People v. Simmons CA3

Filed 3/25/22 P. v. Simmons 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C093707
Plaintiff and Respondent, (Super. Ct. Nos. 12F4520 &
13F1568)
v.
AARON THOMAS SIMMONS,
Defendant and Appellant.
Appointed counsel for defendant, Aaron Thomas Simmons, 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.) Thereafter, defendant filed two supplemental briefs. We also requested
supplemental briefing on (1) the applicability of Senate Bill No. 567 (2021-2022 Reg.
Sess.), Assembly Bill No. 124 (2021-2022 Reg. Sess.) and Assembly Bill No. 1540
(2021-2022 Reg. Sess.) to this case, and (2) the inconsistencies between the fines and
fees orally imposed by the court and reflected in the minute orders. Having reviewed
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defendant’s arguments, the supplemental briefing, and the record as required by Wende,
we will remand the matter to allow the trial court to select a sentence in light of the
changes brought about by this new legislation. As to the fines and fees, we shall direct
the trial court to correct clerical errors. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Following defendant’s preliminary hearing in case No. 12F4520 (the burglary
case), the People filed a felony information alleging defendant committed second degree
burglary of a vehicle (Pen. Code, § 459; count 1)1 with the special allegation that he had
suffered a prior strike (§ 1170.12) and a prior prison term (§ 667.5, former subd. (b)).
On March 14, 2014, defendant resolved the burglary case and numerous other
cases by pleading, in pertinent part, no contest to the burglary and to a felony failure to
appear (§ 1320, subd. (b)) in case No. 13F1568 (the failure to appear case). In exchange,
defendant would receive probation and the ability to file a motion to reduce the burglary
charge to a misdemeanor at sentencing. The remaining charges and enhancements
(including the prior strike) were dismissed/stricken and the matter referred to probation
for a sentencing report.2 The stipulated factual basis for the burglary case plea was the
preliminary hearing transcript. The parties stipulated the factual basis for the failure to
appear case could be found in the court record.
On September 9, 2014, the trial court denied defendant’s motion to reduce the
burglary to a misdemeanor (§ 17, subd. (b)), noting that since the burglary, defendant
committed five violations of law and had had a total of seven misdemeanors dismissed as
a result of his plea agreement. Further, defendant had committed numerous violations of
probation and parole in the past 10 years. The court suspended imposition of sentence
1 Undesignated statutory references are to the Penal Code.
2 At least one of these was dismissed with a waiver pursuant to People v. Harvey (1979)
25 Cal.3d 754.
2
and placed defendant on probation for three years with various terms and conditions,
including that he serve 90 days in county jail.
Regarding the monetary obligations imposed by the trial court for the burglary
case, the court orally imposed a $280 restitution fine (§ 1202.4, subd. (b)) and a $280
stayed probation revocation restitution fine (§ 1202.44). For the failure to appear case,
the court imposed a $300 restitution fine (§ 1202.4, subd. (b)) and a $300 stayed
probation revocation restitution fine (§ 1202.44). The court also required defendant pay
the costs of probation ($75/month), as well as a $151 booking fee, and a $250 probation
report fee.3 The court reserved a hearing on the requested victim restitution of $150 and
imposed other fines and fees in relation to two misdemeanor cases for which defendant
received informal probation. Finally, the court incorporated the remaining terms and
conditions of probation not expressly delineated by stating, “Remaining terms and
conditions are imposed as written.” These included a $780 fine (§ 672) and associated
penalty assessments, as well as two $40 court operations assessment fees (§ 1465.8), two
$30 criminal conviction assessment fees (Gov. Code, § 70373), and a $39 crime
prevention fine (§ 1202.5) with associated penalty assessments to be applied in the
burglary case.
Thereafter, defendant’s probation term was extended to September 8, 2020, by
virtue of the revocation and reinstatement of that probation. In July 2020, the probation
department filed a petition to revoke defendant’s probation alleging defendant had
violated that probation by violating the law, specifically, that he had possessed a stolen
motorcycle (§ 496D, subd. (a)). In December 2020, defendant admitted three separate
violations of probation, including that he had possessed the stolen motorcycle. The
3 In light of the passage of Assembly Bill No. 1869 (2019-2020 Reg. Sess.), defendant’s
appellate counsel has already successfully obtained the striking of the cost order, booking
fee, and probation report fee.
3
stipulated factual basis for those admissions were taken from the probation violation
petitions.
On January 14, 2021, the trial court revoked defendant’s probation and sentenced
him to three years eight months,4 awarding defendant 260 actual days plus 260 good time
days for a total of 520 custody credits. Further, the court unstayed the previously
imposed $280 and $300 probation revocation restitution fines, reiterated its imposition of
the $780 fine in the failure to appear case, the $39 crime prevention fine (§ 1202.5) in the
burglary case, and the mandatory $30 and $40 criminal conviction and court operations
fees in both the burglary and failure to appear cases.
Thereafter, on March 1, 2021, defendant filed a handwritten pro. per. request for
relief under Proposition 47 (as enacted by the electorate Nov. 4, 2014) seeking to reduce
his burglary conviction to petty theft, arguing the record established that the property
taken was only worth $150 without attaching any evidence and without providing a proof
of service that the request has been served upon the district attorney. The court denied
this request, noting the failure to file a proof of service and/or to make the requisite
showing to obtain relief.
Defendant timely appealed his sentence and the denial of his Proposition 47
petition but did not receive a certificate of probable cause.
DISCUSSION
Appointed counsel filed an opening brief that sets forth the facts and procedural
history of the case and requests 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 two supplemental briefs,
4 This was comprised of the upper term of three years for the second degree burglary
plus eight months (one-third the midterm) for the failure to appear.
4
which we understand to challenge: (1) the validity of his plea in the burglary case;
(2) the trial court’s initial refusal to reduce his felony burglary conviction to a
misdemeanor; (3) his failure to be sentenced by the same judge who took his plea in
compliance with People v. Arbuckle (1978) 22 Cal.3d 749; (4) the denial of his pro. per.
Proposition 47 petition; and (5) the trial court’s imposition of an aggravated prison
sentence in his case.5
Taking these in order, defendant’s first challenge necessarily fails because he
cannot impugn the validity of his plea without a certificate of probable cause, which he
failed to obtain. (§ 1237.5; People v. Emery (2006) 140 Cal.App.4th 560, 562 [where
defendant seeks to challenge the validity of his plea, he must first obtain a certificate of
probable cause].) Second, defendant has not shown the trial court abused its discretion in
denying his section 17, subdivision (b) motion to reduce his burglary to a misdemeanor.
(See People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 [in the absence
of a showing that the trial court abused its discretion, “ ‘the trial court is presumed to
have acted to achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set aside on review’ ”].)
Third, defendant is mistaken that he was entitled to have the same judge who
accepted his plea to the burglary case sentence him at the January 14, 2021, probation
violation hearing. (People v. Martinez (2005) 127 Cal.App.4th 1156, 1159 [“Courts have
not extended Arbuckle to probation violation hearings, nor should they”].) Fourth,
putting aside the trial court’s findings that defendant failed to make the requisite showing
to obtain relief under Proposition 47 and further failed to serve his request on the district
attorney, Proposition 47 simply does not apply to vehicle burglary under section 459.
(People v. Acosta (2015) 242 Cal.App.4th 521, 526-527.)
5 Defendant also filed a request to remove and replace his appellate counsel, which we
denied.
5
Further, while we do not agree with defendant’s pro. per. challenge to the court’s
selection of the upper term in this matter (People v. Black (2007) 41 Cal.4th 799, 815
[“the presence of one aggravating circumstance renders it lawful for the trial court to
impose an upper term sentence”]; People v. Forster (1994) 29 Cal.App.4th 1746, 1759),
this does not end the inquiry. Because the statutory scheme for selecting between triad
terms under section 1170, subdivision (b), changed with the passage of Senate Bill
No. 567 effective January 1, 2022 (Cal. Const., art. IV, § 8, subd. (c)), and given our
agreement with the parties that these changes should be applied to nonfinal judgments on
appeal (see, e.g., People v. McKenzie (2020) 9 Cal.5th 40, 51; People v. Stamps (2020)
9 Cal.5th 685, 699), we will remand for the limited purpose of allowing the trial court to
exercise its sentencing discretion under the amended statute.6
Finally, concerning the fines and fees imposed in 2014 and 2021, we note that the
minute order following the September 9, 2014, sentencing hearing incorrectly reflects
that the court imposed victim restitution in the amount of $150. The reporter’s transcript
of this hearing shows the court reserved a hearing on the requested victim restitution of
$150. Also, the minute order following the January 14, 2021, hearing appears to suggest
that a $780 fine (§ 680) applied to the burglary case. The court imposed no such fine.
This minute order also fails to list the $39 crime prevention fine (§ 1202.5) previously
imposed in the burglary case and reiterated by the court at the 2021 sentencing hearing.
We will direct the trial court to correct these clerical errors. (People v. Mitchell (2001)
26 Cal.4th 181, 185.)
6 Defendant’s supplemental reply brief argues that this remand is unnecessary in light of
defendant’s release from county jail, and asks this court to reduce his sentence to the
midterm. We decline the invitation to modify defendant’s sentence. It is the trial court
that must exercise its discretion in selecting the appropriate term under section 1170.
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DISPOSITION
We remand the matter for the limited purpose of allowing the trial court to
exercise its discretion to select an appropriate term of imprisonment in light of the
passage of Senate Bill No. 567 amending section 1170. The trial court shall also correct
the clerical errors identified in the September 9, 2014, and January 14, 2021, minute
orders. In all other respects, the judgment is affirmed.
/s/
HOCH, J.
We concur:
/s/
RAYE, P. J.
/s/
MAURO, J.
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