Opinion
E071582
02-07-2020
THE PEOPLE, Plaintiff and Respondent, v. MANUEL WILLIAM GARCIA, Defendant and Appellant.
Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1702362) OPINION APPEAL from the Superior Court of Riverside County. Emma C. Smith, Judge. Affirmed as modified with directions. Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Manuel William Garcia was charged by information with assault with a firearm (Pen. Code, § 245, subd. (a)(2), count 1), attempted carjacking (§§ 664, 215, count 2), being a felon in possession of a firearm (§ 29800, subd. (a)(1), count 3), and resisting a peace officer (§ 148, subd. (a), count 4). As to count 1, the information alleged that defendant personally inflicted great bodily injury (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)), and personally used a firearm (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)). As to count 2, the information alleged that he personally and intentionally discharged a firearm and proximately caused great bodily injury. (§§ 12022.53, subd. (c), 1192.7, subd. (c)(8).) As to counts 1 and 2, the information further alleged that he committed both offenses for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(C).) The information additionally alleged that defendant had served three prior prison terms (§ 667.5, subd. (b)), had one prior serious felony (§ 667, subd. (a)), and had one prior strike conviction (§§ 667, subds. (c) & (e), 1170.12, subd. (c)(1)).
All further statutory references will be to the Penal Code, unless otherwise noted.
On April 17, 2018, defendant pled guilty to count 3. The following day, the court dismissed count 4 pursuant to the People's motion. A jury subsequently found defendant guilty on count 1, and found the personal gun use and great bodily injury enhancements true; however, it deadlocked on the gang enhancement allegation. The jury found him not guilty on count 2. Defendant admitted the prior conviction allegations. A trial court subsequently dismissed one of the prison priors and sentenced him to a total term of 23 years four months in state prison.
On appeal, defendant contends: (1) the court's imposition of a consecutive term on count 3 violated the terms of his plea agreement; (2) the matter should be remanded for the trial court to exercise its discretion under Senate Bill No. 1393 to strike the five-year enhancement under section 667, subdivision (a); (3) pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the trial court's imposition of a court operations fee, a court facilities assessment, and a restitution fine violated his right to due process absent a hearing on his ability to pay; and (4) his prior prison term enhancements must be stricken under newly enacted Senate Bill No. 136. We agree that the matter should be remanded for resentencing in light of Senate Bill Nos. 1393 and 136. In all other respects, we affirm.
FACTUAL BACKGROUND
Because the facts of the underlying crimes are not relevant to the issues on appeal, we will only give a brief statement of the facts.
On July 6, 2017, defendant and his friend got into an argument. Defendant pointed a shotgun at his friend's chest, and then put it down. His friend said, "That's what I thought, b----." Defendant cocked the gun and shot him in the leg. Defendant said, "Let's go, fool." He gave his friend a shirt to tie around his leg. However, defendant then fled.
ANALYSIS
I. The Court Did Not Err in Sentencing Defendant on Count 3
Defendant pled guilty to count 3, and the court subsequently sentenced him to a consecutive term of one year four months on that count. In his opening brief, defendant asserts that he pled guilty on count 3, in exchange for a two-year term to run concurrent to any sentence imposed on the other counts. He argues that the court violated the terms of the plea agreement by imposing a consecutive term, and he is entitled to specific performance of the agreement. The People point out that there was no agreement between the prosecutor and defendant. Rather, defendant pled to count 3 as charged, and the court informed him that count 3 carried a sentence of 16 months, two years, or three years, and that it was "not promising [anything] one way or the other." Thus, the court did not err in sentencing him to a consecutive term of one year four months. In his reply brief, defendant concedes that the prosecutor was not a party to any agreement and, thus, specific performance is not required.
The sentence was one-third the midterm of two years, doubled pursuant to the prior strike.
The felony plea form stated that the custody term would be "2 years concurrent with any sentence."
We note that the People contended, in the alternative, that if defendant was entitled to any relief, the remedy would not be specific performance, but remand to the trial court to allow him to withdraw his plea and go to trial on count 3. After conceding that specific performance is not required, defendant states in his reply brief that he "agrees with respondent that the proper remedy is for the case to be remanded to permit [him] to withdraw his plea." However, no remedy is needed, since no error has been shown.
II. The Matter Should Be Remanded with Regard to Senate Bill No. 1393
Defendant contends this court must remand this case to allow the trial court to exercise its newly authorized discretion under Senate Bill No. 1393 to strike his prior serious felony enhancement. (§ 667, subd. (a).) We agree.
Senate Bill No. 1393, which was signed by the Governor on September 30, 2018, and became effective on January 1, 2019, amended both section 667, subdivision (a), and section 1385, subdivision (b), to delete restrictions on the court's sentencing discretion to strike prior serious felony convictions for sentencing purposes. (People v. Garcia (2018) 28 Cal.App.5th 961, 971 (Garcia).) Thus, the trial court is no longer prohibited from striking prior serious felony convictions during sentencing. Defendant contends, and the People agree, that Senate Bill No. 1393 applies retroactively to this case, since the judgment is not final. (See Id. at pp. 971-973.)
However, the People argue that 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 enhancement. The People point to the court's comments when it imposed the upper term on count 1 after reviewing the probation officer's lengthy recommendation. The court remarked that the recommendation "included virtually no mitigation whatsoever and a lot of aggravating factors including a statement from the defendant during his interview suggesting that he should have just killed the victim in the case."
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 also People v. McDaniels (2018) 22 Cal.App.5th 420, 424 (McDaniels).) 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." (Id. 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.) Here, the record does not show the trial court would not have exercised its discretion, even if it believed it could do so.
We recognize that the trial court's sentencing choice and statement suggest it might not have exercised its discretion to strike defendant's prior serious felony enhancement. However, we cannot say the record shows the trial court "clearly indicated when it originally sentenced the defendant that it would not in any event have stricken a [serious felony] enhancement." (McDaniels, supra, 22 Cal.App.4th at p. 425.) 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.
III. No Remand is Necessary with Regard to the Fines and Fees Imposed
Defendant challenges the court's imposition at sentencing of a $80 court operations assessment (Pen. Code, § 1465.8), a $60 criminal conviction assessment (Gov. Code, § 70373), and a $300 restitution fine (Pen. Code, § 1202.4). Relying on the recent appellate decision in Dueñas, supra, 30 Cal.App.5th 1157, defendant argues that the imposition of the fine and assessments without a hearing to establish his ability to pay violated his due process rights. (We will call this Dueñas error.) He requests this court to stay the order imposing the fine and assessments and remand the matter to give the People the opportunity to prove his ability to pay. No remand is required.
A. Defendant Did Not Forfeit His Claim
The People argue defendant forfeited this issue on appeal because he failed to raise it in the trial court. Defendant concedes he did not object on these grounds in the trial court. However, he argues that he has not forfeited his claim, since an objection would have been futile, given the state of the law at the time of sentencing, and because it raises a question of constitutional law. We agree with defendant.
The court in People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano) explained the issue as follows: "[A]t the time [defendant] was sentenced, Dueñas had not yet been decided; and no California court prior to Dueñas had held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant's ability to pay. Moreover, none of the statutes authorizing the imposition of the fines, fees or assessments at issue authorized the court's consideration of a defendant's ability to pay. Indeed, as discussed, in the case of the restitution fine, Penal Code section 1202.4, subdivision (c), expressly precluded consideration of the defendant's inability to pay. When, as here, the defendant's challenge on direct appeal is based on a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial, reviewing courts have declined to find forfeiture." (Castellano, at p. 489.) Pursuant to the reasoning in Castellano, we conclude defendant did not forfeit his claim. (See People v. Jones (2019) 36 Cal.App.5th 1028 (Jones).)
B. Any Error Was Harmless
No remand is required since any Dueñas error was harmless. Dueñas, supra, 30 Cal.App.5th 1157, involved a homeless probationer who suffered from cerebral palsy and was unable to work. She was married with two young children, and her family received public assistance. (Id. at pp. 1160-1161.) Her driver's license was suspended when she could not pay some juvenile citations as a teenager. (Id. at p. 1161.) "She was then convicted of a series of misdemeanor offenses for driving with a suspended license, and in each case was given the impossible choice whether to 'pay[]' mandatory fees and fines—which she could not do, because of her poverty—or go to jail. [Citation.] After serving jail time in the first three of these cases, she still faced outstanding debt, which mounted with each conviction." (People v. Johnson (2019) 35 Cal.App.5th 134, 138 (Johnson).)
Upon her fourth conviction for driving with a suspended license, Dueñas was placed on probation and again ordered to pay mandatory fees and fines. (Dueñas, supra, 30 Cal.App.5th at pp. 1161-1162.) She asked the court to set a hearing to determine her ability to pay the attorney fees and court fees she had been assessed. (Id. at p. 1162.) The court held an ability to pay hearing and concluded that she lacked the ability to pay the attorney fees, and it waived them "on the basis of her indigence." (Id. at p. 1163.) However, the court stated that the $30 court facilities assessment (Gov. Code, § 70373) and $40 court operations assessment (Pen. Code, § 1465.8) "were both mandatory regardless of Dueñas's inability to pay them." (Dueñas, at p. 1163.)
Dueñas appealed and argued that "laws imposing fines and fees on people too poor to pay punish the poor for their poverty." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The appellate court agreed, concluding that due process "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.) The court also held that "although Penal Code 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.)
We first note that the facts in the instant case bear no similarity to the unique factual circumstances presented in Dueñas. The Dueñas court observed the record in that case "illustrate[d] the cascading consequences of imposing fines and assessments that a defendant cannot pay." (Dueñas, supra, 30 Cal.App.5th at p. 1163.) It also noted that the case did not " 'stem from one case for which she's not capable of paying the fines and fees,' but from a series of criminal proceedings driven by, and contributing to, Dueñas's poverty." (Id. at p. 1164, italics added.) There were no such similar circumstances here.
In any event, any error in failing to conduct an ability to pay hearing was harmless. "A ' "very limited class" ' of federal constitutional errors are 'subject to per se reversal'; all others are 'amenable to harmless error analysis.' [Citations.] Dueñas did not address whether Dueñas error requires an automatic reversal." (Jones, supra, 36 Cal.App.5th at p. 1035.) "We therefore consider whether the error here was harmless beyond a reasonable doubt." (Ibid.; see Chapman v. California (1967) 386 U.S. 18, 24.)
Here, defendant claims he is indigent, implying that he is unable to pay the subject fine and assessments that were imposed. "Because . . . no ability to pay hearing was held, it is not defendant's burden on appeal to establish his eligibility for relief. Nevertheless, we will find Dueñas error harmless if the record demonstrated he cannot make such a showing." (Jones, supra, 36 Cal.App.5th at p. 1035.) Defendant cannot do so. He was sentenced to 23 years four months in state prison. We can infer defendant has the ability to pay the fine and assessments imposed upon him from probable future wages, including prison wages. (People v. Aviles (2019) 39 Cal.App.5th 1055, 1076; see People v. Frye (1994) 21 Cal.App.4th 1483, 1487 [ability to pay includes a defendant's ability to obtain prison wages]; see also Jones, supra, 36 Cal.App.5th at p. 1035.) Given that the restitution fine is $300 and the assessments total $140, defendant will have ample time to earn these amounts during his sentence. (Jones, at p. 1035 [six years in prison was sufficient time to earn $370 to pay fines and assessments]; see Johnson, supra, 35 Cal.App.5th at pp. 139-140 ["the idea that [the defendant] cannot afford to pay $370 while serving an eight-year prison sentence is unsustainable"].)
In sum, even if we were to assume defendant suffered a due process violation when the court imposed the subject fine and assessments without taking his ability to pay into account, there is no reason to doubt defendant has, or will have, the ability to pay the $440 owed. (See Johnson, supra, 35 Cal.App.5th at pp. 139-140.) Accordingly, we conclude the Dueñas error was harmless. (Jones, supra, 36 Cal.App.5th at p. 1035.)
The People argue that the restitution fine is a form of punishment and should be examined under the excessive fines clause of the Eighth Amendment. Defendant then, in his reply brief, mentions that the fines and assessments imposed violate the excessive fines clause. Defendant did not raise an Eighth Amendment challenge in his opening brief, and we therefore decline to address that issue. (People v. Caceres (2019) 39 Cal.App.5th 917, 923.) --------
IV. Defendant's Prior Prison Enhancements Must Be Stricken
In a supplemental brief, defendant contends that his two prior prison term enhancements must be stricken pursuant to the amendment to section 667.5, subdivision (b), by Senate Bill No. 136, which became effective January 1, 2020. The People concede that the sentences on the section 667.5, subdivision (b), priors must be stricken.
On October 8, 2019, Senate Bill No. 136 was signed into law, and it became effective on January 1, 2020. Senate Bill No. 136 modifies section 667.5, subdivision (b), to eliminate the one-year sentences for prior prison terms served, unless the prior prison term involves a conviction of a sexually violent offense (which is not involved here). The statute is retroactive and applies to cases not yet final as of its effective date. (See Garcia, supra, 28 Cal.App.5th at pp. 972-973.) Since this case is being remanded to the trial court for resentencing under Senate Bill No. 1393, we will order the trial court to strike defendant's two prior prison term enhancements pursuant to Senate Bill No. 136.
DISPOSITION
The trial court is directed to exercise its discretion under Senate Bill No. 1393 to determine whether to strike defendant's prior serious felony enhancement. The trial court is also directed to strike the two prison prior term enhancements from defendant's sentence, pursuant to Senate Bill No. 136. Otherwise, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. CODRINGTON
J.