IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
December 15, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
LOUIE MORENO, JR., DEFENDANT AND APPELLANT.
(Super. Ct. No. 97F05215)
The opinion of the court was delivered by: Hoch , J.
P. v. Moreno
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Louie Moreno, Jr., entered a negotiated plea of guilty to one count of committing a lewd and lascivious act on a child under the age of fourteen years (Pen. Code, § 288, subd. (a))*fn1 and four counts of committing such an act by use of force, violence, duress, menace, or fear of bodily injury (§ 288, subd. (b)). Defendant also admitted to having a prior strike conviction within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12), and that he had served five prior prison terms (§ 667.5, subd. (b)). In exchange for his plea, the People agreed defendant would serve no less than 38 years and no more than 45 years in state prison. The trial court sentenced defendant to an aggregate term of 40 years in state prison and imposed other orders, including a victim restitution order.
Although defendant waived his right to appeal, and did not obtain a certificate of probable cause, he now appeals from the sentence imposed. Specifically, he asserts the sentence was unauthorized because the trial court imposed three prior prison term enhancements for one continuous prison term. He also contends the victim restitution order was an unauthorized increase in penalty following a successful habeas corpus petition in violation of the double jeopardy clause of the California Constitution. Finally, he claims entitlement to four additional days of custody credit. We agree that defendant is entitled to four additional days of custody credit, but disagree with his other claims. As we shall explain, defendant's failure to obtain a certificate of probable cause bars his challenge to the sentence enhancements. In essence, defendant is disputing the factual basis underlying his admission to two of the enhancements, which constitutes a challenge to the validity of the plea itself. Such a challenge on appeal requires a certificate of probable cause. With regard to the imposition of a victim restitution order following a successful habeas corpus petition, we hold that such an order does not violate the double jeopardy clause because, unlike a restitution fine, it does not amount to punishment for double jeopardy purposes. We therefore modify the judgment to provide defendant with four additional days of custody credit and affirm the modified judgment.
The facts underlying defendant's convictions are not pertinent to the issues raised on appeal. Suffice it to say that on June 29, 1997, defendant committed a number of lewd acts against his girlfriend's 11-year-old sister, including touching her breasts and rubbing his fist against her genital area over her clothing, simulating sexual intercourse by rubbing himself against her, and reaching beneath her clothing and penetrating her vagina with his finger.
In 1999, defendant was convicted by jury of one count of committing a lewd and lascivious act on a child under the age of fourteen years and four counts of committing such an act by use of force, violence, duress, menace, or fear of bodily injury. The jury also found that defendant had two prior strike convictions within the meaning of the three strikes law and had also served five prior prison terms. Defendant was sentenced to an aggregate term of 56 years in state prison. The trial court did not, however, impose a victim restitution order. Thereafter, the victim of defendant's sexual assault submitted a victim's compensation claim to the California Board of Control (now the Victim Compensation and Government Claims Board) and received $1,050 in victim compensation.
In 2008, the United States District Court for the Eastern District of California granted defendant's petition for writ of habeas corpus due to instructional error at defendant's trial and ordered that he be either retried or released from custody.
In 2010, the People filed an amended information charging defendant with the aforementioned crimes. Defendant was also alleged to have one prior strike conviction within the meaning of the three strikes law, which was also alleged as a prior serious felony within the meaning of section 667, subdivision (a). He was further alleged to have served five prior prison terms within the meaning of section 667.5, subdivision (b). Defendant entered a negotiated plea of guilty to the charged offenses and admitted the enhancements. As already indicated, the People agreed defendant would serve no less than 38 years and no more than 45 years in state prison. Defendant also waived his right to appeal.
At the subsequent sentencing hearing, the trial court denied defendant's motion to dismiss his prior strike conviction and, pursuant to the agreement, sentenced him to an aggregate term of 40 years in state prison (two consecutive eight-year terms, doubled pursuant to section 667, subdivision (e)(1), plus a consecutive five-year term for the prior serious felony enhancement, plus three consecutive one-year terms for three prior prison term enhancements). Because two of the prior prison term enhancements involved burglaries committed on the same date, for which a single aggregate term of incarceration was imposed, the trial court stayed one of these enhancements. And in order to impose a 40-year prison term, the trial court decided to strike the remaining one-year enhancement allegation. Defendant was also ordered, among other things, to pay $1,050 in victim restitution to the Victims of Violent Crime Fund.
Defendant appeals. No certificate of probable cause was obtained.
Because defendant entered a general waiver of his right to appeal and did not obtain a certificate of probable cause, we begin by addressing which of his claims are properly before this court. We conclude defendant's challenge to the victim restitution order and claim to additional custody credits are properly before us. However, his remaining contention, that the trial court could not lawfully impose two of the five admitted prior prison term enhancements, is barred by his failure to obtain a certificate of probable cause.
Certificate of Probable Cause Requirement
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 this language, "it is settled that two types of issues may be raised in a guilty or nolo contendere plea appeal without issuance of a certificate: (1) search and seizure issues for which an appeal is provided under section 1538.5, subdivision (m); and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. [Citations.]" (People v. Panizzon (1996) 13 Cal.4th 68, 74-75 (Panizzon).)
"The purpose for requiring a certificate of probable cause is to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty and nolo contendere pleas. [Citations.] The objective is to promote judicial economy 'by screening out wholly frivolous guilty [and nolo contendere] plea appeals before time and money is spent preparing the record and the briefs for consideration by the reviewing court.' [Citations.]" (Panizzon, supra, 13 Cal.4th at pp. 75-76.) "[T]he purposes behind section 1237.5 will remain vital only if appellate courts insist on compliance with its procedures." (Id. at p. 89, fn. 15; People v. Mendez (1999) 19 Cal.4th 1084, 1098 [section 1237.5 "should be applied in a strict manner"].)
In determining whether an appeal that purports to challenge the sentence imposed following entry of the plea requires a certificate of probable cause, "the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made." (People v. Ribero (1971) 4 Cal.3d 55, 63.) For example, where the defendant challenges "the very sentence he negotiated as part of the plea bargain, [he] is, in substance, attacking the validity of the plea," which is barred by section 1237.5 in the absence of a certificate of probable cause. (Panizzon, supra, 13 Cal.4th at p. 78.) Similarly, where the defendant challenges the trial court's legal authority to impose an agreed-upon maximum sentence, he is attacking the validity of the plea even though the bargain struck with the prosecution allowed him to argue for a lesser sentence. (People v. Shelton (2006) 37 Cal.4th 759, 766-769; but see People v. Buttram (2003) 30 Cal.4th 773, 785-786 [defendant agreeing only to a maximum sentence need not obtain a certificate of probable cause to assert on appeal an abuse of the trial court's discretion].)
Where the defendant challenges imposition of a sentence enhancement that was admitted as part of the plea bargain, he is likewise attacking the validity of the plea. (People v. Arwood (1985) 165 Cal.App.3d 167, 172; see also People v. Fulton (2009) 179 Cal.App.4th 1230, 1236 [a defendant's challenge to the validity of an admitted enhancement goes to "the truth of the alleged enhancement," which has "been removed from consideration by the plea and admission"].)
In this case, defendant challenges the imposition of three prior prison term enhancements, claiming they arose from a single continuous period of incarceration, and that the trial court should have imposed a single enhancement and stricken the other two enhancements. However, he admitted five such enhancement allegations as part of his plea bargain. While defendant claims to be challenging nothing more than the validity of the sentence imposed after his guilty plea, in substance, he disputes the factual basis underlying his admission to two of these enhancements. "Admissions of enhancements are subject to the same principles as guilty pleas. [Citation.] A guilty plea admits every element of the offense charged and is a conclusive admission of guilt. [Citations.] It waives any right to raise questions about the evidence, including its sufficiency. [Citation.]" (People v. Lobaugh (1987) 188 Cal.App.3d 780, 785.) We conclude defendant's challenge to two of the three prior prison term enhancements imposed following his guilty plea and admission of five such enhancements "is properly viewed as a challenge to the validity of the plea itself." (Panizzon, supra, 13 Cal.4th at p. 79.) Because defendant failed to obtain a certificate of probable cause, his challenge to the imposition of these enhancements is barred.
The same is not true of defendant's remaining contentions. His challenge to the victim restitution order and claim to additional custody credit are "based solely on grounds occurring after entry of the plea and do not affect [its] validity; therefore, no certificate is required." (People v. Kunitz (2004) 122 Cal.App.4th 652, 658 [challenge to restitution fine]; People v. Hodges (2009) 174 Cal.App.4th 1096, 1102, fn. 5 [custody credit issues do not require certificate of probable cause].)
Waiver of the Right to Appeal
Because we have determined defendant is barred from asserting his challenge to the sentence enhancements by his failure to secure a certificate of probable cause, we need not decide whether he also waived the right to assert this claim. With respect to his remaining claims, we conclude that defendant has not waived the right to assert them on appeal.
"Just as a defendant may affirmatively waive constitutional rights to a jury trial, to confront and cross-examine witnesses, to the privilege against self-incrimination, and to counsel as a consequence of a negotiated plea agreement, so also may a defendant waive the right to appeal as part of the agreement. [Citations.] [¶] To be enforceable, a defendant's waiver of the right to appeal must be knowing, intelligent, and voluntary. [Citations.] Waivers may be manifested either orally or in writing. [Citation.] The voluntariness of a waiver is a question of law which appellate courts review de novo. [Citation.]" (Panizzon, supra, 13 Cal.4th at p. 80, fn. omitted.)
In this case, defendant generally waived his right to appeal, but did not specifically agree to waive the right to appeal his sentence. Such a general waiver "will not be construed to bar the appeal of sentencing errors occurring subsequent to the plea." (Panizzon, supra, 13 Cal.4th at p. 85; People v. Sherrick (1993) 19 Cal.App.4th 657, 659; People v. Vargas (1993) 13 Cal.App.4th 1653, 1662.) Defendant's challenge to the victim restitution order and claim to additional custody credit involve sentencing errors purported to have occurred subsequent to the plea and have not been waived. We turn to these claims now.
Defendant contends the trial court's imposition of the victim restitution order following his successful habeas corpus petition violated the double jeopardy clause of the California Constitution. We disagree.*fn2
"Persons may not twice be put in jeopardy . . . ." (Cal. Const., art. I, §§ 15, 24.) This constitutional provision is violated when a defendant is given greater punishment on a retrial following a successful appeal. (People v. Ali (1967) 66 Cal.2d 277, 281.)
In People v. Hanson (2000) 23 Cal.4th 355 (Hanson), our Supreme Court held that a restitution fine amounts to punishment for double jeopardy purposes. The court reasoned as follows: "To begin, restitution fines are imposed only upon conviction of a criminal offense. (See § 1202.4, subd. (a).)[*fn3 ] Although originally enacted as part of the Government Code, the operative statute is now contained in the Penal Code (§ 1202.4 . . .), which expressly denominates 'fines' as 'punishments.' (§ 15; see §§ 17, subd. (b), 18, 19, 19.6, 19.8 . . . .) Section 1202.4, subdivision (a)(3) provides that restitution fines are distinct from restitution orders and are 'in addition to any other penalty . . . .' [Citation.] [¶] Several other features of the statute compare with the imposition of criminal punishment generally. Except for 'compelling and extraordinary reasons,' which the trial court must state on the record (§ 1202.4, subd. (c)), a restitution fine is mandatory even in the absence of a crime victim (§ 1202.4, subd. (a)(3)(A)) and must be made a condition of probation, if granted (§ 1202.4, subd. (m)). As with other types of fines, the money is deposited into the state treasury; it is earmarked for the Restitution Fund, which enables the state to compensate victims of crimes. (§ 1202.4, subd. (e) . . . .) The amount varies in the trial court's discretion -- ranging from a minimum of $200 to a maximum of $10,000 (§ 1202.4, subd. (b)(1)) -- and may be calculated by multiplying $200 by the years of imprisonment imposed and then multiplying by the number of counts. (§ 1202.4, subd. (b)(2).) In addition, the court 'shall consider any relevant factors including . . . the seriousness and gravity of the offense and the circumstances of its commission, . . . and the number of victims involved in the crime.' (§ 1202.4, subd. (d).) 'A defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine.' (§ 1202.4, subd. (c).) [¶] Viewed in comparison with other forms of punishment, the statutory scheme thus confirms the Legislature intended restitution fines as a criminal penalty rather than as a civil remedy. [Citations.]" (Id. at pp. 361-362.)
However, as defendant acknowledges, in People v. Harvest (2000) 84 Cal.App.4th 641 (Harvest), the Court of Appeal applied the Hanson analysis to a victim restitution order and concluded that "the Legislature intended victim restitution as a civil remedy rather than as a criminal punishment." (Id. at p. 649.) While both forms of restitution are found in section 1202.4, unlike the restitution fine, a victim restitution order "shall be enforceable as if the order were a civil judgment." (§ 1202.4, subd. (a)(3)(B).) The statutory scheme "therefore contemplates that subsequent enforcement efforts may occur outside the context of the criminal law. [Citation.] Moreover, unlike a fine, victim restitution is not expressly and statutorily defined as punishment." (Harvest, supra, 84 Cal.App.4th at p. 647.)
The court continued: "'[A] restitution fine is mandatory even in the absence of a crime victim' [citation], but victim restitution obviously requires a victim. If there is no victim, or no survivors of a victim, there can be no restitution order. Unlike a restitution fine, victim restitution is therefore not an inevitable product of a criminal sentencing. All restitution fines go to the state [citation], but victim restitution orders shall be paid 'to the victim.' [Citations.] The restitution fine is limited to a maximum of $10,000 [citations], but there is no limit for a victim restitution order. The statutory command is that 'full restitution' is to be ordered for a victim in 'a dollar amount that is sufficient to fully reimburse the victim, or victims, for all determined economic losses incurred as the result of the defendant's criminal conduct.' [Citations.] Victims have 'a right to restitution based on the full amount of their losses, without regard to full or partial recoupments from other sources except the Restitution Fund.' [Citations.] Victim restitution has been ordered in excess of $1 million, more than 100 times the maximum restitution fine possible. [Citation.]" (Harvest, supra, 84 Cal.App.4th at pp. 647-648.)
Moreover, "[i]n fixing the amount of a restitution fine a sentencing court may consider 'the seriousness and gravity of the offense and the circumstances of its commission,' as well [as] 'psychological harm caused by the crime.' [Citations.] A restitution order, however, is confined to 'economic loss' suffered by a victim. [Citations.] Unlike a fine, the sentencing court is not provided with a statutory formula for computing victim restitution that allows for the length of the defendant's imprisonment or 'the number of felony counts of which the defendant is convicted.' [Citation.] This language immediately suggests the calculus of actual sentencing choices. [Citations.] [¶] The purposes of the criminal law are protecting society, deterring future criminality, and punishing criminality already committed. [Citations.] Although restitution has an element of deterrence [citation], the primary purpose of victim restitution is to provide monetary compensation to an individual injured by crime. [Citations.] Compensation is the defining feature of civil law. [Citations.] Postcriminal proceedings vindicating the remedial purpose of reimbursement have long been treated as not constituting punishment for double jeopardy purposes. [Citations.]" (Harvest, supra, 84 Cal.App.4th at pp. 648-649, fn. omitted.)
After concluding the Legislature did not intend victim restitution as a criminal punishment, the court considered whether the statutory scheme was nevertheless "'"so punitive either in purpose or effect" [citation] as to "transfor[m] what was clearly intended as a civil remedy into a criminal penalty." [Citation.]'" (Harvest, supra, 84 Cal.App.4th at p. 649, quoting Hanson, supra, 23 Cal.4th at p. 361; Hudson v. United States (1997) 522 U.S. 93, 99 [139 L.Ed.2d 450, 459].)
Applying the factors listed in Kennedy v. Mendoza-Martinez (1963) 372 U.S. 144 [9 L.Ed.2d 644]*fn4 , the Harvest court concluded victim restitution does not constitute punishment for double jeopardy purposes. (Harvest, supra, 84 Cal.App.4th at p. 650.) The court explained: "The purpose of victim restitution is compensation, which does not involve an affirmative disability or restraint, and which has not historically been regarded as punishment. Victim restitution can, when developed in the context of a criminal sentencing, come into play only on a finding of scienter, but it does not necessarily require such -- there is no barrier to the victim obtaining essentially the same relief, a civil judgment for money, outside the criminal process. The restitution statutes make no mention of scienter, and are separate from provisions specifying punishment for substantive offenses. [Citations.] Victim restitution does have an element of deterrence, but it is far less important than the goal and alternative purpose of providing compensation to a victim of crime. [Citation.] Because restitution is limited to actual and demonstrated economic loss, it can hardly be condemned as excessive to the stated purpose of compensation. [Citation.] Moreover, when these factors are considered in conjunction with the plain statutory language, there is nothing like 'the clearest proof' need[ed] to override the Legislature's patent intent that victim restitution is a civil remedy and not a criminal penalty. [Citation.]" (Ibid.)
Defendant asserts Harvest was wrongly decided. However, we have previously followed its holding (People v. Kunitz, supra, 122 Cal.App.4th at p. 657), and continue to agree with its reasoning. Other courts have done the same. (People v. Chappelone (2010) 183 Cal.App.4th 1159, 1184; People v. Millard (2009) 175 Cal.App.4th 7, 35.) Defendant also claims that Harvest is distinguishable because the restitution order in this case was made payable to the Victims of Violent Crime Fund to reimburse that fund for the amount paid in compensation to the victim. We are not persuaded. The fact that the victim received compensation from the Victims of Violent Crime Fund prior to issuance of the restitution order, which is "presumed to be a direct result of the defendant's criminal conduct and shall be included in the amount of restitution ordered" (§ 1202.4, subd. (f)(4)(A)), does not transform the compensatory restitution order into a punitive restitution fine. The primary purpose is still to provide monetary compensation to the crime victim.
Because victim restitution is not punishment for double jeopardy purposes, "there was no constitutional impediment to the restitution order made at defendant's resentencing." (Harvest, supra, 84 Cal.App.4th at p. 650.)
We do agree that defendant is entitled to additional custody credit. He was awarded a total of 4,950 days of credit against his sentence. This figure was based on 4,305 days of actual custody, plus an additional 645 days of conduct credit calculated at 15 percent pursuant to section 2933.1, subdivision (c). Defendant argues, and the Attorney General concedes, that this calculation improperly excluded the days between June 15, 1999 (the original date of sentencing) and June 19, 1999 (the date defendant was delivered to the state prison to serve his original 56-year prison term). (§ 2900.5, subd. (e).) Thus, defendant is entitled to three additional days of actual custody. When his conduct credit is recalculated under section 2933.1, subdivision (c), based on 4,308 days of actual custody, he is entitled to 646 days of conduct credit.
We shall modify the judgment to award defendant 4,954 days of custody credit (4,308 days of actual custody, plus 646 days of conduct credit).
The judgment is modified to award defendant 4,954 days of custody credit (4,308 days of actual custody, plus 646 days of conduct credit). As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the modifications and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: BLEASE , Acting P. J. ROBIE , J.