People v. Shoker
| Decision Date | 04 August 2021 |
| Docket Number | C090991 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. PARAMJEET SINGH SHOKER, Defendant and Appellant. |
NOT TO BE PUBLISHED
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 court erred in imposing certain assessments and restitution fines without holding an evidentiary hearing to determine his ability to pay them.
We will affirm.
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 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.
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, (People v. Frahs (2020) 9 Cal.5th 618, 626.) (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 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 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.) (People v. Mai (2013) 57 Cal.4th 986, 1009.) When...
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