People v. Oswood CA3 ( 2022 )

Filed 8/8/22 P. v. Oswood CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yuba)
----
THE PEOPLE, C094022
Plaintiff and Respondent, (Super. Ct. No.
v. CRF21-00128)
CORY ALAN OSWOOD,
Defendant and Appellant.
Pursuant to a negotiated plea agreement, defendant pleaded no contest to fleeing a
peace officer while driving recklessly (Veh. Code, § 2800.2) and attempted first degree
burglary. (Pen. Code, §§ 664, 459.)1 He also admitted that he had suffered a prior strike.
(§§ 667, subds. (b)-(i), 1170.12.) In exchange, he received a stipulated prison sentence of
five years four months and dismissal of the remaining counts and allegations.
1 Undesignated statutory references are to the Penal Code.
1
Defendant now argues that his no contest plea must be set aside because the trial
court gave him incomplete Boykin-Tahl2 advisements of his constitutional rights.
Defendant further argues that certain fines and fees imposed by the trial court at
sentencing must be stayed and stricken, respectively, and the matter reversed for an
ability to pay hearing consistent with People v. Dueñas (2019) 30 Cal.App.5th 1157,
1172-1173 (Dueñas) and its progeny.
As we shall explain, defendant’s failure to obtain a certificate of probable cause
under section 1237.5 precludes his Boykin-Tahl claim. We further find that defendant
has forfeited his fines and fees challenge and, in any event, has not demonstrated trial
counsel was ineffective for failing to demand an ability to pay hearing before the
complained-of fines and fees were imposed. Accordingly, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant originally was charged with attempted vehicle theft (§ 664; Veh. Code,
§ 10851, subd. (a)—count I); assault on a peace officer (§ 245, subd. (c)—count II);
fleeing a peace officer while driving recklessly (Veh. Code, § 2800.2—count III);
receiving a stolen vehicle (§ 496d—count IV); attempted first degree burglary (§§ 664,
459—count V); felony vandalism (§ 594, subd. (b)(1)—count VI); possession of
ammunition by a prohibited person (§ 30305, subd. (a)(1)—count VII); misdemeanor
possession of a smoking device (Health & Saf. Code, § 11364—count VIII); and
misdemeanor theft. (§ 484, subd. (a)—count IX.) The complaint further alleged as to
counts I through VII that defendant had suffered a prior strike. (§§ 667, subds. (b)-(i),
1170.12.)
On January 27, 2021, defendant resolved this matter by pleading no contest to
counts III and V and admitting the prior strike allegation. In exchange, he would receive
2 Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274] (Boykin); In re Tahl
(1969) 1 Cal.3d 122 (Tahl).
2
a stipulated midterm prison sentence of five years four months; the remaining charges
were to be dismissed with a Harvey3 waiver on the felony counts. The stipulated factual
basis for his plea was derived from Yuba County Sheriff’s Department report No. 21-
0264. According to the prosecutor, authorities were called after defendant attempted to
steal a tractor and fled the scene in a stolen truck. Defendant refused officers’ attempts to
conduct a traffic stop, leading law enforcement on a chase through farmland, levees, dirt
trails, orchards and various roadways, ultimately requiring the deployment of a spike strip
to end the pursuit. During the chase, defendant came within 10 yards of striking an
officer (who moved to avoid him); before the chase, defendant was observed attempting
to enter an occupied residence with pliers.
As acknowledged at the plea hearing, defendant initialed and signed a seven-page
plea form that included initialed acknowledgements that he understood and waived
various constitutional rights, including his right to a jury trial, to confront and cross-
examine witnesses, and to remain silent. The trial court found defendant’s waiver of his
rights was knowing and intelligent and accepted his pleas and admission. It appears from
the probation report that this was the fifth time defendant had resolved a matter by a plea
of no contest.
On February 22, 2021, the trial court sentenced defendant in accordance with the
plea agreement. In response to defendant’s professed indigence, the court imposed a
$600 restitution fine (§ 1202.4, subd. (b)), instead of the $1,500 recommended by the
probation department, and also imposed a matching, suspended $600 parole revocation
restitution fine (§ 1202.45), two $40 court operations assessments (§ 1465.8), and two
$30 criminal conviction assessments. (Gov. Code, § 70373.) Defendant did not
otherwise object to the court’s imposition of these fines and fees, provide an offer of
3 People v. Harvey (1979) 25 Cal.3d 754.
3
proof as to his professed indigence, or request an ability to pay hearing. Finally, the court
awarded victim restitution to two different victims in the amounts of $1,436.61 and
$1,646.87, respectively, and reserved jurisdiction to determine restitution as to a third
victim.
Defendant’s initial notice of appeal, received by the Yuba County Superior Court
on March 30, 2021, was rejected and his request for a certificate of probable cause was
denied. Defendant’s second notice of appeal was based on matters that did not affect the
validity of the plea. On this court’s own motion, we construed this notice to be timely as
it was dated April 23, 2021, but was not filed until April 26, 2021, the next court day. On
July 23, 2021, we denied defendant’s application for leave to seek a belated certificate of
probable cause. Appellate briefing in this matter was completed May 16, 2022.
DISCUSSION
I
The Boykin-Tahl Claim
Defendant contends his no contest plea and admission was constitutionally invalid
because the trial court did not orally inquire into whether he understood and waived his
constitutional rights to a jury trial, to confront and cross-examine the witnesses against
him, and to avoid self-incrimination. Despite his written waiver of these rights,
defendant alleges the purported lack of explicit oral advisements and waivers renders his
guilty plea invalid under Boykin, supra, 395 U.S. 238 and Tahl, supra, 1 Cal.3d 122.
This issue is not cognizable on appeal absent a certificate of probable cause.
Under section 1237.5 and California Rules of Court, rule 8.304, no appeal may be
taken by a defendant from a judgment of conviction upon a plea of guilty or no contest
except where a certificate of probable cause has been filed—unless the appeal concerns
search and seizure issues, is based on grounds occurring after that plea/admission that do
not affect the validity of the plea/admission, or is an issue “for which, by law, no
4
certificate of probable cause is required.” (Cal. Rules of Court, rule 8.304(b); see also
§ 1538.5.)
Section 1237.5 provides: “No appeal shall be taken by the defendant from a
judgment of conviction upon a plea of . . . 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.”
Defendant’s own application for leave to seek a belated certificate of probable
cause recognized that such a certificate was a prerequisite to bringing a Boykin-Tahl
claim. We denied this application and, despite his earlier concession, defendant failed to
acknowledge the certificate of probable cause requirement in either his opening brief or
in response to the People’s argument that such a certificate was required. Defendant’s
failure to obtain a certificate of probable cause from the trial court precludes our
consideration of the merits of this claim challenging the validity of his no contest plea
and admission. (§ 1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1098 [compliance
with section 1237.5 is a “ ‘condition precedent’ to the taking of an appeal within its
scope”].)
II
Defendant’s Fines and Fees Claims
Defendant further argues that the $600 restitution fine (§ 1202.4, subd. (b)), two
$40 court operations assessments (§ 1465.8), and two $30 criminal conviction
assessments (Gov. Code, § 70373) imposed by the trial court at sentencing must be
stayed and stricken, respectively, and the matter reversed for an ability to pay hearing
consistent with Dueñas, supra, 30 Cal.App.5th 1157 and the requirements of due process,
the Eighth Amendment, and equal protection.
5
At the outset, we note that because defendant was aware that he was not entitled to
bring a Boykin-Tahl challenge absent a certificate of probable cause, defendant should
have raised his fines and fees challenges in the trial court in accordance with section
1237.2, which requires that a defendant first seek relief in the trial court where the only
issue on appeal is a challenge to fines or fees. (§ 1237.2.)4 Defendant did not seek such
relief, arguably allowing this court to decline to hear his claims. (People v. Hall (2019)
39 Cal.App.5th 502, 504 [applying section 1237.2 to preclude consideration of a Dueñas
claim]; cf. People v. Mendez, supra, 19 Cal.4th at pp. 1100-1101 [dismissing custody
credit claim under section 1237.1].)
However, because the trial court’s jurisdiction to determine defendant’s fines and
fees challenges will end with the completion of this appeal (People v. Torres (2020) 44
Cal.App.5th 1081, 1083, 1088), and in the interest of justice, we will address defendant’s
arguments despite his noncompliance. Exercising this discretion, we concur with the
People that defendant forfeited these challenges when he failed to object to the
imposition of the complained-of fines and fees without an ability to pay hearing.
Moreover, defendant has not established his counsel was ineffective in failing to demand
such a hearing below.
4 Section 1237.2 provides: “An appeal may not be taken by the defendant from a
judgment of conviction on the ground of an error in the imposition or calculation of fines,
penalty assessments, surcharges, fees, or costs unless the defendant first presents the
claim in the trial court at the time of sentencing, or if the error is not discovered until
after sentencing, the defendant first makes a motion for correction in the trial court,
which may be made informally in writing. The trial court retains jurisdiction after a
notice of appeal has been filed to correct any error in the imposition or calculation of
fines, penalty assessments, surcharges, fees, or costs upon the defendant’s request for
correction. This section only applies in cases where the erroneous imposition or
calculation of fines, penalty assessments, surcharges, fees, or costs are the sole issue on
appeal.”
6
“In general, a defendant who fails to object to the imposition of fines, fees, and
assessments at sentencing forfeits the right to challenge those fines, fees, and assessments
on appeal. [Citations.]” (People v. Greeley (2021) 70 Cal.App.5th 609, 624, review den.
Jan. 5, 2022, S272033.) Defendant was sentenced on February 22, 2021, more than two
years after the publication of Dueñas. (Dueñas, supra, 30 Cal.App.5th 1157 [decided
Jan. 8, 2019].) Accordingly, defendant’s failure to request an ability to pay hearing based
on Dueñas forfeited the issue on appeal. (People v. Curry (2021) 62 Cal.App.5th 314,
328, fn. 7, review granted July 14, 2021, S267394; Greeley, supra, at p. 624; see also
People v. Nelson (2011) 51 Cal.4th 198, 227 [defendant forfeited challenge to maximum
restitution fine under section 1202.4 by failing to object at sentencing].)
Nor do we agree with defendant’s argument that the trial court failed to make an
ability to pay determination. Here, the court imposed a $600 restitution fine, not the $300
minimum restitution fine for a felony matter. (§ 1202.4, subd. (b)(1).) Thus, the court
implicitly determined defendant had the ability to pay more than the statutory minimum,
while declining to impose the $1,500 recommended by the probation department. (Ibid.;
§ 1202.4, subd. (c) [“[i]nability to pay may be considered only in increasing the amount
of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of
subdivision (b)”].) If defendant had evidence that he wished the court to consider when
determining his ability to pay, it was his duty to present that evidence to the court.
(§ 1202.4, subd. (d) [“A defendant shall bear the burden of demonstrating the defendant’s
inability to pay”]; People v. Cowan (2020) 47 Cal.App.5th 32, 49 [defendant bears the
burden of proving his inability to pay a challenged fine or fee], review granted June 17,
2020, S261952.) He did not do so.
Further, defendant has not established that his counsel was ineffective for failing
to object and request an ability to pay hearing. To prevail on a claim of ineffective
assistance of counsel, a defendant must show (1) counsel’s performance fell below an
objective standard of reasonableness under prevailing professional norms; and (2) the
7
deficient performance prejudiced defendant. (Strickland v. Washington (1984) 466 U.S.
668, 687-688, 693-694 [80 L.Ed.2d 674, 693-694, 697-698] (Strickland); People v.
Ledesma (1987) 43 Cal.3d 171, 216-218 (Ledesma).) To show prejudice, defendant must
show a reasonable probability that he would have received a more favorable result had
counsel’s performance not been deficient. (Strickland, supra, at pp. 693-694; Ledesma,
supra, at pp. 217-218.) “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” (Strickland, at p. 694; accord, Ledesma, at p. 218.)
Defendant’s ineffective assistance of counsel claim fails because he has not
established that he was prejudiced by his counsel’s failure to raise Dueñas at the
sentencing hearing. Again, the trial court implicitly made an ability to pay determination
when it imposed a restitution fine that was $300 over the statutory minimum. (§ 1202.4,
subds. (b)(1), (c).) This fine was imposed at the same time as the remaining $140 in fees,
and nothing in the record suggests a reasonable probability that the court would have
determined defendant was unable to pay the latter amount had defendant’s counsel
objected specifically to the imposition of those fees. (Strickland, supra, at pp. 693-694;
Ledesma, supra, at pp. 217-218.)
Nor do we find merit in defendant’s summary assertion that the Eighth
Amendment requires reversal. Defendant has not shown that the $600 restitution fine
imposed by the trial court was grossly disproportionate to defendant’s offenses under
United States v. Bajakajian (1998) 524 U.S. 321 334 [141 L.Ed.2d 314, 329]5 and People
ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728.6 Finally,
5 Superseded by statute on other grounds as stated in United States v. Toro-Barboza
(9th Cir. 2012) 673 F.3d 1136, 1154.
6 Defendant suggests that People v. Cowan, supra, 47 Cal.App.5th at page 48,
review granted June 17, 2020, S261952, requires remand for an ability to pay
determination so that the trial court can weigh all factors relevant in an excessive fines
analysis. We disagree. Defendant was sentenced on February 22, 2021, approximately
8
defendant has not established that equal protection was violated. (People v. Aviles (2019)
39 Cal.App.5th 1055, 1069 [“ ‘[There is] no general due process and equal protection
authority which requires a court to conduct a preassessment present ability-to-pay hearing
before imposing any fine or fee on a defendant, as Dueñas seems to conclude,’ ” italics
omitted].) Accordingly, his fines and fees challenges fail.
DISPOSITION
The judgment is affirmed.
KRAUSE , J.
We concur:
ROBIE , Acting P. J.
DUARTE , J.
11 months after the publication of Cowan. Thus, it was defendant’s burden in the trial
court to raise the Eighth Amendment issue and establish his alleged inability to pay. (See
People v. Torres (2019) 39 Cal.App.5th 849, 860 & fn. 4 [excessive fines claim forfeited
in absence of timely objection].) Moreover, defendant has not explained how his $600
fine was grossly disproportionate to his offenses, to wit, attempted first degree burglary,
attempted theft of a tractor, receiving a stolen truck, leading authorities on a chase over
multiple terrains necessitating the deployment of nail strips, endangering the life of at
least one officer, and causing damage exceeding $3,000.
9