California Court of Appeal Apr 11, 2016 No. E061723Unpublished
Filed 4/11/16 P. v. Uhl CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E061723
v. (Super.Ct.No. INF1401244)
AARON MICHAEL UHL, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Richard A. Erwood,
Judge. Affirmed.
Paul Kleven, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson, Kristine A.
Gutierrez, and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
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I. INTRODUCTION
Pursuant to a signed felony plea form (Plea Agreement), defendant and appellant,
Aaron Michael Uhl, pled guilty to second degree burglary (Pen. Code, §§ 459, 460),1 and
admitted a prison prior for a 2002 grand theft conviction in Idaho (§ 667.5, subd. (b)).
section 1192.5 does not require more than establishing a prima facie factual basis for the
charges.” (People v. Holmes, supra, 32 Cal.4th at. p. 441, fn. omitted.)
The trial court’s finding that there is a factual basis for the plea is reviewed for
abuse of discretion. (People v. Holmes, supra, 32 Cal.4th at pp. 442-443.) “A finding of
error under this standard will qualify as harmless where the contents of the record support
a finding of a factual basis for the [negotiated] plea.” (Id. at p. 443; People v. Coulter
(2008) 163 Cal.App.4th 1117, 1122.)
At the Hearing, the court did not conduct an inquiry to confirm that a factual basis
existed for defendant’s guilty plea, but the error was harmless, as the felony complaint
provided a sufficient factual basis for defendant’s guilty plea. In count 1 of the felony
complaint, it was alleged that “defendant committed a violation of Penal Code section
459, a felony, in that on or about May 2, 2014, in the County of Riverside, State of
California, he did wilfully and unlawfully enter a certain building located at Chase Bank,
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499 S. Palm Canyon, Palm Springs, CA, with intent to commit theft and a felony.”
Defendant expressly acknowledged during the Hearing that he was pleading guilty to
second degree burglary in count 1 based on his entry into a Chase Bank.
Furthermore, defense counsel advised the trial court that defendant would plead
guilty to second degree burglary in count 1, that he would admit one prison prior, and that
he would be sentenced to the midterm of three years, with two years served in county jail
and one year on supervised release. The trial court immediately confirmed the terms with
the district attorney, and then asked defendant, “with respect to count 1, you’re charged
with second degree burglary. What is now your plea?,” to which defendant responded, “I
plead guilty.” After confirming that defendant was agreeing to a prison prior, and after
confirming the terms of defendant’s sentence, the court then dismissed counts 2 through
5, and struck defendant’s five other prison priors. Under these circumstances, we find
that there was a sufficient factual basis for defendant’s guilty plea as to count 1, second
degree burglary.
Defendant asserts that the complaint, by itself, is insufficient to satisfy section
1192.5 because the complaint “is couched largely in the language of the statute, rather
than setting forth the facts underlying the charge.” He argues that, pursuant to People v.
Willard (2007) 154 Cal.App.4th 1329, 1331, “[t]his is not enough to satisfy the purpose
of the factual basis inquiry, to corroborate what defendant had already admitted by his
plea.” However, as the court in People v. Palmer, supra, 58 Cal.4th 110 explained, a trial
court is afforded flexibility in establishing a factual basis for the plea, as the primary goal
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of section 1192.5 is to “assur[e] that the defendant entered the plea voluntarily and
intelligently.” (People v. Palmer, supra, at p. 119.) And here, the complaint and Plea
Agreement, along with the statements made by the court, defendant, and counsel for both
defendant and the People, show defendant entered the plea voluntarily and intelligently.
Furthermore, the purpose of section 1192.5’s factual basis inquiry is to protect a
defendant who “‘“is not sufficiently skilled in law to recognize that his acts do not
constitute the offense with which he is charged.”’” (People v. Wilkerson, supra, 6
Cal.App.4th at p. 1576.) Defendant is not the type of defendant that section 1192.5 was
most concerned with. As noted, defendant was charged on May 7, 2014, with five counts
of crimes against property—burglary (§ 459, count 1), check fraud, (§ 476, count 2),
forgery (§ 470, subd. (d), count 3), and two counts of receiving stolen property (§ 496,
subd. (a), counts 4-5). It was also alleged he had six prison priors in Idaho, with his
convictions spanning from 2000 through 2011. More importantly, during the Hearing,
defendant exhibited an astute understanding of plea agreements when he advised the
court and his counsel that he could not admit to a 2002 prison prior for the fraudulent use
of a financial transaction card, but specifically identified another prison prior that was not
the result of an “Alford plea.”
Although defendant waived his right to challenge the judgment by executing the
Plea Agreement, the trial court’s error in failing to conduct a factual basis inquiry was
harmless, as defendant entered the plea knowingly, voluntarily, and intelligently.
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B. The Fines and Fees Were Properly Imposed
Defendant next argues that this court must strike all of the fees and fines that were
not imposed orally by the court. We reject defendant’s contention.
1. Background—Fees and Fines
The Plea Agreement stated that defendant agreed to pay victim restitution in the
amount of $16,249.42, along with “a restitution fine of at least $240 and not more than
$10,000. There are several other fines and fees that will be imposed as a result of this
guilty plea.”
At the Hearing, held on the same day defendant entered into the Plea Agreement,
defendant’s counsel advised the court that the terms of the plea included “[s]tandard
terms and conditions along with restitution in the amount of $16,249.42 payable to [the
victim].” The court accepted defendant’s guilty plea, but it did not orally advise
defendant of the fees and fines that were being imposed.
On the same day, the Sentencing Memorandum was prepared. The Sentencing
Memorandum specified the imposition of a booking fee of $434.08, a restitution fine of
$300, victim restitution of $16,249.42, and an attorney fee of $119.50, the county’s
standard rate for one hour of an attorney’s time. Defendant would be responsible for an
additional $50 administrative fee if any of his fees or fines were not paid within 90 days.
Defendant signed the Sentencing Memorandum under the advisement: “I have read, I
understand, and I accept these terms and conditions of mandatory supervision on pages
one and two.” Defense counsel, the district attorney, and the trial court judge also signed
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the Sentencing Memorandum. A minute order, which reflected the fees and fines
specified in the Sentencing Memorandum, was also prepared.
In his request for certificate of probable cause, dated August 12, 2014, defendant
claimed for the first time that “the amount of restitution [of $16,249.42] requested was so
erroneous that the amount had to be the result of fraud.” At the Marsden hearing,
defendant advised the court that he believed the amount of restitution was “absolutely
wrong,” but he made no mention of the other fines and fees. The court held a further
hearing in anticipation of defendant withdrawing from the Plea Agreement, but defendant
elected not to withdraw his guilty plea or challenge the imposed fees and fines.
2. Analysis
(a) The Amount of the Victim Restitution and Restitution Fine Were Within
the Trial Court’s Discretion
Section 1202.4 mandates the imposition of a “separate and additional restitution
fine” “[i]n every case where a person is convicted of a crime.” (Id., subd. (b).) For
felony convictions after January 1, 2014, the restitution fine “shall be” between $300 and
$10,000, with the amount being “set at the discretion of the court and commensurate with
the seriousness of the offense.” (Id., subd. (b)(1).) In addition, “in every case in which a
victim has suffered economic loss as a result of the defendant’s conduct, the court shall
require that the defendant make restitution to the victim or victims in an amount
established by court order, based on the amount of loss claimed by the victim or victims
or any other showing to the court.” (Id., subd. (f).)
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“‘[B]efore taking a guilty plea the trial court must admonish the defendant of both
the constitutional rights that are being waived and the direct consequences of the plea.’
[Citation.] ‘A possible . . . restitution fine constitutes such a direct consequence’
[citation] . . . . However, . . . because ‘advisement as to the consequences of a plea is not
constitutionally mandated,’ ‘the error is waived absent a timely objection.’ [Citation.]”
(People v. Villalobos (2012) 54 Cal.4th 177, 181-182.) Because defendant failed to
object to the restitution fine and victim restitution at or after the time he executed the
Sentencing Memorandum, the court’s failure to mention the fees and fines does not
entitle defendant to a reversal. Furthermore, the victim restitution of $16,249.42 was a
term of defendant’s Plea Agreement. Thus, by failing to object to this amount at the
Hearing, he has waived his claim as to this amount.
Furthermore, because a restitution fine is a “statutorily mandated term” (People v.
Villalobos, supra, 54 Cal.4th at p. 183), a trial court’s “failure to address the amount of a
restitution fine . . . during the plea colloquy does not transform imposition of such a fine
into a violation of the plea agreement. Instead, where neither the parties nor the trial
court has specified the fine amount in the context of a plea bargain, ‘[t]he restitution fine
shall be set at the discretion of the court . . . .’ [Citation.]” (Id. at pp. 185-186.)
Here, defendant acknowledged in the Plea Agreement that he would be
responsible for $16,249.42 in victim restitution, along with a restitution fine between
$240 and $10,000. At the Hearing, defense counsel also specified that the plea included
“restitution in the amount of $16,249.42 payable to [the victim].” During the plea
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colloquy, the trial court made no mention of the restitution fine, but ultimately imposed a
$300 restitution fine, which, as the Villalobos court explained, is within the trial court’s
discretion to do, even when, as here, the trial court failed to specify the amount of the
restitution fine during the plea colloquy. (People v. Villalobos, supra, 54 Cal.4th at pp.
185-186.)
(b) Defendant Waived His Challenge to the Imposition of the Booking,
Attorney, and Administrative Fees
Section 987.8, subdivision (b) provides, in pertinent part: “In any case in which a
defendant is provided legal assistance, either through the public defender or private
counsel appointed by the court, upon conclusion of the criminal proceedings in the trial
court . . . the court may, after notice and a hearing, make a determination of the present
ability of the defendant to pay all or a portion of the cost thereof.”
Section 29550, subdivision (c) of the Government Code authorizes the imposition
of a booking fee, stating: “Any county whose officer or agent arrests a person is entitled
to recover from the arrested person a criminal justice administration fee for
administrative costs it incurs in conjunction with the arrest if the person is convicted of
any criminal offense related to the arrest, whether or not it is the offense for which the
person was originally booked.”
Courts have held that a defendant’s failure to challenge the imposition of fees in
the trial court, including his ability to pay the imposed fees, precludes him from doing so
on appeal. (People v. Aguilar (2015) 60 Cal.4th 862, 864 [booking fee and attorney
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fees]; People v. Trujillo (2015) 60 Cal.4th 850, 853 [probation supervision and
presentence investigation fees]; People v. McCullough (2013) 56 Cal.4th 589, 598
[booking fee].) In Aguilar, the defendant had two opportunities to object to the fees the
court imposed—at sentencing, and at subsequent proceedings before the probation
officer—but he failed to object at either opportunity. (People v. Aguilar, supra, at pp.
867-868.) The Aguilar defendant also did not raise the issue regarding the imposition of
booking and attorney fees in his petition for review to the Supreme Court. (Id. at p. 868.)
Based on those facts, the court explained that applying the forfeiture rule to the defendant
was “especially appropriate.” (Id at. p. 867.)
As in Aguilar, defendant here had multiple opportunities to challenge the
imposition of the $434.08 booking fee, the $119.50 attorney fee, and the $50
administrative fee, as well as to challenge his ability to pay these fees, but “availed
himself” of none of those opportunities. (People v. Aguilar, supra, 60 Cal.4th at p. 867.)
On June 25, 2014, defendant could have chosen not to sign the Sentencing Memorandum,
or he could have requested a further hearing regarding the fees that were being imposed,
yet he did neither. “‘Although the sentencing hearing is, in general, the proper time for a
defendant to assert all available procedural and factual contentions relating to the trial
court’s sentencing choices, in an appropriate case a defendant’s discovery [of new facts]
may constitute a change of circumstances supporting a postsentencing request for such a
hearing.’” (Id. at p. 868; People v. Trujillo, supra, 60 Cal.4th at p. 861.)
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When he filed his notice of appeal on August 14, 2014, and prepared his request
for certificate of probable cause on August 12, 2014, defendant made no mention of the
$434.08 booking fee, $119.50 attorney fee, or $50 administrative fee. At his Marsden
hearing on August 22, 2014, defendant again did not raise his objection to the imposition
of these fees. Lastly, on September 11, 2014, defendant had the opportunity to withdraw
his plea based on his objection to these fees, yet he chose not to do so.
Additionally, just as the forfeiture rule applies to defendant’s failure to object to
the booking, attorney, and administrative fees, it also applies to the presumption of
defendant’s ability to pay the imposed fees. “‘Given that imposition of a fee is of much
less moment than imposition of sentence, and that the goals advanced by judicial
forfeiture [were equally relevant in the fee context], we [see] no reason . . . to conclude
that the rule permitting challenges made to the sufficiency of the evidence to support a
judgment for the first time on appeal “should apply to a finding of” ability to pay [fees].’”
(People v. Trujillo, supra, 60 Cal.4th at p. 857; People v. McCullough, supra, 56 Cal.4th
at p. 599.)
Defendant primarily relies on People v. Zackery (2007) 147 Cal.App.4th 380 and
People v. Lopez (2013) 218 Cal.App.4th Supp. 6 for the proposition that the fees and
fines must be stricken because they were not orally imposed by the trial court. At issue in
Zackery was a $200 restitution fine (§ 1202.4) and a $200 parole revocation fine
(§ 1202.45) that were not orally imposed, but were included in the minute order. (People
v. Zackery, supra, 147 Cal.App.4th at pp. 387-388.) In Lopez, the trial court did not
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specify in open court the specific fines and fees that it was imposing on the defendant,
and the minute order and the misdemeanor sentencing memorandum were not consistent
with each other as to the specific fines and fees, as well as their amounts, being imposed.
(People v. Lopez, supra, 218 Cal.App.4th Supp. at p. 12.)
Neither of these cases addressed the issue of whether defendant forfeited his claim
of error by failing to timely object to the fees and fines. We agree with defendant’s
assertion that “the forfeiture doctrine only applies if the appellant had a reasonable
opportunity to object to the sentencing choice.” And here, as noted, defendant had
multiple opportunities to object to the fees and fines that were imposed—he had the
opportunity not to sign the Sentencing Memorandum and request a hearing regarding the
fines and fees, he could have raised the issue at his Marsden hearing, or at the anticipated
change-of-plea hearing—yet he opted not to raise his objection at any point prior to this
appeal. By not doing so, he has forfeited his claim of error regarding the imposition of
the booking fee, attorney fee, and the administrative late fee.
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IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
HOLLENHORST J.
McKINSTER J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant knowingly, intelligently, and voluntarily waived his constitutional rights and right to appeal through a signed plea agreement, and that the trial court's failure to conduct an oral factual basis inquiry was harmless error.
Issues
Whether the defendant knowingly, intelligently, and voluntarily waived his Boykin-Tahl and appeal rights.
Whether the trial court's failure to conduct an oral factual basis inquiry for the plea constitutes reversible error.
Whether the fines and fees imposed in the written sentencing memorandum but not orally pronounced must be reversed.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“a court may rely upon a defendant’s validly executed plea agreement as a proper substitute for personal admonishment that a defendant is waiving his right to appeal”
“under the totality of the circumstances, defendant’s waiver of his appeal rights, as well as his Boykin-Tahl rights, was knowing, intelligent, and voluntary.”