Opinion
D075040
05-29-2020
THE PEOPLE, Plaintiff and Respondent, v. JAMES BERNARD ALLEN, Defendant and Appellant.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD 276731) APPEAL from a judgment of the Superior Court of San Diego County, Yvonne Esperanza Campos, Judge. Affirmed with one-year enhancement stricken. Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant James Bernard Allen challenges (1) the finding that his prior Michigan conviction constituted a strike under California law, and (2) the fees and fine imposed on him. We affirm.
BACKGROUND
Procedure
A jury found defendant guilty of unlawfully taking or driving a motor vehicle (Veh. Code, § 10851, subd. (a)); misdemeanor hit and run (Veh. Code, § 20002, subd. (a)); misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364); and misdemeanor possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). Defendant waived his right to a jury trial on his prior convictions. The court found true a strike prior conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, 668) that was a Michigan conviction for assault with a dangerous weapon; two no-probation prior convictions (§ 1203, subd. (e)(4)), and one prior prison conviction (§ 667.5, subd. (b)). The prior prison conviction was a prior vehicle theft conviction within the meaning of section 666.5, subdivision (a) that increased the penalty for his current vehicle theft conviction to a range of two, three or four years.
Further unspecified code sections are to the Penal Code.
The trial court sentenced defendant on December 5, 2018, to a total term of five years in prison. The court imposed the low term of two years on the vehicle theft conviction, doubled to four years due to the prior strike conviction, plus one year for the prior prison conviction. It imposed concurrent terms on the three misdemeanor convictions. The court imposed a restitution fine of $1,500, and other assessments, as discussed in more detail post. Defendant filed a timely notice of appeal.
Facts
We provide only a brief summary of the facts because they are not relevant to the issues on appeal.
On April 15, 2018, defendant drove a stolen recreation vehicle (RV), hitting and damaging three cars. He walked away without providing any information to the owners of the damaged vehicles. The RV, worth about $110,000, suffered damage as well.
Defendant was arrested a couple of weeks later. He had .65 grams of methamphetamine and a glass pipe used to smoke methamphetamine in his pockets.
DISCUSSION
1. The Prior Conviction from Michigan Qualified as a Strike in California
Defendant contends that there was insufficient evidence to show that his Michigan conviction met the statutory elements of a serious felony under California law. He contends that the Michigan statute applied to use of a dangerous weapon, whereas the equivalent California statute criminalizes use of a deadly weapon. Defendant also contends that Michigan law does not require the prosecution to prove beyond a reasonable doubt that the defendant did not act in self-defense, unlike the requirement in California law.
Background
The court held a bench trial on defendant's prior convictions. During that trial, the court admitted certified documents of defendant's Michigan conviction: the information, defendant's change-of-plea form, sentencing order and a warrant containing a description of defendant. All showed defendant pleaded guilty in 2006 to felonious assault with a dangerous weapon, in violation of Michigan Compiled Law (MCL) section 750.82. MCL section 750.82, states, "[A] person who assaults another person with a gun, revolver, pistol, knife, iron bar, club, brass knuckles, or other dangerous weapon without intending to commit murder or to inflict great bodily harm less than murder is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $2,000.00, or both." (Italics added.) The elements of the crime are "(1) an assault, (2) with a dangerous weapon, and (3) with the intent to injure or place the victim in reasonable apprehension of an immediate battery." (People v. Avant (1999) 235 Mich.App. 499, 505 [597 N.W.2d 864, 869].) The documents reflect defendant stated under oath, "I hit him twice and then stopped" "with a hammer." Defendant argued that the Michigan law of assault with a dangerous weapon was not equivalent to California's assault with a deadly weapon, section 245, subdivision, (a)(1), which states, "Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished . . . in the state prison . . . ." The court found that a hammer was a deadly weapon and concluded that the Michigan conviction was for a serious felony within the meaning of the Three Strikes law.
Analysis
A foreign conviction qualifies as a strike in California if the conviction was for an offense that would be punishable by a state prison term if committed in California and included all the elements of a serious or a violent felony in California. (§ 668; People v. Navarette (2016) 4 Cal.App.5th 829, 842.) The People must prove all elements of a prior strike conviction beyond a reasonable doubt. (People v. Ledbetter (2014) 222 Cal.App.4th 896, 900 (Ledbetter).) When a prior conviction can be committed in multiple ways, there are two alternate methods for determining if it constituted a serious or violent felony. If "the record of the conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense." (People v. Miles (2008) 43 Cal.4th 1074, 1083.) When the facts were necessarily found as part of the record of conviction, however, we may look to those "facts that were established by virtue of the conviction itself—that is, facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea." (People v. Gallardo (2017) 4 Cal.5th 120, 136 (Gallardo).)
Defendant contends that the least adjudicated elements of felonious assault in Michigan are not equal to the California crime of assault with a deadly weapon because a dangerous weapon might not be a deadly weapon.
Section 1192.7, subdivision (c) identifies " 'serious felonies' " and section 667.5, subdivision (c) identifies "violent felonies" for purposes of the California Three Strikes Law. (§ 667, subd. (d); 1170.12, subd. (b).) "The lists of serious and violent felonies include both specific, enumerated crimes and descriptions of criminal conduct." (People v. Ruiz (1999) 69 Cal.App.4th 1085, 1089 (Ruiz).) An assault with a dangerous weapon is not identified as either a serious or a violent felony. However, commission of a felonious assault under Michigan law can qualify as a strike if the conduct underlying the conviction fits one of the descriptions of criminal conduct contained within those statutes. "An assault will be treated as a serious felony when 'the defendant . . . "personally used a dangerous or deadly weapon" ' (§ 1192.7, subd. (c)(23))." (Ruiz, at p. 1089, italics added; People v. Morgan (2011) 194 Cal.App.4th 79.)
In Morgan, the defendant had a prior conviction for brandishing a hammer (§ 417, subd. (a)(1)) and admitted the hate-crime alternative penalty provision that he committed the crime for the purpose of intimidating or interfering with another's rights (§ 422.7, subd. (a)). Brandishing a weapon is ordinarily a misdemeanor, but the hate crime enhancement made the crime a felony. (Morgan, supra, 194 Cal.App.4th at p. 81.) The trial court found, and the Court of Appeal affirmed, that this prior conviction qualified as a serious felony because the defendant admitted personal use of a dangerous or deadly weapon. (Id. at p. 83.)
When Ruiz and Morgan were decided, California had a more expansive view of the documents that could be used to prove the elements of a prior conviction. Courts could review the "entire record of conviction" (Ruiz, supra, 69 Cal.App.4th at p. 1090) to determine whether " 'the conviction realistically may have been based on conduct that would not constitute a serious felony under California law.' " (Gallardo, supra, 4 Cal.5th at p. 124, quoting People v. McGee (2006) 38 Cal.4th 682, 706, disapproved by Gallardo at p. 125.) In Morgan, for example, the court had relied on the preliminary hearing transcript to determine that the defendant personally used the hammer. (Morgan, supra, 194 Cal.App.4th at pp. 85-86.) The Gallardo court concluded that such an interpretation of ancillary records amounted to unconstitutional factfinding by the trial court. (Gallardo, at p. 136.) The Gallardo court limited a trial court's role to "identifying those facts that were established by virtue of the conviction itself—that is, facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea." (Ibid.) The evidence in Morgan would no longer be sufficient to prove personal use of a dangerous weapon, but there is no such evidentiary problem here. The legal rule of Morgan is valid when applied in the circumstances here.
Here, the fact of personal use of a dangerous or deadly weapon was established by the defendant's admission that he hit the victim with a hammer, twice, as the factual basis for his plea to felonious assault. Personal use of a dangerous weapon was established by the conviction itself, pursuant to Gallardo. (Gallardo, supra, 4 Cal.5th at p. 136.) We rely on defendant's admission of the facts of his guilt in concluding that a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of a serious felony conviction beyond a reasonable doubt. (Ledbetter, supra, 222 Cal.App.4th at p. 900.)
We are not limited to the trial court's ruling that the Michigan conviction was equivalent to assault with a deadly weapon because we can affirm a ruling if any possible ground exists for the trial court to have reached its conclusions. (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.)
Defendant also claims that Michigan law is not equivalent to California law because Michigan does not require the People to prove beyond a reasonable doubt that the defendant did not act in self-defense. By pleading guilty, however, defendant waived the defense of self-defense. Under Michigan law, a guilty plea waives all issues related to the state's ability to prove the factual guilt of a defendant. (People v. Cook (2018) 323 Mich.App. 435, 446-447 [918 N.W.2d 536, 542-543].) Self-defense refutes the factual guilt of a defendant. Defendant acknowledged that he did not act in self-defense when he waived that defense and pleaded guilty.
Conclusion
Therefore sufficient evidence supports the trial court's finding that defendant's prior Michigan conviction was a strike under California law because it was a serious felony under section 1192.7, subdivision (c)(23).
2. Fines and Fees
The court imposed restitution (§ 1202.4, subd. (f)), a restitution fine of $1500 (§ 1202.4, subd. (b)(1)), a matching suspended parole-revocation fine (§ 1202.45), a court operations assessment fee of $160 (§ 1465.8); a criminal conviction assessment fee of $120 (Gov. Code, § 70373); and a criminal justice administration fee of $154 (Gov. Code, § 29550). Defendant did not object or claim he had no ability to pay.
Defendant contends that under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), decided after his sentencing, the fines, fees, and assessments are unconstitutional because the court did not consider defendant's present ability to pay the fines and fees. Defendant concedes he did not raise this issue at sentencing, but argues he did not forfeit his claim because any objection would have been futile under existing law at the time, following the rationale of People v. Castellano (2019) 33 Cal.App.5th 485, 489, that he could not have anticipated the Dueñas holding.
Defendant's argument fails, however, because defendant had a statutory right to a hearing that considered his ability to pay independent of Dueñas. The statute provides for such a hearing whenever the court sets the restitution fine above the statutory minimum of $300. (§ 1202.4, subds. (c), (d); People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.) The court imposed a restitution fine in the amount of $1,500, which was significantly higher than the $300 statutory minimum for defendant's felony conviction. (§ 1202.4, subd. (b)(1).) Defendant failed to exercise his statutory right to object to the restitution fine and to request a hearing on his ability to pay. As we said in Gutierrez, "defendant had every incentive to object to an imposition of [an above-minimum] restitution fine based on inability to pay because governing law as reflected in the statute (§ 1202.4, subd. (c)) expressly permitted such a challenge." (Gutierrez, at p. 1033; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 (Frandsen).) It is notable, also, that the defendant in Dueñas raised the issue that she was unable to pay (Dueñas, supra, 30 Cal.App.5th at p. 1162), and the court in Castellano stated that it is the defendant's responsibility to raise the issue of inability to pay in the first instance (Castellano, supra, 33 Cal.App.5th at p. 490). Defendant has thus forfeited his claim of error in the imposition of the restitution fine because he failed to raise his claim of inability to pay in the trial court. (Frandsen, supra, 33 Cal.App.5th at p. 1154; Gutierrez, supra, 35 Cal.App.5th at p. 1033.)
Defendant urges, in the alternative, that his counsel was ineffective in failing to object to the fine. Ineffective assistance of counsel should not be considered on appeal, however, unless the attorney has been asked to explain the reason for his actions or there could be no satisfactory explanation for his conduct. (People v. Johnson (2016) 62 Cal.4th 600, 653; People v. Mendoza-Tello (1997) 15 Cal.4th 264, 266.) Counsel may have considered an objection futile in light of defendant's ability to pay the fine from prison wages, or for some other reason.
Because defendant's restitution fine was the bulk of the monetary fines and assessments imposed, we conclude that he also forfeited his right to contest the court operations assessment fee, criminal conviction assessment fee, and criminal justice administration fee. If defendant chose not to object to the $1,500 restitution fine based on inability to pay, he cannot now complain of the lower fees based on an inability to pay. (See Gutierrez, supra, 35 Cal.App.5th at p. 1033.)
In any event, any failure to object was harmless because defendant had the opportunity to work while in prison, and, when not in custody, to provide public work service in lieu of paying the fines and fees. (See People v. Johnson (2019) 35 Cal.App.5th 134, 139-140 [any error harmless beyond a reasonable doubt because the defendant could pay from prison wages]; People v. Jones (2019) 36 Cal.App.5th 1028, 1035 [noting wages earned in prison and deduction permitted for payment of restitution fine].)
3. Prior Prison Conviction
As noted, the five-year sentence includes a one-year term based on defendant's prior prison conviction under section 667.5, subdivision (b). Effective January 1, 2020, section 667.5, subdivision (b) was amended to limit the one-year enhancement for prior prison terms to sexually violent offenses. (Stats. 2019, ch. 590 (Sen. Bill No. 136) § 1, eff. Jan. 1, 2020.) When the Legislature amends a statute so that it lessens the punishment, "[t]he amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final." (In re Estrada (1965) 63 Cal.2d 740, 745.) Under the Estrada rule, we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute's operative date. (Ibid.; People v. Jennings (2019) 42 Cal.App.5th 664, 681 (Jennings).) "The Estrada rule also applies to statutory amendments reducing the penalty for, or allowing a court to strike, an enhancement." (Jennings, at pp. 681-682.) As we recently explained in Jennings, "[b]y eliminating section 667.5, subdivision (b) enhancements for all prior prison terms except those for sexually violent offenses, the Legislature clearly expressed its intent . . . to reduce or mitigate the punishment for prior prison terms for offenses other than sexually violent offenses. [Citation.]" (Id. at p. 682.)
Defendant's one-year enhancement under section 667.5, subdivision (b) was based on a prior conviction for unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a).) That is no longer a qualifying offense for an enhancement under section 667.5, subdivision (b). Defendant's case is not final while it is pending before us on direct appeal. (See Jennings, supra, 42 Cal.App.5th at p. 682.) Therefore, defendant is entitled to the ameliorative benefit of the amendment to section 667.5, subdivision (b). Accordingly, we will strike the one-year prison term under section 667.5, subdivision (b) that formed part of the total five-year term for defendant. (§ 1260 [granting appellate court power to reduce punishment imposed].)
DISPOSITION
Defendant's one-year term under the section 667.5, subdivision (b) enhancement is stricken. We direct the trial court to amend the abstract of judgment accordingly and to forward the amended abstract to the California Department of Rehabilitation and Corrections. In all other respects, the judgment is affirmed.
BENKE, Acting P. J. WE CONCUR: IRION, J. DATO, J.