People v. Churchill CA3 ( 2022 )

Filed 7/5/22 P. v. Churchill 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Shasta)
----
THE PEOPLE, C095567
Plaintiff and Respondent, (Super. Ct. Nos. 20F5297,
20F8072, 21F3977, 21F6684,
v. 21F7242)
DOMINIC PATRICK CHURCHILL,
Defendant and Appellant.
Appointed counsel for defendant Dominic Patrick Churchill filed an opening brief
setting forth the facts of the case and asking this court to review the record to determine
whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d
436.) Defendant filed a supplemental brief raising several issues. After reviewing the
entire record, we find no arguable error that would result in a disposition more favorable
to defendant and affirm the judgment.
We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 123-124.)
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FACTUAL AND PROCEDURAL BACKGROUND
This appeal involves five separate cases that were resolved in a plea agreement. In
case No. 20F5297, the prosecution charged defendant with vandalism. (Pen. Code,
§ 594, subd. (b)(1).)1 In case No. 20F8072, the prosecution charged defendant with a hit
and run causing death or serious injury. (Veh. Code, § 20001, subd. (b)(2).) In case No.
21F3977, the prosecution charged defendant with a single count of first degree burglary
(§ 459), which the prosecution alleged was a serious and violent felony. (§§ 1192.7,
subd. (c)(18), 667.5, subd. (c)(21).) In case No. 21F6684, the prosecution charged
defendant with attempted second degree burglary (§§ 664, 459), vandalism (§ 594, subd.
(b)(1)), second degree burglary (§ 459), and receiving stolen property. (§ 496, subd. (a).)
In case No. 21F7242, the prosecution charged defendant with assault with a deadly
weapon (§ 245, subd. (a)(1)), second degree robbery (§ 211), resisting an executive
officer (§ 69), and misdemeanor presenting false identification to a peace officer.
(§ 148.9, subd. (a).) In case Nos. 20F8072, 21F3977, and 21F7242, the prosecution also
alleged the offenses occurred while defendant was released on bail (§ 12022.1).
Defendant pleaded no contest to the hit and run count in case No. 20F8072; the
first degree burglary count, with the serious felony allegation, in case No. 21F3977; the
second degree burglary count in case No. 21F6684; and assault likely to cause great
bodily injury (§ 245, subd. (a)(4)) and grand theft (§ 487, subd. (c)), lesser included
charges, in case No. 21F7242. The plea agreement anticipated a nine-year four-month
sentence, composed of a six-year term in case No. 21F3977; a one-year term in case No.
20F8072; an eight-month term in case No. 21F6684; and a one-year term for the assault
count, and an eight-month term for the theft count, in case No. 21F7242.
1 Undesignated statutory references are to the Penal Code.
2
In the agreement, the prosecution agreed to dismiss case No. 20F5297 and the
balance of charges and allegations in the other four cases. Defendant agreed he had a full
opportunity to discuss with his attorney the facts of his cases, the elements and defenses
of the charged offenses, and anything else he thought was important to his cases. The
parties agreed the relevant sheriff and police reports could form the factual basis for the
plea.2
The trial court imposed a sentence of nine years four months, consistent with the
terms of the plea agreement. The court also imposed a $300 restitution fine for each case
(§ 1202.4, subd. (b)); a $300 parole revocation restitution fine for each case, suspended
pending revocation of parole (§ 1202.45); $40 court operations assessments for each
count (§ 1465.8); and $30 criminal conviction assessments for each count. (Gov. Code,
§ 70373.) The court reserved jurisdiction over victim restitution, and defendant later
stipulated to pay restitution.
Defendant filed a notice of appeal with a certificate of probable cause.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts and procedural history of the case and asks this court to
review the record and determine whether there are any arguable issues on appeal.
(People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of his right
to file a supplemental brief within 30 days from the date the opening brief was filed.
Defendant filed a supplemental brief raising several issues. Defendant argues the
factual basis for the plea to the first degree burglary count was inadequate because the
residence he burglarized was a home that he shared with his father and grandmother.
2 The sheriff and police reports are not included in the record on appeal and
defendant waived any presentencing investigation in favor of immediate sentencing.
3
Defendant asserts it is impossible to burglarize his own residence, and the plea agreement
is thus invalid as a legal impossibility.
Generally, a guilty or no contest plea “precludes appellate consideration of issues
related to guilt or innocence, including the sufficiency of the evidence to support the
conviction.” (People v. Palmer (2013) 58 Cal.4th 110, 114.) But, a defendant may
“assert that his admission included a legal impossibility,” even after such a plea. (People
v. Voit (2011) 200 Cal.App.4th 1353, 1365; see e.g., People v. Soriano (1992)
4 Cal.App.4th 781, 784 [finding no contest plea defective where defendant admitted to
filing a forged instrument under section 115 when “the writing he was charged with and
admitted forging . . . is not an instrument within the meaning of section 115”]; People v.
Richardson (2021) 65 Cal.App.5th 360, 371-374 [setting aside no contest plea to human
trafficking of a minor where victim was not a minor].)
Defendant’s plea did not include any such legal impossibility. An individual may,
in fact, burglarize his own residence if he lacked the unconditional possessory right to
enter it. (People v. Gill (2008) 159 Cal.App.4th 149, 161 [affirming burglary conviction
for burglary of family home]; People v. Ulloa (2009) 180 Cal.App.4th 601, 610
[affirming burglary conviction for burglary of apartment for which defendant was listed
on lease as cotenant].) Thus, defendant’s no contest plea to first degree burglary was
permissible and the trial court did not err in approving the plea agreement.
To the extent defendant contends the factual basis for his plea was insufficient
because the trial court did not perform “an independent analysis” of the factual basis, we
also see no error. Under section 1192.5, the trial court must “make an inquiry to satisfy
itself that there is a factual basis for a conditional plea of guilty or no contest.” (People v.
Palmer, supra, 58 Cal.4th at p. 118, original italics.) “[A] ‘stipulation by counsel to the
plea’s factual basis is consistent with the legislative purpose of the statute . . . .’ [T]he
‘better approach’ in this circumstance is for counsel’s stipulation to include reference to a
particular document that provides an adequate factual basis . . . .” (Ibid.) Here, the trial
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court followed precisely the approach laid out in Palmer and solicited stipulations from
both counsel referring to specific documents, the relevant sheriff and police reports, to
obtain a factual basis for the plea. More was not required.
Defendant further challenges the court’s order awarding victim restitution, saying
the trial court failed to consider his ability to pay, relying on People v. Dueñas (2019) 30
Cal.App.5th 1157 (Dueñas). As an initial matter, this issue was forfeited. Defendant
concedes his counsel did not raise the issue of his ability to pay before the trial court;
defense counsel told defendant he “could get a prison job and therefore he had the ability
to pay.” Defendant’s sentencing hearing was held on November 30, 2021, and the
restitution hearing was held on December 13, 2021, long after the decision in Dueñas.
Defendant stipulated to pay victim restitution without raising an objection, and the
challenge was thus forfeited. (People v. Nelson (2011) 51 Cal.4th 198, 227 [failure to
object to restitution fine forfeits challenge].)
And, defendant’s challenge is directed at the victim restitution order, which was
issued in response to a request by the prosecution for victim restitution under section
1202.4, subdivision (f), unlike Dueñas, which concerned a restitution fine under section
1202.4, subdivision (b). (Dueñas, supra, 30 Cal.App.5th at p. 1169.) Section 1202.4,
subdivision (g) specifically provides that “[a] defendant’s inability to pay shall not be a
consideration in determining the amount of a restitution order.” Thus, “[t]he principles
articulated in Dueñas have not been extended to a victim restitution payment under
section 1202.4, subdivision (f).” (People v. Pack-Ramirez (2020) 56 Cal.App.5th 851,
859; accord, People v. Abrahamian (2020) 45 Cal.App.5th 314, 338 [“Dueñas does not
apply to victim restitution under section 1202.4, subdivision (f)”]; People v. Evans (2019)
39 Cal.App.5th 771, 777 [“Based on the significant differences in purpose and effect
between victim restitution and the moneys at issue in Dueñas, we decline to extend the
rule of Dueñas to victim restitution”].)
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Finally, defendant asserts he received ineffective assistance of counsel, both
because defense counsel did not investigate his case and discover that he had been
accused of burglarizing his own residence, and because counsel did not raise an objection
about his ability to pay the victim restitution order. To establish ineffective assistance of
counsel, the defendant has the burden of demonstrating that counsel’s performance was
deficient because it fell below an objective standard of reasonableness under prevailing
professional norms and he or she was prejudiced by that deficiency. (People v. Lopez
(2008) 42 Cal.4th 960, 966.) “ ‘Unless a defendant establishes the contrary, we shall
presume that “counsel’s performance fell within the wide range of professional
competence and that counsel’s actions and inactions can be explained as a matter of
sound trial strategy.” [Citation.] If the record “sheds no light on why counsel acted or
failed to act in the manner challenged,” an appellate claim of ineffective assistance of
counsel must be rejected “unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory explanation.” [Citations.]’ ”
(Ibid.)
Here, neither action cited by defendant caused any prejudice. As explained above,
defendant could be convicted of burglary for burglarizing his legal residence. Thus, it
would have made little difference if counsel had further investigated defendant’s living
situation. Similarly, there was no basis for defendant to object to the victim restitution
order based on his ability to pay. First, as noted, the restitution was awarded under
section 1202.4, subdivision (f), for which the ability to pay is irrelevant. And second,
defendant acknowledges that his counsel provided an explanation why he did not want to
raise an ability to pay objection, saying defendant actually had the ability to pay.
Defendant’s objection thus had no legal or factual basis, and defense counsel was not
required to make a futile objection to provide effective assistance. (People v. Anderson
(2001) 25 Cal.4th 543, 587.) We conclude defendant has failed to carry his burden to
establish that trial counsel provided inadequate representation.
6
Having undertaken an examination of the entire record pursuant to Wende, we find
no arguable error that would result in a disposition more favorable to defendant.
Accordingly, we affirm the judgment.
DISPOSITION
The judgment is affirmed.
KRAUSE , J.
We concur:
MAURO , Acting P. J.
EARL , J.
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