People v. Ackerman CA3 ( 2023 )

Filed 12/29/23 P. v. Ackerman 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or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
(Sacramento)
----
THE PEOPLE, C096625
Plaintiff and Respondent, (Super. Ct. Nos. 19FE005943,
19FE008183)
v.
JOSHUA CHARLES ACKERMAN,
Defendant and Appellant.
Appointed counsel for defendant Joshua Charles Ackerman filed an opening brief
that sets forth the facts of the case and asks this court to review the record and determine
whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.)
We understand defendant’s supplemental brief to challenge the trial court’s denial of
defendant’s oral motion to dismiss for violation of his right to a speedy trial, as well as the
effectiveness of counsel’s advice resulting in defendant’s acceptance of the plea and the
legality of that plea. As we explain below, defendant does not prevail on these claims.
Nonetheless, our review of the record has disclosed an unauthorized fee, which we will
modify the judgment to strike, and inaccuracies in the abstract of judgment, which we will
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direct the trial court to review and correct. Finding no other arguable errors that would
result in a disposition more favorable to defendant, we will affirm the modified judgment.
BACKGROUND
The People’s May 9, 2019, felony complaint in case No. 19FE008183 (the child
sexual assault case) charged defendant with one count of sexual penetration of a child 10
years of age or younger (Pen. Code,1 § 288.7, subd. (b)) and four counts of lewd and
lascivious act with a child under the age of 14 (§ 288, subd. (a)). This complaint was
amended on October 2, 2019, to add additional counts, and defendant was held to answer
on the amended complaint.
The People’s October 2, 2019, felony complaint in case No. 19FE005943 (the
prohibited firearm and ammunition case) charged defendant with being a felon in
possession of a firearm (§ 29800, subd. (a)(1); count one) and being a felon in possession
of ammunition (§ 30305, subd. (a)(1); count two). Following the October 2, 2019,
preliminary hearing, defendant was held to answer on both charges, and the complaint was
deemed the information. Defendant pleaded not guilty.
Following the preliminary hearing in the prohibited firearm and ammunition case
and the child sexual assault case, the public defender’s office was appointed to represent
defendant.
On February 21, 2020, defendant brought a Marsden2 motion seeking appointment
of different counsel for multiple reasons including that the public defender had delayed his
cases, and defendant wished to pursue his speedy trial rights. Defendant’s attorney
explained in pertinent part that defendant had hired a private attorney to handle his cases
through the preliminary hearing and the public defender received the file in November
1 Undesignated statutory references are to the Penal Code.
2 People v. Marsden (1970) 2 Cal.3d 118.
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when he was in a trial. Defendant’s attorney had since finished two more life trials that
started January 6 and January 25, and had been assigned another life trial on January 30.
He had met with defendant, provided his honest assessment of the exposure faced if
convicted given the state of the evidence, and agreed further investigation prior to trial
should be completed and was progressing. Finally, defendant had not mentioned his
speedy trial rights, but his attorney was ready to proceed to trial if defendant wanted to do
so without further investigation and consultation concerning the evidence. In light of this,
the trial court denied defendant’s Marsden motion and provided a brief recess to allow
defendant to consider whether to confirm his trial date or accept a continuance. Defendant
then stated his desire to do the investigation rather than confirm his then-scheduled trial
date.
Thereafter, on May 5, 2020, defendant moved to dismiss the child sexual assault
case for violations of his right to a speedy trial (§ 1382; Gov. Code, § 68115, subd. (a)(10))
allegedly caused by the implementation of emergency orders entered by the Judicial
Council, the Chief Justice of California, the Presiding Judge of Sacramento County
Superior Court, and California Governor Gavin Newsom. The same day, the trial court
denied defendant’s motion in a written order.
On June 30, 2020, defendant again moved to dismiss the child sexual assault case
asserting the trial court’s unilateral rescheduling of his trial to July 22, 2020, violated his
speedy trial right as protected by the California Constitution and section 1382. The
People’s July 1, 2020, response acknowledged that the propriety of defendant’s pending
motion depended on whether defendant’s March 18, 2020, trial date was extended by
virtue of a district attorney request to continue for good cause or whether the extension
was a result of implementation of COVID-19 emergency orders. Acknowledging the
possibility that dismissal could be appropriate, the People requested to immediately refile
the case under the same docket number in accordance with sections 1387 and 1387.1 in the
event dismissal was granted. Defendant’s reply brief attached a reporter’s transcript of the
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March 18, 2020, hearing and other materials that made clear the emergency orders were
contemplated when the trial date of March 28 was extended at the request of the district
attorney.
Thereafter, at the July 8, 2020, hearing on defendant’s motion, the trial court
granted the district attorney’s request to dismiss the child sexual assault case for
noncompliance with defendant’s section 1382 speedy trial right rather than litigate whether
that right had been violated, and defendant stipulated to the refiling of the matter with the
same case number. The People refused defendant’s offer to waive the necessity of a
preliminary hearing, and defendant reentered his not guilty plea. (See § 1387.2.) While
not expressly mentioned in the parties’ briefing or at the hearing, it appears the trial court
also dismissed and reinstated the prohibited firearm and ammunition case under the same
terms. The court then set the preliminary hearing for both cases for August 12, 2020.
Finally, the court made a finding of excusable neglect as agreed to by defendant’s counsel
due to the misunderstanding of the trial court and the district attorney concerning the
reason for the March 18, 2020, continuance. (See § 1387.1)
On August 12, 2020, the trial court held a preliminary hearing and held defendant to
answer against all refiled charges in the prohibited firearm and ammunition case, as well as
the child sexual assault case and on uncharged conduct described by the district attorney.
On August 27, 2020, defendant was arraigned on the informations and the matter put over
for entry of defendant’s not guilty pleas in both matters. On September 11, 2020, the trial
court entered defendant’s not guilty pleas and set the trial for November 5, 2020.
On October 21, 2020, a new public defender assigned to defendant’s case made a
request to continue the trial to January 25, 2021, and a limited time waiver was entered.
On January 4, 2021, the public defender’s December 28, 2020, request to be
relieved as counsel because of a case overload in that office was granted, and the matter
continued until January 14, 2021.
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On January 14, 2021, the trial court granted defendant’s new attorney’s request to
continue the trial readiness conference and trial so that he could come up to speed on the
matter. The minutes reflect the cases were continued several times to “set dates”3 up to
April 14, 2021.
On April 14, 2021, the trial court reset the trial readiness conference and trial for
May 5 and May 10, 2021, respectively. On May 5, 2021, these dates were reset to May 13
and May 17 following the court’s determination that there was good cause because of court
congestion caused by the COVID-19 pandemic. These dates were altered on May 11,
2021, so that the trial setting conference and trial were both scheduled for May 14, 2021.
On May 13, 2021, the trial setting conference and trial were moved to May 17, 2021.
On May 14, 2021, the People filed an amended information in the child sexual
assault case charging defendant with sexual penetration of a child 10 years of age or
younger (§ 288.7, subd. (b); counts one, three), lewd and lascivious acts with a child under
the age of 14 (§ 288, subd. (a); counts two, four through eight), rape by means of force,
violence, duress, or fear (§ 261, subd. (a)(2); count nine), and rape while the victim was
under the influence of an intoxicating or anesthetic substance (§ 261, subd. (a)(3); count
ten).
Also on May 14, 2021, the trial court addressed defendant’s oral motion to dismiss
the matter for alleged violations of defendant’s right to a speedy trial under the Sixth
Amendment to the United States Constitution, which defendant would be preserving, we
assume for purposes of appeal, even if he resolved the cases by plea. Defendant argued
that his right had been violated by delays leading to the dismissal of the case the first time
and that another 259 days had passed since the case was refiled. Defendant’s attorney
acknowledged the delays were caused by COVID-19 (and associated court orders), as well
3 We presume from the context that “set dates” intended trial readiness and trial
dates.
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as changes in defendant’s counsel, but argued defendant “himself ha[d] never waived time
for that.”
At the trial court’s request, the district attorney then recounted the procedural
history of the case, including an extensive discussion of compliance with deadlines
following the reinstitution of the action, leading to the last extension of the trial date to
April 14, 2021, extending the 60-day deadline for bringing the cases to trial to June 14,
2021. The district attorney also relayed the history of emergency orders entered following
the reinstitution of the action, which extended the last day for commencement of
defendant’s trial to June 7, 2021. Thus, by the People’s calculation, defendant’s statutory
speedy trial right had not been violated under either set of calculations. When asked for
comment on the People’s recitation, defendant’s attorney added only that when he took
over and initially requested a new trial date, he did not entertain discussing with defendant
a time waiver because he (defendant’s attorney) had been in the case for only a few days
and the trial date was within seven days, leaving defendant’s attorney to believe there was
good cause to continue based on not being prepared, but that defendant himself had not
waived time then or at any point during his representation. As to whether defendant had
been prejudiced by the delay, defendant’s attorney argued the delay would have impacted
the testimony to be elicited given the age of the victims and that investigating the case
would become more difficult with time. In response, the court noted the allegations
concerning defendant’s misconduct stemmed from events occurring during the 2011 to
2017 time range, and thus, the recollections would have already not been fresh even
without consideration of the COVID-19 pandemic. The People added law enforcement did
not learn of the alleged misconduct until March 2019 and the special assault forensic
investigation proceeded within a month thus memorializing the audio and video of the
minor victim.
Thereafter, the trial court ruled there was no violation of defendant’s right to a
speedy trial under the Sixth Amendment to the United States Constitution. Evaluating the
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matter according to Barker v. Wingo (1972) 407 U.S. 514, the court found defendant’s
delay was “nothing remotely close” to the delay from that case. Further, while defendant
asserted his right to a speedy trial early on, the delays were caused by the changes in
counsel and necessary in order to have counsel prepared to represent defendant at trial.
Moreover, there were delays caused by the COVID-19 pandemic, which had closed court
operations for months. Finally, the court determined the People had not acted in bad faith
or otherwise contributed to the delays in the case, and defendant had not been prejudiced
by the delay.
Following the denial of his motion, defendant resolved both cases by pleading no
contest to both counts in the prohibited firearm and ammunition case and no contest to
counts two, four, five, six, seven, and nine in the child sexual assault case. In exchange,
defendant would receive an agreed-upon aggregate prison sentence of 25 years and the
balance of the charges would be dismissed. The stipulated factual basis for his pleas were
stated on the record by the district attorney.4 Defendant’s reservation of his right to
present his speedy trial arguments on appeal was expressly recognized.
At the sentencing hearing on August 6, 2021, the parties agreed to amend the plea
agreement so that the stipulated aggregate prison term would be 25 years 4 months.
Defendant reaffirmed his no contest pleas in light of this change. Thereafter, the trial court
imposed the agreed-upon sentence with credit for 820 actual days, plus 123 conduct days
4 We observe that the record reflects a factual basis recited as to all counts, including
the year or range of years during which each crime was committed. Our review of the
record reveals entries on the abstract of judgment for the date of commission of the offense
to be in error when compared to the transcript of the plea and sentence on May 14, 2021,
and August 6, 2021, respectively. These errors are found for counts four, five, six, and
seven. The transcript of the plea reflecting a factual basis recited as the year(s) of
commission of the offense for count four as between 2011 to 2017, and for count five and
count six as between 2016 and 2017, and for count seven as 2018.
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for a total of 943 days of custody credit in the child sexual assault case and one day of
custody credit in the prohibited firearm and ammunition case.
The trial court further imposed a $1,000 restitution fine (§ 1202.4) and a suspended
matching parole revocation restitution fine (§ 1202.45) in the prohibited firearm and
ammunition case and a $6,200 restitution fine (§ 1202.4) and suspended matching parole
revocation restitution fine (§ 1202.45) in the child sexual assault case. The court ordered
defendant to pay victim restitution of $2,187 to reimburse the California Victim
Compensation Board and retained jurisdiction to order victim restitution to the other victim
in the child sexual assault case. Finally, the trial court ordered defendant to pay a $300
fine to the habitual offender program (§ 290.3) and a $90.65 main jail classification fee
(Gov. Code, § 29550.2).
Defendant’s request to file a notice of appeal under the constructive filing doctrine
was granted by this court on August 12, 2022, and he obtained a certificate of probable
cause. Appellate briefing in this matter was completed and the matter assigned to this
panel for opinion on August 25, 2023.
DISCUSSION
Appointed counsel filed an opening brief that sets forth the facts and procedural
history of the case and requests this court review the record and determine whether there
are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d at p. 436.)
Defendant filed a supplemental brief which we understand to challenge the trial court’s
denial of his oral motion to dismiss in violation of his right to a speedy trial, as well as the
effectiveness of counsel’s advice resulting in defendant’s acceptance of the plea and the
legality of that plea.
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I
Speedy Trial Issues
A. Penal Code Section 1382
Defendant’s supplemental brief raises a speedy trial objection, heard, and denied in
the trial court. We consider the statutory scheme of section 1382 as it applies to
defendant’s complaint that he was not brought to trial within 60 days of entry of plea on
the information.5
Section 1382 provides in relevant part, “(a) The court, unless good cause to the
contrary is shown, shall order the action to be dismissed in the following cases: [¶] . . . [¶]
(2) In a felony case, when a defendant is not brought to trial within 60 days of the
defendant’s arraignment on an indictment or information . . . .”
To the extent that the record shows defendant’s right to a speedy trial under
section 1382 was violated during the first filing of charges in the two cases, this violation
was remedied by the subsequent dismissal of those charges prior to trial. As we explain
below, the second filing of charges in the same two cases started anew the section 1382
time frames and speedy trial analysis. Furthermore, defendant does not demonstrate
prejudice from the violation that occurred during the first filing.
During the first filing, noncompliance with the statutory deadline for bringing
defendant’s case to trial timely (§ 1382) occurred after his attorney went on medical leave
and circumstances unique to defendant’s case caused the district attorney and trial court to
misinterpret the application of the COVID-19 emergency orders extending such deadlines.
Defendant stipulated to the technical dismissal and refiling of the pending cases with the
same case numbers, and the prohibited firearm and ammunition and child sexual assault
5 Our discussion here focuses on felony charges. Discussion of the exception for the
need to show prejudice on appeal for nonexcepted misdemeanors is not relevant here. (See
§ 1387 & People v. Davisbragdon (2023) 94 Cal.App.5th Supp. 1.)
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cases were set for a new preliminary hearing in accordance with the procedure
contemplated by section 1387.2. This was the first dismissal of each of the prohibited
firearm and ammunition and child sexual assault cases, and the refiling thereof was
authorized by sections 1387 and 1387.2. (See, e.g., Burris v. Superior Court (2005)
34 Cal.4th 1012, 1019 [“[f]elony prosecutions . . . are subject to a two-dismissal rule; two
previous dismissals of charges for the same offense will bar a new felony charge”].)
Furthermore, our review does not disclose that defendant was prejudiced by the
delay in bringing defendant to trial on the first filing of the felony charges. (See People v.
Davisbragdon, supra, 94 Cal.App.5th at p. 4 Supp. [defendant seeking to invoke a
statutory speedy trial violation on appeal following conviction must demonstrate
prejudice].) The record does not show any of the refiled charges violated the statute of
limitations or that the district attorney refiled charges more times than sections 1387 and
1387.1 would allow. Accordingly, we discern no statutory error in allowing the
reinstitution of these actions and note that the deadlines contemplated by section 1382
were complied with following the reinstitution of the charges to which defendant
eventually pled no contest.
B. Sixth Amendment of the United States Constitution
We next consider the trial court’s denial of defendant’s oral motion to dismiss the
prohibited firearm and ammunition and child sexual assault cases, alleging a violation of
his right to speedy trial as protected by the Sixth Amendment to the United States
Constitution. Having done so, we discern no abuse of discretion.
The trial court thoughtfully analyzed and applied Barker v. Wingo, supra, 407 U.S.
at page 514 to the delays in defendant’s case and determined his speedy trial rights had not
been violated. The charges alleged wrongful conduct that was years old when filed.
Moreover, witness statements were preserved by forensic interviews, defendant declined
an earlier trial date, at one point entered a limited time waiver, and changed attorneys on
more than one occasion. We acknowledge that some of the continuances were the product
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of the COVID-19 pandemic, but the court and district attorney acted within the extended
timelines then authorized by emergency orders, and defendant was in the same
circumstance as other defendants waiting for trial during the pandemic. Accordingly, we
find no error.
II
Defendant’s Remaining Allegations
Defendant’s supplemental brief alleges he is innocent of the charges brought against
him and challenges the legality of his plea resolving the prohibited firearm and
ammunition and child sexual assault cases. To the extent defendant alleges that his plea
was not knowingly and/or voluntarily entered, his reasons for such are not supported by
the record. He alleges various factors which he claims caused him to accept the plea
agreement in this case. However, defendant does not cite to any portion of the record that
supports his allegations. “Matters not presented by the record cannot, of course, be
considered on the suggestion of counsel in briefs or in affidavits attached thereto.”
(People v. Szeto (1981) 29 Cal.3d 20, 35.) “We have appeals from parties seeking relief
based on matters outside the appellate record, which we cannot review.” (Schmier v.
Supreme Court (2000) 78 Cal.App.4th 703, 711-712.)
We exercise our inherent authority to review the appellate record as to the legality
of defendant’s plea. Our review of the appellate record supports the trial court’s finding
that defendant’s plea was freely, knowingly, and voluntarily made.6
A plea of no contest or guilty to a criminal charge must be freely, knowingly, and
voluntarily made. “When a criminal defendant enters a guilty plea, the trial court is
required to ensure that the plea is knowing and voluntary. (See Boykin v. Alabama
(1969) 395 U.S. 238, 243-244 . . . (Boykin).) As a prophylactic measure, the court must
6 Our analysis applies to each case, noting the trial court addressed each case, and the
same issues referenced herein, in close order during the same proceeding.
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inform the defendant of three constitutional rights -- the privilege against compulsory self-
incrimination, the right to trial by jury, and the right to confront one’s accusers -- and
solicit a personal waiver of each. (People v. Howard (1992) 1 Cal.4th 1132, 1179 . . .
(Howard); see Boykin, at pp. 243-244; In re Tahl (1969) 1 Cal.3d 122, 130-133 . . .
(Tahl).) Proper advisement and waiver of these rights, conducted with ‘the utmost
solicitude of which courts are capable,’ are necessary ‘to make sure [the accused] has a full
understanding of what the plea connotes and of its consequence.’ (Boykin, at pp. 243-
244.)” (People v. Cross (2015) 61 Cal.4th 164, 170.)
Prior to taking the plea, the trial court held a lengthy session wherein the court
explained the charges, and a factual basis for each count in each case was recited by the
prosecutor in open court. Defendant and defendant’s counsel agreed with the recited
factual bases,7 at one point being given time by the court to confer, at defendant’s request.
Thereafter, the court went on to explain the consequences of the plea. When asked by the
court if defendant had any questions about the consequences of the plea, defendant
responded, “No I do not.”
The court then explained to defendant that by entering the plea of no contest the
defendant was waiving his right to a jury trial, to confront witnesses, to present evidence,
and to remain silent. Defendant stated he understood those rights and waived the same, to
which defendant’s counsel joined. After these advisements and waivers, the court stated,
“Mr. Ackerman, I’m about to take your plea. [¶] Do you have any questions, sir?”
Defendant responded, “No.”
7 Prior to the recitation of the factual bases, the trial court alerted defendant that at the
end of the recitation, the court would ask defendant if defendant agreed with the factual
bases for purposes of the plea. Defendant responded in agreement.
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Thereafter, the court addressed each count individually. The court recited the facts
alleged and inquired of defendant how he pled to each count. On each inquiry, defendant
responded, “No contest.”
At each stage of the plea proceeding, defendant responded in a coherent and
responsive way. When defendant asked to speak with his attorney, the court provided time
and stopped the proceeding. Thereafter, the plea proceeding continued with neither
defendant nor counsel raising any concerns about the plea or about defendant’s capacity to
understand.
The defendant participated in the same manner at the sentencing hearing three
months later. The court inquired of defendant whether defendant confirmed his pleas, to
which defendant agreed.
The record of the plea and sentencing hearings demonstrates that defendant was
informed by the court of the nature of the charges, the consequences of the plea, and the
rights held by defendant. The record further demonstrates defendant knowingly,
intelligently, and voluntarily waived his rights and entered the pleas of no contest to the
charges on which defendant now stands convicted. The record before us supports the trial
court’s finding that the pleas were knowingly, intelligently, and voluntarily made.
To the extent defendant alleges trial counsel was ineffective in advising defendant
to accept a plea deal, we must evaluate whether defendant received ineffective assistance
of counsel on the record before us. (See People v. Mickel (2016) 2 Cal.5th 181, 198
[noting the difficulty of establishing ineffective assistance on direct appeal because the
record often lacks information necessary to such claim].) Having done so, we cannot find
there was no reasonable basis for defense counsel’s recommendation that defendant
dispose of these two cases where defendant was facing a sentence of life in prison by
taking a plea giving him 25 years 4 months. (See, e.g., id. at p. 198 [a reviewing court may
reverse only for a complained-of attorney error “if there is affirmative evidence that
counsel had ‘ “ ‘no rational tactical purpose’ ” ’ for an act[] or omission”].) This is
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especially true in light of defendant’s previous attorney’s warning of the strength of the
case against him, including defendant’s admission during a pretext phone call.
III
The Main Jail Classification Fee
Finally, our review of the record has disclosed the erroneous imposition of a main
jail classification fee of $90.65 (Gov. Code, § 29550.2) on August 6, 2021. Effective
July 1, 2021, Assembly Bill No. 1869 (2019-2020 Reg. Sess.) repealed Government Code
section 29550.2. (Stats. 2020, ch. 92, § 25.) Accordingly, the trial court was without a
valid basis to impose this fee, and we will modify the judgment to strike it.
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DISPOSITION
The judgment is modified to strike the $90.65 main jail classification fee imposed
pursuant to Government Code section 29550.2. The trial court is directed on remand to
modify the abstract of judgment and minute order following sentencing in both the
prohibited firearm and ammunition case and the child sexual assault case to reflect the
striking of the main jail classification fee and also to conform these documents to reflect
only the fines and fees orally imposed by the trial court at sentencing on August 6, 2021,
and to remove any amounts erroneously included therein. (See, e.g., People v. Delgado
(2008) 43 Cal.4th 1059, 1070 [court’s oral pronouncement of the judgment prevails over
any conflicting language in the abstract of judgment].) The trial court is further directed
on remand to conform the abstract of judgment to reflect the recited, and accepted, year(s)
of offense for each count on which defendant stands convicted.
Finding no other errors that would result in a disposition more favorable to
defendant, we affirm the judgment as modified.
/s/
Keithley, J.*
We concur:
/s/
Earl, P. J.
/s/
Mesiwala, J.
* Judge of the Butte County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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