Filed 3/13/13 P. v. Shepherd 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C070861
Plaintiff and Respondent, (Super. Ct. No. 11F06154)
v.
MICHAEL ANTONIO SHEPHERD,
Defendant and Appellant.
Defendant Michael Antonio Shepherd entered a negotiated plea of no contest to
assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)),1 and admitted using a
semiautomatic firearm in the commission of the crime (§ 12022.5, subds. (a), (d)).
Defendant contends on appeal the trial court erred in imposing at sentencing a
restitution fine of $1,000, after he “agreed” in connection with his plea to a restitution
fine of only $200. He also contends the abstract of judgment must be amended to reflect
the correct enhancement statute. The People concede that defendant is entitled to the
relief he seeks.
1 Unspecified statutory references are to the Penal Code.
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BACKGROUND
At the brief change of plea hearing, the prosecutor said little, other than to confirm
defense counsel’s outline of the disposition; state the factual basis for the plea, a small
matter: while a passenger in the backseat of a car, defendant pointed a gun out the rear
passenger window and fired several shots at his 15-year-old, pedestrian victim, who was
grazed in the leg by a bullet fragment causing three puncture wounds; “join” defense
counsel and defendant in the plea; and ask when sentencing would occur.
There is no written plea agreement in the record on appeal, and the minute order of
defendant’s plea hearing is silent on the matter of restitution fines. However, in response
to the court’s prompting at the change of plea hearing, defendant acknowledged, in
connection with the plea, the court would “order [him to] make restitution for any injuries
and also pay various fines and fees, including [a] mandatory restitution fine of $200.”
The trial court also advised defendant that a different judge would sentence him and if he
were ultimately not sentenced in accordance with the plea, he could withdraw his plea.
Apparently ignorant of the plea “agreement,” the probation department, in its
presentence probation report, recommended imposition of a $2,000 restitution fine,
pursuant to section 1202.4, and the imposition of a second restitution fine in the same
amount, pursuant to section 1202.45, to be suspended unless defendant’s parole is
revoked.
At the sentencing hearing before a second judge, the prosecutor made no
comment, while defense counsel asked the trial court to “consider reducing” the
restitution fine amounts recommended by the probation department to “under a thousand
dollars.” The trial court reserved imposition of victim restitution and imposed a
restitution fine and suspended parole restitution fine in the amount of $1,000, each.
DISCUSSION
Defendant contends on appeal the imposition of $1,000 restitution fines violated
his plea agreement. The People, finally, dispute that the $200 restitution fine was a part
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of the parties’ plea agreement, but agree, by virtue of the colloquy at the change of plea
hearing, the $200 restitution fines “thereby became part of the bargain.”
Thus, it appears, $200 restitution fines became an “agreed” term of the plea
agreement by default because, during the plea proceedings, the prosecutor said nothing of
plea terms, defense counsel said nothing of restitution fines when outlining plea terms to
the court, the judge taking the plea never asked the prosecutor or defense counsel on the
record about their silence as to restitution fines, and neither of them spoke up when the
court, apparently gratuitously, specified the minimum.
We momentarily deal with defendant’s option to withdraw his plea. Because
defendant received the admonition pursuant to section 1192.52 that he may withdraw his
plea if he received a greater sentence than the parties agreed, the Attorney General says
defendant forfeited his right to argue on appeal that a restitution fine larger than $200
constituted a violation of his plea agreement. Defense counsel did not claim at
sentencing that imposition of the restitution fines violated the plea agreement; instead, he
urged the court merely to reduce the probation department’s recommended $2,000
restitution fines to some amount “under a thousand dollars.” By failing to object in the
trial court, defendant has forfeited his right to argue on appeal that the plea agreement
was violated.
2 Section 1192.5 provides in pertinent part: “Where the plea is accepted by the
prosecuting attorney in open court and is approved by the court, the defendant, except as
otherwise provided in this section, cannot be sentenced on the plea to a punishment more
severe than that specified in the plea and the court may not proceed as to the plea other
than as specified in the plea. [¶] If the court approves of the plea, it shall inform the
defendant prior to the making of the plea that (1) its approval is not binding, (2) it may,
at the time set for the hearing on the application for probation or pronouncement of
judgment, withdraw its approval in the light of further consideration of the matter, and
(3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she
desires to do so. . . .”
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To avoid the effect of forfeiture, defendant next argues that his trial counsel
rendered ineffective assistance by failing to object when the trial court imposed
restitution fines of $1,000. The People agree.
“A meritorious claim of constitutionally ineffective assistance must establish both:
‘(1) that counsel’s representation fell below an objective standard of reasonableness; and
(2) that there is a reasonable probability that, but for counsel's unprofessional errors, a
determination more favorable to defendant would have resulted. [Citation.]’ ” (People v.
Holt (1997) 15 Cal.4th 619, 703, original italics; Strickland v. Washington (1984) 466
U.S. 668, 687 [80 L.Ed.2d 674, 693]; People v. Lopez (2008) 42 Cal.4th 960, 966.) “ ‘If
the record on appeal sheds no light on why counsel acted or failed to act in the manner
challenged, an appellate claim of ineffective assistance of counsel must be rejected unless
counsel was asked for an explanation and failed to provide one, or there simply could be
no satisfactory explanation. [Citation.]’ [Citation.]” (People v. Gamache (2010) 48
Cal.4th 347, 391; People v. Camino (2010) 188 Cal.App.4th 1359, 1377.)
The parties agree defense counsel should have objected at the sentencing hearing
that the $1,000 restitution fines ultimately imposed violated “the” plea agreement. There
appears to be no apparent tactical reason for that failure. Had defense counsel objected
on the ground defendant had “agreed as part of his plea bargain” to restitution fines of
$200, the parties suggest the sentencing judge may have given defendant his choice to
withdraw his plea or, perhaps, reduced and imposed the $200 restitution fines
“anticipated” earlier by defendant without inquiry by the judge, dispute from the
prosecutor, or comment by defense counsel.3 No tactical basis for defense counsel’s
3 Rather than remand to permit the sentencing judge to exercise his discretion on
whether to reduce the restitution fines and, if he does not, whether the defendant would
actually withdraw his plea, the Attorney General joins with defendant to ask us to reduce
both restitution fines from $1,000 each to $200 each. We do so for reasons of judicial
economy as requested by the Attorney General.
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failure to object is discernible from the record. Thus, by his failure to object, both sides
agree, defense counsel was prejudicially ineffective.
On a separate subject, the parties here agree the abstract of judgment incorrectly
reflects the imposition of two, two-year enhancements, under section 12022.5,
subdivisions (a) and (d), respectively. The parties are right, two sentences for a single
enhancement are not allowed.
Finally, the abstract of judgment states defendant’s conviction and enhancement
are as to count one, but the correct count number is count two.
DISPOSITION
The judgment is modified to reflect a $200 restitution fine (§ 1202.4) and a $200
suspended parole restitution fine (§ 1202.45). The clerk of the superior court is directed
to prepare an amended abstract of judgment reflecting these modifications, correct the
abstract to reflect the imposition of a single four-year enhancement pursuant to section
12022.5, subdivision (a), correct the abstract to reflect that the conviction and
enhancement are as to count two, and forward a copy to the Department of Corrections.
In all other respects, the judgment is affirmed.
NICHOLSON , J.
We concur:
RAYE , P. J.
BLEASE , J.
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