Filed 8/4/21 P. v. Shoker 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sutter)
----
THE PEOPLE, C090991
Plaintiff and Respondent, (Super. Ct. No. CRF181846)
v.
PARAMJEET SINGH SHOKER,
Defendant and Appellant.
Defendant Paramjeet Singh Shoker pled guilty to one count of driving with a
blood alcohol level of .08 percent or more causing injury and admitted that he had
suffered two prior DUI convictions and had caused great bodily injury. On appeal, he
argues: (1) his trial counsel was ineffective in failing to seek pretrial mental health
diversion under Penal Code section 1001.36, subdivision (b)(1);1 (2) the trial court
imposed an unauthorized sentence by ordering him to pay victim restitution for the
damage of the victim’s vehicle under section 1202.4, subdivision (f); and (3) the trial
1 Further undesignated statutory references are to the Penal Code.
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court erred in imposing certain assessments and restitution fines without holding an
evidentiary hearing to determine his ability to pay them.
We will affirm.
I. BACKGROUND
On February 27, 2019, defendant was charged in count 1 with driving under the
influence (DUI) of alcohol causing injury (Veh. Code, § 23153, subd. (a)); in count 2
with driving with a blood alcohol level of .08 percent or more causing injury (Veh. Code,
§ 23153, subd. (b)); in count 3 with misdemeanor driving on a suspended license (Veh.
Code, § 14601.2, subd. (a)); in count 4 with misdemeanor driving a vehicle not equipped
with an interlock ignition device (Veh. Code, § 23247, subd. (e)); in count 5 with an
infraction for driving with a .01 percent or more blood alcohol level while on probation
for a prior DUI (Veh. Code, § 23154, subd. (a)); and in count 6 with an infraction for
failing to stop at a stop sign (Veh. Code, § 21802, subd. (a)). With respect to counts 1
and 2, it was also alleged that defendant had suffered two prior DUI convictions within
the previous 10 years (Veh. Code, § 23566, subd. (a)), had caused great bodily injury
(§ 12022.7, subd. (a)), and that defendant’s blood alcohol level was .15 percent or more
(Veh. Code, § 23578).
On April 15, 2019, defense counsel informed the court that defendant was at a
behavioral health facility after being released from the hospital. Defense counsel then
declared a doubt as to defendant’s competency under section 1368. The court ordered all
criminal proceedings suspended. After reviewing Dr. Deborah Schmidt’s report on her
examination of defendant, the court found him competent to stand trial and reinstated
criminal proceedings.
Defendant pled guilty to count 2 and admitted that he had suffered two prior DUI
convictions and had caused great bodily injury. He was advised that he faced a
maximum seven-year prison term, and he entered the open plea with the understanding
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the remaining counts and allegations would be dismissed with a waiver pursuant to
People v. Harvey (1979) 25 Cal.3d 754.
Prior to sentencing, defense counsel filed a statement in mitigation of sentence in
which she requested that defendant be placed on probation and indicated he was prepared
to complete a residential treatment program to address his alcohol issues. She indicated
that he had a 30-year history with alcohol-related criminal activity. Defendant
subsequently appeared at the sentencing hearing with newly retained counsel, who
requested a continuance of the sentencing hearing “to explore [Assembly Bill No.] 1810
issues.” Defense counsel did not file a motion related to Assembly Bill No. 1810 but
declared a doubt as to defendant’s competency under section 1368. The court again
suspended criminal proceedings and appointed Dr. Schmidt. The court reviewed Dr.
Schmidt’s second report, found defendant competent to stand trial, and reinstated
criminal proceedings.
The court sentenced defendant to the middle term of three years on count 2, plus
three years consecutive for the great bodily injury enhancement, for a total term of six
years in state prison. The court ordered defendant to pay a conviction assessment of $30
(Gov. Code, § 70373), a court operations assessment of $40 (§ 1465.8), a $4 Emergency
Medical Air Transportation Act assessment (Gov Code, § 76000.10), and a restitution
fine of $300 (§ 1202.4, subd. (b)), with an additional $300 parole revocation fine, which
was stayed pending successful completion of parole (§ 1202.45). Additionally, the court
ordered defendant to pay $2,706.13 in victim restitution.
Defendant submitted letters to the court indicating that he wished to withdraw his
plea and that he would like to receive treatment at a program. Appellate counsel filed a
motion in this court to construe the letters as a notice of appeal and request for certificate
of probable cause in the superior court. This court granted the requests, and the superior
court issued a certificate of probable cause.
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II. DISCUSSION
A. Ineffective Assistance of Counsel
Defendant contends his counsel was ineffective in failing to seek mental health
diversion under section 1001.36. Specifically, defendant argues that counsel was
ineffective “when, despite arguing that, in light of [defendant]’s mental disorders,
[defendant] should be placed into a program and granted probation, counsel did not argue
that [defendant] should be diverted under the newly enacted Penal Code sections 1001.35
and 1001.36.” (Emphasis omitted.) We disagree.
Effective June 27, 2018, “the Legislature enacted sections 1001.35 and 1001.36 as
part of Assembly Bill No. 1810 (2017-2018 Reg. Sess.) . . . . [Citation.] Section 1001.36
gives trial courts the discretion to grant pretrial diversion for individuals suffering from
certain mental health disorders. (§ 1001.36, subd. (a).)” (People v. Frahs (2020)
9 Cal.5th 618, 626.) “The stated purpose of the diversion statute ‘is to promote all of the
following: [¶] (a) Increased diversion of individuals with mental disorders to mitigate the
individuals’ entry and reentry into the criminal justice system while protecting public
safety. [¶] (b) Allowing local discretion and flexibility for counties in the development
and implementation of diversion for individuals with mental disorders across a
continuum of care settings. [¶] (c) Providing diversion that meets the unique mental
health treatment and support needs of individuals with mental disorders.’ (§ 1001.35,
subds. (a)-(c).)” (Ibid.)
Section 1001.36 defines “pretrial diversion” as “the postponement of prosecution,
either temporarily or permanently, at any point in the judicial process from the point at
which the accused is charged until adjudication, to allow the defendant to undergo mental
health treatment.” (§ 1001.36, subd. (c).) If a defendant is charged with a qualifying
offense, a trial court may grant pretrial diversion if it finds all of the following: (a) the
defendant suffers from a qualifying mental disorder; (b) the mental disorder was a
significant factor in the commission of the charged offense; (c) in the opinion of a
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qualified mental health expert, the defendant’s symptoms will respond to mental health
treatment; (d) the defendant consents to diversion and waives his or her right to a speedy
trial; (e) the defendant agrees to comply with treatment as a condition of diversion; and
(f) the defendant will not pose an unreasonable risk of danger to public safety if treated in
the community. (Id., subd. (b)(1)(A)-(F).)
If the six criteria in section 1001.36, subdivision (b)(1), are met, and if the trial
court “is satisfied that the recommended inpatient or outpatient program of mental health
treatment will meet the specialized mental health treatment needs of the defendant”
(§ 1001.36, subd. (c)(1)(A)), the court may order diversion into an approved mental
health treatment program for up to two years (id., subd. (c)(1) & (3)). If the defendant
commits an additional offense or otherwise performs unsatisfactorily in the diversion
program, the court may reinstate the criminal proceedings. (Id., subd. (d).) “If the
defendant has performed satisfactorily in diversion, at the end of the period of diversion,
the court shall dismiss the defendant’s criminal charges that were the subject of the
criminal proceedings at the time of the initial diversion,” and “the arrest upon which the
diversion was based shall be deemed never to have occurred.” (Id., subd. (e).)
A defendant bears the burden of making a prima facie showing that he meets the
minimum requirements of eligibility for diversion. (§ 1001.36, subd. (b)(3).) Even if a
defendant otherwise satisfies the six eligibility requirements, the court must nonetheless
be satisfied that the recommended mental health treatment program “will meet the
specialized mental health treatment needs of the defendant.” (§ 1001.36, subd.
(c)(1)(A).) “Before approving a proposed treatment program, the court shall consider the
request of the defense, the request of the prosecution, the needs of the defendant, and the
interests of the community.” (§ 1001.36, subd. (c)(1)(B).)
To establish ineffective assistance, a defendant must show (1) counsel’s
performance fell below an objective standard of reasonableness under prevailing
professional norms, and (2) the deficient performance prejudiced the defendant. (People
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v. Ledesma (1987) 43 Cal.3d 171, 216-218 (Ledesma); Strickland v. Washington (1984)
466 U.S. 668, 687-692.)
In measuring counsel’s performance, judicial review is highly deferential.
(Ledesma, supra, 43 Cal.3d at p. 216; In re Andrews (2002) 28 Cal.4th 1234, 1253.)
“When examining an ineffective assistance claim, a reviewing court defers to counsel’s
reasonable tactical decisions, and there is a presumption counsel acted within the wide
range of reasonable professional assistance. It is particularly difficult to prevail on an
appellate claim of ineffective assistance.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)
When the strategic reasons for challenged decisions are not apparent from the record, we
will not find ineffective assistance of counsel unless there could have been “ ‘ “no
conceivable tactical purpose” ’ ” for counsel’s acts or omissions. (People v. Earp (1999)
20 Cal.4th 826, 896; see People v. Arce (2014) 226 Cal.App.4th 924, 930-931.)
The record demonstrates defense counsel was aware of section 1001.36 once it
was enacted because counsel requested a continuance to explore options related to the
new legislation, but there is no information in the record that explains why defense
counsel did not pursue diversion on defendant’s behalf. While defendant argues no
tactical reason could excuse counsel’s omission to seek mental health diversion, we
disagree.
Certainly, defendant’s mental health issues were well known to defense counsel,
as counsel declared a doubt as to defendant’s competency under section 1368.
Nevertheless, defense counsel could have chosen not to request diversion for a variety of
reasons. Specifically, counsel could have discussed the matter with defendant, and he
may have refused to consent to diversion or defendant could have refused to comply with
mental health treatment. (§ 1001.36, subd. (b)(1)(D) & (E).) Counsel may also have
determined that there was insufficient evidence to support one or more of the
requirements for mental health diversion. There also could be other reasons that
reasonably led defense counsel to conclude that the trial court would have ruled that
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defendant was ineligible for mental health diversion. Counsel may have believed that the
trial court would have found that defendant posed a risk of danger to public safety due to
the fact this was defendant’s eleventh DUI with a high blood alcohol content
enhancement, and he was on probation for a prior DUI at the time he committed the
current offense. The record contains no information one way or the other. “Under those
circumstances, a reviewing court has no basis on which to determine whether counsel had
a legitimate reason for making a particular decision, or whether counsel’s actions or
failure to take certain actions were objectively unreasonable.” (People v. Mickel (2016)
2 Cal.5th 181, 198.) Nor has defendant shown “affirmative evidence that counsel could
have had ‘no rational tactical purpose’ for these decisions.” (Id. at p. 200.)
Because there are legitimate reasons why defense counsel may have chosen not to
pursue a mental health diversion eligibility hearing on defendant’s behalf, we cannot
conclude defense counsel’s performance was objectively unreasonable. Under these
circumstances, an ineffective assistance claim is more appropriately decided in a habeas
corpus proceeding. (People v. Gray (2005) 37 Cal.4th 168, 211 [rejecting claim of
ineffective assistance of counsel because it “is more appropriately raised in a petition for
a writ of habeas corpus”]; People v. Jones (2003) 29 Cal.4th 1229, 1263, habeas granted
in Jones v. Chappell (C.D.Cal. 2014) 31 F.Supp.3d 1050 [issues requiring review of
matters outside the record are better raised on habeas corpus rather than on direct appeal];
People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [a claim of ineffective
assistance of counsel relating to “ ‘ “why counsel acted or failed to act in the manner
challenged” ’ ” is more appropriately decided in a habeas corpus proceeding].)
B. Victim Restitution
Defendant contends that the trial court imposed an unauthorized sentence “when it
ordered [him] to pay $1,640.69[] to [the victim’s] auto insurance company as victim
restitution under [] Section 1202.4, subdivision (f).” (Emphasis omitted.) He argues that
because he was convicted of DUI with injury to the victim, he cannot be ordered to pay
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restitution for the cost of damage to the victim’s automobile. In the alternative, he argues
his counsel was ineffective in failing to object to an unauthorized sentence. We disagree.
The victim in this case requested $2,706.13 in total restitution as follows: $180.99
for medical expenses; $1,640.69 in property damage to the victim’s vehicle, which was
reimbursed to him by his insurance provider because defendant did not have insurance;
$159.00 for damaged earphones; and $725.45 for reimbursement for the value of a plane
ticket he was unable to utilize as a result of his injuries due to the offense. The probation
report stated that the victim claimed the $1,640.69 for the damage to his car “on behalf of
his insurance company.” The trial court imposed victim restitution in the amount
requested, and defense counsel did not object.
A crime victim is entitled to restitution for economic losses caused by a
defendant’s criminal conduct. (Cal. Const., art. I, § 28, subd. (b)(13)(B); § 1202.4, subd.
(a)(1) & (f).) The amount of restitution “shall be of a dollar amount that is sufficient to
fully reimburse the victim or victims for every determined economic loss incurred as the
result of the defendant’s criminal conduct.” (§ 1202.4, subd. (f)(3).) “Thus, restitution
not only requires a crime, a victim, and an economic loss, but the victim must have
actually suffered the economic loss because of the criminal conduct.” (People v. Busser
(2010) 186 Cal.App.4th 1503, 1508.) “The Legislature intended restitution to ‘restore the
economic status quo’ by returning to the victim ‘ “funds in which he or she has an
ownership interest” ’ following a criminal conviction. [Citation.] However, ‘a restitution
order “is not . . . intended to provide the victim with a windfall. [Citations.]” ’
[Citation.] Therefore, ‘restitution of the victim is only ordered if the victim suffers
economic loss.’ [Citation.] . . . Victims are only entitled to an amount of restitution so
as to make them whole, but nothing more, from their actual losses arising out of the
defendants’ criminal behavior.” (Id. at p. 1510.) “[V]ictim restitution is limited to
economic loss but is unlimited in the amount that can be ordered.” (People v. Harvest
(2000) 84 Cal.App.4th 641, 649.)
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When calculating the amount of restitution, the court must use a “ ‘rational method
that could reasonably be said to make the victim whole.’ ” (People v. Mearns (2002)
97 Cal.App.4th 493, 498.) The amount of restitution must have a “ ‘factual and rational
basis.’ ” (Id. at p. 499.) “We review a restitution order for an abuse of discretion.” (Id.
at p. 498.) “A victim’s restitution right is to be broadly and liberally construed.” (Id. at
p. 500.) “ ‘When there is a factual and rational basis for the amount of restitution ordered
by the trial court, no abuse of discretion will be found by the reviewing court.’ ” (Ibid.)
Defendant first contends that he could not be ordered to pay for the cost of totaling
the victim’s vehicle, because he “was neither charged nor convicted of totaling [the
victim’s] vehicle.” But section 1202.4, subdivision (f)(3) provides that “[t]o the extent
possible, the restitution order . . . shall be of a dollar amount that is sufficient to fully
reimburse the victim or victims for every determined economic loss incurred as the result
of the defendant’s criminal conduct.” Here, the damage to the victim’s vehicle was a
direct result of defendant’s criminal conduct of driving under the influence and causing
an accident in which the victim was injured and the victim’s car was damaged. Thus, the
trial court was well within its discretion when it ordered defendant to pay for the cost of
the damage to the victim’s vehicle sustained in the accident he caused. (See People v.
Holmberg (2011) 195 Cal.App.4th 1310, 1321 [“tort principles of causation apply to
victim restitution claims in criminal cases”].)
Defendant next contends that the restitution award is unauthorized because the
victim’s “insurance company is not a direct victim” and could therefore not be a lawful
recipient of victim restitution. While the probation report stated that the victim was
requesting the money “on behalf” of his insurance company because it had reimbursed
him $1,640.69 for the damage defendant caused, the court ordered restitution to the
victim, not to the victim’s insurance company. Thus, the court imposed the restitution for
the benefit of the victim, not the victim’s insurance company. The insurance company
was not a direct recipient of victim restitution, nor has defendant shown that the victim
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was acting as the insurance company’s agent based on the notation in the probation report
alone. He cites no authority to support the novel position that a crime victim can become
an agent for his or her insurance company by claiming victim restitution that includes
losses reimbursed by his or her insurance company.
Further, because the payment to the victim came from the victim’s insurance
company rather than defendant’s insurance company, defendant is not entitled to an
offset or reduction in the amount of restitution owed. California courts have repeatedly
held that “[p]ayments received by a crime victim from his or her insurance company or
from an independent third party for economic losses suffered as a result of the
defendant’s criminal conduct cannot reduce the amount of restitution the defendant
owes.” (People v. Vasquez (2010) 190 Cal.App.4th 1126, 1133-1134; accord, People v.
Birkett (1999) 21 Cal.4th 226, 246 [“the immediate victim was entitled to receive from
the probationer the full amount of the loss caused by the crime, regardless of whether, in
the exercise of prudence, the victim had purchased private insurance that covered some or
all of the same losses”]; Barickman v. Mercury Casualty Co. (2016) 2 Cal.App.5th 508,
518 [“payments received by a crime victim from the victim’s insurance company or from
an independent third party such as Medicare for economic losses suffered as a result of
the defendant’s criminal conduct cannot reduce the amount of restitution the defendant
owes”]; People v. Hume (2011) 196 Cal.App.4th 990, 996 [“Consistent with the statute,
payments to the victim by the victim’s own insurer as compensation for economic losses
attributed to a defendant’s criminal conduct may not offset the defendant’s restitution
obligation”].)
Finally, defendant contends that his attorney was ineffective in failing to object to
the restitution award because it was an unauthorized sentence. As we have discussed, the
restitution award was not unauthorized and the trial court was well within its discretion in
imposing the restitution award. Thus, defendant cannot show that his attorney was
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ineffective for failing to object on the basis of an unauthorized sentence or that he
suffered prejudice as a result. (Ledesma, supra, 43 Cal.3d at p. 216.)
C. Imposition of Mandatory Court Assessments and Restitution Fine
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant
argues the court operations and conviction assessments and imposition of restitution
under section 1202.4 must be stayed pending an ability to pay determination. Defendant
also perfunctorily asserts forfeiture is improper because he suffered ineffective assistance
of counsel when his trial counsel failed to object to the imposed fines and fees under
Dueñas.
We need not decide whether defendant forfeited his ability to pay argument
because this argument is without merit. Failure to assert a meritless position does not
demonstrate ineffective assistance of counsel. (People v. Kipp (1998) 18 Cal.4th 349,
377.)
Defendant’s appeal hinges on the analysis in Dueñas finding an ability to pay
hearing is required before imposing fines and fees, and we are not persuaded that this
analysis is correct. Our Supreme Court is now poised to resolve this question, having
granted review in People v. Kopp (2019) 38 Cal.App.5th 47, review granted
November 13, 2019, S257844, which agreed with the court’s conclusion in Dueñas that
due process requires the trial court to conduct an ability to pay hearing and ascertain a
defendant’s ability to pay before it imposes court facilities and court operations
assessments under section 1465.8 and Government Code section 70373, but not
restitution fines under section 1202.4. (Kopp, supra, at pp. 95-96.)
In the meantime, we join several other courts in concluding that the principles of
due process and equal protection do not require determination of a defendant’s present
ability to pay before imposing the fines and assessments at issue in Dueñas and in this
proceeding. (People v. Cota (2020) 45 Cal.App.5th 786, 794-795; People v. Kingston
(2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, 329, review
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granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069;
People v. Caceres (2019) 39 Cal.App.5th 917, 928.) Defendant’s Dueñas claim is
without merit, invalidating his ineffective assistance of counsel claim on this issue.
III. DISPOSITION
The judgment is affirmed.
/S/
RENNER, J.
I concur:
/S/
HULL, Acting P. J.
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MAURO, J., Concurring and Dissenting.
I fully concur in the majority opinion except for part II.C. of the Discussion,
pertaining to defendant’s challenge to the imposed fines and assessments, as to which I
dissent.
In People v. Dueñas (2019) 30 Cal.App.5th 1157, the court held it is improper
to impose certain fines or assessments without determining defendant’s ability to pay.
(Id. at pp. 1168, 1172.) Although some courts have subsequently criticized Dueñas’s
legal analysis (see, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, review granted
Nov. 26, 2019, S258946), Dueñas remains citable precedent. Until the California
Supreme Court has had an opportunity to resolve the current split in authority, I believe it
is appropriate in certain cases to remand the matter to give the trial court an opportunity
to consider defendant’s ability to pay.
Here, defendant’s October 2019 sentencing occurred after Dueñas was decided,
but defendant’s counsel did not raise an ability to pay challenge at the sentencing hearing.
Accordingly, an ability to pay challenge is forfeited regarding the fines and assessments.
Nevertheless, because defendant now asserts ineffective assistance of counsel, I would
remand the matter and direct the trial court to assess defendant’s ability to pay the fines
and assessments.
/S/
_________________________
MAURO, J.
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