People v. Fox CA1/3

Filed 8/11/21 P. v. Fox CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, A160301
v.
SHAWN EDWARD FOX, (Lake County
Defendant and Appellant. Super. Ct. Nos. CR-953741,
CR-953896)
Defendant Shawn Edward Fox appeals from a judgment imposing an
eight years eight months stipulated sentence following his no contest pleas in
two cases. Counsel for defendant has filed an opening brief in which she
raises no issues and asks this court for an independent review pursuant to
People v. Wende (1979) 25 Cal.3d 436. Counsel informed defendant of his
right to submit a supplemental brief and he has not filed one. Having
conducted our independent review and finding no arguable issues to be
briefed, we affirm the judgment.
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BACKGROUND
A. Case No. CR-953741
Defendant was charged by information with being a felon in possession
of a firearm (Pen. Code, § 29800, subd. (a) [count I]);1 being a felon in
possession of ammunition and reloaded ammunition (§ 30305, subd. (a)(1)
[count II]); carrying upon his person a concealed firearm (§ 25400, subd. (a)(2)
[count III]); and attempting, by threats or violence, to deter or prevent an
executive officer from performing his or her lawful duty (§ 69 [count IV]). As
to each count, it was also alleged defendant had been convicted of a prior
strike conviction (§§ 245, subd. (a)(2), 667, subd. (d), 1170.12, subd. (b)).
B. Case No. CR-953896
Defendant was charged by information with assault with a deadly
weapon other than a firearm, to wit, a truck (Pen. Code, § 245, subd. (a)(1)
[count I]); making a criminal threat (Pen. Code, § 422, subd. (a) [count II]);
and misdemeanor hit and run (Veh. Code, § 20002, subd. (a) [count III]). It
was also alleged that counts I and II were committed while defendant was on
bail in case No. CR-953741 (Pen. Code, § 12022.1) and that he had suffered a
prior strike conviction and a serious felony conviction (Pen. Code, §§ 245,
subd. (a)(2), 667, subds. (a)(1), (d), 1170.12, subd. (b)).
C. Plea Bargain
On October 2, 2019, defendant initialed and executed form waivers of
his constitutional rights prior to entry of no contest pleas in both cases. In
case No. CR-953741, he pleaded no contest to a lesser related charge of
count I, attempted possession of a firearm by a felon (§§ 21a, 664, 29800), and
admitted the prior strike. In case No. CR-953896, he pleaded no contest to
assault with a deadly weapon (§ 245, subd. (a)(1) [count I]) and admitted the
1 All further undesignated statutory references are to the Penal Code.
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prior strike. Defendant expressly acknowledged that his no contest plea to
assault with a deadly weapon and conviction in case No. CR-953896
constituted a strike. Defendant further acknowledged that the plea would
result in a credit limitation of 20 percent. In exchange for his pleas, the
parties agreed to the stipulated sentence of eight years eight months and that
the balance of the information in each case would be dismissed.
At the October 2, 2019 change of plea hearing, the trial court reviewed
the preliminary hearing transcripts for each case and found there was a
factual basis for each plea. After confirming that defendant understood the
nature of his pleas, including that he was pleading to a second strike, and
that he freely waived his constitutional rights, the trial court permitted
defendant to enter his pleas pursuant to the negotiated bargain.
D. Motion to Withdraw Plea
On February 3, 2020, defendant sought to withdraw his plea on the
following grounds: (1) defense counsel failed to provide him with all of the
evidence; (2) defendant felt unduly pressured to enter a plea rather than go to
trial because the prosecutor intended to call his elderly mother to testify,
which he believed would cause her to have a stroke, and the prosecutor
threatened to file new charges; (3) defense counsel provided ineffective
assistance of counsel because counsel had a conflict of interest that prevented
him from taking the case to trial (counsel had represented the victim in case
No. CR-953896 in another matter), thus leaving him the choice either to
settle the case or to wait even longer to go to trial; and (4) defendant was not
aware that his plea was to a second strike.
On March 4, 2020, the court held a hearing on the motion. At the
hearing, defendant stipulated on the record that he was aware that the plea
involved a second strike. After hearing extensive testimony from defendant’s
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attorney, the trial court denied the motion. The court explained that, based
on the evidence presented at the hearing, defendant received all the evidence
he had requested to see. There was nothing to suggest that had defendant
seen other evidence he would have proceeded differently. There was no
evidence that defendant had insufficient time to consider the deal. Also,
there was no evidence that he took the deal solely to keep his mother off the
stand. Moreover, there was evidence that defendant could have avoided
having his mother testify by simply stipulating to the fact that she was the
person he spoke with during a recorded telephone call. Finally, as to the
conflict of interest, defense counsel had obtained a written waiver of the
conflict from defendant and the prosecutor was prepared to proceed without
the victim in the likely event that the victim failed to appear at trial. Also,
there was no evidence that the possible existence of a conflict of interest
affected defendant’s decision to enter the plea.
E. Sentencing
At the March 16, 2020 consolidated sentencing hearing, defense counsel
asked the court to exercise its discretion and strike defendant’s prior strike
conviction pursuant to section 1538.5 and People v. Superior Court (Romero)
(1996) 13 Cal.4th 497. The prosecution opposed the motion, arguing that
defendant’s case involved a stipulated sentence and “[h]ad it been
contemplated that there may be the possibility of a Romero motion or the
granting of one, [the prosecution] would have factored that into consideration
when coming up with [the] stipulated disposition.” The trial court denied the
Romero motion, citing the stipulated sentence and finding the interests of
justice did not warrant dismissal of the prior strike conviction because both
his prior strike and the current offense were for violent offenses.
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The trial court sentenced defendant to eight years eight months in
state prison as follows:
Case No. CR-953896: eight-year term (four-year upper term doubled as
an enhancement) on count I, the principal term.
Case No. CR-953741: eight-month term (one-third of the middle term
doubled as an enhancement), to run consecutively as a subordinate term.
Defendant was awarded 549 days’ credit (275 actual and 274 conduct)
in case No. CR-953896. Defendant was awarded two days’ credit (actual
time) in case No. CR-953741. For each case, the court ordered defendant to
pay various fines, fees, and assessments.
Defendant timely appealed and obtained a certificate of probable cause.
DISCUSSION
A trial court has discretion to allow a plea to be withdrawn if the
defendant shows good cause by clear and convincing evidence. (People v.
Huricks (1995) 32 Cal.App.4th 1201, 1207; § 1018.) Good cause means the
defendant “was operating under mistake, ignorance, or any other factor
overcoming the exercise of his free judgment.” (Huricks, at p. 1208.)
Here, defendant stipulated that he was pleading to a second strike.
The record indicates that defendant entered into a knowing and voluntary
plea. Defendant’s asserted claims of insufficient discovery, improper
pressure to take the plea, and ineffective assistance of counsel are not
supported by the record. Thus, defendant having failed to establish good
cause, the trial court properly denied his motion to withdraw his pleas.
The trial court also properly denied the Romero motion, as defendant
entered into a stipulated sentence incorporating a strike enhancement. (See
People v. Cunningham (1996) 49 Cal.App.4th 1044, 1046–1048 [trial court
lacked authority to dismiss a prior strike the defendant admitted in exchange
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for a stipulated sentence]; People v. Ames (1989) 213 Cal.App.3d 1214, 1216–
1218 [trial court lacked discretion to strike a special circumstance the
defendant admitted in exchange for the dismissal of a second special
circumstance allegation and a promise not to seek the death penalty].)
Additionally, the trial court considered the present and past offenses and
concluded that the interests of justice did not warrant dismissal of the prior
strike. In fact, the court concluded this was “exactly the type” of case for
which the “three strikes law was designed . . . .”
The sentence imposed is authorized by law and was in compliance with
the plea agreement. Custody credits appear to have been calculated
correctly. And the fines, fees, and assessments imposed were proper.
Based on our review of the record, defendant was represented by
competent counsel who acted to protect his rights and interests. We conclude
there are no arguable issues within the meaning of People v. Wende, supra,
25 Cal.3d 436.
DISPOSITION
The judgment is affirmed.
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_________________________
Jackson, J.
WE CONCUR:
_________________________
Petrou, Acting P. J.
_________________________
Chou, J.*
A160301/People v. Shawn Edward Fox
*Judge of the Superior Court of San Mateo County, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
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