Opinion
E071946
12-05-2019
THE PEOPLE, Plaintiff and Respondent, v. JOAQUIN CALLINS, Defendant and Appellant.
Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, and Daniel Rogers and Christopher P. Beesley, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI18001841) OPINION APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson, Judge. Affirmed. Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, and Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, Joaquin Callins, was tried by jury and convicted of second degree robbery. (Pen. Code, § 211.) At a court trial following this conviction, the court found true allegations that defendant had a prior strike conviction and prior serious felony conviction. (§§ 667, subds. (a)(1)-(e), 1170.12, subds. (a)-(d).) Defendant was sentenced to a total of 11 years in state prison, and the court imposed fines, fees, and assessments that included a $500 restitution fine. Defendant appealed.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant argues that the court erred by refusing to strike either the prior strike conviction or the five-year serious felony enhancement. Defendant also argues that the assessments imposed under Penal Code section 1465.8 and Government Code section 70373 should be stricken or stayed unless and until the People prove defendant has the ability to pay them. We affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
On June 26, 2018, Tallie S. observed defendant in a park near her home. Later that day her friend, Patrick W., who was visiting, was outside her home talking on his cell phone when defendant approached him. Defendant said that the phone was his and demanded to see it. Patrick W. refused and defendant hit him in the jaw. Patrick W. fought back, but fell and dropped his phone. Defendant grabbed the phone and ran away. Patrick W. picked up a two-by-four-inch piece of wood and ran after defendant, but eventually lost him. Tallie S. witnessed the altercation and identified defendant for police.
After the incident, Patrick W. and Tallie S. went to the same park that Tallie S. saw defendant in earlier in the day. While there, they overheard a city worker call out asking if anyone had lost a phone. Patrick W. and Tallie S. both looked at the phone, and Tallie S. testified that Patrick W. told her it was identical to his phone. The city worker refused to turn over the phone to Patrick W.
Defendant was apprehended several days later when police responded to an unrelated traffic collision in which he was involved.
The District Attorney of San Bernardino County charged defendant by information with one count of second degree robbery. The information also alleged that defendant had a prior strike conviction and a prior serious felony conviction. Both of these allegations were based on the same prior conviction, a 2009 burglary.
In October 2018, a jury found defendant guilty on the sole count of robbery. The trial court then held a bifurcated court trial as to the prior strike allegation and prior serious felony allegation. The trial court found both allegations true.
Defendant brought a motion to dismiss the prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, which the trial court denied. The trial court also denied defendant's request to strike the five-year prior serious felony enhancement. The trial court sentenced defendant to a total of 11 years in prison, composed of the middle term of three years for his new conviction, doubled to six years on account of the strike, plus the additional five-year prior serious felony enhancement. The trial court also imposed a $30 criminal conviction assessment and a $40 court operations fee pursuant to Government Code section 70373 and Penal Code section 1465.8 respectively.
Defendant timely appealed.
III. DISCUSSION
Defendant argues that the trial court erred by denying his Romero motion, denying his request to strike the five-year prior serious felony enhancement, and by imposing certain assessments without first determining whether defendant had the ability to pay those assessments. We disagree with each of defendant's contentions. A. The Trial Court Did Not Abuse Its Discretion by Denying Defendant's Romero Motion
We review a trial court's ruling on a Romero motion under the deferential abuse of discretion standard. (People v. Williams (1998) 17 Cal.4th 148, 162.) This means that on appeal the trial court is "'"presumed to have acted to achieve legitimate sentencing objectives"'" and the decision to impose a particular sentence will not be set aside unless an affirmative showing is made that the sentence "is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
In exercising its discretion whether to strike a prior strike allegation, a trial court considers various factors, including "the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, . . . the particulars of his background, character, and prospects," and whether the defendant may properly be deemed outside the spirit of the "Three Strikes" law. (People v. Williams, supra, 17 Cal.4th at p. 161.) The record shows that the trial court in this case considered these factors. The court considered that the prior conviction defendant sought to strike was from 2009 and was a first degree burglary. The court noted that "[i]f [the conviction] were more remote and less of a prior to which he has been presently convicted, namely a theft where he victimizes people's property, the Court may have considered it. But it is not remote." The court also considered defendant's prior criminal history, which consisted of second degree burglary in 2008, first degree burglary in 2009, and misdemeanor vandalism in 2014. It also noted that he had multiple parole violations starting in 2008 and ending in 2011. Thus, the court properly considered defendant's prior and current felony convictions and his background, character, and prospects in determining whether to strike defendant's prior strike conviction.
Nevertheless defendant argues that the court abused its discretion in not affording proper weight to certain factors and not considering others. First, defendant argues that the 10-year-old conviction was quite old, and that the court erred in considering it "not remote." Defendant also argues that the court's reliance on the 2014 conviction was in error because that conviction was for misdemeanor vandalism, which was both not a serious crime and dissimilar from the other theft-based convictions the court considered. In addition, defendant claims his current offense is not as serious as it seems given that it stemmed from a possible misunderstanding (that defendant thought Patrick W. had defendant's phone) and Patrick W. did not suffer serious injuries. Defendant points out that between the 2009 felony conviction and the 2018 felony conviction defendant had held down at least one job for an extended period and was financially providing for his children. Finally, defendant argues that the 11-year sentence was simply unjust, and that the extra three years of that sentence caused by the trial court's denial of defendant's Romero motion did not serve the spirit of the Three Strikes law because it would not meaningfully reduce defendant's likelihood to reoffend.
To begin with, defendant's 2009 burglary conviction was not "remote" as that term is used in determining whether to strike a prior strike conviction. "In determining whether a prior conviction is remote, the trial court should not simply consult the Gregorian calendar with blinders on. . . . Where, as here, the defendant has led a continuous life of crime after the prior, there has been no 'washing out' and there is simply nothing mitigating about a [10]-year-old prior." (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.) Thus, defendant's multiple parole violations between 2008 and 2011, combined with the 2014 vandalism misdemeanor, is enough for a trial court to conclude that his prior burglary conviction was not remote.
Notwithstanding the lack of remoteness, none of the issues defendant raises meet defendant's burden to prove that the trial court's "'"sentencing decision was irrational or arbitrary."'" (People v. Carmony, supra, 33 Cal.4th at p. 376.) "'"In the absence of such a showing, the trial court['s] . . . discretionary determination to impose a particular sentence will not be set aside on review."'" (Id. at pp. 376-377.) "'[I]t is not enough to show that reasonable people might disagree about whether to strike one or more' prior conviction allegations." (Id. at p. 378.) "[A] '"decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'"'" (Id. at p. 377.) Indeed, "the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and . . . creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [¶] In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances." (Id. at p. 378.)
Those limited circumstance do not exist here. The trial court was within its rights to consider defendant's prior felony convictions for substantially similar genres of crime, the intervening misdemeanor conviction, and multiple parole violations as evidence that defendant was likely to reoffend and to therefore decline to strike the prior strike conviction. Defendant did not and has not presented any argument or evidence meeting his burden to show that this decision was irrational or arbitrary under the appropriate standard of review. B. The Trial Court Did Not Abuse Its Discretion by Declining to Strike the Five-year Prior Serious Felony Enhancement
Next, defendant argues that the trial court abused its discretion in refusing to strike defendant's five-year prior serious felony enhancement under newly enacted Senate Bill No. 1393 (2017-2018 Reg. Sess.) (S.B. 1393).
S.B. 1393 was enacted effective January 1, 2019. The legislation amended sections 667, subdivision (a) (§ 667(a)) and 1385, subdivision (b) (§ 1385(b)) to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.) Under the former versions of sections 667(a) and 1385(b), courts were required to impose a five-year consecutive term for "any person convicted of a serious felony who previously has been convicted of a serious felony . . . ." (§ 667(a).) The court had no discretion "to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667." (§ 1385(b).)
Defendant was sentenced on January 4, 2019, three days after S.B. 1393 went into effect. At sentencing, defense counsel raised the fact that the trial court now had discretion to strike the five-year prior serious felony enhancement and specifically requested that the court exercise this discretion to so strike the enhancement. The trial court declined to do so, stating that "[w]ith respect to the [section] 667[, subdivision] (a)(1), the Court finds that imposing that would be in furtherance of justice and will impose that as well."
We are unable to locate a published opinion from any court that has decided what standard of review applies to review of a trial court's decision not to exercise its newfound discretion under amended section 667. We conclude that abuse of discretion is the proper standard. We agree with the reasoning in Carmony, which held that a court's decision not to exercise its discretion under Romero should be reviewed for abuse of discretion. "'Discretion is the power to make the decision, one way or the other.'" (People v. Carmony, supra, 33 Cal.4th at p. 375, quoting People v. Myers (1999) 69 Cal.App.4th 305, 309.) "[A] court's decision to strike a qualifying prior conviction is discretionary. [Citation.] As such, a court's decision not to strike a prior necessarily requires some exercise of discretion." (People v. Carmony, supra, at p. 375.) Though the court in Carmony was considering a court's discretion to strike a prior strike conviction, the same discretionary rules apply here. This is also consistent with the approach courts have taken regarding similar instances where amendments to the law granted trial courts greater sentencing discretion. (See People v. Pearson (2019) 38 Cal.App.5th 112, 115-116 [applying abuse of discretion standard when reviewing trial court's decision not to strike a firearm enhancement when it had the discretion to do so].)
Defendant offers many of the same arguments challenging the court's decision not to strike the five-year enhancement as an abuse of discretion as he does in challenging its decision to deny his Romero motion. We find defendant's arguments here unavailing for the same reasons articulated above.
However, defendant offers one independent basis for concluding that the court's decision not to strike the five-year enhancement was an abuse of discretion. Defendant argues that the probation report was prepared prior to the effective date of S.B. 1393 and therefore did not contain any recommendations regarding striking the five-year prior serious felony enhancement. Defendant argues this report was therefore inadequate to properly advise the trial court, and that an adequate report may have included recommendations to strike the five-year enhancement.
We are unpersuaded that the trial court lacked adequate information to appropriately exercise its discretion to strike or not strike the serious prior felony enhancement. All of the information needed for the court to appropriately exercise its discretion with respect to the prior serious felony enhancement was provided in the probation report and papers of counsel addressing the prior strike conviction. This background information included information regarding the circumstances of defendant's present crime; any prior serious or violent felonies; all misdemeanor convictions; and his background, character, and prospects. As discussed above, the trial court properly considered this information when deciding not to strike defendant's prior strike conviction and was therefore fully informed of the relevant facts when it exercised its discretion to impose the five-year prior serious felony enhancement. A supplemental report was therefore unnecessary and the trial court properly exercised its discretion without an updated report. C. The Trial Court's Failure to Hold an Ability to Pay Hearing With Regards to the Imposed Assessments was Harmless Error
Defendant concedes he has forfeited his opportunity to challenge the $500 restitution fine and accompanying parole revocation fine because section 1202.4 gave him the opportunity to object to this fine in the trial court on the basis of inability to pay and he did not. Nevertheless, defendant asks us to consider his arguments on their merits. We agree that defendant forfeited his right to challenge the imposition of this fine and decline to reach the issue on its merits. (See People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1032-1033; People v. Jones (2019) 36 Cal.App.5th 1028, 1033 (Jones) [agreeing that an objection to a restitution fine in excess of the minimum would not have been futile and therefore failure to object forfeits any challenge to such a fine].)
Defendant argues that under the recently decided case of People v. Dueñas (2019) 30 Cal.App.5th 1157, his assessments must be stricken or stayed pending an evidentiary hearing and proof from the People that defendant is capable of paying the assessments. We disagree.
Prior to Dueñas, Penal Code section 1465.8 and Government Code section 70373 imposed mandatory assessments on every criminal conviction except parking convictions. (People v. Dueñas, supra, 30 Cal.App.5th at p. 1164.) However, the court in Dueñas held "that 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 Penal Code section 1465.8 and Government Code section 70373." (Ibid.)
We note that a separate division of the same district that decided Dueñas has recently published a case holding that Dueñas was wrongly decided. (See People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946.) Because we find that remand is unnecessary even according to the decision in Dueñas we decline to address it further. --------
Dueñas applies retroactively to cases on direct appeal or cases which are not yet final at the time of decision, which includes this case. (See Griffith v. Kentucky (1987) 479 U.S. 314, 328 ["[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past."].)
There is no dispute that the trial court in this case did not consider defendant's ability to pay before imposing the assessments. Because Dueñas obligates trial courts to consider ability to pay before imposing any assessments, failure to do so generally requires remand for the trial court to conduct such a hearing. (People v. Castellano (2019) 33 Cal.App.5th 485, 489-490.) Therefore, defendant is entitled to remand for an ability to pay hearing unless he is found to have forfeited the issue or the trial court's failure to consider ability to pay was not prejudicial. (See Jones, supra, 36 Cal.App.5th 1028.)
First, we turn to whether defendant has forfeited his right to challenge the assessments imposed by the trial court. Unlike Penal Code section 1202.4, Penal Code section 1465.8 and Government Code section 70373 do not provide a mechanism for challenging assessments on the basis of inability to pay. Because of this, another panel of this court has held that a defendant does not forfeit his right to challenge the imposition of mandatory assessments by failing to object at the trial court. (See Jones, supra, 36 Cal.App.5th 1028.) In Jones, this court recognized that "'[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence'" (id. at p. 1031, quoting People v. Welch (1993) 5 Cal.4th 228, 237), and that at the time of defendant's conviction "the relevant statutes all but foreclosed any due process objections to the court facilities or court operations assessments." (Jones, supra, at p. 1032).
Jones acknowledged that other courts, particularly the court in People v. Frandsen (2019) 33 Cal.App.5th 1126, have previously held that challenges to assessments could be forfeited. But we respectfully rejected that determination. While we agreed with Frandsen's reasoning that a defendant can forfeit an objection to a restitution fine greater than the minimum, "[w]ith regard to the court facilities and court operations assessments," Frandsen's conclusion that Dueñas was foreseeable was "[i]n our view . . . incorrect." (Jones, supra, 36 Cal.App.5th at p. 1033.)
Because we find that defendant did not forfeit his right to challenge the assessments, we turn to whether the Dueñas error requires reversal. We also choose to consider whether imposition of the restitution fine would require reversal had defendant not forfeited his right to challenge it. Error under Dueñas is not reversible per se, but instead subject to harmless error analysis. (Jones, supra, 36 Cal.App.5th at pp. 1034-1035.) Since an alleged error under Dueñas involves a violation of due process, we consider whether the error was harmless beyond a reasonable doubt. (Jones, supra, at p. 1035; see Chapman v. California (1967) 386 U.S. 18, 24.)
Here, the monetary assessments total $70. Even adding the restitution fine only brings this total to $570. Any inquiry into defendant's ability to pay the assessments and fines at issue would necessarily include consideration of his future earning capacity, including his ability to obtain prison wages during the course of his incarceration and his ability "to earn money after his release from custody." (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837; Jones, supra, 36 Cal.App.5th at p. 1035; People v. Johnson (2019) 35 Cal.App.5th 134, 138-139.) Defendant was sentenced to a term of 11 years in state prison. Defendant is 30 years old and the probation officer found that his health was good. Given defendant's age and the length of his prison sentence, we have no doubt that defendant will have the ability to pay the $570 at issue here sometime during his incarceration or after his release.
Thus, we conclude that any error under Dueñas was harmless.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: CODRINGTON
Acting P. J. RAPHAEL
J.