People v. Marquez CA5

Filed 12/17/20 P. v. Marquez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F078242
Plaintiff and Respondent,
(Fresno Super. Ct. Nos. F17901320,
v. F17901318 & F18905146)

DAVID GREGORY MARQUEZ,
OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Fresno County. David A.
Gottlieb, Judge.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer
M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
 Appellant and defendant David Gregory Marquez raises several issues in
connection with three criminal cases in which he pleaded no contest. We accept the
Attorney General’s concession that imposition of sentence on a conviction for receiving
stolen property must be stayed under Penal Code section 654,1 and that the judgment
should be conditionally reversed to allow for the court to apply section 1001.36. We
reject the remainder of defendant’s claims.
BACKGROUND
On March 3, 2017, the district attorney filed two criminal complaints against
defendant.
Case No. F17901318
The first complaint filed on March 3, 2017, charged defendant with assault with a
deadly weapon (count 1; § 245, subd. (a)(1)), with a great bodily injury enhancement
(§ 12022.7, subd. (a).) The complaint also alleged defendant had suffered a prior strike
(§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)), and three prior prison term
enhancements (§ 667.5, subd. (b).) The complaint alleged this assault occurred on
February 25, 2017.
On April 25, 2018, defendant pleaded no contest to the assault with a deadly
weapon charge and admitted the prior strike and three prior prison terms. The remaining
allegation (i.e., the great bodily injury enhancement) was dismissed. The court gave an
“indicated sentence” of six years, to be served concurrently with sentence in case No.
F17901320 (described below).
Case No. F17901320
The second complaint filed March 3, 2017, charged defendant with unlawful
driving or taking of a vehicle (count 1; Veh. Code, § 10851, subd. (a)), receiving stolen
property (i.e., a vehicle) (count 2; § 496d, subd. (a)) and evading a police officer with

1 All further statutory references are to the Penal Code unless otherwise noted.

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while driving with willful or wanton disregard for the safety or persons or property
(count 3; Veh. Code, § 2800.2, subd. (a)). The complaint alleged counts 1 and 2 occurred
on February 12, 2017, and that count 3 occurred on March 1, 2017. The complaint also
alleged three prior prison term enhancements (§ 667.5, subd. (b)), and that defendant had
suffered a prior strike (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)).
On April 25, 2018, defendant pleaded no contest to all three counts, and admitted
the prior strike and three prior prison terms, with a maximum exposure of nine years in
state prison. Defendant’s plea form indicated that the district attorney “does not oppose
concurrent sentence.”
Case No. F18905146
On July 31, 2018, the district attorney filed a criminal complaint charging
defendant with carrying a concealed dirk or dagger (§ 21310.) The complaint also
alleged three prior prison term enhancements (§ 667.5, subd. (b)), and that defendant had
suffered a prior strike2 (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)).
On August 7, 2018, defendant pleaded no contest to carrying a concealed dirk or
dagger and admitted the prior strike and three prior prison terms.
Sentencing
In case No. F17901318, the court sentenced defendant to three years for assault
with a deadly weapon, doubled to six years for the strike prior. The court imposed a
restitution fine of $1,800, a court security fee of $40, and a criminal conviction
assessment fee of $30.

2 However, the copy of the complaint in the appellate record contains a
handwritten interlineation next to the strike allegation reading: “not a strike” followed by
what appears to be initials. Another handwritten interlineation appears next to one of the
prior prison term enhancements reading: “prior strike” again followed by what appears
to be initials.

3.
 In case No. F17901320, the court sentenced defendant to two years on each of the
three counts, to be served concurrently to the six-year term imposed in case
No. F17901318. The court struck the prior strike conviction for purposes of sentencing
in case No. F17901320. The court imposed a restitution fine of $600, and “[a]n
additional fine of $600 will be imposed if a period of parole is ordered.” The court also
imposed a criminal conviction assessment fee of $120 and a court security fee of $90.
In case No. F18905146, the court sentenced defendant to a consecutive term of
one year four months (double the midterm of eight months). The court imposed a
restitution fine of $300, plus “[a]n additional fine” of $300 “if a period of parole is
ordered.” The court also imposed a court security fee of $40 and a criminal conviction
assessment fee of $30.
The court stayed imposition of sentence on the three prior prison terms.
In total, defendant was sentenced to seven years four months in prison.3
Defendant did not lodge any objections to the imposition of the fines and fees in
any of his cases.
Request for Certificate of Probable Cause
A request for certificate of probable cause was requested on defendant’s behalf.
The form provides a space to identify the “reasonable constitutional, jurisdictional or
other grounds going to the legality of the guilty plea, no contest plea or probation
violation admission proceeding are (specify)” In that space is the following handwritten
text: “I am not sure that [defendant] wants to appeal. He told me to appeal his cases
w/out providing me details. Because the 60 days expire on 10/7/18, [I] am filing this
notice as is.” The court denied the request for a certificate of probable cause on
October 9, 2018.

3 The court also imposed sentence in two misdemeanor cases that are not subjects
of the present appeal.

4.
 FACTS
Case No. F179013184
On February 25, 2017, defendant was at his friend Sylvia P.’s residence. At
around 10:10 p.m., defendant asked Sylvia if he could use her vehicle. She replied,
“ ‘[N]o.’ ” Defendant asked several more times and again Sylvia refused. Defendant
became upset and walked towards Sylvia’s bedroom. Sylvia told defendant he needed to
leave. Defendant suddenly turned around and sliced Sylvia on her cheek with a box
cutter. Sylvia ran into the living room and told her daughter to call 911. Sylvia’s
daughter attempted to call 911, but defendant grabbed the phone out of her hands.
Sylvia struck defendant with a screwdriver, causing him to flee. As defendant
fled, he slashed the tires on Sylvia’s vehicle. He also threw Sylvia’s daughter’s phone at
Sylvia, but it landed in front of her.
Case No. F17901320
Cynthia C. discovered her vehicle was missing from her apartment parking stall
around noon on February 12, 2017. She reviewed surveillance cameras and observed
defendant driving her vehicle away. Cynthia sent a text message to defendant telling him
to return her vehicle. Defendant replied that he would return her vehicle if Cynthia’s
husband returned his cell phone. Cynthia located her vehicle about two weeks later.
On March 1, 2017, defendant was located driving a different vehicle. A police
officer attempted a traffic stop, but defendant drove over a concrete island and fled. The
officer pursued defendant. Defendant continued to flee, driving at speeds of 60 to 70
miles per hour, ran a red light, and failed to stop at a stop sign. Eventually, officers were
able to cause defendant to “spin out.” He was then arrested.

4 Both parties cite to the probation report for the underlying facts of cases
Nos. F1790318 and F17901320. The probation report relies on the underlying police
reports. We will do the same.

5.
 DISCUSSION

I. Defendant’s Challenge to his Convictions Based on Taking and Receiving the
Same Property are Foreclosed by his Failure to Obtain a Certificate of
Probable Cause
Defendant argues that he was improperly convicted of taking and receiving the
same property. We conclude this contention is not cognizable because defendant did not
obtain a certificate of probable cause.
A defendant is statutorily prohibited from appealing a judgment of conviction
upon a plea of nolo contendere without first obtaining a certificate of probable cause.
(§ 1237.5; see People v. Cuevas (2008) 44 Cal.4th 374, 379 (Cuevas).) This prohibition
applies to a defendant who, after pleading no contest, “contends the judgment of
conviction must be vacated for the reason that ‘one may not be convicted of stealing and
of receiving the same property.’ [Citations.]” (People v. Jones (1995) 33 Cal.App.4th
1087, 1091 (Jones).) That is precisely the contention defendant makes in the present
appeal. Therefore, it is incognizable under section 1237.5 and Jones.
Defendant notes there is a split of authority on this issue. He cites People v. Loera
(1984) 159 Cal.App.3d 992, which held that an analogous argument was – “in effect” – a
claim that the sentence was unlawful. (Id. at pp. 997-998.) The court reasoned that since
an unlawful sentence is a “jurisdictional defect,” it is subject to correction whenever it
comes to the attention of a reviewing court.
We cannot agree with Loera. A defendant’s claim that he cannot be convicted of
taking and receiving the same property is, necessarily, a challenge to those convictions
rather than the resultant sentence. (Jones, supra, 33 Cal.App.4th at p. 1092.) The fact
that a reversal of a conviction would necessarily extinguish the sentence attached to it
does not transform an attack on the conviction into an attack on the sentence. “[T]he
critical inquiry is whether a challenge to the sentence is in substance a challenge to the

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validity of the plea, thus rendering the appeal subject to the requirements of section
1237.5.” [Citation.]” (People v. Panizzon (1996) 13 Cal.4th 68, 76.)
Moreover, even if defendant could be said to have raised a “jurisdictional defect,”
it would not render section 1237.5 inapplicable. The statute specifically and expressly
applies to “jurisdictional … grounds.” (§ 1237.5, subd. (a).) In other words, even if a
jurisdictional defect is at issue, it must be raised via certificate of probable cause.
Nor can we agree with People v. Corban (2006) 138 Cal.App.4th 1111, which
distinguished between appeals raising “purely legal argument[s]” versus appeals raising
issues that are “at least partially factual.” (Id. at pp. 1116-1117.) Nothing in the
certificate of probable cause statute supports such a distinction. (§ 1237.5.)
Accordingly, we will follow Jones. Since defendant is raising an “issue affecting
the validity of the plea,” we will not consider the issue without a certificate of probable
cause. (See Cal. Rules of Court, rule 8.304(b)(5).)

II. Defendant was not Required to Obtain a Certificate of Probable Cause to
Raise his Section 654 Claim; We Thus Accept the Attorney General’s
Concession that the Imposition of Sentence on the Receiving Stolen Property
Conviction Must be Stayed Under Section 654
A. Certificate of Probable Cause
Defendant next contends that his sentence for receiving stolen property in case
No. F17901320 must be stayed under section 654. The Attorney General posits that this
claim is also incognizable because defendant failed to obtain a certificate of probable
cause.
“A defendant may not appeal ‘from a judgment of conviction upon a plea of guilty
or nolo contendere,’ unless he has obtained a certificate of probable cause. [Citations.]”
(Cuevas, supra, 44 Cal.4th at p. 379.) However, “postplea claims, including sentencing
issues, that do not challenge the validity of the plea” are exempt from this certificate
requirement. (Ibid.) Thus, “[f]or purposes of the certificate of probable cause
requirement, the critical question is whether defendant’s section 654 challenge to his

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sentence is in substance a challenge to the validity of his plea. [Citations.]” (Id. At
p. 381.) Or, in contrast, is defendant’s claim “ ‘merely that the trial court abused the
discretion the parties intended it to exercise …’ ”? (Id. at p. 379.)
The Attorney General relies on Cuevas in arguing a certificate of probable cause is
required here. In Cuevas, the defendant entered a plea agreement whereby the prosecutor
would reduce two kidnapping for robbery counts (each carrying a life sentence) to simple
kidnapping and dismiss 31 firearm allegations and replace them with a single weapon use
enhancement. (Cuevas, supra, 44 Cal.4th at p. 383.) Under the original charges, the
defendant would have faced two life sentences plus 37 years. (Ibid.) Under the charges
contemplated by the plea agreement, the defendant faced a statutory maximum of 37
years eight months. (Id. at pp. 383-384.)
Cuevas argued he did not need a certificate of probable cause because he was not
attacking the validity of his plea. He contended that his case was different from other
cases where the defendants obtained a “sentence lid”5 as part of their plea agreement.
Those defendants agreed to a sentence lid that was less than their maximum statutory
exposure as part of their plea bargain. Therefore, they were precluded from challenging
the sentence on appeal because it was part of their plea. Cuevas argued that, unlike those
defendants, his maximum sentence was just a reflection of the statutory maximum for the
crimes he was pleading to.
The Cuevas court disagreed. While the maximum sentence component of the
defendant’s plea bargain did not reflect a reduction in the statutory maximum attached to
the reduced charges; the defendant was still benefitting from a reduced sentence than
what he otherwise would have faced if the original charges had been left in place. Thus,
the statutory maximum for the remaining charges was “ ‘part and parcel’ ” of the plea

5A sentence lid is a maximum sentence that is lower than what the trial court
could otherwise lawfully impose.

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bargain and could not be challenged without a certificate. (Cuevas, supra, 444 Cal.4th at
p. 384.)
The present case is distinguishable from Cuevas. Here, defendant’s plea form did
state a maximum sentence of nine years in prison. However, this maximum sentence of
nine years was not the result of any reduction in charges as part of his plea bargain in
case No. F17901320.6 Instead, it was simply the statutory maximum attached to the
crimes with which he was charged. In other words, it is the exposure defendant faced
even if no plea bargain had been reached. Thus, it was not a negotiated aspect of the plea
bargain (e.g., sentence lid), nor was it the result of any negotiated aspect of the plea
bargain (e.g., dismissed/reduced charges). Therefore, we conclude that this case is not
governed by Cuevas, but instead by the following general rule:

“When the parties negotiate a maximum sentence, they obviously mean
something different than if they had bargained for a specific or
recommended sentence. By agreeing only to a maximum sentence, the
parties leave unresolved between themselves the appropriate sentence
within the maximum. That issue is left to the normal sentencing discretion
of the trial court, to be exercised in a separate proceeding.” (People v.
Buttram (2003) 30 Cal.4th 773, 785.)
A defendant may challenge that sentencing discretion without a certificate of
probable cause. (People v. Buttram, supra, 30 Cal.4th at pp. 785-786.)
Consequently, we conclude that no certificate of probable cause was required to
raise this issue on appeal.

6 Defendant simultaneously entered into plea bargains regarding other pending
cases. In case No. F17901318, the plea bargain did include dismissal of a great bodily
injury enhancement. Other charges were also dismissed in other cases.
While the various plea bargains were certainly related and clearly negotiated
simultaneously, that does not change the fact that the nine-year maximum stated on the
plea form for case No. F17901320 only related to the charges at issue in that particular
case. And those charges were not dismissed or reduced as part of the bargain. Therefore,
the recitation of the nine-year statutory maximum was clearly an advisement, not a “part
and parcel” term of the plea bargain.

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 B. We Accept the Attorney General’s Concession that if We Reach the Section
654 Issue, the Conviction for Receiving Stolen Property Should be Stayed
The Attorney General concedes that if we reach the merits of defendant’s section
654 claim, imposition of the sentence on count 2 of case No. F17901320 should be stayed
under section 654. We accept the concession and will order the imposition of sentence
on count 2 of case No. F1790320 stayed pursuant to section 654.

III. Defendant Forfeited Most of his Ability-to-Pay Challenges; the Remainder
are Meritless
Defendant claims the court violated the due process and equal protection clauses
of the federal and state constitutions when it imposed fines and fees without first finding
he had the ability to pay them. We conclude defendant forfeited his ability-to-pay
challenges in cases Nos. F17901320 and F17901318. We find the remaining ability-to-
pay challenge (case No. F18905146) to be meritless.

A. Defendant Forfeited his Ability-to-Pay Challenges in Cases
Nos. F17901320 and F17901318
In cases Nos. F17901320 and F17901318, the court-imposed restitution fines
above the statutory minimum of $300. (See former § 1202.4, subd. (b)(1).) Because
these fines were above the statutory minimum, defendant could have made a nonfutile
request for the court to consider his ability to pay. Yet, he failed to do so and thereby
forfeited his ability-to-pay challenges in those cases. (See People v. Lowery (2020) 43
Cal.App.5th 1046, 1053-1054.)
However, in case No. F18905146, the court imposed a restitution fine of $300, the
statutory minimum. (See former § 1202.4, subd. (b)(1).) Because the fine was set at the
statutory minimum, defendant had no statutory right to raise an ability-to-pay challenge.
(See former § 1202.4, subd. (c).) Therefore, we will proceed to the merits of defendant’s
claims as to case No. F18905146.

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 B. Defendant’s Claim the Sentencing Court Violated the Federal and State
Due Process and Equal Protection Clauses is Meritless
Defendant argues that the imposition of fines and fees without a finding he had the
ability to pay violates the federal and state due process and equal protection clauses. We
reject his argument.
“ ‘[G]eneral “fairness” grounds of due process and/or equal protection principles
do not afford a defendant a preassessment ability-to-pay hearing before a trial court
imposes fines and fees on him or her.’ [Citations.]” (People v. Aviles (2019) 39
Cal.App.5th 1055, 1068.) While the People v. Dueñas (2019) 30 Cal.App.5th 1157
interprets these constitutional provisions differently, we respectfully disagree with that
opinion’s assessment of the equal protection and due process clauses. (See Aviles, at
pp. 1067-1068.)
Pursuant to Aviles, we reject defendant’s claim that the imposition of fines and
fees violated the federal and state due process and equal protection clauses.

IV. We Accept the Attorney General’s Concession that the Judgment Should be
Conditionally Reversed to Allow the Trial Court to Exercise its New
Discretion to Order Pretrial Mental Health Diversion under Section 1001.36
“In June 2018, the Legislature enacted Penal Code sections 1001.35 and 1001.36,
which created a pretrial diversion program for certain defendants with mental health
disorders. [Citation.]” (People v. Frahs (2020) 9 Cal.5th 618, 624, fn. omitted (Frahs).)
These statutes apply retroactively to defendants whose judgments were not final when the
statutes took effect. (Id. at pp. 624-625.) Accordingly, conditional reversal and remand
of said judgments is appropriate, at least where the record shows the defendant appears to
suffer from a qualifying mental disorder.7 (Id. at p. 640.)

7 In the appellate record appears a “Routine Initial Psychiatric Evaluation” report
dated June 1, 2014, prepared by the Department of Corrections and Rehabilitation. The
report includes a section titled “DSM IV Diagnosis.” In that section, next to the text
“MOOD DISORDERS,” the report reads: “Mood Disorder NOS vs PTSD vs Bipolar
Disorder NOS.”

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 Defendant argues he is entitled to such relief here and the Attorney General
agrees. We accept the concession. However, “[w]e express no view regarding whether
defendant will be able to show eligibility on remand or whether the trial court should
exercise its discretion to grant diversion if it finds him eligible.” (Frahs, supra, 9 Cal.5th
at p. 625.)
V. Corrections to Abstract of Judgment
The Attorney General brings to our attention several errors in the abstract of
judgment. Since the judgment is being conditionally reversed on other grounds and the
matter remanded, we will direct the errors be corrected on remand.
The abstract of judgment indicates an upper term on count “A001” of case
No. 17901318 (assault with a deadly weapon) when the middle term was actually
imposed.8 Additionally, the stayed prior prison term enhancements were omitted from
the abstract of judgment. These errors should be corrected on remand.
DISPOSITION
The judgment is conditionally reversed, and the matter is remanded for further
proceedings.
On remand, the court shall order the imposition of sentence for count “B002,”
receiving stolen property stayed pursuant to section 654. The trial court shall cause a
new abstract of judgment to be prepared reflecting the section 654 stay, and correcting
the clerical errors identified in section V, ante, of this opinion.
On remand, the trial court shall conduct a mental health diversion eligibility
hearing pursuant to section 1001.36 and Frahs, supra, 9 Cal.5th 618. If the trial court
finds defendant meets the eligibility requirements of section 1001.36, the court may grant
relief as provided in the statute. However, if the court finds defendant does not meet the

8 The same error can be found on the sentencing minute order.

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requirements of section 1001.36, or if he does not successfully complete the diversion
program, then his convictions and sentence shall be reinstated.

POOCHIGIAN, J.
WE CONCUR:

HILL, P.J.

SMITH, J.

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