Opinion
B293998
05-07-2020
THE PEOPLE, Plaintiff and Respondent, v. DALISHA MONIQUE JORDAN, Defendant and Appellant.
Jenny M. Brandt, under appointment by the Court of Appeal for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Deputy Attorney General, Steven D. Matthews, Deputy Attorney General, and Rama R. Maline, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. TA145484) APPEAL from a judgment of the Los Angeles Superior Court, Patrick Connolly, Judge. Affirmed as modified. Jenny M. Brandt, under appointment by the Court of Appeal for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Deputy Attorney General, Steven D. Matthews, Deputy Attorney General, and Rama R. Maline, Deputy Attorney General, for Plaintiff and Respondent.
* * * * * *
Dalisha Monique Jordan (defendant) opened fire at a fleeing vehicle after its driver, before getting into his car, had stabbed one of her friends. A jury convicted her of shooting at an occupied vehicle (Pen. Code, § 246), assault with a semiautomatic firearm (§ 245, subd. (b)), and being a felon in possession of a firearm (§ 29800, subd. (a)). On appeal, defendant argues that (1) the prosecutor violated her due process rights by offering her a plea deal contingent upon her codefendant also accepting the deal, (2) the court erred in not instructing the jury on the defense of necessity, and (3) the court committed several sentencing errors. Only one of her arguments has merit—namely, her contention that the court should have stayed her sentence for shooting at an occupied vehicle. Accordingly, we order her sentence modified but otherwise affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A couple of hours after midnight on October 14, 2017, defendant, Eugene Germany (Germany), Dennis Metcalf (Metcalf) and others pulled up to a busy gas station in central Los Angeles. They were in a black Mercedes sedan.
Metcalf and Germany started speaking with a man who was standing in front of his silver SUV. When Metcalf quickly "closed the distance" between himself and the man, the man retreated towards the driver's side door, but then turned, lunged toward Metcalf, and made a stabbing motion into Metcalf's midsection with a sharp object in his hand. As the man hopped back into his SUV and started to drive away, Metcalf stumbled over to defendant, who was standing beside the Mercedes. Defendant immediately reached inside the Mercedes to grab a firearm, took aim at the SUV as it was driving away, and fired the weapon. All of this was caught on videotape.
II. Procedural Background
The People charged defendant with (1) shooting at an occupied vehicle, (2) assault with a semiautomatic firearm, and (3) being a felon in possession. With respect to the assault charge, the People further alleged that defendant "personally used a firearm[]" (§ 12022.5, subd. (a)). The People also alleged that defendant's July 2017 conviction for robbery (§ 211) constituted a "strike" under our Three Strikes Law (§§ 667, subds. (b)-(j), 1170.12, subd. (b) as well as a prior serious felony (§ 667, subd. (a)(1)).
The People also alleged that the assault was gang-related, but the trial court dismissed that allegation for insufficiency of the evidence prior to submitting it to the jury.
After the jury convicted defendant of all three charges and defendant admitted her prior conviction, the trial court sentenced her to 14 years in prison. More specifically, the court imposed a sentence of 14 years for the assault, comprised of a six-year base term (calculated as the low-end term of three years, doubled due to the prior strike), plus a low-end three-year term for the personal use of the firearm, plus five years for the prior serious felony. The court then imposed a concurrent five-year term for shooting at an occupied vehicle and a concurrent two-year term for being a felon in possession. The court also imposed a $300 restitution fine (§ 1202.4, subd. (b)), a $120 court operations assessment (§ 1465.8), and a $90 criminal convictions assessment (Gov. Code, § 70373).
Defendant filed this timely appeal.
DISCUSSION
I. Validity of People's Plea Offer
Defendant argues that the People violated due process by making her a plea offer that was only valid if her codefendant accepted an identical plea offer. Because this argument requires us to interpret constitutional law and apply it to undisputed facts, our review is de novo. (In re Taylor (2015) 60 Cal.4th 1019, 1035; Boling v. Public Employment Relations Bd. (2018) 5 Cal.5th 898, 912 [undisputed facts]).
A. Pertinent facts
Based on evidence that Germany also fired a gun at the fleeing silver SUV, the People charged Germany with shooting at an occupied vehicle, assault with a semiautomatic firearm, and being a felon in possession. The People then made a package plea offer to Germany and defendant—namely, the People would agree to a six-year prison term for each if they both accepted the People's offer. Defendant wanted the deal, but Germany did not, so the People withdrew its package offer.
B. Analysis
A prosecutor has no duty to plea bargain with a criminal defendant. (People v. McClaurin (2006) 137 Cal.App.4th 241, 248; People v. Navarro (1991) 235 Cal.App.3d 1144, 1154 (Navarro); People v. Barnett (1980) 113 Cal.App.3d 563, 572 (Barnett).) Once a prosecutor initiates plea bargaining by making a plea offer, however, due process places some constraints on the ensuing process of plea negotiations (Navarro, at p. 1154), but those constraints are modest.
Due process prohibits the acceptance of a plea offer if that acceptance is involuntary or a product of coercion. (Boykin v. Ala. (1969) 395 U.S. 238, 243; In re Ibarra (1983) 34 Cal.3d 277, 287 (Ibarra).) As a general matter, a defendant's decision to accept a plea offer is not involuntary merely because she accepts the offer to avoid a higher possible sentence after trial. (Brady v. United States (1970) 397 U.S. 742, 751.) Nor is a defendant's decision to accept a plea offer involuntary merely because the offer is part of a so-called "package" plea offer—that is, a conditional plea offer made to multiple defendants that becomes unconditional only if all of those defendants accept it. (Ibarra, at pp. 287-288.) Although a plea entered pursuant to a package plea offer is more likely to present a "particular danger" of "coerc[ing]" a plea (People v. Sandoval (2006) 140 Cal.App.4th 111, 124-125 (Sandoval)), such a plea is not automatically deemed to be the product of coercion and courts must "examin[e] the voluntariness of [that] guilty plea" under "[t]he totality of the circumstances" attendant to the particular package plea offer at issue (Ibarra, at p. 288, italics added; see Sandoval, at pp. 126-127 [concluding that plea was coerced because trial court expressed to the defendants its belief that "all of the[m] . . . should accept the plea offer"]).
Due process also prohibits the rejection of a plea offer if that rejection is induced by misinformation supplied by the prosecutor or the court. (People v. Goodwillie (2007) 147 Cal.App.4th 695, 734-735.)
The plea negotiations in this case did not violate due process. Defendant was not permitted to accept the People's six-year plea offer because Germany voided the package deal by rejecting it. Because defendant never entered a plea, no plea was coerced. Defendant's rejection was also not prompted by any misinformation.
Defendant makes two arguments in response.
First, she contends that the People's package plea offer in this case violated due process because it constitutes vindictive prosecution. More specifically, she notes that vindictive prosecution "prohibits prosecutors from punishing criminal defendants for exercising their constitutional rights" (Short v. Superior Court (2019) 42 Cal.App.5th 905, 914 (Short)), and asserts that the package plea offer impermissibly "punished" her "because her codefendant [Germany] asserted [his] constitutional right" to reject the plea deal and to go to trial. What is more, defendant continues, the prosecutor acted vindictively by requesting a 27-year prison sentence after trial, when he had been previously willing to accept a six-year plea offer.
We reject this contention. To begin with, the prosecutor's conduct in this case was not vindictive under the law governing the doctrine of vindictive prosecution. Vindictive prosecution arises when a prosecutor seeks "to punish the exercise of a protected right" (In re Bower (1985) 38 Cal.3d 865, 879 (Bower)), and may be established through (1) "direct evidence of [a] prosecutor's punitive motivation," or (2) through a "presumption of vindictiveness." (Short, supra, 42 Cal.App.5th at p. 915.) The presumption of vindictiveness arises when a prosecutor seeks to increase the charges or maximum penalty exposure of a defendant following a retrial or a mistrial. (United States v. Goodwin (1982) 457 U.S. 368, 374; Twiggs v. Superior Court (1983) 34 Cal.3d 360, 364 (Twiggs) [charges increased after retrial]; Bower, at p. 877 [charges increased after mistrial].)
As a threshold matter, it is unclear how or whether a defendant can assert a vindictive prosecution claim premised on being punished for someone else's (rather than her own) exercise of a constitutional right. But even if we overlook this defect, defendant has not established she was ever punished. A prosecutor's decision to make a package plea offer (rather than a stand-alone plea offer) is by itself entirely "[]proper" because package deals permissibly "prevent[] one defendant from pleading guilty in order to exculpate another defendant" (People v. Conerly (2009) 176 Cal.App.4th 240, 249 (Conerly)). Further, defendant offers no "direct evidence" of the prosecutor's impermissible motive in making the package deal or seeking a higher sentence after trial. And no presumption of vindictiveness arises merely because the prosecutor's ultimate sentencing request was higher than his plea offer. That is because the presumption of vindictiveness does not apply when a prosecutor adjusts the charges or possible penalties vis-à-vis what was offered during plea negotiations because "plea bargaining" involves a pretrial "'give-and-take'" where the "prosecutor's assessment of the proper extent of prosecution may not have crystallized" and where the defendant remains "free to accept or reject the prosecution's offer." (Twiggs, at p. 370, 373; Goodwin, at pp. 379-380; see also United States v. Martinez (9th Cir. 1986) 785 F.2d 663, 669-670 [declining to apply presumption of vindictiveness where motive for charging in multiple jurisdictions was not likely to be vindictive].) Lastly, accepting defendant's vindictive prosecution contention would render all package plea offers invalid, which is a result at odds with our Supreme Court's holding in Ibarra.
Second, defendant asserts that due process protects against unfairness and that she was treated unfairly because she was "punished" for circumstances beyond her control—namely, Germany's decision to reject the package plea offer—that forced her to go to trial and thereafter face a higher penalty following trial. We reject this assertion factually and legally. Factually, defendant is wrong because she was not forced to go to trial. She could have entered an "open plea" to all charges and all allegations (Conerly, supra, 176 Cal.App.4th at p. 248 ["In the absence of a plea offer, [the defendant] had the option of pleading open"]; Liang v. Superior Court (2002) 100 Cal.App.4th 1047, 1056; cf. People v. Reza (1984) 152 Cal.App.3d 647, 654 [court must accept an "open plea"]), but she elected not to do so. That was her decision to make, and hers alone. Legally, defendant's precise claim was rejected in Barnett, supra, 113 Cal.App.3d at pp. 568-569, 574. Barnett held that a defendant's due process rights were not violated by the defendant's inability to accept a package plea deal because the ensuing "jury trial represents the ultimate of due process." (Id. at p. 574.) Defendant urges us to reject Barnett, but offers no cogent reason to do so. And we can think of at least one good reason not to do so: We would effectively be declaring all package plea deals invalid, in contravention of Ibarra.
In light of our conclusion that defendant's due process rights were not violated, we have no occasion to consider her further argument that she was entitled to specific performance of a plea agreement she never entered.
II. Instructional Error
As part of the instructions defining the elements of shooting at an occupied vehicle and assault with a semiautomatic firearm, the trial court instructed the jury that the People had to prove that defendant was not acting in self-defense or in defense of another. Defendant requested a jury instruction on the defense of necessity, but the trial court found "no evidence" "other than speculat[ion]" to support that defense. Defendant now argues that this was error, and that her convictions for shooting at an occupied vehicle and assault with a semiautomatic firearm must be reversed. We review claims of instructional error de novo. (People v. Rivera (2019) 7 Cal.5th 306, 326.)
The defense of necessity empowers a jury to find a defendant not guilty for criminal acts she has committed if those acts were necessary to avoid an imminent, greater harm. (People v. Trujeque (2015) 61 Cal.4th 227, 273 (Trujeque) ["'The defense of necessity generally recognizes that "'the harm or evil sought to be avoided by [the defendant's] conduct is greater than that sought to be prevented by the law defining the offense[s] charged'"'"].) Put differently, the necessity defense applies when a defendant is imminently confronted with—and forced to select between—the lesser of two evils, and chooses the lesser; if she does, she is not criminally liable for the conduct making up the lesser evil. Because this defense "'represents a public policy not to punish . . . an individual despite proof of the crime'" (In re Eichorn (1998) 69 Cal.App.4th 382, 389), it is "very limited" (People v. Beach (1987) 194 Cal.App.3d 955, 971).
Consequently, a court must instruct on the defense of necessity only if substantial evidence establishes that the defendant committed the charged crime(s) "'(1) to prevent a significant evil, (2) with no adequate alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief in the necessity, (5) with such belief being objectively reasonable, and (6) under circumstances in which [the defendant] did not substantially contribute to the emergency." (Trujeque, supra, 61 Cal.4th at p. 273; see generally, People v. Panah (2005) 35 Cal.4th 395, 484 ["A trial court is required to give a requested instruction on a defense only if substantial evidence supports the defense."].) "[A] well-established central element" underlying this defense—and particularly the requirements that the criminal conduct be necessary and that the defendant have no adequate alternative—is "the emergency nature of the situation." (People v Patrick (1981) 126 Cal.App.3d 952, 960.)
The trial court correctly ruled that substantial evidence did not support the defense of necessity. As defendant concedes, it is undisputed that the person who stabbed Metcalf was "start[ing] to drive away" "at the exact . . . time" defendant shot at him. As a result, the stabber no longer posed an immediate danger to defendant, Metcalf, or anyone else at the gas station. (See, e.g., Weaver v. State of California (1998) 63 Cal.App.4th 188, 207 ["not every fleeing suspect poses a grave danger"]; People v. Flannelly (1900) 128 Cal. 83, 89 ["Between [a person's] duty to flee and his right to kill, he must fly."].) And the danger the stabber might pose in the future cannot support defendant's use of force. (People v. Miceli (2002) 104 Cal.App.4th 256, 268 (Miceli) ["Violence justified in the name of preempting some future, necessarily speculative threat to life is the greater, not the lesser evil."]; People v. Coffman & Marlow (2004) 34 Cal.4th 1, 100 ["some future danger" does not justify use of force].) In such situations, several elements of the defense of necessity are absent—the defendant has adequate alternatives (because the danger is not immediate), the defendant's belief in the necessity for force is not objectively reasonable and, most fundamentally, there is no longer any emergency.
At oral argument, defendant contradicted this concession and argued that the stabber was not driving away at the time she opened fire. We reject this argument, both because we do not countenance such changes in position and because, under either factual scenario, the stabber was in his car and hence no longer dangerous to anyone on the basis of the sole weapon previously seen in his possession—that is, the object he used to stab Metcalf.
Defendant challenges this conclusion with what boil down to four different arguments.
First, she argues that the person who stabbed Metcalf could have stabbed someone else at the gas station, that the stabber was "within feet" of defendant's car at the time of the stabbing, and that defendant did not have time to call the police before the stabber could attack again. These arguments ignore the uncontroverted fact that the stabber was driving away at the time defendant opened fire.
Second, defendant argues that that stabber could have doubled back to the gas station to "drive parallel to her car on the other side of the pump and open fire." Because there is no reason to believe that the stabber had a gun, or that he would come back to start a gun fight in a gas station that could blow himself up as well, this argument is based on pure speculation, and speculation does not equal substantial evidence (People v. Sakarias (2000) 22 Cal.4th 596, 620).
Third, defendant argues that she had "no indication that . . . [the stabber] had fled at the time she shot." This argument also ignores the record and reality. Unless defendant just opened fire in random directions, she opened fire at the stabber in his car as he was driving away, which means she had to have some indication he was driving away.
Fourth, defendant argues that she needed to shoot at the fleeing stabber "to protect the public at large" from an "attempted murderer on the loose with a weapon." "[T]he shooting was necessary," she asserts, "to prevent the harm of a future attack." But it is well settled, as noted above, that the use of violence to "preempt[] some future, necessarily speculative threat to life is the greater . . . evil." (Miceli, supra, 104 Cal.App.4th at p. 268.) "'[T]he defense of necessity is inappropriate where it would encourage rather than deter violence'" (ibid.), and defendant's argument that there should be no criminal liability for opening fire on fleeing suspects would encourage rather than deter violence. We will not construe the defense of necessity to turn California back into the Wild West.
In light of our analysis, we need not reach defendant's remaining arguments regarding the other elements of the defense of necessity—namely, that her act in shooting at the stabber was "on par" with his act of stabbing Metcalf, that she subjectively believed her use of force was necessary, and that she did not substantially contribute to the emergency—because those arguments do not alter the fact that the elements discussed above are absent. And any missing elements abrogate the duty to instruct on the defense. (E.g., Miceli, supra, 104 Cal.App.4th at p. 267 [absence of two elements of necessity defense obviates need to instruct on defense].)
III. Sentencing Error
Defendant argues that the trial court erred when it (1) did not stay her sentences for shooting at an occupied vehicle and being a felon in position under section 654; (2) did not dismiss any of her sentencing enhancements; and (3) imposed $510 in fees and assessments without first conducting an ability to pay hearing.
A. Section 654 issue
Section 654 provides that a court may not punish a defendant for the same "act or omission" more than once, even if it is the basis for multiple convictions. (§ 654, subd. (a).) Section 654 also applies when the defendant engages in multiple acts that are part of a single course of conduct. (People v. Capistrano (2014) 59 Cal.4th 830, 885-886 (Capistrano), overruled in part on another ground as stated in People v. Hardy (2018) 5 Cal.5th 56, 104.) When examining whether to stay sentences for crimes occurring in a single course of conduct, the applicability of section 654 typically turns on "'"the intent and objective of the"'" defendant: "'"If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one."'" (Capistrano, at p. 885, quoting People v. Rodriguez (2009) 47 Cal.4th 501, 507.) Conversely, if the defendant while committing the various acts simultaneously has independent objectives that are not "merely incidental to each other," section 654's ban does not apply and she may be separately punished for each offense. (People v. Blake (1998) 68 Cal.App.4th 509, 512; People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1007 (Rodriguez).) Where, as here, the trial court has not made express findings on how section 654 applies, we review the court's "implicit finding[s] that section 654 does not apply" for substantial evidence. (Rodriguez, at p. 1005; People v. Brents (2012) 53 Cal.4th 599, 618.)
1. Shooting at an occupied vehicle
Defendant's conduct in shooting at the silver SUV is what underlies both her assault with a semiautomatic weapon conviction and her conviction for shooting at an occupied vehicle. In such circumstances, section 654 applies and the court must stay one of the convictions. (People v. Kane (1985) 165 Cal.App.3d 480, 488 (Kane) [so holding].) The People resist this conclusion, arguing that the "victim" of defendant's assault with a semiautomatic firearm conviction was another gas station patron who had ducked when hearing defendant open fire. Although the People are correct that "section 654 does not preclude multiple punishment where a defendant has committed violent crimes against different victims" (People v. Masters (1987) 195 Cal.App.3d 1124, 1128; People v. Garcia (1995) 32 Cal.App.4th 1756, 1783-1784), the People argued to the jury that defendant was not entitled to an acquittal on the basis of self-defense because she was shooting at the stabber as he was fleeing in his vehicle. The People cannot change their theory about the victim of the assault charge for the first time on appeal. (See People v. Kelly (2016) 245 Cal.App.4th 1119, 1131 [looking to how the prosecutor argued the case under section 654]; People v. Ortega (2000) 84 Cal.App.4th 659, 665-666 [same].) As a result, the trial court erred in imposing a concurrent sentence for the conviction of shooting at an occupied vehicle rather than staying it.
2. Felon in possession of a firearm
Where, as here, a defendant "arrive[s] at the scene of . . . her primary crime already in possession of [a] firearm," that possession is "distinctly antecedent and separate from the [ensuing] . . . crimes" and section 654 does not bar multiple punishment. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143- 1145; cf. Kane, supra, 165 Cal.App.3d at p. 488 [section 654 applies where there is only "concurrent" possession of the firearm]; People v. Cruz (1978) 83 Cal.App.3d 308, 333 [same], superseded on other grounds by § 3024; People v. Venegas (1970) 10 Cal.App.3d 814, 820-821 [same].) Here, substantial evidence supports the trial court's finding that defendant possessed the firearm before she opened fire on the fleeing stabber in his vehicle: As the court found, defendant was "able to react so quickly" by reaching into the exact part of the car where the gun was stowed because she "obviously had a gun in th[e] car that [she] knew where it was."
B. Motions to strike
Defendant argues that the trial court erred in not dismissing the prior "strike" conviction allegation, the prior serious felony allegation, or the personal use of a firearm allegation. The trial court had the discretion to dismiss each of these allegations "in the furtherance of justice." (§§ 1385, subd. (a), 667, subd. (f)(1), 12022, subd. (c).) Because defendant's challenges are confined to the trial court's failure to exercise this discretion, we review solely for an abuse of that discretion. (People v. Tirado (2019) 38 Cal.App.5th 637, 642.)
1. Pertinent facts
Defendant made a written motion to dismiss the prior "strike" allegation before the sentencing hearing, and orally requested that the court strike the prior serious felony allegation.
The court declined to strike any enhancement allegation attendant to the assault with a semiautomatic firearm conviction. In so ruling, the court explained that defendant's 2017 robbery conviction had "involved" "violence" because defendant had "punched" and "kicked" the woman who tried to stop her from leaving with stolen clothing; because defendant "had only been on probation" for that robbery conviction "for a very short time" at the time she committed the instant offenses; and because the instant offenses involved defendant opening fire on a "vehicle leaving the location" across a "very busy gas station."
The court dismissed the prior strike allegation as to the remaining two convictions. --------
2. Analysis
The trial court did not abuse its discretion in declining to dismiss the prior "strike" allegation on her assault with a semiautomatic firearm conviction. In exercising its discretion to dismiss, a court is to "'consider whether, in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of [her] background, character and prospects, the defendant may be deemed outside the [Three Strikes] scheme's spirit, in whole or in part, and hence should be treated as though [s]he had not previously been convicted of one or more serious and/or violent felonies.'" (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) The court applied this legal standard when it examined the circumstances of defendant's prior robbery "strike" conviction and the current offenses. Defendant urges what boils down to two grounds for reversal. First, she asserts that the trial court did not correctly evaluate the aggravating and mitigating factors and erred in not concluding that she fell outside the spirit of the Three Strikes Law. At bottom, defendant is asking us to reweigh the various considerations and come to a different conclusion than the trial court. This, we may not do. (People v. Myers (1999) 69 Cal.App.4th 305, 309 ["we do not reweigh the circumstances of the case to determine whether, in our opinion, the trial court should have . . . exercise[d] its discretion to strike a prior conviction."].) Second, she contends that the taxpayers would save money—by her calculation, nearly $891,000—if the trial court struck her prior "strike" conviction and thereby shortened her prison sentence. We reject this contention. Not only would it warrant dismissal of strikes in every case (because reducing prison time always saves money) in contravention of the "strong presumption" against dismissals (Carmony, supra, 33 Cal.4th at p. 378), it would also require us to prioritize dismissals for the criminals with the longest sentences (e.g., murderers, serial child molesters). Our Supreme Court squarely rejected such outcomes when it held that "the purpose of saving money does not mean we should interpret" laws granting trial courts discretion to reduce sentences "in every way that might maximize any monetary savings." (People v. Morales (2016) 63 Cal.4th 399, 408.)
The trial court did not abuse its discretion in declining to dismiss the prior serious felony allegation. Defendant proffers no argument on this point distinct from her arguments to overturn the prior "strike" allegation. We therefore reject her arguments for the same reason.
The trial court did not abuse its discretion in declining to dismiss the personal use of a firearm allegation. The trial court did not discuss its authority to dismiss this allegation, but its silence on this point is of no consequence. That is because, "[i]n the absence of . . . evidence to the contrary, we must presume the [trial] judge was aware of his [or her] discretion and chose not to exercise it." (In re Consiglio (2005) 128 Cal.App.4th 511, 516; see also People v. Mosley (1997) 53 Cal.App.4th 489, 496 ["The general rule is that a trial court is presumed to have been aware of and followed the applicable law."].) Here, there is no evidence to the contrary. Defendant makes two arguments in response. First, she asserts that our Legislature first conferred discretion upon trial courts to dismiss firearm allegations only 10 months before her sentencing hearing. But the presumption that trial courts are aware of their discretion is not limited to discretion that has been "on the books" for longer than a certain period of time; and even if it did, 10 months is certainly long enough. Second, she contends that the trial court indicated an openness to reducing defendant's sentence further when it noted, during sentencing, that "part of [the court] . . . respects what [defendant] did." But, in the next breath, the court also noted that it was "scare[d]" that defendant was "able to react so quickly" by pulling a gun from the dark-colored Mercedes and opening fire. More to the point, the court took pains to select a sentence that took "into consideration" the package plea offer defendant was unable to accept, and carefully crafted the 14-year prison sentence it ultimately imposed by imposing a low-end base sentence, by imposing a low-end firearm enhancement, and by declining to dismiss the prior strike or five-year prior serious felony enhancements. If, as the record indicates, the trial court was unwilling to dismiss the strike in order to reduce defendant's sentence by three years, there is no reason to believe it would have dismissed the firearm enhancement in order to reduce defendant's sentence by three years.
C. Fines and assessments
Defendant argues that People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) requires us to vacate or stay all of her fines and fees, and remand for an ability-to-pay hearing. She is wrong.
Citing the constitutional guarantees of due process and excessive fines, Dueñas held that trial courts may not impose three of the standard criminal assessments and fines—namely, the $40 court operations assessment (§ 1465.8), the $30 criminal convictions assessment (Gov. Code, § 70373), and the $300 minimum restitution fine (§ 1202.4)—without first ascertaining the "defendant's present ability to pay." (Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1172, fn. 10.) So, defendant argues, Dueñas applies to the $510 in fines and fees imposed in this case. Even though we have elsewhere held that Dueñas was "wrongly decided" (People v. Hicks (2019) 40 Cal.App.5th 320, 322, review granted Nov. 26, 2019, S258946), we need not rely on Dueñas's invalidity because even if Dueñas were correct, the record in this case, unlike the record in Dueñas, indicates that defendant has the ability to pay the $510 in assessments. (Cf. People v. Bennett (1981) 128 Cal.App.3d 354, 359-360 [remand for resentencing unnecessary where "the result is a foregone conclusion"].) A defendant's ability to pay includes "the defendant's ability to obtain prison wages and to earn money after [her] release from custody." (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837; People v. Gentry (1994) 28 Cal.App.4th 1374, 1376-1377.) Prisoners earn wages of at least $12 per month. (Dept. of Corrections, Operations Manual, §§ 51120.6, 51121.10 (2020).) At even this minimum rate, defendant will have enough to pay the $510 in assessments and fines in 43 months, which is long before her 14-year sentence would end. Even if defendant does not voluntarily use her wages to pay the amounts due, the state may garnish between 20 and 50 percent of those wages to pay the restitution fine and would still pay the full amount before her sentence ends. (§ 2085.5, subds. (a) & (c); People v. Ellis (2019) 31 Cal.App.5th 1090, 1093.) Because defendant "points to no evidence in the record supporting [her] inability to pay" (People v. Gamache (2010) 48 Cal.4th 347, 409), and hence no evidence that she would suffer any consequence for nonpayment, a remand on this issue would serve no purpose.
DISPOSITION
The five-year sentence on the shooting at an occupied vehicle conviction is stayed pursuant to section 654. The trial court is directed to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, P.J.
LUI /s/_________, J.
CHAVEZ