Opinion
F075227
09-25-2019
THE PEOPLE, Plaintiff and Respondent, v. RANDALL CORD PERKINS, Defendant and Appellant.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Kathleen A. McKenna, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. BF164621A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge. Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant/defendant Randall Cord Perkins broke into a home that was tented for fumigation purposes. The homeowner went by his house to check on it, heard noises inside the tent, and called the police. The officers set up a perimeter; defendant ran out of the tent and refused their repeated orders to stop. He was eventually taken into custody a few houses away. He was wearing gloves, had a knife, and was found in possession of property taken from the house.
Defendant was convicted of residential burglary and three misdemeanor offenses. He was sentenced to the second strike term of 13 years.
On appeal, defendant argues the court should have instructed on trespassing as a lesser offense of burglary, his conviction for misdemeanor possession of burglary tools must be reversed for insufficient evidence, and the court failed to clarify whether it was staying or striking the prior prison term enhancement.
Defendant further argues the court improperly imposed various fines and fees without finding that he had the ability to pay. We requested supplemental briefing on whether the matter should be remanded for the court to consider dismissing the prior serious felony enhancement in light of subsequent legislation.
We remand for sentencing issues on the prior conviction enhancements and otherwise affirm.
FACTS
Michael Maldonado and his family lived in a home on Shattuck Avenue in Bakersfield. In June 2016, a company put a tent over his residence for three days to fumigate the house. His family stayed at another location during the process. Before the house was tented, Maldonado and his family followed the company's instructions and placed their food, clothing, and other items in plastic bins. They stacked the bins in the living room. They also left open some windows as instructed.
Maldonado went to his house every night to check the property because he was worried someone could break in. On the first and second nights of the process, he walked around the house and did not see any problems; there were no cuts or gaps in the tent.
About 2:00 a.m. on June 28, 2016, Maldonado again went to check his house. It was the third day of the process, and the company was supposed to remove the tent later that day.
As Maldonado walked into the backyard, he heard noises inside the tented house, like "[e]verything getting thrashed around, just thrown around, a big ol[d] commotion. All you [could] hear was smashing."
Maldonado walked to the side of the house and saw a long cut in the tent, that was a five-foot high slit that started at the ground. Maldonado testified it was a "clean" cut and "you could tell it was a knife that cut it." The slit was about two feet away from the windows that Maldonado had left open in the house.
Maldonado wanted to go into the tent through the slit, but the fumigation fumes were too strong. He decided to wait outside until someone walked out of the tent. He thought he heard two men talking with each other. He looked through the slit and saw a flashlight moving around. Maldonado was angry because he believed someone was ransacking his house, and he called the police. The Officers Arrive
Around 3:00 a.m., Bakersfield Police Department Officers Puryear and Wolter responded to Maldonado's home on the dispatch of a burglary in progress. The officers were wearing uniforms and driving marked patrol cars. They contacted Maldonado, who was standing in the backyard of his tented residence.
When the officers arrived at the house, they walked into the yard with their guns drawn and initially believed Maldonado might be the burglary suspect. The officers quickly confirmed Maldonado was the homeowner when he showed his cell phone to them and that he was the person talking to the dispatcher.
Maldonado was visibly upset and said that he thought someone was inside his house. Maldonado showed them the opening in the tent and wanted the officers to go inside and investigate.
Maldonado testified he told the officers that he heard two voices inside the house. Officer Wolter testified Maldonado said he heard noises inside, and not that he heard the voices of two men in the house.
Officers Puryear and Wolter decided it was not safe to enter because of the fumigation. They called for backup assistance from an officer with a canine partner, so they could attempt a "surrender callout" of whoever was inside. They set up a perimeter while they waited for the other officers. Wolter stayed with Maldonado in the backyard. Puryear went toward the front yard.
Officer Moore arrived to assist and took a position on the side of the house. The Opening in the Tent
On appeal, defendant contends his conviction in count 4 for misdemeanor possession of burglary tools, based on his possession of a knife, must be reversed. In support of this argument, defendant argues that while Maldonado testified the tent had been cut, the trial evidence refuted this claim and instead showed there was "a plainly visible, readily accessible, prefabricated entrance in the fumigation tent." As we will discuss in issue II, post, there was conflicting evidence as to whether the tent had been cut open or a section of the tent had been left open by the fumigation company.
Maldonado testified there was a long cut in the tent, and "you could tell it was a knife that cut it." As we will explain below, defendant jumped out of that opening and tried to escape from the officers.
The officers testified about their observations of the opening in the tent. Officer Puryear testified Maldonado pointed it out to him:
"[The prosecutor]. Did you notice any openings in the tent ...?
"[Officer Puryear]. I did. The homeowner, when we first arrived, pointed out that there was an opening in the tent. It was about a—I'd say a five foot tall slit, clean cut, on the west side of the residence, directly in the middle between the north and south, so right in the middle of the wall. I'm
not sure if it was built like that, if the tents come with an opening like that, or if it was cut. I'm not sure.
"Q. When you say five feet, is that from the ground up?
"A. Correct." (Italics added.)
Officer Wolter testified Maldonado directed his attention to "an opening in the tenting" on the west side of the residence. The opening "went from approximately the top of the eaves down to the ground," and it was in a straight line. Wolter looked into the tent and saw an open window into the house.
"[Defense counsel]: ... With the fumigation tent, you put it over the house, and there are some openings that then you clamp or tie up. Is that right?
"[Officer Wolter]: Yes.
"Q. So that opening that you're describing that went up to the eaves, was that one of those openings?
"A. I believe so. [¶] ... [¶]
"Q. Did you notice any, like, ripped or torn area of the tent?
"A. No.
"Q. Did Mr. Maldonado ever direct your attention to any sort of ripped, torn, sliced area of the tent?
"A. No, just towards the one opening I described earlier.
"Q. And that is the same opening that the suspect [later] ran out of?
"A. Yes." (Italics added.)
Officer Moore also testified that he saw the opening in the tent.
"[Defense counsel]. And that opening, did you observe more than one?
"[Officer Moore]. I just remember seeing one. I believe it was a tear on the west side of the house.
"Q. And was - to your knowledge, that opening, was it the opening that the suspect [later] jumped out of?
"A. It was the only opening I saw on that side, so I assumed it was the opening he exited through.
"Q. And did you spend much time examining that?
"A. No, I didn't." (Italics added.)
On redirect examination, the prosecutor asked Officer Moore further questions about the opening in the tent.
"[The prosecutor]. Officer Moore, you testified that you observed a tear on the west side of the house that was tented?Defendant Escapes from the House
"A. Yes.
"Q. Did it appear that the tear was built into the fabric, as in manufactured, or did it appear that it was cut with a sharp object?
"A. I don't - I don't remember exactly how it was torn, but I remember it wasn't at the seam. I think there's the seams down the house where they clamp the pieces of fabric together, and it wasn't that. I believe it was an actual tear by a - like a knife or some sort of cutting instrument." (Italics added.)
Officer Puryear testified that as he stood outside the house and waited for the additional officers, he heard a rustling sound, like someone was inside and opening and closing doors. Officer Wolter heard a chirping alarm and crashing sounds, "like somebody was throwing items about inside the residence." Officer Moore also heard someone inside and a rustling noise like "something moving across the fabric" of the tent.
Officer Puryear then heard what sounded like two materials being rubbed together. The sound seemed to be moving away from him. He saw a bulge in the tent material that moved farther away from him.
A man, later identified as defendant, suddenly jumped out of the opening in the tent that Maldonado had shown the officers. Defendant was wearing a sweatshirt with the hood over his head. Officers Puryear and Wolter identified themselves as police officers and yelled at defendant to stop. Defendant ignored their orders and jumped over a wall into a neighbor's yard.
Officer Puryear chased defendant through the neighbor's backyard, around the side, and into the front yard. Puryear followed defendant as he jumped another fence and ran onto the street. Officer Wolter joined the foot pursuit and ran after defendant. Maldonado, the homeowner, also ran after defendant. Officer Moore remained at the house and did not pursue defendant.
The officers continued to order defendant to stop. Defendant got ahead of the officers and ran into the alley behind the homes on Shattuck Avenue. Defendant jumped a chain link fence and got into a residential backyard.
Officer Puryear saw defendant in the backyard. Puryear activated his Taser in dart mode and discharged it at defendant. Defendant was hit in the shoulder, but he ripped the cord from the dart and kept moving. Apprehension of Defendant
Officer Puryear entered the backyard, looked around with his flashlight, and saw defendant trying to hide in a gap between the fence and a shed.
Officer Puryear ordered defendant to get on the ground. Defendant ignored the command. Puryear moved on defendant's position, used his baton, and hit defendant once in the upper back. Defendant fell. Puryear testified he decided to use his baton because defendant had ignored his repeated orders, the Taser dart did not stop him, and there was equipment in the backyard that could be used as a weapon.
Once defendant was down, Officer Puryear ordered him to put his arms to the side. Defendant kept his arms under his body and did not move. Puryear attempted to hit defendant a second time but thought he missed his body. Puryear used his baton a third time and hit defendant in the back of his legs. Defendant said, "[O]kay, okay, okay," and finally complied with his orders.
Officer Wolter arrived in the backyard and assisted Officer Puryear in placing defendant in handcuffs. Patdown Search of Defendant
Once defendant was restrained, Officer Puryear conducted a patdown search for weapons. Defendant was wearing basketball shorts and a black hooded sweatshirt. Defendant had a black tubular cloth around his neck that had covered the lower part of his face. He was also wearing gloves.
The officers found a knife in the right front pocket of defendant's shorts.
Officer Wolter testified that in his experience investigating burglary cases, gloves could be a "burglary tool" because they "aid in concealing a subject's identity" by not leaving any fingerprints behind.
As already noted, in issue II, post, we will address defendant's contentions that his conviction in count 4 for possession of burglary tools is not supported by substantial evidence.
"[The prosecutor]. What about a knife? Can a knife be a burglary tool?Maldonado Attacks Defendant
"[Officer Wolter]. Yes.
"Q. How so?
"A. It could be used to aid in entering and existing the premises, either through cutting something open or prying something open.
"Q. But that doesn't necessarily mean that a knife is always a burglary tool. Is that right?
"A. That's correct.
"Q. So it has more to do with how it's used?
"A. Correct.
"Q. And the same thing with the gloves?
"A. Correct." (Italics added.)
After defendant was searched, the patrol car with the backup officers arrived in the area. Officer Puryear went into the street and used his flashlight to indicate his position. Officer Wolter remained in the backyard with defendant, who was lying on the ground and in handcuffs.
Maldonado suddenly appeared at the scene. He was yelling and cursing at defendant. Maldonado jumped on defendant and kicked him in the face. Officer Wolter grabbed Maldonado and pulled him away from defendant. Additional Search of Defendant
The officers considered whether to arrest Maldonado for kicking defendant. Instead, they decided to issue a citation for battery since he had been the victim of the burglary. Maldonado initially refused to testify at defendant's trial and claimed his Fifth Amendment rights. Maldonado was granted immunity and subsequently testified.
The officers escorted defendant to their patrol cars. Officer Moore conducted a more thorough search of defendant. In addition to the knife, defendant had the following items in the pockets of his shorts: a gold chain, a set of plastic rosary beads, a pink flashlight, keys, a black flashlight, and a black lighter.
Maldonado identified the gold chain, rosary, and pink flashlight as property taken from his house. Defendant's Postarrest Statements
Defendant was placed in a patrol car. Officer Puryear advised defendant of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and he answered questions. Defendant said he had not been working because of a medical disability. Defendant said he had been out that night to return Redbox movies. Defendant said he had several children and felt he was not contributing to his family. He drove around the area to see if he would " 'come upon something.' "
Defendant said he noticed the tented house and thought he could steal something to sell so he could earn money for his family. Defendant said he already had the cloth and put it around his nose and mouth when he entered the house, so the fumigation odors would not get into his lungs. He also put on gloves and carried a flashlight.
Defendant said he went through an open window and got into the house. He found two or three items and placed them in his pockets. He heard people outside the house and saw flashlights. Defendant was not sure if the people were the homeowners, neighbors or officers. He decided to escape and figured he could get away from the homeowner.
Officer Puryear asked defendant when he realized that he was being chased by the police. Defendant said he did not know they were officers until he jumped the chain link fence into the backyard and was hit by the Taser. Defendant said he did not stop at that time because he was trying to get away. He did not want to go to jail and tried to hide in the backyard because he was tired and exhausted from running.
Defendant did not complain about the officer's use of the baton but had an issue with Maldonado jumping on him while he was in handcuffs. Defendant was taken to the hospital because it was department policy to do so after being hit with a baton. There were marks on defendant's body that corresponded with the baton strikes. Defendant was cleared and released from the hospital and booked into custody. The Boxes Inside Maldanado's House
A few hours after defendant was arrested, the company removed the tent from Maldanado's house and his family returned home. Maldonado testified the clothing that his family packed in one of the plastic bins had been dumped out in the living room. The bin was loaded with a laptop computer, tablets, games, and other possessions that belonged to his family. The clothing from a second bin had also been dumped out. This bin was in his bedroom and contained some of his personal belongings.
DEFENSE EVIDENCE
Defendant testified at trial and admitted that in 2009, he pleaded guilty to felony violations of Penal Code, section 422, criminal threats, and section 236, false imprisonment.
All further statutory references are to the Penal Code unless otherwise stated.
Defendant had worked at General Production Services in Taft. In March 2016, he was placed on disability for high levels of enzymes in his blood that made him dizzy. He also suffered from depression. Defendant's wife was pregnant, and they had five children. He had financial problems; he could not afford his medication; and he could not provide for his family on the disability payments.
On the day of the incident, defendant and his wife argued about their unpaid bills. Around 1:30 a.m., he left home to return a rental movie. He drove around and kept thinking about all the bad things that were going on in his life. He drove by the tented house and realized it was being fumigated. Defendant thought he could go inside and kill himself, "and just fall asleep and not wake up." Defendant had previously considered killing himself by slitting his wrists or taking pills, but he had gone to a mental health center for treatment on those prior occasions. Defendant Enters the House
Defendant parked his car in the alley behind Maldonado's house. Defendant took gloves, a flashlight, and cutoffs from a pair of jersey pants with him; these items were already in his car. Defendant took these items into the house because he "wanted it to look like I was stealing for my family." He did not want his family to know that he committed suicide because of their religious beliefs. Defendant thought it would be better if his family believed he was stealing something. He figured the fumigation workers would find him the next day. He put the cutoff cloth around his neck but did not cover his face. He put on the gloves because he figured "burglars use gloves to steal stuff."
"[The prosecutor]. And the only reason you had the item[s], you know, that would easily be mistaken as burglary tools would be because you wanted to make it seem like you were a burglar?
"A. Yes, sir."
Defendant testified he walked around the side of the house. The tent was clamped onto the structure. He was going to remove a clamp "but there was already a slit in it, an opening, so I just went in the opening." Defendant testified, "[T]here was a slit. It was open, so I went in there. And then I went through the window and it was open."
Defendant was in the house for at least 40 minutes. Defendant saw the plastic bins that were stacked inside. He moved some around "just to make it look like I was doing stuff in there or trying to rob the place, and I eventually ended up on the ground in one of the rooms." Defendant testified he was not planning to use any of the plastic bins to take property from the house, but felt he had to make it look like the house was ransacked so his family would not know that he killed himself. He never turned on his flashlight or the house lights.
Defendant felt the effects of the fumigation and became dizzy. He laid down on the floor in front of a bed and might have passed out.
Defendant heard someone yelling and thought the homeowner was outside. Defendant Runs from the House
Defendant testified he did not want any conflicts with the homeowner and decided to leave. He went out the door of the house but got confused about how to get out of the tent. He went back into the house "and then found the way that I came back in outside the tent, and then I went through the tent and then jumped the wall and continued running."
Defendant never heard anyone identify himself as a police officer or order him to stop. He only heard someone yell, " 'I'm gonna kill you,' " and did not think that person was a police officer.
Defendant testified he jumped fences and kept running. He kept hearing someone yell that he was going to kill him. He did not realize that he was being chased by police officers. Defendant felt dizzy, lightheaded, and disoriented from the fumigation fumes.
Defendant jumped into the last backyard and was hit by the Taser, and realized the police were chasing him. He tried to hide behind the shed as "a precaution just in case it wasn't the police." The Officers Take Defendant into Custody
Defendant testified he saw the officer, and he heard and obeyed the officer's commands to show his hands. Even though he complied with the order, the officer still hit him with the baton. Defendant got on the ground. Defendant believed the second officer placed his knee on defendant's neck, and the first officer delivered two additional blows with the baton. Defendant was hit three times and not two times as the officer claimed. The baton strikes left bruises on his back, buttocks, and legs.
Defendant testified he was placed in handcuffs and remained on his side on the ground. Maldonado jumped on top of him and kicked him in the face. It took the officers about a minute to pull Maldonado off him. Defendant saw "a bright light" when he was kicked in the face and did not feel anything after that. He was not sure if someone placed something in his pockets at that time. The Items in Defendant's Pockets
Defendant testified that the knife, black flashlight, black lighter, and keys that were found in his pockets belonged to him. Defendant testified the knife was folded and he never used it that night.
Defendant admitted that Officer Moore found the gold chain, plastic rosary necklace, and pink flashlight in his pockets. Defendant testified he picked up the pink flashlight when he was in the house. His daughter had the same pink flashlight, and he picked it up because it reminded him of his daughter. He was not planning to steal the pink flashlight, but he was still holding it when he ran away and put it in his pocket.
Defendant testified he had never seen the gold chain and plastic necklace that Officer Moore removed from his pockets. He did not take them from the house. He had no idea how these items got into his pockets. Defendant's Postarrest Statements
In closing argument, defense counsel stated that she did not know how the gold chain and rosary necklace got into defendant's pockets, if Maldonado put them there, or if defendant put them in his pockets because he was high from the fumigation fumes.
Defendant admitted that after he was arrested, he told the officers that he went into the house to steal property. Defendant lied when he made these statements because he did not want his family to know he was suicidal. Defendant testified he never told the officers that he grabbed items from the house, but instead told them that he did not know where the two items came from.
Defendant testified that he did not want his wife to know that he planned to end his life. As of the time of trial, defendant's wife knew he was being prosecuted and thought he went into the house to steal. Defendant still had not told her that he went into the house to kill himself.
Defendant admitted that after he was arrested, he never told the police that the entire incident was a mistake, and that he was not stealing anything and only wanted to kill himself.
REBUTTAL
Officer Puryear testified on rebuttal that when he took defendant into custody and questioned him, defendant did not appear confused or irrational. Defendant was able to effectively communicate with him. He was not crying or emotional and did not show any indications of being suicidal.
When Officer Puryear confronted defendant in the backyard, he swung his baton at him three times and believed he missed once. Puryear did not know whether Officer Wolter was present at that moment but testified Wolter did not place his knee on defendant's neck when Puryear hit defendant with the baton. After Puryear returned his baton to his holster, he dragged defendant into the open and Wolter placed him in handcuffs.
Officer Puryear testified that Maldonado jumped on defendant, but the officers pulled him away immediately. Maldonado was on top of defendant for less than 10 seconds, and Puryear did not see Maldonado place anything in defendant's pockets.
During the postarrest interview, defendant said he climbed through the window of the house and grabbed a few items. He saw flashlights and heard voices outside the house and decided to leave.
Officer Puryear was present when defendant was examined at the hospital. Defendant had marks on his back and behind his thighs. Defendant never complained that he had been hit in the buttocks. Conviction and Sentence
After a jury trial, defendant was convicted as charged of count 1, first degree burglary (§ 460, subd. (a)); count 2, misdemeanor resisting, delaying or obstructing a peace officer (§ 148, subd. (a)(1)); count 3, misdemeanor receiving stolen property (§ 496, subd. (a)); and count 4, misdemeanor possession of burglary tools (§ 466).
The court found true the allegations that he had one prior serious felony enhancement (§ 667, subd. (a)); one prior prison term enhancement (§ 667.5, subd. (b)); and one prior strike conviction.
Defendant was sentenced to an aggregate second strike term of 13 years with various fines and fees as we will discuss in part V, post.
DISCUSSION
I. The Trial Court's Instructions for Count 1
Defendant contends the trial court erroneously denied his request to instruct the jury on trespass as "a lesser included offense" of the charged offense in count 1 for felony residential burglary.
Defendant acknowledges trespass is not a lesser included offense of burglary under "the elements test," but argues it qualifies under "the accusatory pleading test" based on pleadings. Defendant asserts the trial court's refusal to give his requested instruction on a "lesser included offense" violated his due process right to a fair trial and was prejudicial because it left the jury with an "all or nothing" choice of convicting him of residential burglary or acquitting him of all charges, and the instruction would have been supported by his testimony that he entered the tent because he wanted to kill himself, he did not have the intent to steal, and he did not intentionally take anything from Maldonado's house.
A. Background
After the parties rested, the court conducted the instructional conference in chambers. Thereafter, the court and the parties returned to the courtroom, and the court recited various rulings it had made on the parties' instructional requests.
The court said it had already informed the parties that it was not inclined to instruct on any lesser included offenses for count 1, burglary, and the evidence did not support an instruction on attempted burglary as a lesser included offense.
The court further stated that defense counsel had requested an instruction on trespass as a "lesser-included offense" to residential burglary. The court said it denied defendant's request:
"[T]he necessary elements to prove each charge were different. Specifically as it relates to trespass, the element necessary was to trespass into a person's house, building, or property without the person's consent. That is absent as a requirement in residential burglary. [¶] Additionally, it
appears to the Court that residential burglary is a specific intent crime and trespass is a general intent crime."
The court invited further argument. Defense counsel argued that trespass in violation of section 602.5 could be a lesser included offense of residential burglary "if the facts lent themselves to that. [¶] And I believe in this particular case we do have a situation where the facts are so specific that trespass would be an appropriate lesser-included." The prosecutor submitted the matter. The court again denied the request.
B. Analysis
"[E]ven absent a request, and even over the parties' objections, the trial court must instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser. [Citations.]" (People v. Birks (1998) 19 Cal.4th 108, 118, italics added (Birks).) We independently review whether the trial court erred by failing to instruct on a lesser included offense. (People v. Souza (2012) 54 Cal.4th 90, 113.)
There are two tests for determining whether an uncharged crime is a lesser included offense. "Under the elements test, a court determines whether, as a matter of law, the statutory definition of the greater offense necessarily includes the lesser offense." (People v. Parson (2008) 44 Cal.4th 332, 349.) "Under the accusatory pleading test, a court reviews the accusatory pleading to determine whether the facts actually alleged include all of the elements of the uncharged lesser offense; if it does, then the latter is necessarily included in the former. [Citation.]" (Ibid.)
First degree burglary is the entry of a dwelling with the intent to commit a theft or a felony. (§§ 459; 460, subd. (a).) Section 602.5, subdivision (a) defines trespass: "Every person other than a public officer ... who enters or remains in any noncommercial dwelling house, apartment, or other residential place without the consent of the owner ... is guilty of a misdemeanor." (Italics added.)
"It appears well settled that trespass is not a lesser necessarily included offense of burglary, because burglary, the entry of specified places with intent to steal or commit a felony [citation], can be perpetrated without committing any form of criminal trespass [citation]. [Citations.]" (Birks, supra, 19 Cal.4th at p. 118, fn. 8; People v. Taylor (2010) 48 Cal.4th 574, 622.) "A burglary may be committed by one who has permission to enter a dwelling. [Citations.]" (People v. Lohbauer (1981) 29 Cal.3d 364, 369.)
Defendant asserts that Birks only held that trespass was not a lesser included offense based on the elements test and argues trespass may be a lesser included offense of burglary under the accusatory pleading test. However, defendant's argument fails even under the accusatory pleading test. As to count 1, the information in this case alleged defendant "did willfully and unlawfully enter an inhabited dwelling ... or portion of a building inhabited by Michael Maldonado, a residence located at ... Shattuck Avenue, with the intent to commit larceny or any other felony...." (Italics added.) The amended information did not allege defendant entered without Maldonado's consent. Thus, the burglary as pleaded in the information could have been committed without committing criminal trespass, and trespass was not a lesser included offense of residential burglary.
More importantly, Birks explained that trespass is not a lesser necessarily included offense of burglary under either the elements test or the accusatory pleading test, since the information in that case alleged that defendant " 'did willfully and unlawfully enter a commercial building ... with intent to commit larceny and any felony.' " (Birks, supra, 19 Cal.4th at p. 118, fn. 8.) Birks held these allegations did not necessarily include criminal trespass. (Ibid.)
Defendant asserts that his argument that trespass is a lesser included offense is supported by People v. Waidla (2000) 22 Cal.4th 690. However, Waidla did not overrule Birks but assumed "[f]or purposes of discussion only" that trespass was a lesser included offense to burglary under the accusatory pleading test. (Waidla, at p. 733.) In addition, the California Supreme Court subsequently reaffirmed its holding in Birks that trespass is not a lesser included offense of residential burglary. (People v. Taylor, supra, 48 Cal.4th at p. 622.)
" 'It is the "court's duty to instruct the jury not only on the crime with which the defendant is charged, but also on any lesser offense that is both included in the offense charged and shown by the evidence to have been committed." [Citation.]' [Citations.] As we recently reiterated, however, trespass is a lesser related offense, not a lesser included offense, of burglary. [Citations.] '[T]here is no federal constitutional right of a defendant to compel the giving of lesser-related-offense instructions. [Citation.]' [Citation.] Regardless of defendant's legal and factual theories concerning how his conduct may have constituted trespass, that potential crime nonetheless remains at most a lesser offense related to (but not included in) the offense of burglary." (People v. Foster (2010) 50 Cal.4th 1301, 1343-1344.)
Trespass is thus a lesser related offense of burglary. A lesser related offense is an uncharged lesser offense that is not necessarily included in the charged offense but "merely bear[s] some relationship thereto." (Birks, supra, 19 Cal.4th at p. 119; People v. Robinson (2016) 63 Cal.4th 200, 207, fn. 3.) An instruction on a lesser related offense is proper only upon the mutual assent of the parties and allowing an instruction on a lesser related offense over the prosecutor's objection interferes with the prosecutorial charging discretion. (People v. Taylor, supra, 48 Cal.4th at p. 622; Birks, supra, at pp. 112-113.)
In this case, defendant requested the trespass instruction as a lesser included offense of residential burglary. The court properly denied the request. Defendant did not request the instruction as a lesser related offense, and there is no indication the prosecutor would have agreed with the request. As a result, the court did not commit error in denying defendant's instructional request.
Defendant argues that the absence of a trespass instruction improperly presented the jury with an "all or nothing choice." Such a concern, however, addresses a court's failure to instruct on a lesser included offense and not on a lesser related offense. (See, e.g., People v. Gonzalez (2018) 5 Cal.5th 186, 200; People v. Hicks (2017) 4 Cal.5th 203, 211.)
II. Substantial Evidence of Count 4
Defendant was charged and convicted in count 4 of misdemeanor possession of burglary tools in violation of section 466. Defendant argues this conviction must be reversed for insufficient evidence. Defendant notes that in closing argument, the prosecutor relied on his possession of the knife, gloves, the piece of cloth used as a mask, and the black flashlight, as the burglary tools, but argues these objects are not defined as burglary tools by section 466 or contemplated as such by various interpretations of that statute.
A. Section 466
Defendant was convicted in count 4 of violating section 466, which states:
"Every person having upon him or her in his or her possession a picklock, crow, keybit, crowbar, screwdriver, vise grip pliers, water-pump pliers, slidehammer, slim jim, tension bar, lock pick gun, tubular lock pick, bump key, floor-safe door puller, master key, ceramic or porcelain spark plug chips or pieces, or other instrument or tool with intent feloniously to break or enter into any building, railroad car, aircraft, or vessel, trailer coach, or vehicle as defined in the Vehicle Code, or who shall knowingly make or alter, or shall attempt to make or alter, any key or other instrument named above so that the same will fit or open the lock of a building, railroad car, aircraft, vessel, trailer coach, or vehicle as defined in the Vehicle Code, without being requested to do so by some person having the right to open the same, or who shall make, alter, or repair any instrument or thing, knowing or having reason to believe that it is intended to be used in committing a misdemeanor or felony, is guilty of a misdemeanor. Any of the structures mentioned in Section 459 shall be deemed to be a building within the meaning of this section." (Italics added.)
The parties agree that the items claimed to be burglary tools in this case are not in the specific list of tools in section 466 and can only support defendant's conviction if they fall within the definition of "other instrument or tool with intent feloniously to break or enter into any building."
B. Elements and Intent
"[I]n order to sustain a conviction for possession of burglary tools in violation of section 466, the prosecution must establish three elements: (1) possession by the defendant; (2) of tools within the purview of the statute; (3) with the intent to use the tools for the felonious purposes of breaking or entering. [Citation.]" (People v. Southard (2007) 152 Cal.App.4th 1079, 1084-1085.)
" ' "The offense is complete when tools or other implements are procured with intent to use them for a burglarious purpose." ' [Citation.]" (People v. Southard, supra, 152 Cal.App.4th at p. 1088.) Such intent is usually proven by circumstantial evidence. (People v. Cain (1995) 10 Cal.4th 1, 47.) Defendant's felonious intent may also be established by his "possession of other items outside the scope of section 466 but also used to commit burglaries" and "his flight from law enforcement...." (People v. Southard, at pp. 1092-1093.)
C. Gordon and the Amendment to Section 466
In this case, defendant correctly notes that none of the objects found in his possession - the gloves, the mask, the black flashlight, and folding knife - are among the items expressly defined as burglary tools in section 466.
Defendant argues that these items do not fall within the statutory definition of "other instrument[s] or tool[s] with intent feloniously to break or enter into any building" because they are not similar to the tools expressly identified as tools in section 466.
Defendant's argument is based on a series of cases that have reached different interpretations about the definition of the phrase "other instrument[s] or tool[s]" as used in section 466.
In People v. Gordon (2001) 90 Cal.App.4th 1409 (Gordon), the court set forth a restrictive definition of that phrase. In that case, the defendant was detained after being connected to a car theft where the window had been shattered into small pieces. The defendant had two small pieces of porcelain from a spark plug in his pocket. At trial, a police detective testified car thieves often use pieces of ceramic spark plugs to shatter car windows because that method makes very little noise. The defendant was convicted of possession of burglary tools based on the pieces of porcelain. At that time, section 466 did not include these items within the express definition of burglary tools. (Gordon, at p. 1411.)
Gordon reversed the defendant's conviction for violating section 466 and held the pieces of porcelain did not fall within the definitional phrase of "other instrument or tool." (Gordon, supra, 90 Cal.App.4th at p. 1412.) Gordon relied on the rule of ejusdem generis, "which applies when general terms follow a list of specific items or categories, or vice versa. [Citation.] Under the rule, application of the general term is ' "restricted to those things that are similar to those which are enumerated specifically." ' [Citations.]" (Ibid.)
Based on this rule, Gordon held "the meaning of the words 'or other instrument or tool' in section 466 is restricted to a form of device similar to those expressly set forth in the statute. [Citation.]" (Gordon, supra, 90 Cal.App.4th at p. 1412, italics added.)
"The items specifically listed as burglar's tools in section 466 are keys or key replacements, or tools that can be used to pry open doors, pick locks, or pull locks up or out. None of the devices enumerated are those whose function would be to break or cut glass- e.g., rocks, bricks, hammers or glass cutters, and none of the devices listed resembles ceramic spark plug pieces that can be thrown at a car window to break it. Nevertheless, the People liken a ceramic spark plug piece to a 'shaved' key because both provide for quiet breaking and entering, and argue that a spark plug piece is an 'other instrument or tool' which satisfies the statutory definition in section 466 because 'it operates as effectively in breaking into a vehicle as unlocking the vehicle door with a metal tool ....' However, the test is not whether a device can accomplish the same general purpose as the tools enumerated in section 466; rather, the device itself must be similar to those specifically mentioned. Here, a ceramic piece of a spark plug that can be thrown at a car window is not similar to the burglar's tools listed in the statute. [Citation.]" (Id. at pp. 1412-1413, some italics added.)
Gordon thus limited the definition of "other instrument or tool" to an item similar to those specifically identified as burglary tools in section 466.
As a result of the holding in Gordon, the Legislature amended section 466 in 2002 to add "ceramic or porcelain spark plug chips or pieces" to the list of items defined as burglary tools. (People v. Kelly (2007) 154 Cal.App.4th 961, 966 (Kelly); People v. Diaz (2012) 207 Cal.App.4th 396, 403-404 (Diaz).)
D. Kelly and Diaz
In Kelly, a case decided after the amendment of section 466, the court disagreed with Gordon's restrictive definition. The defendant was found in violation of probation for possession of burglary tools. He was detained near a van that had a shattered window. The defendant had a slingshot, a box cutter, and a flashlight in his backpack. The officer found another bag near the defendant's location that contained stolen property. The officer testified that, based on his experience investigating car burglaries, the items in the defendant's backpack were burglary tools because "[a] slingshot is commonly used with a ceramic chip to break automobile windows; this device 'will crack the glass usually on the first hit.' Box cutters are used to cut the wire on car stereos. Flashlights are used to see inside dark car interiors." (Kelly, supra, 154 Cal.App.4th at p. 964.)
Kelly acknowledged that section 466 did not specifically enumerate box cutters, flashlights, or slingshots as burglary tools, but the officer's testimony supported defendant's conviction because the slingshot and box cutter were within the category of " 'tools' or 'instruments' as those terms are commonly understood." (Kelly, supra, 154 Cal.App.4th at pp. 966, 968.) While it was "at least arguably questionable" to include ceramic chips as burglary tools, "we have no such difficulty placing a slingshot or a box cutter within that category." (Id. at p. 966.)
Kelly held the post-Gordon amendment to section 466 "undermines [Gordon's] conclusion that section 466 was intended to encompass only items that can be used to unlock, pry, or pull something open." (Kelly, supra, 154 Cal.App.4th at pp. 966-967.) Kelly also disagreed with Gordon's narrow interpretation of section 466.
"Under Gordon's interpretation, section 466 authorizes law enforcement to apprehend only burglars and would-be burglars who employ a limited set of means to achieve their nefarious ends, while
malfeasants who use other means to break and enter are immunized from punishment even where the evidence establishes their intent to use the tool or instrument in their possession to commit burglary. We see nothing in the statute that indicates this is what the Legislature intended. To the contrary, we think the plain import of 'other instrument or tool,' and the only meaning that effectuates the obvious legislative purpose of section 466 includes tools that the evidence shows are possessed with the intent to be used for burglary." (Kelly, at pp. 967-968, italics added, fn. omitted.)
In Diaz, supra, 207 Cal.App.4th 396, the court disagreed with Kelly and found the post-Gordon amendment to section 466 supported Gordon's restrictive definition of burglary tools. In that case, the defendant was arrested while attempting to commit a residential burglary and found in possession of a bag that contained latex gloves. An officer testified the gloves were burglary tools and used to conceal the suspect's identity and stolen property would have been placed in the bag. (Id. at pp. 398-399.)
Diaz reversed the defendant's conviction for possession of burglary tools, found Gordon's interpretation of the statute was consistent with the legislative history, and held there were "no cases holding gloves and bags, or similar articles, meet the statutory definition of burglary tools under section 466." (Diaz, supra, 207 Cal.App.4th at p. 403, fn. omitted.)
Diaz further found the Legislature's amendment to section 466 actually supported the holding in Gordon and its narrow interpretation of the statute:
"When the Legislature added 'ceramic or porcelain spark plug chips or pieces' in 2002 in response to Gordon, legislative analyses noted the bill was intended to resolve a conflict between Gordon and another opinion ... which held ceramic chips could constitute a burglary tool. One analysis noted Gordon 'found that an instrument is not a burglar tool just because it can accomplish the same purpose as the listed tools, but that the device must be similar to those specifically listed.... This bill resolves the conflict ... by adding ceramic or porcelain spark plugs ... or pieces to the enumerated list of "burglar's tools" within ... [s]ection 466.' [Citation.] Another analysis noted the Supreme Court likely would 'consider the effect of the general reference to "other instrument or tool" in the burglary tool statute, in light of the very specific list of items that are defined as burglary tools.' [Citation.] Additionally, another analysis noted, 'AB 2015 will allow justice to be served without opening section 466 to include an overly
broad range of generic objects, such as rocks or pieces of tile, that could be used to break windows.' [Citation.]
"The legislation and associated analyses demonstrate the Legislature accepted Gordon's application of ejusdem generis in interpreting section 466. The Legislature did not resolve the conflict concerning section 466 by amending the statute to eliminate Gordon's requirement of similarity of purpose and design. Rather, it added an item to the list without supplanting the usual ejusdem generis canon that applies when specific and general words are used together in a statute. [Citation.]" (Diaz, supra, 207 Cal.App.4th at pp. 403-404, italics added in original, fn. omitted.)
Diaz concluded that section 466 was limited "to instruments and tools used to break into or gain access to property in a manner similar to using items enumerated in section 466. That the perpetrator breaks into or enters property, or attempts to do so, and happens to have access to a tool that may be used in the course of the burglary is not enough. The tool must be for the purpose of breaking, entering, or otherwise gaining access to the victim's property. Nor is it enough that a common implement may be used for breaking and entering, given the Legislature itself has specified its intent was 'to add only ceramic or porcelain spark plug chips or pieces, not other common objects such as rocks or pieces of metal that can be used to break windows, to the list of burglary tools in Section 466 of the Penal Code.' [Citation.]" (Diaz, supra, 207 Cal.App.4th at p. 404, some italics added.)
Diaz reversed the defendant's conviction because "there was no evidence that common latex gloves or the bag in which they were found could be used or were intended to score a breach in [the victim's] home defenses or otherwise gain [the defendant] entry or access to [the victim's] property, nor that these items were in any way similar to items the Legislature has set apart in section 466 for additional punishment when possessed as burglary tools." (Diaz, supra, 207 Cal.App.4th at p. 404.)
E. In re H.W.
The California Supreme Court addressed the conflict between these cases in In re H.W. (2019) 6 Cal.5th 1068, where a minor was apprehended in a department store after employees saw him use a pair of pliers to remove the electronic security tag from a pair of jeans, enter a restroom, walk out without the jeans, and leave the store. He was detained by store employees, and the jeans and pliers were found in his backpack. An officer testified at the juvenile hearing that " '[p]liers are commonly used as a tool to remove tags from clothing items that have a metal pintype securing device that cannot be broken or cut with, say, a knife.' " The court found the minor committed theft and possession of burglary tools. (Id. at p. 1071.)
The appellate court in H.W. affirmed the juvenile petition for the minor's possession of burglary tools, found the pliers fell within the phrase "other instrument or tool" within the meaning of section 466, disagreed with the limited definition of the phrase that was found in Gordon and Diaz, and held the minor possessed and used the pliers for the purpose of committing a theft inside the store and the burglarious purpose of stealing the jeans. (H.W., supra, 6 Cal.5th at p. 1072.)
The California Supreme Court granted review and reversed the juvenile petition for the section 466 violation. H.W. held the pliers were not within the scope of section 466 based on the legislative history of the statute and the perpetrator's intent: "[E]ven if we assume the People are right to treat the pliers in [the minor's] possession as an 'other instrument or tool,' the question of [the minor's] intent proves pivotal in this case." (H.W., supra, 6 Cal.5th at pp. 1074-1075.) "Here is the subjective offense element on which section 466 conditions criminal liability when an individual possesses certain enumerated and similar tools: 'intent feloniously to break or enter into any building, railroad car, aircraft, or vessel, trailer coach, or vehicle.' (§ 466.) One can scour the entire Penal Code and only find this distinctive phrase in section 466." (Id. at p. 1075.)
"[A] closer look at section 466 supports the conclusion that a narrower intent standard is most consistent with the ultimate legislative purpose associated with this statute. Unlike certain burglary tool statutes found in other states, section 466 does not merely prohibit possession of certain devices with an intent to commit burglary or theft [citation], nor does it
reference the use of tools to commit theft, rather than breaking or entering. [Citations.]
"What section 466 includes instead is an intent requirement focused specifically on commission of a felonious breaking or entry. Coupled with the statute's list of tools that seem primarily capable of facilitating entry despite someone's effort to secure or limit access to a structure or other location referenced in the statute, the mention of breaking or entering in the context of section 466 seems most consistent with a reading that conditions criminal liability on a particular state of mind — intent to use an 'instrument or tool' to break or otherwise effectuate physical entry into a structure in order to commit theft or some other felony within the structure." (Id. at pp. 1075-1076, italics added.)
H.W. found the minor only intended to use the pliers to remove the antitheft tag from the jeans. (H.W., supra, 6 Cal.5th at p. 1076.)
"Penal Code section 466 prohibits possession of certain enumerated objects and other instruments or tools with 'intent feloniously to break or enter.' Even if we assume the pliers in [the minor's] possession indeed qualify as an 'other instrument or tool,' what [the minor] lacked is the intent required to establish criminal liability under section 466 given what we can discern from its words and structure. Instead, criminal liability for possession of prohibited tools 'with intent feloniously to break or enter' requires a showing that the defendant intended to use the instrument or tool possessed to break or effectuate physical entry into a structure in order to commit theft or a felony within the structure. The record here does not support the conclusion that [the minor] possessed the pliers with an intent to use them for any purpose other than to remove the antisecurity tag from the jeans." (Id. at p. 1076, italics added.)
F. Instruction on Section 466
In this case, the jury received CALCRIM No. 1701B on the elements of count 4:
"One, the defendant had on his person or in his possession a picklock, crow, keybit, crowbar, screwdriver, vice grip pliers, water-pump pliers, slide hammer, slim jim, tension bar, lock-pick gun, tubular lock pick, floor-safe door puller, master key, or other burglary instrument or tool;
"And, two, when the defendant possessed the instrument or tool, he had the felonious intent to use the burglary instrument or tool to break or
enter a building, railroad car, aircraft, vessel, trailer coach, or vehicle." (Italics added.)
Defendant's jury trial was held in January 2017, after review had been granted in H.W., but there is no indication in the record that the parties addressed with the trial court the conflict between the Kelly and Diaz line of cases.
The jury also received the unanimity instruction for count IV.
G. Closing Arguments
In closing argument, the prosecutor argued that count 4 was supported by defendant's possession of the gloves, the cloth used as a mask, the flashlight, and the knife, and he possessed those items with the intent to break into the house.
"[I]t's not really so much what the tool is, but how he as going to use it.... There's a whole long list of what burglary tools could be. [¶] Some of them I don't even know what they are, but it gives some examples, and it's talking about picklock, crowbar, screwdriver. [¶] And all those have legitimate purposes, right?
"It's not what the tool is. It's how you use it and what you were going to do with it. [¶] And so in this case a knife, a pocketknife, by itself is not a burglary tool, but if you were possessing it with the intent to feloniously enter a house, then that becomes a burglary tool. [¶] And in this case we heard that there was a cut in the tent. There was some inconsistencies about that, but I believe both Officer Puryear and Officer Moore told us that they observed a cut in the tent. And Mr. Maldonado had told us that every time he went to that house before to inspect it, to inspect that tent, he walked the perimeter and he saw no cuts on previous occasions ...."
The prosecutor argued the flashlight was a burglary tool "to look around when you're inside that house because it's dark...." The gloves were also a burglary tool "to prevent your fingerprints from staying in the house, that might help the police catch you and figure out who committed the burglary." The mask was a burglary tool because he used it to get inside a house that was tented for fumigation.
Defense counsel argued defendant did not have "a bunch of sophisticated, long-term criminal tools. It wasn't lock picks. It wasn't crowbars." Instead, defendant had "like a knife, some work gloves, and a random piece of cloth. There are things that anyone could have in their vehicle." Counsel cited defendant's trial testimony that he wanted to make it look like he went into the house to steal. "And I think the fact that the type of tools he had were just kind of makeshift - yeah, this might be what a burglar would have ... really suggests that he wasn't there to steal."
H. Analysis
We find that, under the California Supreme Court's clarification of section 466, defendant's conviction in count 4 is supported by his admitted possession of the knife. In contrast to the minor in H.W., there is no evidence defendant entered Maldonado's house with the intent to use the knife to gain possession of items inside the residence. Instead, under the unique circumstances of this case, a burglar could not gain access to the interior of Maldonado's house without breaching the fumigation tent that surrounded the entire structure. The tent was apparently constructed of canvas or some other cloth-type material. The knife constituted a burglary tool since it would have been used to cut open the tent material and gain access to the house. As a result, defendant used the knife as "an 'instrument or tool' to break or otherwise effectuate physical entry into a structure in order to commit theft or some other felony within the structure." (H.W., supra, 6 Cal.5th at pp. 1075-1076.)
In addition to cutting open the tent, defendant could have possessed the knife with the intent to pry open the home's doors and windows to gain access to the interior of the residence. (See, e.g., People v. Farnam (2002) 28 Cal.4th 107, 126, 129; People v. Prince (2007) 40 Cal.4th 1179, 1248.) As it turned out, once defendant breached the tent, he did not require further use of the knife to gain entry into the house because of the happenstance that the windows had been left open for the fumigation process - a fact that defendant presumably did not know when he decided to burglarize the house.
Defendant argues the evidence showed that he entered the house through an opening in the tent that had been left by the fumigation company. However, there was conflicting evidence as to whether defendant obtained access into the house by using his knife to cut open a slit into the tent or using a flap that might have been left unsecured by the fumigation company. Maldonado testified there was a long cut in the tent, and "you could tell it was a knife that cut it." Maldonado showed the opening to Officer Puryear, who was not sure if the opening had been cut or the tent was built that way. Officer Wolter testified he did not see any ripped or torn areas of the tent and believed the slit could have been left open by the fumigation company. Officer Moore testified he saw "a tear" in the tent and believed it was "an actual tear" from "a knife or some sort of cutting instrument." There was thus evidence from which the jury could have found defendant used the knife to gain entry into the tent.
While the gloves, flashlight, and mask are not burglary tools under H.W. and the facts of this case, defendant's possession of these items further supports his conviction for violating section 466. As explained above, defendant's intent to use the knife for the felonious purpose of breaking or entering may be established by his "possession of other items outside the scope of section 466 but also used to commit burglaries" and "his flight from law enforcement ...." (People v. Southard, supra, 152 Cal.App.4th at pp. 1092-1093.) The violation of section 466 was complete when defendant possessed the knife with the intent to break or otherwise effectuate physical entry into Maldonado's house in order to commit theft or some other felony within the structure. When defendant was discovered leaving Maldonado's house, he ignored the officers' repeated orders to stop and led them on a chase through various backyards. When defendant was finally taken into custody, he had the knife and property taken from Maldonado's house in his pockets.
We find the entirety of the evidence supports defendant's conviction for violating section 466.
III. The Prior Serious Felony Enhancement
The court found true the allegation that defendant had a prior serious felony conviction and imposed a consecutive term of five years for the section 667, subdivision (a) enhancement. At the time of the sentencing hearing, the court was statutorily required to impose the section 667, subdivision (a) enhancement and did not have any authority to strike or dismiss it. (§ 667, former subd. (a)(1); § 1385, former subd. (b).)
Effective January 1, 2019, section 667 and section 1385 were amended by Senate Bill No. 1393, to remove the prohibitions on striking a prior serious felony enhancement. (See Stats. 2018, ch. 1013, §§ 1-2.) The new statutes apply retroactively to all cases that are not yet final. (People v. Garcia (2018) 28 Cal.App.5th 961, 971.)
The Attorney General concedes remand in this case is appropriate and we accept that concession. We do not find that the court must strike the enhancement, but only that the court must consider whether to exercise its discretion in furtherance of justice pursuant to the newly-enacted statutory provisions.
IV. The Prior Prison Term Enhancement
Defendant requests correction of the record as to the court's sentencing decision on whether the prior prison term enhancement was stayed or stricken. Since the matter must be remanded on the section 667, subdivision (a) enhancement, we will briefly review the court's sentencing decision on the section 667.5, subdivision (b) enhancement.
A. The Prior Conviction Allegations
The information alleged one prior serious felony enhancement (§ 667, subd. (a)) and one prior strike conviction, based on defendant's conviction in Kern County Superior Court case No. BF127097A for a violation of section 422, criminal threats, in 2009.
The information alleged one prior prison term enhancement (§ 667.5, subd. (b)), based on defendant's conviction for violating section 236, also in case No. BF127097A.
After defendant was convicted of the substantive counts, the court conducted a hearing, reviewed the documentary exhibits, and found the prior conviction allegations were true.
One of the exhibits was the abstract of judgment from case No. BF127097A, that reflected defendant was convicted in a single proceeding in 2009, of infliction of corporal injury on a spouse (§ 273.5, subd. (a)); criminal threats (§ 422) and false imprisonment (§ 236). In the 2009 case, the court imposed the upper term of four years for infliction of corporal injury, with consecutive terms of eight months each for criminal threats and false imprisonment, for an aggregate term of five years four months.
B. The Sentencing Hearing
On February 28, 2017, the court conducted the sentencing hearing in this case, and denied defendant's request to dismiss the prior strike conviction.
In the alternative, defense counsel asked the court to impose the lower term for burglary, and to consider "dismissing" his prior prison term enhancement. Counsel argued:
"That prison prior arose from the same case as the strike prior that's being used to enhance [defendant's] sentence pursuant to [the "Three Strikes" law] and [section] 667(a), and so I believe it would be in the interest of justice to strike his prison prior at this time ...."
The prosecutor requested the court to impose the second strike term of "the midterm doubled" for burglary, with the five-year prior serious felony enhancement. "[A]nd so if that is what the Court is inclined to do, then I have no objection to striking the [section] 667.5(b)."
The court stated that it could impose the one-year term for the prior prison term enhancement, and "there is reason to run it consecutive, or not to stay it, since the defendant's prior convictions also involve counts that did not qualify as a strike prior or a serious felony offense pursuant to [section] 667(a) . So the Court is within its discretion to run the one-year prison prior consecutively. [¶] The Court is, however, in the interest of justice, based on the ultimate sentence ..., going to exercise its discretion and stay the one-year prison prior." (Italics added.)
The court imposed the midterm of four years for burglary, doubled to eight years as the second strike term, plus five years for the prior serious felony enhancement, and one year for the prior prison term enhancement. The court then stated, "The one-year enhancement at this time is ordered stayed or stricken in the interest of justice," and defendant's aggregate sentence was 13 years. (Italics added.)
C. The Record
The February 28, 2017, minute order for the sentencing hearing states defendant was sentenced to eight years for count 1 plus five years for the section 667, subdivision (a) enhancement. It further states the section 667.5, subdivision (b) allegation was "stricken for sentencing purposes only." (Italics added.)
The abstract of judgment similarly states defendant's aggregate sentence was 13 years. It does not account for the prior prison term enhancement in any way.
D. Analysis
When the same prior conviction is the basis for both a five-year term for a prior serious felony conviction enhancement under section 667, subdivision (a), and a one-year term for a prior prison term enhancement under section 667.5, subdivision (b), the greater enhancement must be imposed, and the lesser enhancement imposed, and the execution stayed. (People v. Lopez (2004) 119 Cal.App.4th 355, 363-366; People v. Brewer (2014) 225 Cal.App.4th 98, 103-106; People v. Walker (2006) 139 Cal.App.4th 782, 794, fn. 9.) Such a stay is not based on section 654. (People v. Brewer, at p. 104.)
However, if the prior prison term enhancement is based on a prior felony conviction for which no prior serious felony enhancement is imposed, the one-year term for the section 667.5, subdivision (b) enhancement is mandatory unless stricken in the interests of justice under section 1385, subdivision (a). (People v. Langston (2004) 33 Cal.4th 1237, 1241; People v. Bradley (1998) 64 Cal.App.4th 386, 391; People v. Brewer, supra, 225 Cal.App.4th at p. 104.)
Defense counsel argued the sentencing court had to "dismiss" the prior prison term enhancement because it was based on the same prior conviction as the prior serious felony enhancement. In this case, however, the information alleged that defendant's prior conviction for criminal threats in 2009 was the basis for the prior strike allegation and the prior serious felony enhancement. The information separately alleged the prior prison term enhancement was based on defendant's conviction and prison term for false imprisonment, which was also from the same 2009 case. The court found all the prior conviction allegations true.
The People state that there is no need to correct the record in this case since the court ordered the prior prison term enhancement stricken, and the silence of the abstract of judgment is consistent with such an order. The court's intent is not clear from the record. The abstract of judgment is silent - which could imply that it ordered the enhancement stricken, consistent with defense counsel's request to "dismiss" the enhancement. However, when the court orally pronounced the sentence, it said that it was going to "exercise its discretion and stay the one-year prison prior." (Italics added.) The court imposed the midterm of four years for burglary, doubled to eight years as the second strike term, plus five years for the prior serious felony enhancement, and one year for the prior prison term enhancement. The court then stated, "The one-year enhancement at this time is ordered stayed or stricken in the interest of justice." (Italics added.)
If the court intended to "stay" the enhancement, it had to impose and then stay it, as set forth in Walker. In contrast to Walker, however, the court was not required to "stay" the prior prison term enhancement because it was not based on the same prior felony conviction as the prior serious felony enhancement. Instead, the court had the discretion to strike the enhancement.
More importantly, the court's oral pronouncement was not clear since it initially said the prior prison term enhancement was "stayed," and then said it was "stayed or stricken in the interest of judgment."
Since the matter is already being remanded on the section 667, subdivision (a) enhancement, the court on remand is directed to clarify its sentencing decision on the prior prison term enhancement and issue an amended minute order and abstract of judgment accordingly. V. The Court's Imposition of the Restitution Fine, Fees, and Assessments
In supplemental briefing, defendant argues the court violated his constitutional right to due process because it ordered him to pay a restitution fine, plus fees and assessments, without determining whether he had the ability to pay those amounts. Defendant acknowledges he did not object to these orders but argues he has not forfeited review because any objection would have been futile under the statutory and case law at that time, and the issue raises a purely legal question.
Defendant's constitutional arguments are based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which was decided after his sentencing hearing and while this appeal was pending. 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 any fines or fees. (Id. at pp. 1164, 1167.)
As we recently explained in People v. Aviles (Sept. 13, 2019, F073846) ___ Cal.App.5th ___ (Aviles), we disagree with Dueñas's due process analysis, and instead find it is more appropriate to review a defendant's constitutional challenge to such amounts under the Eighth Amendment to the United States Constitution, to determine whether the court's imposition of fines, fees, and assessments were "grossly disproportional to the gravity of the defendant's offense" and thus "excessive." (United States v. Bajakajian (1998) 524 U.S. 321, 334 (Bajakajian).) As we will also explain, the total of $590 in fines, fees, and assessments imposed in this case is not grossly disproportionate.
We also find that, to the extent defendant attempts to rely on Dueñas, he forfeited review of his ability to pay argument by failing to object at the sentencing hearing, and the record further shows any error is harmless because he has the ability to pay the amounts ordered in this case.
A. The Sentencing Hearing
We begin with the sentencing hearing in this case, which was held on February 28, 2017, prior to the decision in Dueñas. The court reviewed the probation report, which recommended a second strike sentence and amounts for a restitution fine, fees, and assessments. Defense counsel urged the court to dismiss the prior strike conviction, and either strike or stay the prior prison term enhancement. Counsel did not raise any objections to the probation report's recommendations on the imposition of the restitution fine, fees, and assessments.
As to count 1, first degree burglary, defendant was sentenced to an aggregate term of 13 years. The court imposed a concurrent term for count 2, misdemeanor resisting; and stayed the terms imposed for count 3, misdemeanor receiving stolen property, and count 4, misdemeanor possession of burglary tools, pursuant to section 654.
As to count 1, burglary, the court ordered defendant to pay a $300 restitution fine (§ 1202.4, subd. (b)) and imposed and stayed the second $300 restitution fine pending successful completion of parole or postrelease supervision (§ 1202.45). The court also ordered defendant to pay victim restitution in an amount to be subsequently determined (§ 1202.4, subd. (f)).
Section 1202.4, subdivision (b) mandates the court to impose a "separate and additional restitution fine" in "every case where a person is convicted of a crime," unless the court "finds compelling and extraordinary reasons for not doing so and states those reasons on the record." Upon conviction of a felony, the minimum fine is $300 and the maximum fine is $10,000. (§ 1202.4, subd. (b)(1).) "In setting a felony restitution fine, the court may determine the amount of the fine as the product of the minimum fine pursuant to paragraph (1) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted." (§ 1202.4, subd. (b)(2).)
"The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. A defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of subdivision (b)...." (§ 1202.4, subd. (c), italics added.)
If the court sets the restitution fine in excess of the minimum amount, it shall consider "any relevant factors, including, but not limited to, the defendant's inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in the crime. .... Consideration of a defendant's inability to pay may include his or her future earning capacity. A defendant shall bear the burden of demonstrating his or her inability to pay. Express findings by the court as to the factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be required." (§ 1202.4, subd. (d), italics added.)
Also, as to count 1, the court ordered defendant to pay a $10 crime prevention fee (§ 1202.5); a $40 court operations assessment (§ 1465.8, subd. (a)(1)); and a $30 court facilities assessment (Gov. Code, § 70373).
Section 1202.5 requires the court to impose a $10 fine in addition to any other penalty or fine imposed, upon conviction of certain theft-related offenses, including burglary. (§ 1202.5, subd. (a).) "If the court determines that the defendant has the ability to pay all or part of the fine, the court shall set the amount to be reimbursed and order the defendant to pay that sum to the county in the manner in which the court believes reasonable and compatible with the defendant's financial ability. In making a determination of whether a defendant has the ability to pay, the court shall take into account the amount of any other fine imposed upon the defendant and any amount the defendant has been ordered to pay in restitution." (§ 1202.5, subd. (a), italics added.)
Section 1465.8, the court operations assessment, requires the court to impose an assessment of $40 on "every conviction for a criminal offense," with certain exceptions, "[t]o assist in funding court operations." (§ 1465.8, subd. (a)(1).) It does not refer to a defendant's ability to pay.
Government Code section 70373, the court facilities funding assessment, requires the court to impose an assessment on every criminal conviction, with certain exceptions, "[t]o ensure and maintain adequate funding for court facilities," in the amount of $30 for each misdemeanor or felony, and $35 for each infraction. (Gov. Code, § 70373, subd. (a)(1).) It does not refer to the defendant's ability to pay.
As to each conviction in counts 2 through 4, the court imposed a $40 court operations assessment (§ 1465.8, subd. (a)(1)); and a $30 court facilities assessment (Gov. Code, § 70373).
While the court stayed the sentences for counts 3 and 4, it was not required to also stay the court operations assessment (§ 1465.8, subd. (a)(1)) and the court facilities assessment (Gov. Code, § 70373) because those apply to each count of which a defendant is convicted. (People v. Alford (2007) 42 Cal.4th 749, 755-759; People v. Sencion (2012) 211 Cal.App.4th 480, 483-484; People v. Sharret (2011) 191 Cal.App.4th 859, 867-869.)
The court imposed the restitution fine, and the fees and assessments, in the same amounts recommended in the probation report. Defendant did not object to the probation report's recommendations or any of the court's orders for a total of $590.
B. The Eighth Amendment
Defendant relies on Dueñas and People v. Castellano (2019) 33 Cal.App.5th 485 to argue the trial court violated his due process rights when it imposed the restitution fine, and the fees and assessments, without determining his ability to pay. Defendant asserts this court must reverse and stay all amounts imposed because of the court's failure to make this determination.
As noted in Castellano, a bill was introduced in the Legislature after Dueñas was decided that "propose[d] the following factors be considered in determining a defendant's ability to pay: the defendant's present financial circumstances; whether the defendant is receiving any type of government benefits, including means-tested benefits; whether the defendant was represented by court-appointed counsel; the defendant's reasonably discernible future financial circumstances; the likelihood the defendant will be able to obtain employment within a six-month period from the date of the court's consideration of the issue; the amount of victim restitution ordered, if any; and any other factor that may bear upon the defendant's inability to pay. (Assem. Bill No. 927 (2019-2020 Reg. Sess.) § 1.)" (People v. Castellano, supra, 33 Cal.App.5th at p. 490, fn. 5.) An amended version of this bill was recently passed by the Legislature, but it has not yet been signed by the Governor. In any event, we are compelled to address the issues raised by the defendant.
As explained in Aviles, however, we believe Dueñas was wrongly decided when it relied on a due process analysis to address the constitutional challenge raised by the defendant in that case. (Aviles, supra, ___ Cal.App.5th ___ [2019 Cal.App. LEXIS 869, *18-*21].) Instead, we believe a constitutional challenge to the imposition of fines, fees, and assessments should be based on the prohibition against excessive fines contained in the Eighth Amendment to the United States Constitution, as applied to state action in Timbs v. Indiana (2019) ___ U.S. ___ . (Aviles, supra, ___ Cal.App.5th ___ [2019 Cal.App. LEXIS 869, *21-*25]; see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1038 (conc. opn. of Benke, J.); People v. Kopp (2019) 38 Cal.App.5th 47, 81-83 (conc. opn. of Benke, J.), petn. for review pending, petn. filed Sept. 5, 2019; and People v. Santos, 38 Cal.App.5th 923, 936-940 (dis. opn. of Elia, J.).)
" 'The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. [Citations.] [A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense.' (Bajakajian, supra, 524 U.S. at p. 334.)
"The California Supreme Court has summarized the factors in Bajakajian to determine if a fine is excessive in violation of the Eighth Amendment: "(1) the defendant's culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant's ability to pay. [Citations.]" (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. [(2005)] 37 Cal.4th [707,] 728; Gutierrez, supra, 35 Cal.App.5th at p. 1040 (conc. opn. of Benke, J.).) While ability to pay may be part of the proportionality analysis, it is not the only factor. (Bajakajian, supra, 524 U.S. at pp. 337-338.)" (Aviles, supra, ___ Cal.App.5th ___ [2019 Cal.App. LEXIS 869, *23].)
We may review de novo whether a fine is excessive under the Eighth Amendment. (Bajakajian, supra, 524 U.S. at p. 336, fn. 10.) Defendant acknowledges that the Eighth Amendment could possibly apply to a constitutional challenge to the court's imposition of the restitution fine, plus the fees and assessments. He asserts these amounts are excessive under the Eighth Amendment based on the "paltry" hourly rate of pay he could potentially receive if he was assigned a prison job.
Defendant's Eighth Amendment argument is inconsistent with Bajakajian's discussion of the proportionality analysis. Based on those factors, we find the court's imposition of the total of $590 in the restitution fine, fees, and assessments is not grossly disproportionate for his burglary conviction in count 1, and the misdemeanor convictions in counts 2 through 4 for obstructing an officer, receiving stolen property, and possession of burglary tools. Defendant broke into a residence at night that had been tented for fumigation purposes. He ransacked the interior and dumped out the containers the family had used to store their possessions during the fumigation process. Defendant placed a laptop computer, tablets, games, and other property inside one container, and put smaller items into his pockets, with the clear intent to take the property. He was interrupted when Maldonado, the homeowner, arrived for his nightly inspection of his residence. Maldonado realized a slit had been cut into the tent, saw a flashlight inside the tented structure, and heard smashing sounds. When the police arrived, defendant ran out of the opening that had been cut into the tent, ignored the officers' orders to stop, and ran from the house. Defendant led the officers on a foot chase through the neighborhood and over fences. An officer successfully discharged a Taser that hit defendant, but he kept running. He was ultimately detained after an officer cornered him in a backyard and used his baton to restrain him. Defendant was found in possession of property taken from the house.
The aggregate amount of $590 in the restitution fine, fees, and assessments imposed is not grossly disproportionate to defendant's level of culpability and thus not excessive under the Eighth Amendment.
As we noted in Aviles, "[i]f the probationer in Dueñas had raised a constitutional challenge based on the Eighth Amendment, it would have surely led to the trial court's conclusion that the fines and fees imposed in that case were grossly disproportionate and excessive given the undisputed facts about the probationer's dire financial circumstances and minimal criminal culpability. (Bajakajian, supra, 524 U.S. at p. 334; People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at p. 728.)" (Aviles, supra, ___ Cal.App.5th ___ [2019 Cal.App. LEXIS 869, *27, fn. 28.])
C. Forfeiture
We further find that even if Dueñas applied to this case, defendant forfeited his ability to pay challenge because he failed to object to the amounts imposed at the sentencing hearing. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153 (Frandsen); People v. Bipialaka (2019) 34 Cal.App.5th 455, 464.)
1. Futility
Defendant contends he did not forfeit review because Dueñas had not been decided at the time of his sentencing hearing, and the ruling was not foreseeable. He further argues that he did not have the right to raise an inability to pay objection and any objection would have been futile based on the existing law at the time of the sentencing hearing.
"Reviewing 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. [Citations.]" (People v. Welch (1993) 5 Cal.4th 228, 237-238.) While Dueñas had not been decided at the time of defendant's sentencing hearing, defendant's futility argument does not apply in this case. One of the court's orders was for defendant to pay a $10 crime prevention fee for his conviction for burglary in count 1, pursuant to section 1202.5. Section 1202.5 requires the court to impose this fine in addition to any other penalty or fine imposed, upon conviction of certain theft-related offenses, including burglary. (§ 1202.5, subd. (a).) "If the court determines that the defendant has the ability to pay all or part of the fine, the court shall set the amount to be reimbursed and order the defendant to pay that sum to the county in the manner in which the court believes reasonable and compatible with the defendant's financial ability. In making a determination of whether a defendant has the ability to pay, the court shall take into account the amount of any other fine imposed upon the defendant and any amount the defendant has been ordered to pay in restitution." (§ 1202.5, subd. (a), italics added.)
In this case, the court imposed the statutory minimum restitution fine, and the mandatory fees and assessments. While the section 1202.5 fee was de minimus, the court imposed that amount without finding whether defendant had the ability to pay. Defendant could have raised an objection under the statute based on his alleged inability to pay and set forth evidence of his financial situation. There is nothing in the record to indicate defendant would have been foreclosed from relying upon evidence introduced to challenge the section 1202.5 fee to raise the same objections to the other orders, as was done by the probationer in Dueñas. Instead, he remained silent and did not protest the section 1202.5 fee or request a hearing on his alleged inability to pay that amount. (See, e.g., Frandsen, supra, 33 Cal.App.5th at pp. 1153-1154.)
The California Supreme Court has repeatedly held that when a court imposes fees and/or fines pursuant to statutes that specifically include ability to pay findings, the defendant must raise an objection at the sentencing hearing or forfeit the appellate claim that the court failed to make such a finding or there was no evidence of the defendant's ability to pay the imposed amounts. (See People v. Gamache (2010) 48 Cal.4th 347, 409; People v. Case (2018) 5 Cal.5th 1, 52-53; People v. Avila (2009) 46 Cal.4th 680, 728-729; People v. Nelson (2011) 51 Cal.4th 198, 227; People v. McCullough (2013) 56 Cal.4th 589, 590, 598-599; People v. Trujillo (2015) 60 Cal.4th 850, 858-861.) "Given that the defendant is in the best position to know whether he has the ability to pay, it is incumbent on him to object to the fine and demonstrate why it should not be imposed. [Citations.]" (Frandsen, supra, 33 Cal.App.5th at p. 1154.)
2. Question of Law
Defendant next contends forfeiture does not apply because he is not raising a question of fact but instead a question of law - that the sentencing court issued an unauthorized sentence when it imposed the fees and fines without finding he had the ability to pay these amounts in violation of his constitutional rights.
An exception to the rule of forfeiture is when a defendant raises constitutional claims on appeal that "involve pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court. [Citations.]" (People v. Welch, supra, 5 Cal.4th at p. 235.) "In the case of an asserted legal error, '[a]ppellate courts are willing to intervene in the first instance because such error is "clear and correctable" independent of any factual issues presented by the record at sentencing.' [Citation.]" (People v. McCullough, supra, 56 Cal.4th at p. 594.)
Defendant has not raised a pure question of law based on undisputed facts but instead asserts the People failed to present evidence of his ability to pay. He requests this court to reverse and stay the orders, presumably based on a factual determination of his alleged inability to pay from a silent record. "[F]act-specific errors ... are not readily susceptible of correction on appeal." (People v. Scott (1994) 9 Cal.4th 331, 355.) "Defendant may not 'transform ... a factual claim into a legal one by asserting the record's deficiency as a legal error.' [Citation.] By 'failing to object on the basis of his [ability] to pay,' defendant forfeits both his claim of factual error and the dependent claim challenging 'the adequacy of the record on that point.' [Citations.]" (People v. McCullough, supra, 56 Cal.4th at p. 597; Frandsen, supra, 33 Cal.App.5th at p. 1153.)
Defendant argues that based on the recent decision in People v. Rodriguez (2019) 34 Cal.App.5th 641, the instant issue solely involves a question of law and his failure to object was excused. As we extensively explained in Aviles, Rodriguez addressed section 987.8, which is based on a different statutory scheme for determining when an indigent defendant may be ordered to reimburse the costs of appointed counsel. These provisions are far different than those relied on by the sentencing court to impose the restitution fine, fees, and assessments. Rodriguez does not excuse defendant's failure to object and its holding is inapposite to the issue raised in this case. (Aviles, supra, ___ Cal.App.5th ___ [2019 Cal.App. LEXIS 869, *30-*32].)
In this case, the probation report stated the recommended restitution fine, fees, and assessments and provided defendant with notice. The court imposed the exact same amounts, and defendant did not object to the probation report or the court's orders. While it was a minimal amount, section 1202.5 still permitted defendant to raise an ability to pay objection, and he could have extended that argument to the other amounts imposed in this case. As in Frandsen, he has forfeited his ability to pay claim. (Frandsen, supra, 33 Cal.App.5th at p. 1153; People v. Crittle (2007) 154 Cal.App.4th 368, 371.)
D. Harmless Error; Ability to Pay
Even if we agreed with Dueñas and Castellano and found defendant did not waive his objections to the court's failure to conduct a hearing on his ability to pay, we would still reject his constitutional claims and find any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Johnson (2019) 35 Cal.App.5th 134, 139-140; People v. Jones (2019) 36 Cal.App.5th 1028, 1030-1031, petn. for review pending, petn. filed July 31, 2019.)
" 'Ability to pay does not necessarily require existing employment or cash on hand.' [Citation.] '[I]n determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendant's present ability but may consider a defendant's ability to pay in the future.' [Citation.] This include[s] the defendant's ability to obtain prison wages and to earn money after his release from custody. [Citation.]" (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837; People v. Frye (1994) 21 Cal.App.4th 1483, 1487; People v. Ramirez (1995) 39 Cal.App.4th 1369, 1377.)
We can infer defendant in this case has the ability to pay the total amount of $590 in fines and fees imposed upon him from probable future wages, including prison wages. (Aviles, supra, ___ Cal.App.5th ___ [2019 Cal.App. LEXIS 869, *32]; People v. Douglas 1995) 39 Cal.App.4th 1385, 1397.) Prison wages range from $12 to $56 per month, depending on the prisoner's skill level. (Cal. Code. Regs., tit. 15, § 3041.2; Cal. Dept. of Corrections and Rehabilitation, Adult Institutions Operations Manual (2019), art. 12 (Inmate Pay), §§ 51120.1, 51120.6, pp. 354-356.) The state may garnish between 20 and 50 percent of those wages to pay the section 1202.4, subdivision (b) restitution fine. (§ 2085.5, subds. (a), (c); People v. Ellis (2019) 31 Cal.App.5th 1090, 1094.)
According to the probation report, defendant (born 1982) worked for an oilfield company from 2011 to 2015, he was paid $23.50 per hour, and he was unemployed at the time of his arrest in June 2016. Defendant testified at trial that he previously worked at General Production Services in Taft. He was placed on disability in March 2016 for high levels of enzymes in his blood that made him dizzy. Defendant testified he also suffered from depression. However, there is nothing in the record to show that he would be unable to satisfy the fines and fees imposed by the court while he served his prison term.
Defendant argues it will take a long time to pay the amounts ordered in this case, and garnishing his prison wages will result in a due process violation similar to that found in Dueñas, because the "quality" of his imprisonment will be "impacted for the duration of his lengthy sentence" and his ability "to have funds in his account to make basic purchases from the prison canteen will be reduced or eliminated." Similar arguments have been rejected by the California Supreme Court. While it may take defendant some time to pay the amounts imposed in this case, that circumstance does not support his inability to make payments on these amounts from either prison wages or monetary gifts from family and friends during his lengthy prison sentence. (See, e.g., § 2085.5, subd. (a); People v. Potts (2019) 6 Cal.5th 1012, 1055-1057; People v. Lewis (2009) 46 Cal.4th 1255, 1259; People v. DeFrance (2008) 167 Cal.App.4th 486, 505.)
We thus conclude that based on the record before this court, defendant had the ability to pay the total amount of the restitution fine, fees, and assessments imposed in this case of $590. Defendant's circumstances are vastly different from the probationer's situation in Dueñas. In addition to his failure to object or present evidence of his claimed indigency, defendant showed his past ability to earn income and he will have sufficient time to pay the amounts ordered while serving his 13-year sentence.
DISPOSITION
The matter is remanded only for the limited purpose for the court to determine whether to exercise its discretion as to the section 667, subdivision (a) prior serious felony enhancement, and clarify the record as to the section 667.5, subdivision (b) prior prison term enhancement.
In all other respects, the judgment - including all fines, fees, and assessments imposed by the trial court - is affirmed.
/s/_________
POOCHIGIAN, Acting P.J. I CONCUR: /s/_________
DETJEN, J. PEÑA, J., Concurring.
I concur in the judgment. I write separately to note as to defendant's ability to pay his fines and reliance on the case of People v. Dueñas (2019) 30 Cal.App.5th 1157, I would simply reject his contention on the ground of forfeiture for failing to object below. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154; People v. Aviles (Sept. 13, 2019, F073846) ___ Cal.App.5th ___, ___ [2019 Cal.App. LEXIS 869 at p. *36] (conc. opn. of Peña, J.).)
/s/_________
PEÑA, J.