People v. Kunkel

• Decision Date: 20 December 1985
• Citation: 221 Cal.Rptr. 359,176 Cal.App.3d 46
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Paul Richard KUNKEL, Defendant and Appellant. Crim. 13749.

Page 359

221 Cal.Rptr. 359

176 Cal.App.3d 46

The PEOPLE of the State of California, Plaintiff and Respondent, v. Paul Richard KUNKEL, Defendant and Appellant.

Crim. 13749.

Court of Appeal, Third District, California.

Dec. 20, 1985.

Review Denied April 2, 1986.

Barbara Jean Steinhardt, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., and Maureen A. Daly, Deputy Atty. Gen., for plaintiff and respondent.

GILBERT, Associate Justice. ^*

Defendant pled guilty to a complaint filed in the justice court charging a felony violation of Penal Code section 243, subdivision (d), ¹ battery with serious bodily injury. He also admitted an enhancement allegation that he used a deadly weapon in commission of the underlying offense. ( § 12022, subd. (b).) The case was then certified to the superior court where defendant was sentenced to state prison. Defendant appeals. His principal claims relate to the contention that he should have earlier been advised of his "right" to have the magistrate consider reduction of his offense to a misdemeanor before his plea of guilty was accepted. He also claims that the superior court erred in ordering him to reimburse the county for the costs of his court appointed counsel. We shall affirm.

FACTS

Defendant was charged with the unprovoked knife attack on an unsuspecting and unarmed black male outside a bar where the defendant had been displaying his braggadocio. The victim suffered severe physical injuries. The evidence revealed overtones of racial hatred in the motivation of the attack upon the black victim by the defendant, who is white.

Prior to the preliminary examination, defendant entered a plea of guilty to the charged felony violation and admitted the weapons enhancement. ² Following certification from the justice court, the superior court imposed the upper, four-year term for the section 243, subdivision (d) violation and imposed an additional one-year consecutive term for the section 12022, subdivision (b) enhancement. The superior court also ordered defendant to pay $250 to Butte County for the costs of providing his court appointed counsel. A different superior court judge subsequently found that the defendant did not have the present ability to pay the ordered amount. No hearing, as required by section 987.8, was conducted prior to the original order for payment.

DISCUSSION

Subdivision (5) of subsection (b) of section 17 (hereafter "subdivision (5)") provides that when a defendant is charged with an offense punishable either by imprisonment in the state prison or in the county jail, ³ it is a misdemeanor, for all purposes "When, at or before the preliminary examination or prior to filing an order pursuant to section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint." ⁴

Relying on the authority of this section and on Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 95 Cal.Rptr. 524, 485 P.2d 1140, defendant makes several related claims of error. He first contends that the magistrate erred by failing to advise him that his plea of guilty to the charged felony would waive his "right" to have the magistrate declare the offense a misdemeanor and, as judge of the justice court, impose sentence. Next, he claims that the magistrate failed to exercise discretion under subdivision (5) after plea but before certification of the case to superior court for sentencing. This, he also asserts, deprived him of his right to have the judge accepting his plea impose sentence as required by People v. Arbuckle (1978) 22 Cal.3d 749, 150 Cal.Rptr. 778, 587 P.2d 220. Defendant also contends the magistrate erred by failing to advise him that, by admitting the weapons enhancement, he "made" the underlying charge a felony.

Finally, defendant makes an unrelated challenge to the order for reimbursement of fees under section 987.8 as being made without the requisite notice and hearings specified by that section. We find each of defendant's contentions concerning his plea and sentence without merit and his contention respecting the section 987.8 order, though meritorious, moot. We consider his claims in order.

Defendant's first claim of error begins with the accurate premise that subdivision (5) confers a substantial right on a defendant. In Esteybar v. Municipal Court, supra, 5 Cal.3d 119, 95 Cal.Rptr. 524, 485 P.2d 1140, the Supreme Court found the former version of subdivision (5) requiring the consent of the prosecution for a reduction unconstitutionally infringed the separation of powers between the executive and judicial branches. ⁵ In reaching that conclusion, the court noted that, "[i]n determining whether the defendant should be held to answer on a felony or a misdemeanor, a committing magistrate exercises a judicial power which must be based upon an examination of the circumstances of the particular case before him." (Id., at p. 125, 95 Cal.Rptr. 524, 485 P.2d 1140.) The court also held that, "a defendant is entitled to have an independent determination of whether he should be held to answer on a felony or a misdemeanor...." (Id., at p. 126, 95 Cal.Rptr. 524, 485 P.2d 1140.) We have no doubt that this entitlement to an independent determination is a substantial right. (Jackson v. Superior Court (1980) 110 Cal.App.3d 174, 177, 167 Cal.Rptr. 749.) We also agree that, by entering a plea of guilty, and thus waiving a preliminary examination, defendant effectively gave up the right to have the magistrate exercise the discretion conferred by subdivision (5). Where a defendant enters a plea of guilty to a felony complaint before a preliminary examination, the magistrate is deprived of the usual evidentary basis upon which to reduce a charge to a misdemeanor pursuant to subdivision (5). This is so, of course, because it is ordinarily the preliminary examination which is the "examination of the circumstances of the particular case" that justifies reduction. ⁶ Where the preliminary hearing is not held, a defendant will ordinarily be able to seek misdemeanor treatment of the charges only after facing and suffering conviction on felony charges in Superior Court. ( § 17, subd. (b), (1), (2), and (3); see note 8, infra.) In contrast, a defendant whose charges are reduced to a misdemeanor at or before a preliminary examination, faces only a misdemeanor sentence upon conviction in the justice or municipal court. The issue which defendant raises is whether this circumstance is a consequence of which he must have been appraised before his plea of guilty could have been knowing and voluntary.

A plea of guilty is valid only if it is knowingly and voluntarily entered. (Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449.) In order for a defendant to knowingly and voluntarily enter a plea of guilty to felony charges, he must be apprised of the consequences of such a plea. (Ibid.) The so-called "Boykin-Tahl " requirements are intended to insure that a criminal defendant does not improvidently abandon significant constitutional rights without fully appreciating the potential consequences of that act. ⁷ (Ibid.) The consequences of which a defendant must be aware include the fundamental constitutional rights relinquished by a plea of guilty--jury trial, confrontation and self-incrimination--and the "permissible range of sentences" attendant upon conviction by plea. (In re Tahl, supra, 1 Cal.3d 122, 133, fn. 7, 81 Cal.Rptr. 577, 460 P.2d 449.) Awareness of the permissible range of sentences is achieved where a defendant understands the "primary and direct" penal consequences of the plea. (In re Birch (1973) 10 Cal.3d 314, 319-325, 110 Cal.Rptr. 212, 515 P.2d 12; People v. Caban (1983) 148 Cal.App.3d 706, 710, 196 Cal.Rptr. 177; In re Carabes (1983) 144 Cal.App.3d 927, 929, 193 Cal.Rptr. 65.) It is unnecessary that the defendant have and display a detailed understanding of collateral penal or procedural consequences which do not directly impact on the fundamental implications of a plea of guilty. Thus, for example, a defendant need not display a knowledge of the particular defenses available in his case nor be told of the availability of a court, as opposed to a jury, trial (People v. Vest (1974) 43 Cal.App.3d 728, 118 Cal.Rptr. 84), nor need he be told that a guilty plea may result in a revocation of an outstanding grant of probation in another case (People v. Searcie (1974) 37 Cal.App.3d 204, 112 Cal.Rptr. 267). On the other hand, a knowing and voluntary plea does entail an understanding of probation ineligibility upon conviction (People v. Caban, supra, 148 Cal.App.3d 706, 196 Cal.Rptr. 177) and of the probable requirement of a parole period following a prison sentence. (In re Carabes, supra, 144 Cal.App.3d 927, 193 Cal.Rptr. 65.)

A preliminary examination, though a "critical stage" of the criminal proceedings (Coleman v. Alabama (1970) 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387), is but a preliminary step in the ultimate determination of guilt or innocence. It is the fundamental right to have the determination of guilt or innocence made by a jury, accompanied by the right against self-incrimination and to confrontation, that is most directly involved in a decision to admit rather than contest the charges. It is these fundamental rights which are protected by the Boykin-Tahl rules. Advice concerning the procedural implications of waiving a preliminary examination does not assist this basic and essential understanding.

Advice concerning the effect of a guilty plea on the magistrate's power of reduction under subdivision (5) is also not necessary to a defendant's meaningful understanding of the penal consequences of a guilty plea. Though the exercise of the magistrate's power under subdivision (5) may reduce the possible maximum sentence faced by a...