guilty plea. Appellant further contends he should have been permitted to withdraw his plea when the trial court refused to rule on his Romero motion. Finally, appellant

1 All statutory references are to the Penal Code unless otherwise stated. 1

contends there is no substantial evidence he has the ability to pay the probation investigation fee of $1675 ordered by the trial court. We affirm. Facts and Procedural History The facts of appellant's underlying offense are not relevant to the issues raised on appeal. Briefly, a witness identified appellant as the person who stole a bicycle. He was arrested while riding the same bicycle. On the day appellant's trial was scheduled to begin, the trial court judge informed appellant: "I want to talk about one thing with you now before we make a decision about when we should bring up a jury on this matter. That is a three-strike case, you know, so I can't make any guarantees to you about sentencing or anything like that. That's stopped by the law. I can't do it, but I have had a chance to speak with your lawyer and the district attorney, and what I can do on the record is I can give you what we call an indicated sentence which means I can let you know what I think about the case and almost certainly what would happen if we were in a sentencing posture." The trial court stated this was a third strike case with a maximum possible sentence of 29 years to life. Based on the information then available to the trial court judge about appellant's conduct and his history, however, the judge had concluded, "if the case were to resolve now, I would almost certainly strike two of your three strikes . . . and that means you would face a sentence at that point of between six and ten years instead of 29 to life, and I'm thinking the appropriate sentence is about eight years . . . . [¶] Again, I can't make any contract with you or reach any bargain or anything like that, but I can tell you what I think this is worth at this point." After the lunch recess, the case resumed in front of a different trial court judge. The parties discussed pretrial evidentiary issues and appellant made a Marsden motion. After an in camera hearing, the trial court denied the motion and recessed until the following Monday for trial. Appellant pled guilty on the next court day. In connection with taking his plea, the prosecutor informed appellant that he would be assessed "fines and fees," and that restitution might also be awarded. Appellant said he understood and was "willing