Opinion
C088284
03-25-2020
THE PEOPLE, Plaintiff and Respondent, v. JAMES ARTURO DIAZ, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 62117814)
This matter is in our court for a second time. A jury convicted defendant James Arturo Diaz of first degree burglary, possession of a deadly weapon, receiving stolen property, and possession of burglar's tools. After this court reversed and remanded the matter for further proceedings, the trial court resentenced defendant to an aggregate term of 18 years four months in prison, including an upper term of six years for the burglary conviction, doubled for a prior strike conviction.
Defendant now contends (1) in imposing an upper term sentence on the burglary conviction, some of the aggravating factors used by the trial court violated the dual use proscription, and (2) pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the matter must be remanded to permit the trial court to determine defendant's ability to pay the imposed fines, fees and assessments.
We conclude (1) the trial court did not err or abuse its discretion in selecting the upper term for the burglary conviction, and (2) although defendant forfeited his Dueñas contention as to the restitution and parole revocation fines, we will remand the matter to permit the trial court to consider defendant's ability to pay the mandatory assessments.
BACKGROUND
The jury convicted defendant of first degree burglary, possession of a deadly weapon, receiving stolen property, and possession of burglar's tools. Defendant waived a jury trial on prior strike conviction allegations and the trial court found defendant's prior Texas and California convictions were each a strike. The trial court denied defendant's Penal Code section 1385 motion to dismiss the prior strike allegations and sentenced defendant to a determinate term of 11 years four months in prison, plus an indeterminate term of 25 years to life.
Undesignated statutory references are to the Penal Code.
In an unpublished opinion, this court reversed the trial court's determination that the prior Texas conviction constituted a California strike and remanded the matter for further proceedings. (People v. Diaz (Feb. 21, 2018, C076210) [nonpub. opn.].) Before resentencing, the trial court granted the prosecution's motion to dismiss the Texas prior conviction allegation.
At resentencing, the trial court denied defendant's renewed section 1385 motion and sentenced him to a total aggregate term of 18 years four months in prison. The base term was 12 years for the first degree burglary conviction, consisting of an upper term of six years doubled for the remaining prior strike.
In selecting the upper term on the burglary conviction, the trial court reviewed the parties' sentencing briefs and analyzed circumstances in aggravation and mitigation under California Rules of Court, rules 4.421 and 4.423. In aggravation, the trial court found the victims were particularly vulnerable, the crime indicated planning and sophistication, the crime involved an attempted or actual taking of great monetary value, defendant engaged in violent conduct, and defendant served a prior prison term in Texas. The trial court further found there were no mitigating circumstances, determined the circumstances in aggravation outweighed those in mitigation, and imposed the upper term. Defendant did not object to the imposition of an upper term. The trial court also reimposed a $10,000 restitution fine, a $120 court operations assessment, and a $90 conviction assessment.
DISCUSSION
I
Defendant first claims the trial court improperly imposed an upper term for the first degree burglary conviction because the aggravating factors the trial court considered, other than his prior prison term, violated the dual use proscription in that they were based on facts already used as an element of his crimes or to enhance his sentence. Defendant further argues the trial court did not adequately rely on certain mitigating factors contained in defendant's presentencing report.
"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." (§ 1170, subd. (b).)
The trial court's sentencing decision is reviewed for 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.) "[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; see 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.)
Nevertheless, 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; see § 1170, subd. (b); Cal. Rules of Court, rule 4.420, subds. (c), (d).)
Anticipating that his dual-use-of-facts challenge may be forfeited because his trial counsel did not object on that ground in the trial court, defendant further asserts that the failure to object constituted ineffective assistance of counsel. But 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.)
There is no prejudice here because at least one aggravating factor - defendant's prior prison term in Texas - was proper. The trial court did not rely on this prison term for the element of any other crime or to enhance defendant's sentence. Defendant concedes that this factor does not violate the dual use proscription. He instead asserts that this prison term was for an offense committed 20 years ago and was completed in 2012. But the trial court's discretion to consider prior prison terms is not limited in time. (See Cal. Rules of Court, rule 4.421, subd. (b)(3).) Even if we assume for purposes of argument the other facts supporting aggravation were improperly considered, the Texas prior prison term was proper and enough by itself to justify an upper term. Further, the trial court was within its discretion in finding a lack of mitigating circumstances. 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
Defendant also contends that pursuant to Dueñas, supra, 30 Cal.App.5th 1157, the matter must be remanded to permit the trial court to determine defendant's ability to pay the imposed fines, fees and assessments. The Attorney General counters that defendant forfeited this appellate contention because he failed to raise it in the trial court.
We conclude defendant forfeited any ability-to-pay argument relating to the $10,000 restitution fine and the $10,000 parole revocation fine because our Supreme Court has already determined an objection is necessary to challenge the imposition of a restitution fine in excess of the mandatory minimum. (People v. Nelson (2011) 51 Cal.4th 198, 227.) Defendant failed to object to the above-minimum fines at the time of resentencing and therefore forfeited his ability-to-pay challenge to those fines. (Ibid.)
But defendant did not forfeit his challenge to the mandatory assessments. Although courts have diverged on the matter of forfeiture relating to a defendant's ability to pay mandatory assessments following Dueñas (compare People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 with People v. Castellano (2019) 33 Cal.App.5th 485, 491), we agree with the courts finding no forfeiture.
In Dueñas, the court held it is improper to impose certain fines or assessments without determining defendant's ability to pay. (People v. Dueñas, supra, 30 Cal.App.5th at pp. 1168, 1172.) Although some courts have subsequently criticized Dueñas's legal analysis (see, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946), Dueñas remains citable precedent. We find it appropriate to remand the matter to permit the trial court to consider defendant's ability to pay the mandatory assessments imposed.
DISPOSITION
The matter is remanded to permit the trial court to consider defendant's ability to pay the mandatory assessments. The judgment is otherwise affirmed.
/S/_________
MAURO, J. I concur: /S/_________
ROBIE, Acting P. J. Hoch, J., Dissenting
I disagree with part II of the majority opinion that remand is appropriate under People v. Dueñas (2019) 30 Cal.App.5th 1157 to permit a hearing on defendant's ability to pay. Assuming, without deciding defendant's Dueñas claims are preserved for review, I conclude defendant is not entitled to an ability to pay hearing. (People v. Kingston (2019) 41 Cal.App.5th 272; People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946 ; People v. Aviles (2019) 39 Cal.App.5th 1055, review & request for depub. den. Dec. 11, 2019, S258563; People v. Caceres (2019) 39 Cal.App.5th 917, 927, review den. Jan. 2, 2020, S258720.)
We may consider, as persuasive authority, the cases that have been granted review by our Supreme Court. (Cal. Rules of Court, rule 8.1115(e)(1).)
/S/_________
HOCH, J.