P. v. Lim CA4/1 ( 2013 )

Filed 3/28/13 P. v. Lim CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D061834
Plaintiff and Respondent,
v. (Super. Ct. No. SCD212846)
MARK D. LIM,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Robert F.
O'Neill, Judge. Affirmed.
In November 2011, Mark D. Lim entered a negotiated guilty plea to second degree
murder (Pen. Code,1 §§ 187, subd. (a)), 190, subd. (a)) (count 1), attempted murder
(§§ 187, subd. (a), 664) with personal infliction of great bodily injury (§ 12022.7, subd.
(a)) and personal use of a deadly or dangerous weapon (a knife) (§ 12022, subd. (b)(1))
(count 2), making a criminal threat (§ 422) (count 5) and two counts of attempting to
1 All further statutory references are to the Penal Code unless otherwise specified.
dissuade a witness (counts 12 and 18) (§ 136.1, subd. (a)(2)). In April 2012, the court
sentenced Lim to a stipulated term of 15 years to life plus 15 years in prison: 15 years to
life for second degree murder, the nine-year upper term for attempted murder, eight-
month terms (one-third the middle term) for making a criminal threat and the two counts
of attempting to dissuade a witness, three years for personal infliction of great bodily
injury and one year for personal knife use. Lim appeals, contending the court abused its
discretion by denying his request for an evidentiary hearing to determine whether he is a
veteran suffering from mental health problems as a result of his military service
(§ 1170.9); substantial evidence does not support a finding he had the ability to pay the
$154 booking fee (also called a criminal justice administration fee) (Gov. Code,
§ 29550.1); and the court erred in ordering a penalty assessment on the section 1202.4,
subdivision (b), restitution fine. Lim also contends that if his first two contentions were
not preserved for appeal, trial counsel was ineffective. We affirm.
BACKGROUND
Lim threatened to kill his ex-girlfriend. Lim killed his ex-girlfriend's grandfather
and attempted to kill her mother. Lim sent letters to his ex-girlfriend's new boyfriend
threatening to have them both tortured and killed.
SECTION 1170.9
Section 1170.9 provides: "(a) In the case of any person convicted of a criminal
offense who could otherwise be sentenced to county jail or state prison and who alleges
that he or she committed the offense as a result of sexual trauma, traumatic brain injury,
post-traumatic stress disorder, substance abuse, or mental health problems stemming
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from service in the United States military, the court shall, prior to sentencing, make a
determination as to whether the defendant was, or currently is, a member of the United
States military and whether the defendant may be suffering from sexual trauma, traumatic
brain injury, posttraumatic stress disorder, substance abuse, or mental health problems as
a result of that service. The court may request, through existing resources, an assessment
to aid in that determination. [¶] (b) If the court concludes that a defendant convicted of a
criminal offense is a person described in subdivision (a), and if the defendant is otherwise
eligible for probation and the court places the defendant on probation, the court may
order the defendant into a local, state, federal, or private nonprofit treatment program for
a period not to exceed that which the defendant would have served in state prison or
county jail, provided the defendant agrees to participate in the program and the court
determines that an appropriate treatment program exists."
Before sentencing, Lim personally requested an evidentiary hearing to determine
his eligibility for a section 1170.9 treatment program. The court denied the request
"without prejudice." Lim contends this deprived him of due process and caused him
prejudice. He argues a finding that he met the criteria of section 1170.9, subdivision (a),
might have reduced the restitution fine,2 would have assisted the Department of
Corrections and Rehabilitation in making treatment choices, might have resulted in future
benefits if governmental resources became available and would have served as
recognition of Lim's sacrifices as a member of the military.
2 The court imposed the $10,000 maximum restitution fine. (§ 1202.4, subd. (b).)
3
To be eligible for treatment under section 1170.9, a defendant must be eligible for
probation. (§ 1170.9, subd. (b).) Lim's plea bargain called for a stipulated prison
sentence.3 He was not eligible for probation and waived his right to appeal the stipulated
sentence. Furthermore, before Lim's sentencing, the language in section 1170.9
providing for a hearing was deleted by the Legislature. For these reasons, we reject Lim's
contentions.4
THE BOOKING FEE
To support his argument that substantial evidence does not support a finding he
had the ability to pay the $154 booking fee, Lim relies on Government Code
section 29550.2. Government Code section 29550.2 expressly requires an ability to pay
on the part of defendants arrested "by any governmental entity not specified in Section
29550 or 29550.1." Government Code section 29550.1, which does not contain an ability
to pay requirement, applies to defendants arrested by "[a]ny city, special district, school
district, community college district, college, university, or other local arresting
agency . . . ." (Gov. Code, § 29550.1, subd. (a).) Lim was arrested by the San Diego
3 Lim asserts the plea bargain did not specify that the stipulated term of 15 years to
life plus 15 years was to be served in prison. Prison is the only place a sentence for Lim's
crimes can be served; he was not eligible for imprisonment in county jail. (§§ 1170,
subd. (h)(3), 667.5, subd. (c)(1), (8), (12), 1192.7, subd. (c)(1), (8), (9), (23), (37), (38).)
4 The People ask us to augment the record with a Certification of Mental
Competence (§ 1372) and an attached report, filed in the trial court in May 2010. The
People contend the Certification is relevant to Lim's contention regarding section 1170.9.
Lim opposes the motion, asserting a violation of his statutory and constitutional rights to
privacy. Lim also notes that, contrary to the People's assertion, the sentencing court did
not rely on the Certification and report in ruling on Lim's section 1170.9 motion. We
deny the motion.
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Police Department. Thus, Government Code section 29550.1 applies in this case, and the
court was not required to find Lim had the ability to pay the fee.
THE PENALTY ASSESSMENT
The court orally stated there would be a penalty assessment applied to the section
1202.4, subdivision (b), restitution fine. Lim correctly notes this was improper.
(§ 1202.4, subd. (e).) As the abstract of judgment does not reflect the penalty assessment,
however, there is nothing for us to correct.
EFFECTIVENESS OF TRIAL COUNSEL
Because we reject on the merits Lim's contentions regarding section 1170.9 and
the booking fee, we need not address his contention that trial counsel was ineffective if
those contentions were not preserved for appeal.
DISPOSITION
The judgment is affirmed.
McDONALD, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McINTYRE, J.
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