Opinion
F077611
05-21-2021
THE PEOPLE, Plaintiff and Respondent, v. MARISA NICOLE SIVESIND, et al., Defendants and Appellants.
J. Edward Jones, under appointment by the Court of Appeal, for Defendant and Appellant Marisa Nicole Sivesind. Joshua G. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant Angel Monique Bustamante. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. BF170771A, BF170771B)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. David R. Lampe, Judge. J. Edward Jones, under appointment by the Court of Appeal, for Defendant and Appellant Marisa Nicole Sivesind. Joshua G. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant Angel Monique Bustamante. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendants Marisa Nicole Sivesind and Angel Monique Bustamante were tried together and convicted by a jury of robbery and receiving stolen property. Sivesind was also convicted of child endangerment and Bustamante was convicted of driving without a license. On appeal, both Sivesind and Bustamante contend that their robbery convictions were not supported by substantial evidence, and that their convictions for receiving stolen property must be reversed because a defendant may not be convicted of both stealing and receiving the same property.
Sivesind separately contends that her restitution fine and assessments imposed by the trial court violated her rights to due process of law and equal protection of the laws of the state and federal constitutions because she is unable to pay, and that the restitution fine was unconstitutionally excessive under the excessive fines clauses of the state and federal constitutions. Bustamante separately contends we should remand for resentencing in light of Senate Bill No. 1393 to allow the trial court an opportunity to exercise its discretion to strike her Penal Code section 667, subdivision (a)(1), enhancement.
Unlabeled statutory references are to the Penal Code.
We affirm both robbery convictions and reverse both receiving stolen property convictions. We also remand Sivesind's matter to afford her an opportunity to ask for an ability to pay hearing as to her court assessments, but not her restitution fine. Finally, we remand Bustamante's matter for the court to consider striking her section 667, subdivision (a)(1), enhancement.
STATEMENT OF THE CASE
The Kern County District Attorney filed an information charging Marisa Nicole Sivesind and Angel Monique Bustamante with robbery (§ 212.5, subd. (c); count 1), criminal threats (§ 422; count 2), and receiving stolen property (§ 496, subd. (a); count 4.) Additionally, Sivesind was charged with child endangerment (§ 273a, subd. (a); count 3) and Bustamante was charged with driving without a license (Veh. Code, § 12500, subd. (a); count 5).
As to counts 1 and 2, it was further alleged Sivesind and Bustamante personally used a deadly or dangerous weapon, to wit, a knife, during the commission of the offenses. Before trial, this allegation was dismissed as to Bustamante. As to counts 1, 2, and 3, it was further alleged Sivesind had served a prior prison term (§ 667.5, subd. (b)). As to counts 1 and 2, it was also alleged Bustamante had suffered a prior strike conviction (§§ 667, subds. (c)—(j); 1170.12, subds. (a)—(e)) and a prior serious felony conviction (§ 667, subd. (a)).
The defendants were tried together. The jury convicted Sivesind on counts 1, 3, and 4, and acquitted her on count 2. It also found the weapon allegations not true. Her prior prison term allegations were later dismissed. The jury convicted Bustamante on counts 1 and 4 and acquitted her on count 2. She pled no contest to count 5. The court found her prior conviction allegations true in a bifurcated proceeding.
Sentencing took place on May 29, 2018. Sivesind was sentenced on count 3 to the upper term of six years, and on count 1 to a consecutive one-year term, for a total term of seven years. The sentence on count 4 was stayed pursuant to section 654. The court also imposed various fines and fees.
Bustamante was sentenced on count 1 to the upper term of five years, enhanced by five years because of her prior serious felony conviction, for a total term of 10 years. The sentence on count 4 was stayed pursuant to section 654, and the sentence on count 5 of 180 days was ordered to run concurrently to the 10-year term. The trial court struck Bustamante's prior strike under section 1385 for purposes of sentencing but not for the purpose of custody credits.
STATEMENT OF FACTS
On December 18, 2016, D.C. and A.T., both women, were working the closing shift at a beauty supply store. Near closing time, Sivesind and Bustamante entered the store. Bustamante was pushing a baby stroller with a one-year-old baby in it. After the defendants walked around the "really small" store for a while, D.C. asked if they needed help. The defendants ignored her, leading her to believe "something was up."
D.C. went back to the register and heard Sivesind yelling the words "bitches and hoes." Sivesind yelled other profane things like, "These bitches are rude." Bustamante nodded as Sivesind yelled and cursed, but also tried unsuccessfully to get Sivesind to relax and stop yelling and screaming. D.C. observed the defendants conversing, and then watched Bustamante take makeup and put it into the stroller. Bustamante and Sivesind were together when Bustamante put the items in the stroller. D.C. testified she did not confront the defendants when she first saw Bustamante conceal items in the stroller because she "was too busy to go and try to tell them something," and because she wanted to see if they were going to take more items.
A.T. saw Sivesind put items into her pants and saw Bustamante put items into the stroller. A.T. told D.C. what she saw, and D.C. told A.T. to call the police. A.T. said, "No," and both A.T. and D.C. said to each other that they were too scared to confront the defendants.
D.C. and A.T. approached the defendants and said the store was about to close. D.C. testified the defendants ignored her and were "really rude," and did not proceed to either checkout or leave the store. Sivesind complained about the customer service, and D.C. said the defendants could go to another beauty supply store if they did not like the service. The defendants "smiled" and "giggled" and started leaving, with Sivesind still cursing.
As the defendants were slowly walking toward the door, D.C. heard Sivesind loudly say to Bustamante, "You know me. You know me. I'll cut a bitch." Sivesind was holding a small pocketknife down by her side with the blade exposed as she said that, and D.C. was standing at the register about seven feet away from Sivesind at that point. Sivesind's back was to D.C. when she said those words. D.C. described herself as being positioned "right behind [Sivesind]" when D.C. saw the knife.
D.C. testified seeing the knife was "scary" because the defendants had been displaying a "rough attitude" and she did not know what may have been "coming next." D.C. further testified that no threats were ever made to her specifically. She agreed with Sivesind's counsel's postulation that D.C. "stayed put" where she was while the defendants were leaving to "remov[e] [her]self from the situation." D.C. was not looking at either defendant when Sivesind said, "I'll cut a bitch." A.T. testified she did not see a knife. Neither D.C. nor A.T. ever confronted the defendants about the concealed items.
After the defendants had been in the store for approximately 20 to 30 minutes, they left the store and got into their car. They threw an empty box towards the store before driving away. D.C. and A.T. finished helping the last customer in the store, locked the door, and called 9-1-1. The entire 9-1-1 call was played for the jury. D.C. told the dispatcher "there were two ladies stealing" and one of them had a knife. D.C. further stated one of the ladies said they would "cut us bitch" and then "took out their knife and showed us. [¶] So, we let them walk out." D.C. also provided a description of the defendants and their vehicle.
Police thereafter stopped the defendants' car. Bustamante was driving and Sivesind was in the front passenger's seat. The officers considered the stop a "high-risk felony stop." One of the officers pointed her firearm at the front passenger's side of the car while another called out the driver. Sivesind lifted a baby boy from her lap and held him up to the open window and said to the officer who was pointing her firearm at Sivesind, "Are you going to point a gun at my baby? Are you going to shoot my baby?"
The police got the defendants to exit the vehicle. Bustamante had a folding knife on her person that D.C. later identified as the same knife Sivesind had in the store, and there was merchandise from the beauty supply store in the car.
DISCUSSION
I. Robbery convictions
Both defendants contend the evidence was insufficient to convict them of robbery. Specifically, they contend there was insufficient evidence Sivesind used force or fear to steal the merchandise. Bustamante further argues that even were there sufficient evidence to convict Sivesind of robbery, Bustamante's robbery conviction must be reversed because her conviction rested on either an aider and abettor or coconspirator theory, and neither of these theories were pled in the information. We conclude there was sufficient evidence to support Bustamante's robbery conviction, and further conclude neither of the theories of liability relevant to Bustamante needed to be pled. We therefore affirm both defendants' robbery convictions.
A. Substantial evidence of fear
1. Basic law
"Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) The word "fear" in section 211 refers to two situations: (1) the fear of an unlawful injury to the person or property of the person robbed (or of any relative of his or member of his family); or (2) the fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery. (§ 212.) While the force or fear present in a robbery often occurs when the robber is trying to acquire the property, robbery also occurs when a robber uses force or fear to escape with the property. (People v. Estes (1983) 147 Cal.App.3d 23, 27—28.) Moreover, and relevant here, store employees may be victims for purposes of robbery because they are deemed to have constructive possession of store property while working. (People v. Scott (2009) 45 Cal.4th 743, 752.)
To establish that a robbery was committed by means of fear, the prosecution must present evidence that the victim was in fact afraid, and such fear allowed the crime to be accomplished. (People v. Montalvo (2019) 36 Cal.App.5th 597, 612.) The fear element is subjective in nature. (Ibid.) "However, the victim need not explicitly testify that he or she was afraid of injury where there is evidence from which it can be inferred that the victim was in fact afraid of injury. [Citations.] 'The fear is sufficient if it facilitated the defendant's taking of the property. Thus, any intimidation, even without threats, may be sufficient.' [Citations.] However, given the language of section 212, the intimidation must not only produce fear, but the fear must be of the infliction of injury." (Ibid.)
Whether fear exists may be inferred from the circumstances, and it need not be the result of an express threat or use of a weapon. (People v. Morehead (2011) 191 Cal.App.4th 765, 775.) The victim is not required to resist, and the victim's fear need not be extreme. (Ibid.) All that is necessary is that the defendant demonstrates either conduct, words or circumstances reasonably calculated to produce fear. (Ibid.) Intimidation of the victim is sufficient. (Ibid.)
2. Standard of review
In reviewing the sufficiency of evidence to support a conviction, we examine the entire record and draw all reasonable inferences therefrom in favor of the judgment to determine whether it discloses substantial credible evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Brooks (2017) 3 Cal.5th 1, 57; People v. Johnson (2015) 60 Cal.4th 966, 988.) We do not redetermine the weight of the evidence or the credibility of witnesses. (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar); People v. Young (2005) 34 Cal.4th 1149, 1181 ["Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact"].) We must accept logical inferences that the trier of fact might have drawn from the evidence although we would have concluded otherwise. (People v. Streeter (2012) 54 Cal.4th 205, 241.) "If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (Albillar, at p. 60.) "Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.)
3. Analysis
There was substantial evidence to support a finding Sivesind used fear to effectuate the robbery. Specifically, there was substantial evidence to support an inference that Sivesind's brandishing the knife and loudly saying, "You know me. You know me. I'll cut a bitch," was for the purpose of intimidating D.C. and A.T. to not confront the defendants or otherwise interfere with their carrying away of the stolen merchandise. Although D.C. testified she was never "specifically" threatened, she did say on the 9-1-1 call that she and A.T. let the defendants walk out because they "showed" a knife. This statement reasonably supports an inference that D.C. would have tried to stop the defendants had Sivesind not brandished the knife and loudly said she would "cut a bitch." D.C. also clearly stated she was "scared" when she saw the knife because she did not know what might happen next, and she also agreed with Sivesind's counsel's postulation that she stayed by the register while the defendants were leaving because she wanted to remove herself from the situation.
The jury could reasonably infer from these facts that D.C. had a reasonable fear of being stabbed if she confronted the defendants about the stolen items. They could also reasonably infer that Sivesind's actions were reasonably calculated to produce that fear for the purpose of completing her and Bustamante's asportation of the stolen merchandise. Specifically, the jury could conclude that Sivesind's actions were intended to intimidate D.C. and A.T. into standing back and not confronting the defendants.
Both defendants argue that Sivesind's brandishing the knife and saying she would "cut a bitch" cannot serve as the basis for the robbery conviction because the defendants were acquitted of having made criminal threats and the jury found not true Sivesind's weapon use allegation. They contend these two findings necessarily mean that the jury concluded Sivesind never threatened D.C. and did not use a knife to perpetrate the robbery. This argument implies it would be inconsistent, given the verdict on count 2 and the weapon use allegation, for Sivesind's acts of brandishing the knife and saying, "I'll cut a bitch," to form the basis for the robbery conviction. In other words, to base the robbery conviction on the same facts underlying the criminal threats and weapon use allegations would create a situation of inconsistent verdicts.
Even were we to agree that inconsistent verdicts would result in that manner, "[i]nconsistent verdicts are allowed to stand if they are otherwise supported by substantial evidence." (People v. Bell (2020) 48 Cal.App.5th 1, 10 (Bell).) This rule recognizes that " '[a]n inconsistency may show no more than jury lenity, compromise, or mistake, none of which undermines the validity of a verdict.' " (Ibid, quoting People v. Lewis (2001) 25 Cal.4th 610, 656.) The rule is based on the recognition that in situations of inconsistent verdicts "it is unclear whose ox has been gored." (United States v. Powell (1984) 469 U.S. 57, 64—69.) Applying this rule here, that the jury acquitted on count 2 and found not true the weapon use allegation does not necessarily mean that the jury concluded the verbal and physical acts underlying those charges did not occur. As the robbery conviction was supported by substantial evidence, we need not address the issue of possibly inconsistent verdicts. (Bell, at p. 10.)
4. Pleading issues
Bustamante claims that even were there sufficient evidence Sivesind committed robbery, her conviction on count 1 must be reversed because aiding and abetting and conspiracy were not pled in the information. We reject the claim because the prosecution was not required to separately plead these two theories of derivative liability.
"A person who aids and abets the commission of a crime is culpable as a principal in that crime. (§ 31.) Aiding and abetting is not a separate offense but a form of derivative liability for the underlying crime." (People v. Gentile (2020) 10 Cal.5th 830, 843.) Charging a defendant as a principal is deemed to charge him or her as an aider and abettor as well. (§ 971; People v. Quiroz (2013) 215 Cal.App.4th 65, 70.) Furthermore, since aiders and abettors are liable for their accomplices' actions as well as their own, there is no need "to decide who was the aider and abettor and who the director perpetrator or to what extent each played which role." (People v. McCoy (2001) 25 Cal.4th 1111, 1120.)
Additionally, California Supreme Court decisions have " 'long and firmly established that an uncharged conspiracy may properly be used to prove criminal liability for acts of a coconspirator. [Citations.] "Failure to charge conspiracy as a separate offense does not preclude the People from proving that those substantive offenses which are charged were committed in furtherance of a criminal conspiracy [citation]; nor, it follows, does it preclude the giving of jury instructions based on a conspiracy theory." ' " (People v. Valdez (2012) 55 Cal.4th 82, 150, citing People v. Rodrigues (1994) 8 Cal.4th 1060, 1134, abrogated on other grounds recognized by People v. Leon (2020) 8 Cal.5th 831, 848 ["It is firmly established that evidence of conspiracy may be admitted even if the defendant is not charged with the crime of conspiracy."].)
The foregoing authorities demonstrate that aider and abettor and coconspirator liability theories do not need to be pled to be available to the prosecution at trial. But in any event, during the hearing on motions in limine, the prosecutor in this case stated he intended to argue both conspiracy and aiding and abetting and theories, in the alternative, to the jury. The prosecution's reliance on these theories was therefore no surprise.
Additionally, Bustamante offers a very short, unconvincing argument that the evidence was insufficient that she participated in the robbery as a principal. This argument is premised on a nonexistent distinction between direct perpetrators and aiders and abettors. As already stated, "[a] person who aids and abets the commission of a crime is culpable as a principal in that crime." (§ 31.) The evidence of Bustamante's participation in the robbery was strong. A.T. saw Bustamante conceal merchandise in the stroller she was pushing, and D.C. saw Sivesind place items in the stroller. Bustamante clearly participated in the theft. Additionally, despite Bustamante's efforts to calm Sivesind down, Bustamante did not withdraw from her participation in the robbery when Sivesind drew her knife and said she would "cut a bitch."
We reject Bustamante's contention that the theories of derivative liability needed to be pled and reject her sufficiency of the evidence claim.
II. Receiving stolen property convictions
Both defendants were convicted in count 4 of receiving stolen property and received a stayed sentence on that count under section 654. Bustamante argued in her opening brief this conviction must be reversed because it concerned the same property as the robbery charged in count 1, and a defendant cannot be convicted both of robbery and receiving that same stolen property. Sivesind joined in this argument, and the People concede the count 4 convictions must be reversed as to both defendants.
Section 496, subdivision (a), provides that a criminal defendant cannot be convicted of both stealing and receiving the same property. The California Supreme Court has extended the rule to robbery (which requires a theft) and receiving the same property taken. (People v. Smith (2007) 40 Cal.4th 483, 522.) The proper remedy is to reverse the conviction for receiving stolen property while allowing the robbery conviction to stand. (People v. Ceja (2010) 49 Cal.4th 1, 9—10.)
III. Sivesind's fines and fees
At sentencing, Sivesind was ordered to pay a court facilities assessment of $30 per count for a total of $90 (Gov. Code, § 70373), a court operations assessment of $40 per count for a total of $120 (§ 1465.8), and a minimum $300 restitution fine (§ 1202.4, subd. (b)). Although she did not object below, she contends the restitution fine and assessments imposed by the trial court violate her rights to due process of law and equal protection of the laws under the Fifth and Fourteenth Amendments to the United States Constitution, as well as under Article 1, section 7 of the California Constitution, because she is unable to pay. She relies on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which was decided after her sentencing hearing. She does not ask for a remand for an ability to pay hearing, but instead asks us to strike her restitution fine and court assessments. Additionally, she argues the restitution fine is unconstitutional under the excessive fines clauses of the state and federal constitutions.
The court here also imposed and stayed a matching $300 parole revocation restitution fine (§ 1202.45, subd. (a)). However, because this fine is essentially a corollary of the restitution fine impose under section 1202.4, subdivision (b), we will not separately address it. (See § 1202.45, subd. (a).)
The court additionally imposed victim restitution under section 1202.4, subdivision (f), and a $10 fine under section 1202.5, which requires an ability to pay hearing. Sivesind does not contest the imposition of these amounts.
Bustamante was also ordered to pay various fines and fees, but she does not challenge any of them.
The question of whether a court must consider a defendant's ability to pay before imposing or executing fines, fees, and assessments and, if so, which party bears the burden of proof regarding the defendant's ability to pay, is currently pending review before the California Supreme Court. (People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.)
The People contend Sivesind's failure to object forfeited her challenge to her fines and assessments. They also argue that her restitution fine should be reviewed under the Excessive Fines Clause of the Eighth Amendment, not under due process principles, and maintain that the fine is not unconstitutionally excessive.
We conclude Sivesind has not forfeited her claims, and hold she is entitled to a remand for the purpose of requesting an ability to pay hearing concerning her two court assessments, but not her restitution fine.
A. Law and analysis
In the recent case of People v. Son (2020) 49 Cal.App.5th 565 (Son), this court addressed the same issues in the context of a similarly situated defendant. The defendant there was convicted of voluntary manslaughter, and the trial court imposed a $30 court facilities assessment (Gov. Code, § 70373), a $40 court operations assessment (§ 1465.8), and a then-minimum $280 restitution fine (§ 1202.4, subd. (b)). (Son, at p. 577.) Son did not object to these assessments, and argued on appeal under Dueñas that their imposition without a prior hearing to determine his ability to pay them contravened the guaranties of due process of law and equal protection of the laws contained in the state and federal constitutions. (Son, at pp. 575, 596.)
$300 is currently the minimum amount that trial courts must impose on every person convicted of a felony. (§ 1202.4, subd. (b)(1).)
The Son court concluded that, as a matter of equal protection and due process, "assessments designed as user fees to fund the courts ([t]here, the court operations and court facilities assessments) cannot be administered to criminal defendants without regard to ability to pay, just as other cost-recovery charges that bear on access to the criminal process—such as fees for trial records to be used on appeal—cannot." (Son, supra, 49 Cal.App.5th at p. 577.) The court reached a different conclusion, however, regarding the restitution fine, concluding that "fines imposed as punishment ([t]here, the restitution fine) are subject to the existing constitutional rule that monetary punishments in and of themselves need not be adjusted in accordance with ability to pay." (Ibid.)
Accordingly, Son's matter was remanded to afford him an opportunity to request an ability to pay hearing on the two court assessments, but not the restitution fine. (Son, supra, 49 Cal.App.5th at pp. 591—592.) The Son court also held that the issues were not forfeited on appeal despite his failure to object below. (Id. at p. 597.) The Son opinion governs our analysis here.
1. The court facilities and operations assessments
The Son court held that, under due process and equal protection principles, "nonpunitive court facilities and court operations assessments may not be imposed on a defendant who is unable to pay because: these charges are imposed on court users for use of the court, burdening their exercise of the fundamental right of access to the criminal courts; their imposition burdens those for whom they are unaffordable more than those for whom they are affordable, triggering an equal protection analysis under strict scrutiny; the difference in the burden on the two groups' rights to access to the courts is not necessary to further the government's interest in funding the courts (not narrowly tailored) because there are many ways to fund the courts that do not involve any such differential burden; and so the scheme fails strict scrutiny." (Son, supra, 49 Cal.App.5th at pp. 595—596.)
Sivesind did not have an opportunity to request an ability to pay hearing to make a showing that she could not pay the court assessments imposed at sentence. She also was not interviewed by probation before her presentence report was generated, and therefore the report contains nothing about her financial situation or her employment. Accordingly, there is no evidence in the record from which to infer any findings regarding her ability to pay. (Son, supra, 49 Cal.App.5th at p. 591.) We recognize the court assessments at issue only total $210. However, it would be impermissible under these circumstances to presume Sivesind is able to pay. "While there is ample authority supporting the proposition that a prisoner's ability to pay fines and fees may be assessed on the basis of anticipated prison wages [citation], reliance on that notion is purely speculative at this juncture, given the absence of a record on the issue and the fact that not all inmates are eligible for paid positions, which are considered a privilege and are subject to various restrictions and requirements." (Id. at p. 591.)
"A limited remand is ... warranted to give [Sivesind] the opportunity to request a hearing to present evidence demonstrating [her] inability to pay the court assessments imposed by the trial court. [Citation.] [Sivesind] bears the burden of raising the issue of [her] inability to pay the court assessments and to support that claim with relevant evidence. [Citation.] Should [she] request an ability to pay hearing for this purpose, the trial court may consider all relevant factors in determining [her ability] to pay the assessments, including the likelihood of prison pay during the period of incarceration to be served (with the caveat that other fines, beyond the instant court assessments, may also have to be paid out of any prison wages [Sivesind] may earn). If the trial court determines [she] is unable to pay the court assessments, they must be stricken." (Son, supra, 49 Cal.App.5th at pp. 591—592.)
2. The restitution fine
The Son court reached a different conclusion regarding restitution fines imposed under section 1202.4, subdivision (b). The court explained that "fines imposed as punishment on their own, without conversion to incarceration as a consequence of being unable to pay, need not take account of ability to pay to be constitutionally acceptable," (Son, supra, 49 Cal.App.5th at p. 593, italics omitted), because nonpayment would result merely in enforcement of a judgment for the debt. "[T]he Constitution does not prevent a state from enforcing a money judgment for a punitive fine against an indigent defendant." (Id. at p. 593, citing Williams v. Illinois (1970) 399 U.S. 235, 244, Tate v. Short (1971) 401 U.S. 395, 399, and Bearden v. Georgia (1983) 461 U.S. 660, 672.) Similarly, "the imposition of [a] restitution fine without regard to [a] defendant's ability to pay survives rational basis review and, in turn, is not unconstitutional." (Son, at p. 595.) A restitution fine imposed under section 1202.4, subdivision (b), "being a punishment, can properly be imposed on a defendant who is unable to pay it because ... there is no fundamental unfairness in facing enforcement of a money judgment for a delinquent debt as a consequence of being unable to satisfy a monetary punishment .... [¶] ... [T]here is no fundamental right not to be burdened by a punitive fine." (Id. at p. 596.)
Following this line of reasoning, we conclude Sivesind is not entitled to an ability to pay hearing regarding her restitution fine.
3. Forfeiture
The People argue Sivesind is not entitled to relief because she did not raise the issue decided by Dueñas by objecting to the assessments and fine in the trial court. We disagree.
"We ordinarily do not consider claims of error where an objection could have been, but was not, made in some appropriate form at trial. It is usually unfair to the trial court and the adverse party to take advantage of an error on appeal which could have been corrected during the trial." (Dueñas, supra, 49 Cal.App.5th at pp. 596—597.) However, failure to object in the trial court does not forfeit an appellate issue " ' " ' "where to require defense counsel to raise an objection 'would place an unreasonable burden on defendants to anticipate unforeseen changes in the law and encourage fruitless objections in other situations where defendants might hope that an established rule ... would be changed on appeal.' " ' " ' [Citation.] Assessments and fines like those at issue in this case have existed in California for decades and have been imposed in countless cases without previously generating an appellate ruling that imposition of them on the indigent is unconstitutional." (Son, supra, 49 Cal.App.5th at p. 597.) Contrary to the People's contention, "Dueñas easily qualifies as a change in the law not likely to have been foreseen—exactly the sort of development it would be unreasonable to expect defense counsel to have on a list of objections to be made in the hope that the law might change someday." (Son, at p. 597.)
The People "maintain that Dueñas error is forfeited if not raised in pre-Dueñas proceedings in the trial court, but this contention is untenable." (Son, supra, 49 Cal.App.5th at p. 597.) Relying on People v. Frandsen (2019) 33 Cal.App.5th 1126, they argue that the change in the law Dueñas created was foreseeable for two reasons: (1) the Dueñas defendant foresaw it, and (2) the Dueñas court relied on old authorities going back to the Magna Carta. The Son court rejected both reasons. First, the fact that Duenas herself raised the issue of her ability to pay her fines and fees does not support a reasonable inference that all other defense counsel ought to have foreseen a change in the law. (Son, supra, 49 Cal.App.5th at p. 597.) And second, the fact that old principles had not previously been applied in the new manner of the Dueñas opinion is precisely the reason why the new application would be unexpected. (Son, at p. 597.) We follow the holding in Son and decline to find forfeiture here.
4. Eighth Amendment Excessive Fines Clause
To the extent Sivesind argues the restitution fine violates the excessive fines clauses of the state and federal constitutions, the record does not contain the factual information necessary to resolve those claims. Therefore, on remand, Sivesind may raise those claims in the trial court in the first instance.
We express no opinion as to how the trial court should rule in regard to any claims of inability to pay. --------
IV. Bustamante's prior serious felony enhancement
Bustamante contends her matter must be remanded for resentencing in light of Senate Bill No. 1393 to allow the trial court an opportunity to exercise its discretion to strike her prior serious felony enhancement imposed under section 667, subdivision (a)(1). The People concede and we agree.
Prior to 2019, trial courts had no discretion to strike prior serious felony convictions for purposes of enhancement of a sentence under section 667. (Former § 1385, subd. (b).) Senate Bill No. 1393, which became effective January 1, 2019, removed this prohibition. (Stats. 2018, ch. 1013, §§ 1, 2; Cal. Const., art. IV, § 8, subd. (c).) The parties agree Senate Bill No. 1393 applies to Bustamante because the statute is retroactive and applies to all cases not yet final as of its effective date. (In re Estrada (1965) 63 Cal.2d 740, 742; People v. Garcia (2018) 28 Cal.App.5th 961, 972.) We accordingly remand Bustamante's matter for resentencing.
DISPOSITION
As to Sivesind, we remand the cause to the trial court to give Sivesind the opportunity to request a hearing limited to her ability to pay her court assessments.
As to Bustamante, we remand the cause and direct the trial court to consider striking her prior serious felony enhancement.
As to both Sivesind and Bustamante, their convictions on count 4 for receiving stolen property are reversed.
The court shall issue amended abstracts of judgment as necessary and forward certified copies to the appropriate entities. In all other respects, the judgments are affirmed.
SNAUFFER, J. I CONCUR: SMITH, J. Franson, Acting P.J., concurring and dissenting,
I concur with the majority to affirm the robbery convictions, reverse the convictions for receiving stolen property, and remand Angel Monique Bustamante's case for the trial court to consider striking her enhancement. However, I dissent from my colleagues' conclusion that remand of Marisa Nicole Sivesind's case, and an ability to pay hearing, is necessary with respect to the court facilities and operation assessments under Government Code section 70373, subdivision (a)(1) and Penal Code section 1465.8, subdivision (a)(1), for the reasons stated in my concurring and dissenting opinion in People v. Son (2020) 49 Cal.App.5th 565, 599-604.
FRANSON, Acting P.J.