Opinion
C089198
08-03-2020
THE PEOPLE, Plaintiff and Respondent, v. MARY LOUISE BURRIS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18CF07422)
Defendant Mary Louise Burris challenges the trial court's imposition of an upper term sentence arguing the aggravating factors it used violated the dual use proscription. She also contends pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), fines and assessments the trial court imposed must be stayed pending a determination of her ability to pay. We affirm the judgment.
FACTS AND LEGAL PROCEEDINGS
On December 1, 2018, a sheriff's deputy stopped defendant after seeing her cross solid yellow lines at erratic speeds. A California Highway Patrol officer arrived and, after noticing the smell of alcohol from inside defendant's car, performed a field sobriety test. Defendant showed signs of intoxication during the field test and a preliminary alcohol screening test showed a .188 percent blood-alcohol content. Defendant had one prior driving under the influence misdemeanor conviction and two prior vehicular-manslaughter-while-intoxicated felony convictions. In 2006, she was sentenced to 14 years in state prison for the manslaughter convictions and was paroled in 2012.
Defendant was arrested and charged with one count of driving while under the influence of alcohol in violation of section 23152, subdivision (a) (Count 1), and one count of driving with a .08 percent blood-alcohol content in violation of section 23152, subdivision (b) (Count 2). Both counts were charged as felonies based on defendant's two previous convictions for vehicular manslaughter while intoxicated. Two prior strikes were also alleged based on these prior convictions pursuant to sections 667, subdivision (d), and 1170.12, subdivision (b).
Defendant later entered a no contest plea to driving under the influence of alcohol as charged in Count 1 and admitted to one prior prison term and one prior strike. The driving with a .08 percent blood-alcohol content count and one of the strike allegations were dismissed.
During sentencing, the court first denied probation stating it had "a very difficult time understanding someone who's convicted of an initial DUI, then went out and drove again under the influence and killed two people, including injuring her son, that she would ever get back in a vehicle after drinking and driving." Even though defendant had support and completed treatment, defendant was "very lucky that someone else was not killed as a result of this. This wasn't just going around the corner. This was going from approximately a 25 miles [sic] also. . . . [¶] With this history and the circumstances, this Court just cannot place this community at risk by granting probation."
The court then sentenced defendant to the upper term of three years for driving under the influence, doubled to six years for her prior strike.
After noting it considered "the statement in mitigation and letters filed" in support of defendant, the court examined the aggravating and mitigating factors under California Rules of Court, rules 4.421 and 4.423. The court found "on balance the circumstances in aggravation outweigh the circumstances in mitigation. [¶] Specifically, the Court notes the following reasons for its choice of term: The defendant's prior conviction [sic] are numerous and of increasing seriousness. This is the third felony, all DUI related. The defendant has served prior prison terms. [¶] Therefore, for the foregoing reasons . . . the defendant is sentenced to state prison for the upper term of six years." The court also imposed numerous fines and assessments. Defendant's counsel argued for mitigating factors listed in the mitigation report but did not object to defendant's sentence at the sentencing hearing.
DISCUSSION
I
Upper Term Sentence
Defendant claims the trial court abused its discretion by imposing the upper term because (1) it used her prior convictions as an aggravating factor even though those convictions were also charged to enhance her crime from a misdemeanor to a felony, and (2) the court did not adequately rely on the mitigating factors examined in defendant's presentencing report.
We find the trial court did not abuse its discretion selecting the upper term.
"When a judgment of imprisonment is to be imposed and the statute specifies three possible terms . . . [t]he court shall select the term which, in the court's discretion, best serves the interests of justice." (Pen. Code, § 1170, subd. (b); statutory section references that follow are to the Penal Code unless otherwise stated.)
The trial court's sentencing decision is reviewed for an abuse of discretion, meaning its discretion must have been exercised in a manner that is not arbitrary and capricious. (People v. Weber (2013) 217 Cal.App.4th 1041, 1063.) " '[A] trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions.' " (Id. at pp. 1063-1064.) "[T]he presence of one aggravating circumstance renders it lawful for the trial court to impose an upper term sentence." (People v. Black (2007) 41 Cal.4th 799, 815; People v. Forster (1994) 29 Cal.App.4th 1746, 1759 [finding upper term justified if "there remains one unassailable valid factor in aggravation"].) "The trial court is not required to set forth its reasons for rejecting a mitigating factor. [Citations.] Further, unless the record affirmatively indicates otherwise, the trial court is deemed to have considered all relevant criteria, including any mitigating factors." (People v. Holguin (1989) 213 Cal.App.3d 1308, 1317-1318.)
A. Dual Use of Facts
One prohibition in sentencing is the proscription against the dual use of facts. Courts "generally cannot use a single fact both to aggravate the base term and to impose an enhancement, nor may it use a fact constituting an element of the offense either to aggravate or to enhance a sentence." (People v. Scott (1994) 9 Cal.4th 331, 350; § 1170, subd. (b); Cal. Rules of Court, rule 4.420, subds. (c), (d).)
Defendant has forfeited her dual use of facts argument because she failed to specifically object on this ground during sentencing. (Scott, supra, 9 Cal.4th at p. 354; People v. de Soto (1997) 54 Cal.App.4th 1, 8-9; see People v. Gonzalez (2003) 31 Cal.4th 745, 755.) But we address the merits of defendant's claim because she asserts the forfeiture results in an ineffective assistance of counsel. "A defendant claiming ineffective assistance of counsel under the federal or state Constitutions must show . . . prejudice under a test of reasonable probability of a different outcome." (People v. Osband (1996) 13 Cal.4th 622, 664.)
Defendant cannot show prejudice here because the trial court properly considered at least one aggravating factor in determining her sentence: defendant's prior convictions were of increasing seriousness. (Cal. Rules of Court, rule 4.421, subd. (b)(2).)
We note that defendant's arguments assume her prior convictions must be both numerous and of increasing seriousness. But California Rules of Court, rule 4.421, subdivision (b)(2) states defendant's prior convictions "are numerous or of increasing seriousness." This means the circumstance can be satisfied by finding the convictions were either numerous or they were of increasing seriousness. (People v. Quiles (2009) 177 Cal.App.4th 612, 621-622 [finding factor satisfied despite prior convictions not being numerous because they were increasing in seriousness].) The trial court found that both were satisfied when it stated the prior convictions were "numerous and of increasing seriousness."
In any event, defendant's first crime was a misdemeanor that did not result in death. Her next conviction, which was not used to enhance her current sentence, was a felony manslaughter that resulted in death. This is an increase in seriousness. That defendant's present crime did not result in death gives her no aid here. As the trial court found, defendant drove, heavily intoxicated, 25 miles knowing from her own previous experience this could result in death. Putting the community's safety at risk in this manner is arguably even more serious than defendant's felony manslaughter conviction, defendant having experienced the result of her driving in that condition before. (Cal. Rules of Court, rule 4.408, subd. (a).) This brazen disregard of consequences while having intimate knowledge of community risks increases her culpability and the seriousness of her decision to again drive intoxicated. The court therefore properly found at least one aggravating factor leading to its upper term decision.
The court also considered defendant's presentence report and did not find any facts in mitigation outweighed this aggravating circumstance; this was within its discretion. Thus, there is no reasonable probability there would have been a different outcome if defense counsel had objected at sentencing because the trial court properly found at least one aggravating factor that necessarily outweighed the lack of mitigating circumstances.
II
Ability to Pay Hearing
As noted above, the trial court imposed several fines and assessments. Citing Dueñas, defendant contends she is entitled to a remand for a hearing on whether she can afford to pay the various fines and fees assessed by the trial court. The Attorney General argues, among other things, that defendant's assertion of error in this regard has been forfeited.
We need not decide the forfeiture issue because we hold that Dueñas was wrongly decided regarding the issue of hearings on the ability to pay fines and fees before they may be ordered by the trial court.
Dueñas held "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under [ ]section 1465.8 and Government Code section 70373." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The Dueñas court also held "that although [ ]section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Ibid.)
The Dueñas opinion relies on a line of authorities beginning with Griffin v. Illinois (1956) 351 U.S. 12, which itself rested on the "constitutional guaranties of due process and equal protection" and struck down a state practice of granting appellate review only to individuals who could afford a trial transcript. (Griffin, at pp. 13, 17; see Dueñas, supra, 30 Cal.App.5th at pp. 1166-1169.) As recent appellate court cases have illustrated, the authorities Dueñas cites involving the right of access to courts are inapplicable because the imposition of the fine and assessments at issue in Dueñas and in this proceeding do not deny defendants access to the courts. (People v. Hicks (2019) 40 Cal.App.5th 320, 326, review granted Nov. 26, 2019, S258946 (Hicks); People v. Aviles (2019) 39 Cal.App.5th 1055, 1068-1069; People v. Caceres (2019) 39 Cal.App.5th 917, 927 (Caceres); see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1039 (conc. opn. of Benke, J.).) Griffin also stated broadly, "There can be no equal justice where the kind of trial a man gets depends on the amount of money he has." (Griffin, at p. 19.) Another line of cases relied upon by Dueñas is related by this "principle of 'equal justice' " and prohibits imprisonment based on the failure to pay criminal penalties where the nonpayment was due to indigence. (Bearden v. Georgia (1983) 461 U.S. 660, 661-662, 664; accord In re Antazo (1970) 3 Cal.3d 100, 103-106, 109-110; see Dueñas, at pp. 1166-1168.)
The fine and assessments at issue in Dueñas and this appeal subject an indigent defendant "only to a civil judgment that she [or he] cannot satisfy." (Dueñas, supra, 30 Cal.App.5th at p. 1167; see also id. at p. 1169.) Thus, the authorities prohibiting incarceration for indigence alone are inapplicable. (Hicks, supra, 40 Cal.App.5th at p. 326, review granted Nov. 26, 2019, S258946; Caceres, supra, 39 Cal.App.5th at p. 927.) Indeed, in In re Antazo, supra, 3 Cal.3d 100, our Supreme Court granted the petition for the writ of habeas corpus only to discharge the petitioner from his imprisonment resulting from his inability to pay the fine and penalty assessment imposed as a condition of probation, but did not relieve him from any obligations in his probation order. (Id. at p. 117.) The court explained, "we do not hold that the imposition upon an indigent offender of a fine and penalty assessment, either as a sentence or as a condition of probation, constitutes of necessity in all instances a violation of the equal protection clause." (Id. at p. 116, italics added.) In other words, "Dueñas does more than go beyond its foundations; it announces a principle inconsistent with them." (Hicks, at p. 327, review granted Nov. 26, 2019, S258946.)
Further, "the fundamental policy question presented in Dueñas is a nettlesome one -- namely, under what circumstance is it appropriate to require criminal defendants, many of whom are people of little or no means, to pay assessments that help defray the costs of operating the court system and restitution fines that pour into a statewide fund that helps crime victims?" (Hicks, supra, 40 Cal.App.5th at p. 328, review granted Nov. 26, 2019, S258946.) This "is a question to which . . . the federal and California Constitutions do not speak and thus have left to our Legislature." (Id. at p. 329, review granted Nov. 26, 2019, S258946.)
We join those authorities that have concluded that the principles of due process do not supply a procedure for objecting to the fines and assessments at issue in Dueñas and in this proceeding based on the present ability to pay. (Hicks, supra, 40 Cal.App.5th at p. 329, review granted Nov. 26, 2019, S258946; People v. Aviles, supra, 39 Cal.App.5th at p. 1069; Caceres, supra, 39 Cal.App.5th at p. 928.) To the extent it announced this broad rule, Dueñas was wrongly decided and defendant's claim pursuant thereto is without merit.
DISPOSITION
The judgment is affirmed.
/s/_________
HULL, Acting P. J. We concur: /s/_________
DUARTE, J. /s/_________
HOCH, J.