Filed 12/27/19 P. v. Baker 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Lassen)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

ARIK TIMOTHY BAKER,

Defendant and Appellant.

C087487

(Super. Ct. No. CR032578)

Arik Timothy Baker pleaded guilty to sexual penetration or oral copulation of a child aged 10 or younger, continuous sexual abuse of a child, and aggravated sexual assault of a child. The trial court imposed a stipulated sentence of 45 years to life plus 16 years in state prison and ordered defendant to pay various fines and fees including a $15,000 restitution fine, a $300 parole revocation fine, a $160 court operations assessment, and a $120 criminal conviction assessment.

Defendant now contends (1) the matter must be remanded so that he can move to withdraw his plea, (2) the matter must be remanded for the trial court to impose authorized restitution and parole revocation fines, and (3) the court operations assessment and criminal conviction assessment must be stayed pending consideration of his ability to pay.

We conclude defendant’s first contention lacks merit, but we will vacate the restitution and parole revocation fines and remand the matter to the trial court, where defendant will have an opportunity to ask the trial court for an ability-to-pay determination. We will otherwise affirm the judgment.

BACKGROUND

Between 2001 and 2010 in Lassen County, defendant engaged in numerous sexual acts with the minor victim, which included intercourse, oral copulation, and digital penetration. Defendant pleaded guilty to two counts of sexual penetration or oral copulation of a child aged 10 or younger (Pen. Code, § 288.7, subd. (b)), continuous sexual abuse of a child (§ 288.5, subd. (a)), and aggravated sexual assault of a child (§ 269, subd. (a)(1)).

At the beginning of the sentencing hearing, defense counsel informed the trial court defendant wanted to make a Marsden motion and a motion to withdraw his plea. After the trial court heard and denied the Marsden motion, the following exchange took place:

“[COURT]: [Defense counsel], you said there was something else?

“[DEFENSE COUNSEL]: Yes, Your Honor, the defendant would like to make a motion to withdraw his plea. I have worked and worked, I can find absolutely no basis to support a motion to withdraw the plea. That has created something of a conflict between he and I and it’s for the court to decide whether we should proceed and appoint another attorney to see if it’s done or what, but I could not in good conscience argue and make a sound motion to withdraw the plea.

“[COURT]: All right. And you are the attorney and the one who makes the determination of legal arguments. I have not heard anything separate and apart.

“Mr. Baker, is there anything separate and apart from the matters that you included in your Marsden motion, separate and apart from those?

“[DEFENDANT]: Regarding the —

“[COURT]: Motion to withdraw your plea.

“[DEFENDANT]: The reason I would like to make that motion is the date that we had appeared to begin with trial, the plea agreement that I had signed previously had been explained in a much different way by [defense counsel] to me as to the change that was made, I believe on the date of the trial.

“[COURT]: What was the change?

“[DEFENDANT]: That there would be a stipulation, I believe it was called, to the complete term on each one of the four charges.

“[COURT]: What do you mean the complete term?

“[DEFENDANT]: I don’t know how to state that, but the stipulation would be the full term, I guess.

“[COURT]: What happens on sentencing, when you’re talking about the sentencing scheme, in this case there are — there’s a determinate sentence of 16 years and then a 45 to life that is indeterminate. The board — the parole board makes the determination on an indeterminate sentence when you would be released and you do get certain credits, I’m not sure what you’re saying, then.

“[DEFENDANT]: The stipulation was that those would be full terms equaling a 61-year time. When I signed the deal, [defense counsel] had said there was a possibility and it was likely that those would be concurrent terms rather than consecutive terms.

“[COURT]: All right.

“[DEFENDANT]: When we came the day of trial, he said that had been changed and there was now a new stipulation to that.

“[COURT]: Okay. And then you had the oral inquiry in court and at that time, you indicated your desire to plead as the terms were set forth in court.

“[DEFENDANT]: The basis for that was that I had —

“[COURT]: I’m just asking, did you do that?

“[DEFENDANT]: Yes.

“[COURT]: And [defense counsel], anything that you wanted to add in that regard?

“[DEFENSE COUNSEL]: Yes, your Honor, in my discussions with the district attorney, I asked him if he could go concurrent time, he said absolutely not. I said well, how about this, I will go into court and argue for it and you object and it was my understanding that he said yes. However, it turns out I was wrong, so I explained that difference into how I misunderstood what the district attorney said and further, this was the only plea that was offered to him and he signed it.

“[COURT]: [Prosecutor], does that comport with your recommendation that you indicated it was only if it was consecutive?

“[PROSECUTOR]: Yes, Your Honor, and everything that [defense counsel] said comports to my memory of it that at one point, [defense counsel], it did seem he had thought I had agreed he could argue for concurrent time and we cleared that up, both in discussions with [defense counsel] and in the taking of the plea.

“[COURT]: All right, thank you. Then the court deems that there isn’t any conflict at this time. There is no motion to withdraw at this time based on [defense counsel] being the attorney of record. That doesn’t preclude Mr. Baker, if he wants to hire counsel to try to make such a motion, but I don’t know what the record would show other than what it is now, so it would have to be some additional facts or circumstances.”

The trial court imposed the stipulated sentence of 45 years to life plus 16 years in state prison and ordered defendant to pay various fines and fees including a $15,000 restitution fine (§ 1202.4), a $300 parole revocation fine (§ 1202.45), a $160 court operations assessment (§ 1465.8), and a $120 criminal conviction assessment (Gov. Code, § 70373).

DISCUSSION

I

Defendant contends the matter must be remanded so that he can move to withdraw his plea.

He first claims the trial court failed to afford him the opportunity to explain why his counsel may have been deficient in an appropriate Marsden hearing. But the record establishes that the trial court did in fact provide defendant with a Marsden hearing.

Defendant next argues the trial court failed to make clear that he could seek alternate counsel to pursue a motion to withdraw his plea. But the record shows the trial court determined there was no present conflict and then explained that although there was no motion to withdraw at that time from defense counsel as attorney of record, that did not preclude defendant from hiring counsel to make such a motion.

Defendant’s contentions lack merit.

II

Defendant next contends the matter must be remanded for the trial court to impose authorized restitution and parole revocation fines. At sentencing, the trial court imposed a $15,000 restitution fine (§ 1202.4) and stayed a $300 parole revocation fine (§ 1202.45). The parties agree both fines are unauthorized.

In every case resulting in a felony conviction, the trial court must impose a restitution fine between $300 and $10,000 and impose and stay a parole revocation fine of the same amount. (§§ 1202.4, subd. (b)(1), 1202.45, subd. (a).) By exceeding the maximum amount that can be imposed, the restitution fine is unauthorized. And the parole revocation fine is also unauthorized because it did not (and legally could not) match the amount of the restitution fine. This is an unauthorized sentence which must be corrected notwithstanding the failure to object to it below. (People v. Rodriguez (2000) 80 Cal.App.4th 372, 374.) Because we cannot ascertain what amount the trial court intended to impose, we will vacate the restitution and parole revocation fines and remand the matter to the trial court.

III

In a supplemental brief, defendant argues the court operations assessment and criminal conviction assessment must be stayed pending consideration of his ability to pay.

This claim is based on People v. Dueñas (2019) 30 Cal.App.5th 1157, which held that the trial court must hold an ability to pay hearing before imposing court facilities and court operations assessments and must also stay the execution of mandatory restitution fines under section 1202.4, subdivision (b), unless and until the trial court concludes that the defendant has the present ability to pay. (Dueñas, at pp. 1164, 1172.) Here, because the matter is being remanded, defendant will have an opportunity to ask the trial court for an ability-to-pay determination.

DISPOSITION

The judgment is modified to vacate the restitution fine (§ 1202.4) and the parole revocation fine (§ 1202.45), and the matter is remanded for the trial court to impose authorized fines. On remand, defendant may ask the trial court for an ability-to-pay determination of the fines and assessments pursuant to People v Dueñas, supra, 30 Cal.App.5th 1157. In all other respects, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment reflecting the changes to the fines and assessments, and shall forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

/S/

MAURO, J.

I concur:

/S/

RAYE, P. J.

Hoch, J., Dissenting.

I concur in the majority opinion except for discussion part III. To that part, I respectfully dissent. Defendant is not entitled to an ability to pay hearing. (People v. Kingston (2019) 41 Cal.App.5th 272; People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055; People v. Caceres (2019) 39 Cal.App.5th 917.)

/S/

HOCH, J.