Opinion
E071253
04-28-2020
THE PEOPLE, Plaintiff and Respondent, v. RUDY JAY BURDICK, Defendant and Appellant.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB1305374) OPINION APPEAL from the Superior Court of San Bernardino County. Steve Malone, Judge. Affirmed in part, reversed in part with directions. Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury convicted defendant and appellant, Rudy Jay Burdick, of first degree murder (Pen. Code, § 187, subd. (a)) and found true three firearm enhancements (§§ 12022.53, subd. (b); 12022.53, subd. (c); 12022.53, subd. (d)). After the trial court found true the allegations that defendant had a strike prior and a serious felony prior, the trial court sentenced him to 80 years, and imposed a $70 fee and a $3,000 restitution fine.
Unless otherwise noted, all further statutory references are to the Penal Code.
On appeal, defendant raises five claims of error. First, he argues the trial court erred by denying his motion for a mistrial after jurors learned that the prosecutor had been assaulted on the morning of the day when closing arguments were scheduled. Second, he argues the trial court prejudicially erred by admitting unredacted portions of his recorded interview with a detective who insinuated defendant killed Kingsley due to a drug-related dispute. Third, defendant argues these two errors cumulatively warrant reversal. Fourth, defendant asserts his case should be remanded so the trial court can exercise its discretion to determine whether to strike his serious felony enhancement under recently enacted Senate Bill No. 1393 (2017-2018 Reg. Sess.). Fifth, relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant argues the trial court erroneously imposed a $3,000 restitution fine and $70 fee without holding a hearing on his ability to pay them.
We affirm defendant's convictions but the sentence is reversed and the matter is remanded with directions. On remand, the trial court is directed (1) to exercise its discretion under Senate Bill No. 1393 to determine whether to strike defendant's prior serious felony enhancement; and (2) to stay execution of the restitution fine unless and until the People prove defendant has the ability to pay it. The judgment is otherwise affirmed.
II.
FACTUAL BACKGROUND
The victim, William Kingsley, lived in a greenhouse on a property in Highland, California. S.P.'s brother lived in a shed near the greenhouse, and S.P. was helping him move out. S.P. saw defendant climb over a fence and approach Kingsley's greenhouse. In S.P.'s view, defendant was "trying to be quiet" and "cool." S.P. was familiar with defendant because he had come over to the property the night before and had given S.P. some beer. S.P. said, "Hey, [defendant], what's up?" He asked defendant if he had more beer, but defendant "shooed [him] away."
About five to 10 minutes later, S.P. heard four or five gunshots come from Kingsley's greenhouse. S.P. ran to the greenhouse shouting Kingsley's name, opened the door, and saw Kingsley with visible wounds in his abdomen. Kingsley said he had been shot. S.P. dialed 911. While S.P. was talking to the dispatcher, defendant walked past S.P. with a gun and said, "[i]t was self-defense." S.P. feared for his life and said, "'I didn't see nothing,'" and hung up the phone. After leaving the scene, defendant threw the gun in a dumpster. Defendant subsequently turned himself in to law enforcement.
When law enforcement searched Kingsley's greenhouse, they found a rifle between a nightstand and boxes. The rifle was dusty. The dust had not been disturbed, and it appeared that the rifle had not been moved recently. There was blood spatter inside the greenhouse, but none was on or near the rifle.
III.
DISCUSSION
A. Motion for a Mistrial
Defendant asserts the trial court erred by denying his motion for a mistrial based on the jurors' exposure to news reports about the attack on the prosecutor. We disagree.
1. Additional background
The jury was informed closing arguments would be held on August 30, 2017. That morning, however, the prosecutor was hospitalized after she was assaulted while jogging in Newport Beach, California. After the prosecutor's colleague informed the trial court of the incident, the trial court continued closing arguments to September 18, 2017. Without mentioning the incident, the trial court explained to the jury that September 18 was the next available date.
In the ensuing weeks, several news outlets reported on the incident. The prosecutor was not identified by name, but some articles stated she was a prosecutor for San Bernardino County who was involved in a murder trial at the time of the attack. One article stated, "'[a] district attorney from San Bernardino County was the victim of a gruesome gang attack in Orange County, California, in an apparent attempt to prevent her from giving closing arguments in a gang murder trial.'" Another article reported that a witness overheard the victim say that she was a San Bernardino County prosecutor and that she was currently in a murder trial.
On September 18, the prosecutor was able to proceed, but defendant moved for a mistrial based on the news coverage about the prosecutor's attack. The prosecutor did not dispute defense counsel's representation of the media's coverage of the incident, but noted that she had not been identified by name in the news coverage, and she had not spoken to the media about the incident.
At defendant's request, the trial court interviewed the jurors individually to determine if they had heard about the prosecutor's assault. Seven of them had not heard about the incident. Other jurors had heard about it in the news to varying degrees. Their responses to the news also varied.
Juror 2 stated she "kind of saw it" in the news, but did not "know details of it" other than a district attorney had been attacked. The news made Juror 2 feel uneasy because, as she put it, "it has to be a district attorney here, right?" Juror 2 confirmed that she would not let the news sway her decision.
Juror 4 worked across the street from the San Bernardino County District Attorney's office, so she heard about the attack, which was "big news" at her office. Juror 4's parents, who live in another state, heard about the news. She heard the attack was "gang-related." She was scared by the news because it occurred on the morning before closing arguments were scheduled, and she does not "really believe in coincidences." Because of the attack, she completed the process of purchasing a firearm that she had begun a few months before.
Juror 4 stated she would have had trouble being fair and impartial in the week immediately after the incident, particularly because she heard about it "every single day at work." But because three weeks had passed, she believed she could be fair and impartial because "everything[] [had] died down" and "time and logic ha[d] kind of set in." She confirmed that what she heard from the news had "no bearing" on what she had "heard in the court."
Juror 8 had heard about the attack in the news, but had not "made any conclusions" about whether it related to defendant's case. Although he thought it was "possible," he stated that it would not affect his decision.
Juror 9 heard about the attack in her social media newsfeed and was nervous that it was related to defendant's case. She admitted that she was only "90 percent" confident that the news would not affect her decision-making process. She also admitted she was uncomfortable to be in defendant's presence and that she believed she may not be safe because of the case.
Juror 12 heard about the attack, and mentioned it to Juror 9 while they were waiting outside, but Juror 9 told her they should not discuss it. Juror 12 stated the news would not affect her decision in any way.
Alternate Juror A-4 heard one report about the attack on the news and "tried not to speculate" about whether it was related to defendant's case. Her daughter also asked her if it was related to the trial. Alternate Juror A-4 confirmed that the news would not influence her deliberations.
The trial court then recalled Juror 9 and asked what she had discussed with Juror 12. Juror 9 said Juror 12 had asked her if she had heard the news about the attack, but she "deflected" and said "'I don't think we are supposed to talk about that.'"
After the trial court spoke with all of the jurors, defense counsel renewed its mistrial motion based on the jurors' responses, which the People opposed. Because Juror 9 was only "90 percent" sure she could be fair and impartial, the trial court dismissed her and replaced her with Alternate Juror A-4. Nonetheless, the trial court denied defendant's motion for a mistrial, finding there was not a substantial likelihood that any of the remaining 12 jurors had been influenced by the news reports.
2. Applicable Law and Standard of Review
"'[W]hen misconduct involves the receipt of information from extraneous sources, the effect of such receipt is judged by a review of the entire record, and may be found to be nonprejudicial. The verdict will be set aside only if there appears a substantial likelihood of juror bias. Such bias can appear in two different ways. First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror. [Citations.] Second, we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant. [Citation.] The judgment must be set aside if the court finds prejudice under either test.'" (In re Lucas (2004) 33 Cal.4th 682, 696-697.)
However, "we do not reverse unanimous verdicts because there is some possibility the juror was improperly influenced. Rather, the likelihood of bias under the inherent prejudice test 'must be substantial.' [Citation.]" (People v. Danks (2004) 32 Cal.4th 269, 305.)
"Whether prejudice arose from juror misconduct . . . is a mixed question of law and fact subject to an appellate court's independent determination." (People v. Nesler (1997) 16 Cal.4th 561, 582.) However, "[w]e accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence." (Ibid.)
3. Analysis
Defendant correctly observes there are two tests for determining whether the jury's receipt of extraneous information is prejudicial—the "inherent prejudice" test and the "circumstantial" test. (In re Carpenter (1995) 9 Cal.4th 634, 677-678.) Defendant contends the trial court erred in denying his mistrial motion because the court failed to acknowledge the inherent prejudice test and, in turn, failed to determine whether the jurors' exposure to the news reports was "inherently prejudicial."
We agree with defendant that the trial court should have made that determination, but failed to do so. But, as defendant acknowledges, we can decide the issue for the first time on appeal because we independently determine whether the jury's receipt of extraneous information is inherently prejudicial when, as here, the undisputed facts are supported by substantial evidence. (People v. Nesler, supra, 16 Cal.4th at p. 582.)
Extraneous information is "inherently prejudicial" only if it is so prejudicial that reversal would be justified if it had been introduced at trial. (In re Carpenter, supra, 9 Cal.4th at pp. 653-654.) "Application of this 'inherent prejudice' test obviously depends upon a review of the trial record to determine the prejudicial effect of the extraneous information." (Id. at p. 653.) Specifically, we review the record to determine if the extraneous information was so inherently prejudicial that it was likely to have influenced a juror's vote. (People v. Nesler, supra, 16 Cal.4th at p. 580.)
For example, in People v. Holloway (1990) 50 Cal.3d 1098, at page 1106 (Holloway), disapproved on other grounds by People v. Stansbury (1995) 9 Cal.4th 824, a juror read in a newspaper that the defendant was on parole stemming from a conviction for assaulting a woman with a hammer. After the jury returned its guilty verdict, the juror disclosed that he had read about the incident in the newspaper. (Holloway, supra, at p. 1106.) The trial court denied the defense's motion for a mistrial, and the California Supreme Court reversed. The court held that the juror committed "serious misconduct" because the article he read was "extremely prejudicial" in that it provided information about the defendant's inadmissible criminal history and the juror did not disclose that he had read it until after the jury reached its verdict. (Id. at pp. 1110, 1112.)
The Holloway court approvingly cited two similar cases, People v. Thomas (1975) 47 Cal.App.3d 178 (Thomas), and People v. Andrews (1983) 149 Cal.App.3d 358 (Andrews). In Thomas, the court held the trial court should have granted the defendant's mistrial motion based on several jurors' reading a newspaper article that stated a codefendant had pled guilty and been sentenced. (Thomas, supra, at p. 180.) Similarly, the jurors in Andrews inadvertently received a news article while they were deliberating that stated a codefendant had pled guilty. (Andrews, supra, at p. 366.) "Given the extremely prejudicial nature of the evidence improperly received, the record in Thomas and Andrews presented no basis for finding that the presumption of prejudice had been rebutted." (Holloway, supra, 50 Cal.3d at p. 1111.)
The court also found prejudicial juror misconduct in People v. Cissna (2010) 182 Cal.App.4th 1105. There, the defense learned after the defendant was convicted that a juror debated the "merits of the case every single day" with a non-juror friend. The court held the juror's misconduct was "tantamount to inherent bias" because the "content and frequency" of his discussions with his friend "strongly suggest[ed]" that the juror was influenced by his friend's input. (Id. at p. 1122.)
By contrast, here, there was no evidence—or insinuation from the People—that defendant had anything to do with the prosecutor's attack. At best, there was only speculation that it was somehow related to defendant's case. Unlike Holloway, Thomas, and Andrews, the news reports about the prosecutor's attack did not contain corroborated, undisputed facts that the jury may have impermissibly drawn from to conclude that defendant was implicated in the attack. The information contained in the news articles "was not of a suppressed confession or evidence of other crimes that the trial court had excluded as too prejudicial. [Citations.] It was not akin to a bell that could not be unrung." (In re Boyette (2013) 56 Cal.4th 866, 892-893.) We therefore conclude the news reports the jurors here were exposed to were not inherently prejudicial.
Our conclusion is buttressed by an observation the California Supreme Court made in In re Hamilton (1999) 20 Cal.4th 273. In that case, during the guilt phase of a capital case, a juror thought she saw the defendant's sister and her boyfriend parked in a car in the alley behind her home and speed off when the juror saw them. (Id. at p. 304.) Our Supreme Court rejected the defendant's argument that the fear the juror felt due to the incident rendered the juror biased against the defendant, even though there was no evidence the defendant was involved in it. (Ibid.)
In doing so, the Hamilton court first "question[ed] whether a convicted person can ever overturn the verdict on grounds that persons acting in his behalf deliberately sought to influence the jury. Certainly no such claim could ever be valid where the accused himself had instigated the incident; a party cannot profit by his or her own wrongdoing." (In re Hamilton, supra, 20 Cal.4th at p. 305, italics omitted.) The court stated that its conclusion would be the same even if there was "no evidence [the defendant] was directly involved" in the misconduct because holding otherwise would encourage defendants' supporters "to manufacture challenges against subsequent convictions." (Ibid., footnote omitted.)
The Hamilton court reasoned that "'when the alleged misconduct involves an unauthorized communication with or by a juror, the presumption [of prejudice] does not arise unless there is a showing that the content of the communication was about the matter pending before the jury, i.e., the guilt or innocence of the defendant. [Citations.]' [Citations.] As described [by the juror], the alley incident included no 'communication' about the trial, only a brief, nonverbal observation of persons parked outside her home. [¶] Finally, if the incident, real or imagined, might be interpreted as an improper attempt to intimidate [the juror] by silent menace, the result is no different. The objective circumstances give rise to no substantial likelihood that the encounter resulted in [the juror's] actual bias against [the defendant]." (In re Hamilton, supra, 20 Cal.4th at pp. 305-306.)
Hamilton thus indicates a defendant should not be permitted to benefit from efforts to intimidate jurors through threatening behavior. Hamilton therefore strongly suggests that, even if the jury learned of evidence that the attack on the prosecutor was related to defendant's case, a mistrial would be inappropriate in the absence of actual juror bias. This reinforces our conclusion that the jurors' exposure to news of the prosecutor's attack was not inherently prejudicial. If the defendant's sister and her boyfriend apparently stalking a juror in Hamilton was insufficient to declare a mistrial, it follows that news of an unexplained attack on the prosecutor—which was never linked to defendant—was likewise insufficient. To hold otherwise would, as our Surpeme Court in Hamilton warned, encourage defendants' associates "to manufacture challenges against subsequent convictions" by attempting to sway the jury through threats of violence.
We reiterate that defendant does not dispute the trial court's finding that none of the jurors was actually biased against him. Defendant only argues the trial court erred in failing to consider whether the information about the prosecutor's attack was inherently prejudicial. Because we conclude it was not, the trial court did not abuse its discretion in denying defendant's mistrial motion.
B. Admitting Defendant's Interview Transcript into Evidence
Defendant argues the trial court prejudicially erred by admitting unredacted portions of his interview transcript where the detective rejected defendant's explanation for shooting Kingsley and speculated that he shot Kingsley over a drug-related debt. We conclude the error, if any, was harmless.
1. Additional background
Detectives interviewed defendant after he turned himself in. Defendant initially claimed that he had "no beef" with Kingsley, but that Kingsley had "beef" with some "white guys," who defendant described. Defendant also admitted that he had punched Kingsley about a year beforehand because he made a disrespectful comment about defendant's girlfriend.
Defendant's recorded interview was divided into three parts for reasons unclear in the record. The first two were played for the jury. The third was summarized for the jury by the detective who conducted the interview.
Later, however, defendant conceded that he did have "beef" with Kingsley. Defendant admitted that he sold Kingsley $20 worth of "speed" a few nights before the shooting at Kingsley's property and that he had punched Kingsley. After selling Kingsley the speed, defendant went inside to use the bathroom. When he tried to leave the property, he could not open the gate because Kingsley had locked it. Defendant asked Kingsley why he locked the gate, but he denied locking it. Defendant was angry because he thought Kingsley was lying, so he punched him. Kingsley opened the gate and defendant left.
Defendant stated that he went over to Kingsley's property on the night of the shooting to buy a computer desk from him. When defendant arrived, they began arguing about the gate incident because Kingsley was still angry about it. According to defendant, Kingsley reached for a gun on the table, but defendant grabbed it before Kingsley could. Kingsley then reached for a rifle, which scared defendant, so he dove to the ground and shot Kingsley.
The detective conducting the interview did not believe defendant's story. He told defendant that he was not "buying it" that the shooting happened because of the gate incident. The detective pressed defendant on his motivation and asked whether the shooting was because Kingsley owed defendant money for drugs. The detective told defendant that he believed the killing was "over something more." "You shot him because it was . . . [¶] . . . [¶] over dope." The detective insisted that defendant was a "collector" for someone else who makes "dope," and that defendant shot Kingsley because he did not pay what he owed to the individual who sent defendant to "collect."
Defendant denied that the shooting was drug-related and that Kingsley owed him any money, and maintained that it was due to the gate incident. Defendant also denied that he had "fronted" any drugs to Kingsley (i.e., gave him drugs with the expectation that he would pay later).
The interviewing detective testified about what defendant said in the third part of his interview. Among other things, defendant admitted that he made up the story about Kingsley having "beef" with "white dudes." Defendant also said he had not previously seen Kingsley with a gun, although he testified otherwise earlier in the interview.
Defendant argued the detective's comments were not admissible because it was "complete speculation" that the shooting was due to a drug deal. Defendant explained that there was "no evidence" that Kingsley's shooting was drug-related beyond the fact that defendant sold him $20 worth of speed a few days prior. The People argued the evidence was relevant and admissible because it related to defendant's potential motive for killing Kingsley—that Kingsley owed defendant drug money.
The trial court agreed with the People. The trial court found that defendant's assertion that the shooting occurred due to the gate incident "doesn't quite make sense." It then found that it was "a very plausible scenario" that the shooting was drug-related because defendant admitted he had sold drugs to Kingsley a few days before. The trial court also noted the detective's subject comments were brief. The trial court therefore ruled the evidence was admissible as more probative than prejudicial because it was relevant to a possible motive for the shooting.
2. Applicable Law and Standard of Review
"Under Evidence Code section 352, the probative value of the proffered evidence must not be substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (People v. Cole (2004) 33 Cal.4th 1158, 1195.) Because the decision to admit or exclude evidence under Evidence Code section 352 is committed to the trial court's discretion, we will not disturb a trial court's exercise of that discretion "'"except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice."'" (Uspenskaya v. Meline (2015) 241 Cal.App.4th 996, 1000-1001.)
3. Analysis
Even if the trial court erred in admitting the transcript into evidence, any resulting error was harmless because it is not "reasonably probable [that] defendant would have obtained a more favorable result had the evidence been excluded." (People v. Carrillo (2004) 119 Cal.App.4th 94, 103.)
The evidence of defendant's guilt was overwhelming. A day or two before shooting Kingsley, defendant punched him during an argument. Shortly before the shooting, S.P. saw defendant jump over a fence into the backyard where Kingsley's greenhouse was located. According to S.P., defendant was trying to act "cool" and quiet and "shooed" S.P. away when S.P. greeted him. S.P. then heard several gunshots and saw defendant leaving Kingsley's greenhouse. Defendant told S.P. it was "self-defense" and left the scene immediately. Defendant later stated that Kingsley pointed a rifle at him, but the rifle was found "leaning on boxes," looked "dusty," and did not appear to have been moved. Although Kingsley was shot several times, his blood was not found on or around the rifle. In other words, the physical evidence was inconsistent with defendant's version of events.
Defendant fled the scene, disposed of the gun in a dumpster, and did not call the police or request assistance. At the time of the shooting, defendant was working as a police informant. After the shooting, he left a message for a police officer he had been working with, stating he had "'messed up'" without elaboration.
Defendant did not testify, did not call any witnesses, and did not present any evidence to rebut the People's case. Given the overwhelming evidence of defendant's guilt, any error that resulted from the trial court's admission of the transcript of defendant's interview with the detective was harmless. Even if it had been excluded, it is not reasonably probable that defendant would have received a more favorable outcome.
C. Cumulative error
Defendant maintains that, taken together, the trial court's errors constitute cumulative error that warrants reversal. We disagree. As explained above, we conclude the trial court did not err by denying defendant's mistrial motion, and even if the trial court erred by admitting defendant's transcript, the error was harmless. One harmless error is insufficient to establish reversible cumulative error. (People v. Reed (2018) 4 Cal.5th 989, 1018 ["Because we have found but one error—which was harmless—there is no prejudice to cumulate."].)
D. Senate Bill No. 1393
Defendant contends that Senate Bill No. 1393 requires this case to be remanded so that the trial court can exercise its newly authorized discretion to strike his prior serious felony enhancement under recently amended sections 667 and 1385. We agree Senate Bill No. 1393 applies retroactively and that remand is necessary so the court may exercise its discretion and decide whether to strike the prior serious felony enhancement.
At the time of defendant's sentencing hearing, section 1385 included the following provision: "(b) This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under [s]ection 667." This provision was deleted from section 1385 by Senate Bill No. 1393, enacted on September 30, 2018, and effective January 1, 2019. As amended, section 1385, subdivision (b) gives the trial court discretion to dismiss or strike a prior serious felony conviction for sentencing purposes. (People v. Garcia (2018) 28 Cal.App.5th 961, 971.) The trial court therefore is no longer prohibited from striking prior serious felony convictions during sentencing.
Defendant argues Senate Bill No. 1393 applies retroactively to all cases in which the trial court imposed a five-year enhancement for a prior serious felony conviction, provided the judgment was not final when Senate Bill No. 1393 became effective on January 1, 2019. Citing People v. Garcia, supra, 28 Cal.App.5th at page 972, the People acknowledge that Senate Bill No. 1393 "[l]ikely [a]pplies [r]etroactively" to defendant. This is because, "[w]hen an amendatory statute either lessens the punishment for a crime or, as Senate Bill [No.] 1393 does, '"vests in the trial court discretion to impose either the same penalty as under the former law or a lesser penalty,"' it is reasonable for courts to infer, absent evidence to the contrary and as a matter of statutory construction, that the Legislature intended the amendatory statute to retroactively apply to the fullest extent constitutionally permissible—that is, to all cases not final when the statute becomes effective." (People v. Garcia, supra, at p. 972.)
The People argue that, even assuming Senate Bill No. 1393 applies retroactively to defendant's case, remand is unwarranted because such a hearing would be futile and unnecessary. The People reason that, given the trial court's denial of defendant's Romero motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) to strike his strike prior, remand is unwarranted because there is no reason to believe that the trial court would exercise its newly granted discretion to strike the prior serious felony enhancements. We disagree.
Senate Bill No. 1393 is similar to Senate Bill No. 620 (2017-2018 Reg. Sess.), which amended section 12022.53, subdivision (h) to provide that "'[t]he court may, in the interest of justice pursuant to [s]ection 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section.'" (See People v. McDaniels (2018) 22 Cal.App.5th 420, 424; People v. Billingsley (2018) 22 Cal.App.5th 1076, 1079.)
In McDaniels, the court held that a remand for resentencing under Senate Bill No. 620 was required "unless the record show[ed] that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken a firearm enhancement." (People v. McDaniels, supra, 22 Cal.App.5th at p. 425.) In other words, "if '"the record shows that the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required."'" (Ibid.; see People v. Superior Court (Romero), supra, 13 Cal.4th 497, 530, fn. 13.)
Here, the trial court's statements at sentencing indicate that it might not have stricken any enhancement. The trial court said, "[w]eighing all of the factors before the Court for consideration, the Court does not believe that the defendant is justified in being treated as though he had not been previously convicted of a prior serious or violent felony." The trial court reached its conclusion after outlining defendant's lengthy history of repeated offenses, including a conviction for attempted murder. The trial court therefore denied defendant's motion to strike his strike prior, which is based on his serious felony prior.
We recognize the trial court's sentencing choices and statements at sentencing suggest it might not exercise its discretion to strike defendant's prior serious felony enhancement. But this does not foreclose the possibility the trial court would have stricken the enhancement if it had had the discretion to do so. (People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.) Accordingly, remand is appropriate to allow the trial court to exercise its discretion to determine whether to strike defendant's prior serious felony enhancement under Senate Bill No. 1393.
E. Fines and fees
At sentencing, defendant's counsel asked the trial court to impose "minimal fines" "or not impose any fines" because defendant does not "have any means to repay any of that." The trial court noted that the probation department recommended a $10,000 restitution fine, and that the trial court had imposed the minimum $300 fine in other cases. But the trial court imposed a $3,000 restitution fine because "this is a murder case." The trial court also imposed a $70 fee (Pen. Code, § 1465.8; Gov. Code, § 70373), but waived fees associated with defendant's court-appointed counsel ($750) and the investigation report ($727) because defendant did not have the ability to pay them.
Relying on Dueñas, supra, 30 Cal.App.5th 1157, defendant asserts the trial court violated his due process rights by imposing the fine and fee because he cannot pay them. Defendant argues the $70 fee must be stricken given the trial court's finding that he cannot afford it and the $3,000 restitution fine must be stayed unless and until the People prove that he can pay it.
The trial court imposed the fine and fee without determining whether defendant could pay them. "Under Dueñas, this was error, and we must remand for an ability to pay hearing unless the error was harmless." (People v. Taylor (2019) 43 Cal.App.5th 390, 401.) The People bear the burden of showing "the record demonstrates, beyond a reasonable doubt, that . . . defendant cannot establish his . . . inability to pay." (Ibid.)
Only "[a] '"very limited class"' of federal constitutional errors are 'subject to per se reversal'; all others are 'amenable to harmless error analysis.'" (People v. Jones (2019) 36 Cal.App.5th 1028, 1035, citing People v. Aranda (2012) 55 Cal.4th 342, 363.) Because "Dueñas did not address whether Dueñas error requires an automatic reversal," we "consider whether the error here was harmless beyond a reasonable doubt." (People v. Jones, supra, at p. 1035.)
We cannot conclude that the error here was harmless beyond a reasonable doubt. The record contains scant information about defendant's financial status, but what it does contain suggests that he is unlikely to have the ability to pay the $3,000 restitution fine. Defendant had no income at the time of his sentencing, and the only information about his past employment was that he was dishonorably discharged from the Navy at some point. As noted, the trial court found that defendant could not afford to pay the $750 in costs associated with his court-appointed counsel or the $727 for the investigation report. It follows that defendant cannot afford to pay the $3,000 restitution fine. Therefore, there is insufficient evidence in the record of defendant's ability to pay for us to conclude beyond a reasonable doubt that he has the present ability to pay the $3,000 restitution fine.
Nor is there sufficient evidence to conclude defendant has the future ability to pay. "'[E]very able-bodied' prisoner is required to work. (§ 2700; Cal. Code Regs., tit. 15, § 3040, subd. (a).) A prisoner's assignment to a paid position 'is a privilege' that depends on 'available funding, job performance, seniority and conduct.' (Cal. Code Regs., tit. 15, § 3040, subd. (k); accord, People v. Rodriguez (2019) 34 Cal.App.5th 641, 649.) Wages in prison range from $12 to $56 per month, depending on the job and skill level involved. (Cal. Code Regs., tit. 15, § 3041.2, subd. (a)(1).) Fifty percent of [defendant's] wages and trust account deposits will be deducted to pay any outstanding restitution fine, plus another 5 percent for the administrative costs of this deduction. (§ 2085.5, subds. (a), (e); Cal. Code Regs., tit. 15, § 3097, subd. (f).)." (People v. Taylor, supra, 43 Cal.App.5th at p. 401.)
If defendant earned the maximum, he could pay the fine in about four years, six months. But if he earned the minimum, it would take defendant almost 21 years to pay the $3,000 fine, even if defendant put everything he earned toward paying it off. At the time of his sentencing, defendant was 49 years old, and we know nothing about his health, so we cannot determine whether defendant will be able to work for 21 years while serving his term. We therefore cannot conclude beyond a reasonable doubt on this record that defendant would be able to pay the $3,000 restitution fine.
Given the error and resulting prejudice, we remand the case to the trial court with directions to stay the execution of the restitution fine unless and until the People prove that defendant has the ability to pay it.
We reach a different conclusion as to the $70 fee. Jones is instructive. There, the trial court imposed the minimum restitution fine and a court operations assessment, both of which the defendant challenged. (People v. Jones, supra, 36 Cal.App.5th at p. 1031.) In determining whether the trial court's failure to hold an ability to pay hearing was harmless, we held that although "it is not defendant's burden on appeal to establish his eligibility for relief. [W]e will find Dueñas error harmless if the record demonstrated he cannot make such a showing." (Id. at p. 1035.) Applying this rule, we concluded in Jones that because the defendant could earn a minimum of $12 per month while incarcerated, $6 of which would go to his restitution fine, he had the ability to pay the relatively small combined total of his restitution fine and assessments.
Jones controls here. Even if defendant's wages may eventually be halved to pay his restitution fine, he would still be able to pay off the $70 fee in about a year into his decades-long sentence. Because the fee represents a relatively small sum, which defendant will be able pay off while incarcerated, we conclude any Dueñas error was harmless beyond a reasonable doubt.
IV.
DISPOSITION
Defendant's convictions are affirmed. The sentence is reversed and the matter is remanded with directions to stay execution of the restitution fine unless and until the People prove that defendant has the ability to pay it. On remand, the trial court also may exercise its discretion under Senate Bill No. 1393, to determine whether to strike defendant's prior serious felony enhancement under recently amended sections 667 subdivision (a) and 1385, subdivision (b).
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. FIELDS
J.