Opinion
E066649
08-10-2018
THE PEOPLE, Plaintiff and Respondent, v. RONALD NELSON HORTON, Defendant and Appellant.
Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and N. Joy Utomi, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF1600097) OPINION APPEAL from the Superior Court of Riverside County. Jeffrey L. Gunther, Judge. (Retired judge of the Sacramento Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified in part; reversed in part. Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and N. Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On October 24, 2015, at about 1:00 a.m., an upstairs resident of a condominium unit heard a suspicious pounding noise from the unoccupied unit below, and called 911. Police arrived within five to 10 minutes. The lights were off and police found no evidence of forced entry at either of the two doors. However, a bedroom window had been pried open and there were fresh pry marks on the window frame. Police then saw defendant looking out one of the windows of the unit, and within seconds Ronald Horton (defendant) exited the front door carrying a backpack. In the backpack police found five screwdrivers, a glass cutter, pliers, wire cutters, and two flashlights. Defendant was arrested, and one of the flashlights in defendant's backpack was found to match the description of one reported missing from the unit after the incident. An investigation of the unit found it largely undisturbed, with no evidence that defendant had been squatting. Most of the furniture was still covered with sheets as the unit owner had left it, but the sheet was lifted off of a desk in the living room which had a laptop computer on it. The unit owner's socket wrench set had been taken out of a closet and was laid open on a chair near the desk.
On June 29, 2016, defendant was convicted by a jury of residential burglary (Penal Code, § 459, count 1), misdemeanor receipt of stolen property, i.e., the flashlight (§ 496, subd. (a), count 2), and misdemeanor possession of burglary tools (§ 466, count 3). The sentencing court found true two prior prison term allegations pursuant to section 667.5, subdivision (b), and imposed a sentence of four years for count 1, with enhancements of one year each for two prison priors, to be served consecutively, for a total of six years in prison. Defendant was sentenced to 364 days each for counts 2 and 3, to be served concurrently. Before sentencing, one of the prison prior felonies had been reduced to a misdemeanor pursuant to Proposition 47. The court also imposed victim restitution of $640 for the broken window, a felony restitution fine of $5,400 pursuant to section 1202.4, subdivision (b), and a parole revocation restitution fine of $5,400 as required by section 1202.45. The court ordered the restitution fine suspended and not collected, if at all possible.
All statutory references will be to the Penal Code unless otherwise indicated.
We take judicial notice of the minute order dated June 17, 2016, for case No. INF1402437 granting defendant's petition for resentencing of the 2014 section 496, subdivision (a) offense, attached as page 6 of Exhibit A to defendant's unopposed request for judicial notice.
II.
DISCUSSION
On appeal, defendant contends that: (1) the trial court should have stayed sentencing on counts 2 and 3 pursuant to section 654; (2) the court improperly enhanced defendant's sentence based on a prison prior for which the underlying felony conviction had been reduced to a misdemeanor by Proposition 47; and, (3) it was error for the court to instruct the Department of Corrections and Rehabilitation not to collect a $5,400 restitution fine. We agree on all points.
A. Sentencing on Counts 2 and 3 was Improper Pursuant to Section 654
Defendant argues his concurrent sentences for possession of burglary tools and receipt of stolen property should be stayed pursuant to section 654 because the offenses were committed as part of a single act with the same intent and objective as the burglary charge. Section 654, subdivision (a), states: "[I]n no case shall [an] act or omission be punished under more than one provision." The imposition of concurrent sentences is considered a punishment for purposes of section 654. (People v. Jones (2012) 54 Cal.4th 350, 358.) Instead, when sentencing would result in multiple punishment prohibited by section 654, a trial court must stay execution of sentence on those counts. (People v. Correa (2012) 54 Cal.4th 331, 337.) Section 654 has been held to apply to separate criminal acts which are part of an indivisible course of conduct committed in furtherance of the same criminal intent or objective. (People v. Latimer (1993) 5 Cal.4th 1203, 1207-1209 (Latimer), citing Neal v. State of California (1960) 55 Cal.2d 11.) Whether criminal acts are sufficiently indivisible to fall within the scope of section 654 " 'depends on the intent and objective of the actor.' " (Latimer, at p. 1208, italics omitted.) If the offenses were committed in furtherance of one objective, the defendant may be punished for only one of the offenses. (Ibid.) In making a determination that several criminal acts are indivisible, courts look at whether the defendant had time to reflect on one act before committing the next one. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1254-1255 (Kwok).)
An indivisible course of conduct, as well as defendant's intent and objective, are findings of fact for the trial court. (Kwok, supra, 63 Cal.App.4th at pp. 1252-1253; People v. Green (1996) 50 Cal.App.4th 1076, 1085.) We review the trial court's findings for substantial evidence, and presume the existence of every fact reasonably deduced from the evidence in favor of the court's conclusion. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) For separate sentencing to be upheld, a court's finding must be based on evidence of a separate intent and objective for each sentenced offense. (People v. Jackson (2016) 1 Cal.5th 269, 354.) Thus, the question before us is whether the trial court's separate sentencing of defendant for burglary (§ 459), possession of burglary tools (§ 466) and receipt of stolen property (§ 496) is supported by substantial evidence of separate intent. We conclude it was not.
The court made no mention of section 654 at sentencing. However, the court ordered defendant to pay restitution for the broken bedroom window, which had been damaged when it was pried open. Police saw pry marks on the bedroom window of the victim's unit and defendant possessed screwdrivers which may be used to pry open a window. From these facts we infer that the court found defendant intended to use and did use the tools in his backpack to break into the victim's unit.
Moreover, the evidence in this case shows defendant burglarized the unit with the single intent to steal, and that he stole a flashlight during the burglary. Police arrived soon after the neighbor called about the pounding noise in the downstairs unit, and defendant was apparently in the process of stealing when he was caught. He looked out the window when the police arrived and then quickly exited the front door with the burglary tools and a stolen flashlight in his possession. In the living room, a desk with a laptop computer which the owner had covered with a sheet was uncovered. Also, a socket wrench set was removed from a closet and was sitting open on a chair near the desk. Although the flashlight was the only stolen item police found on defendant, it is reasonable to infer defendant took it to help him look for other items to steal in the dark unit. These facts reflect defendant's single intent to break into the unit for the purpose of stealing items from the unit.
Section 654 has been used to stay a sentence for section 466 possession of burglary tools under circumstances very similar to this case. In People v. Castillo (1990) 217 Cal.App.3d 1020, a defendant was caught in the act of burglary, and was found to possess the screwdriver used to forcibly enter the property. A jury convicted him of first degree burglary under section 459 and possession of a burglary tool under section 466, and he was sentenced for both offenses concurrently. (Id. at pp. 1022-1023.) On appeal, the People conceded the section 466 sentence should have been stayed pursuant to section 654, and the court agreed. (Id. at p. 1023.) The instant case is virtually indistinguishable on the relevant facts. As in Castillo, defendant was found in possession of the tools used to enter the victim's property for the purpose of committing burglary, and defendant was convicted of both the possession of those tools and burglary.
Case law also supports a stay of sentencing under section 654 for defendant's receipt of stolen property conviction. In People v. Allen (1999) 21 Cal.4th 846, the Supreme Court addressed whether a defendant may be convicted of both burglary and receipt of property stolen during the burglary (§ 496). (Id. at p. 867.) In concluding that the convictions were proper, the court noted that staying the sentence of the section 496 offenses satisfied the requirements of section 654. (Ibid.)
In addition, there are no facts to suggest defendant had any other criminal intent. Police found no evidence defendant was squatting in the unit or that he first entered the home two days earlier as he alleged, and the People's argument in reliance on those allegations is unpersuasive. There also was no division of time or the opportunity for defendant to reflect between offenses, because the acts were all committed within a span of about five to 10 minutes. Thus, the record does not contain substantial evidence to support the trial court's implied finding that defendant had more than one intent and objective in the commission of the three offenses.
We therefore conclude that defendant possessed the burglary tools and stolen flashlight with the same intent and objective as the burglary itself, and section 654 precludes separate sentencing for the section 466 and section 496 offenses. As such, it was error for the court to impose separate sentences, and we direct the superior court to stay the sentences for counts 2 and 3.
B. The Trial Court Erred by Imposing a Section 667.5 Enhancement Where the Prison Prior Felony Was Reduced to a Misdemeanor Before Sentencing
Defendant next contends that his 2014 conviction for receiving stolen property (§ 496) in case No. INF1402437 cannot be used to enhance his sentence under section 667.5, subdivision (b), because it had been reduced to a misdemeanor before sentencing in this case. Section 667.5, subdivision (b), permits a one-year enhancement of felony conviction sentences when a defendant " ' "(1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction." ' [Citations.]" (People v. Abdallah (2016) 246 Cal.App.4th 736, 742 (Abdallah).) The application of this statute has come into question in light of the passage of Proposition 47, the Safe Neighborhoods and Schools Act (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014)). Proposition 47 redefines certain felony offenses as misdemeanors. (§ 1170.18, subd. (a); People v. Chen (2016) 245 Cal.App.4th 322, 326.) Under Proposition 47, a defendant previously convicted of a felony offense covered by Proposition 47 may apply to have the felony reduced to a misdemeanor. (§ 1170.18, subd. (f); People v. Shabazz (2015) 237 Cal.App.4th 303, 310.) Once a felony is reduced, the offense is deemed a misdemeanor "for all purposes." (§ 1170.18, subd. (k).)
The issue of whether section 667.5, subdivision (b), may be used to enhance a sentence when the prior prison term was based on a felony later reduced to a misdemeanor is currently being considered by the Supreme Court with People v. Valenzuela (2016) 244 Cal.App.4th 692 (Valenzuela), review granted March 30, 2016, S232900, as the lead case. However, Valenzuela involves an enhancement imposed before the prior felony was reduced. (Ibid.) It is therefore distinguishable from this case, where sentencing was imposed after defendant's prior conviction was reduced to a misdemeanor. It appears relatively well-settled that a section 667.5, subdivision (b) prior prison enhancement cannot be applied where a felony is reduced to a misdemeanor before sentencing. (See, e.g., People v. Call (2017) 9 Cal.App.5th 856, 862-863 (Call); People v. Kindall (2016) 6 Cal.App.5th 1199, 1204-1206 (Kindall); cf. Abdallah, supra, 246 Cal.App.4th 736.) In Call, as here, a defendant challenged his section 667.5, subdivision (b) enhancements based on prior prison terms reduced to misdemeanors before sentencing. (Call, at p. 862.) The court was convinced that the clear language of section 1170.18, subdivision (k), evidenced an intent by the voters of Proposition 47 to negate sentence enhancements for felonies reduced to misdemeanors before sentencing. (Call, at pp. 864-865.) Similarly, in Kindall, the defendant's crime was committed before his prior felonies were reduced, but sentencing happened after the reduction of the priors to misdemeanors. (Kindall, at p.1203.) The Kindall court concluded that once the felonies were reduced, the sentencing court could no longer find the existence of prior felonies required for the enhancement. (Id. at p. 1204.) We find no reason to depart from these holdings.
People v Acosta (2016) 247 Cal.App.4th 1072, 1077-1078 (Acosta), review granted August 17, 2016, S235773, cited by the People, does not affect our decision. Acosta upheld a prior prison enhancement, reasoning that the " 'for all purposes' " language of section 1170.18, subdivision (k), should be narrowly read to apply only to convictions and not the prison term being served, so section 667.5 enhancements are not affected by Proposition 47. (Id. at p. 1078.) We find the case distinguishable because in Acosta, the prison prior enhancement being challenged was imposed before the underlying felony was reduced. Therefore, any application of Proposition 47 would have been retroactive. (Id. at p. 1076.) In this case, sentence was imposed after the prior prison felony was reduced to a misdemeanor for all purposes, so we follow the line of cases cited above which hold that the section 667.5 enhancement must be stricken.
Moreover, the Acosta court fails to consider, and is inconsistent with, the Supreme Court's holding in People v. Park (2013) 56 Cal.4th 782 (Park). Park addressed whether a sentenced was properly enhanced pursuant to section 667, subdivision (a), based on a prior serious felony conviction which had been reduced to a misdemeanor pursuant to section 17 before sentencing. (Park, at pp. 796-799.) The Park court considered the plain meaning of the language in section 17, subdivision (b), that a reduced offense becomes a misdemeanor for all purposes, and concluded that once a conviction was reduced to a misdemeanor, it could no longer serve as the basis for the enhancement. (Park, at pp. 795-801.) Although Park involves a section 17 conviction reduction rather than a reduction under section 1170.18, subdivision (k), as we have here, the misdemeanor for all purposes language is identical, and Park's reasoning should be applied in this case.
C. The Trial Court Lacked Discretion to Suspend the $5,400 Restitution Fine
At sentencing, the court imposed a $5,400 restitution fine pursuant to section 1202.4, subdivision (b), with the instruction that it not be collected by the Department of Adult Institutions, and suspended "if . . . allowed . . . under the law." The minute order includes the court's instruction, but the abstract of judgment only reflects the $5,400 fine. Defendant appeals the fine as an unlawful delegation of discretion to the Department of Corrections and Rehabilitation, and we review the court's imposition of the fine for abuse of discretion. (People v. Lewis (2009) 46 Cal.4th 1255, 1321.)
We decline to take judicial notice of defendant's February 13, 2017 letter to the trial court sent pursuant to section 1237.2, or the court's response. Because there were other issues raised on appeal, compliance with section 1237.2 was not required, so the letters are not relevant here. (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1282, fn. 2.) --------
As a threshold matter, the People argue that defendant waived his right to appeal on this issue by failing to object at sentencing. The general rule is that a defendant's failure to object to a restitution fine forfeits his right to raise the issue on appeal. (People v. Nelson (2011) 51 Cal.4th 198, 227.) However, where the manner in which the fine is imposed is unauthorized by statute, a defendant need not object at sentencing to preserve the right to appeal. (People v. Kunitz (2004) 122 Cal.App.4th 652, 657 [appeal preserved without objection when court impermissibly imposed restitution fine jointly and severally against two defendants].) In this case, the issue is appealable without prior objection because the court's order, like the one in Kunitz, was unauthorized by statute. (Ibid.) The statute provides no discretion for the court to suspend or not collect a restitution fine once it is imposed.
Section 1202.4, subdivision (b), requires a sentencing court, in every case where a person is convicted of a crime, to impose a restitution fine which is separate from any victim restitution. (§ 1202.4, subds. (a) & (b).) The court may refrain from imposing the fine for "compelling and extraordinary" reasons, but only if it states its finding of those reasons on the record. (§ 1202.4, subd. (b); People v. Hansen (2000) 23 Cal.4th 355, 362.) Inability to pay alone may not be used as grounds not to impose the fine, but it may be a factor in deciding whether to impose the statutory minimum of $300. (§ 1202.4, subds. (b)(1) & (c).)
Here, we are faced with a quandary. The trial court clearly articulated its intent that defendant not be required to pay the fine, because he did not want him to face an "impossible burden" coming out of prison. However, if its only reason for not imposing the fine was defendant's inability to pay, the court could have, and arguably should have, exercised its discretion to impose the statutory minimum fine of $300. Instead, it imposed a fine of $5,400, consistent with the statutory formula in section 1202.4, subdivision (b)(2). We cannot glean from the record the court's reason for adopting the statutory calculation rather than the minimum fine. Neither can we interpret any express finding by the court of compelling and extraordinary circumstances warranting a stay of the fine. When the court stated that the fine was suspended "given [defendant's] situation," it could have been referencing the fact that defendant was making efforts to reform himself, and not just his inability to pay. The record reflects defendant's voluntary entry into a drug rehabilitation program, his acceptance into several residential treatment programs, and his intent to take the GED test. However, the court did not articulate these factors as compelling and extraordinary reasons for suspending the fine, and without this finding on the record, the court lacked discretion to suspend the fine. In this situation, we are guided by People v. Woods (2010) 191 Cal.App.4th 269, another case in which a sentencing court stayed a restitution fine after imposing it. On appeal, the Woods court found that the sentencing court did not want the defendant to pay the fine, but failed to state reasons why the fine should not be imposed. The case was remanded so the trial court could "exercise its discretion and impose a lawful sentence." (Woods, at p. 273.) We adopt the Woods holding, and remand this case with instruction to the sentencing court to determine whether any compelling and extraordinary reasons exist for not imposing the fine. If they do, then the fine should not be imposed, and the court should state its reasons on the record. (Ibid.) In the alternative, should no extraordinary reasons exist, we instruct the sentencing court to impose a restitution fine consistent with its intent that defendant not face an "impossible burden" upon release from prison. The parole revocation restitution fine should then be modified in accordance with section 1202.45.
III.
DISPOSITION
The superior court is directed to modify the judgment as follows: Defendant's sentence on counts 2 (possession of burglary tools) and 3 (receiving stolen property) is stayed pursuant to section 654; the one-year prior prison term enhancement for receipt of stolen property is stricken; and the orders imposing the $5,400 restitution fine (§ 1202.4, subd. (b)) as well as the $5,400 parole revocation restitution fine (§ 1202.45) are reversed. The sentencing court is directed to determine whether compelling and extraordinary reasons exist not to impose the restitution fine. If so, the fine is not to be imposed nor is the section 1202.45 parole revocation restitution fine. If not, the fine is to be reinstated in an amount not less than $300 and within the court's discretion as provided by statute. If the section 1202.4, subdivision (b) fine is reinstated, the parole revocation restitution fine shall be imposed in the same amount and suspended unless defendant's parole is revoked in accordance with section 1202.45. The superior court is directed to prepare an amended abstract of judgment reflecting these modifications, and to forward certified copies to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. FIELDS
J.