Opinion
E070352
10-23-2019
THE PEOPLE, Plaintiff and Respondent, v. RICHARD LEE THOMAS, Defendant and Appellant.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison V. Acosta and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF1501433) OPINION APPEAL from the Superior Court of Riverside County. John M. Davis, Judge. Affirmed in part with directions; reversed in part with directions. David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison V. Acosta and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Richard Lee Thomas started a friendship with E.R. over their mutual drug use. E.R. obtained methamphetamine for defendant and defendant paid for the drugs by engaging in sexual acts. One afternoon, E.R. and defendant had used methamphetamine and E.R. rebuffed defendant's sexual advances. E.R. left defendant's apartment but when he returned a few minutes later to confront defendant about vulgar messages defendant had sent to E.R.'s cellular telephone, defendant stabbed him in the arm and stomach with a large kitchen knife. E.R. survived the attack. While incarcerated awaiting trial on the stabbing, defendant strangled and killed his cellmate. Defendant was convicted of first degree murder, attempted premeditated and deliberate murder, and assault with a deadly weapon.
On appeal, defendant claims (1) the trial court erred in its instruction on mental impairment because it did not allow the jury to consider his mental disorder and voluntary intoxication in deciding whether he was acting in imperfect self-defense when he stabbed E.R.; (2) he is entitled to remand in order to have a Franklin hearing in preparation of a future youth offender parole hearing as he was only 23 years old at the time of his crimes; and (3) the imposition of a court operation fee (Pen. Code, § 1465.8), a court facilities fee (Govt. Code, § 70373), and restitution fine (Pen. Code, § 1202.4, subd. (b)) without a determination of his ability to pay violated his federal constitutional rights to due process pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
People v. Franklin (2106) 63 Cal.4th 261 (Franklin).
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
Defendant was found guilty of first degree murder (Pen. Code, §§ 187, subd. (a); count 1); attempted premediated and deliberate murder (§§ 664, 187); and assault with a deadly weapon (§ 245, subd. (a)(1); count 3). The jury found true for count 2 that defendant had personally used a deadly and dangerous weapon within the meaning of section 12022, subdivision (b)(1) and it found true for count 3 that defendant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). Defendant was sentenced to state prison for the indeterminate term of 32 years to life, plus the determinate term of one year.
B. FACTUAL HISTORY
1. PEOPLE'S CASE-IN-CHIEF
a. Knife Attack on E.R.
On June 30, 2015, E.R. lived with his mother in an apartment complex in Indio. Approximately one month before, he met defendant, who also lived at the apartments. Defendant asked him where he could get marijuana. Since E.R. did not use marijuana, he offered to get methamphetamine for defendant and defendant paid him.
Defendant and E.R. started spending time together. They became friends. Defendant helped drive E.R.'s mother to the doctor. They hung out at each other's apartments. Defendant lived with his girlfriend, who E.R. had met once. E.R. was attracted to defendant and he asked defendant if defendant would be interested in receiving oral sex from him. Defendant initially rejected the idea even though defendant admitted he was bisexual. Defendant later texted E.R. and told him that he may be interested. E.R. offered to give defendant methamphetamine in exchange for sexual acts. E.R. performed oral sex on defendant and gave defendant methamphetamine. E.R. performed oral sex on defendant again about one week later but did not give him methamphetamine. One time while they were together defendant told E.R. that he thought E.R. wanted to kill him. E.R. did not understand why defendant thought this because they were friends and were "cool with each other."
On June 30, defendant came to E.R.'s apartment in the morning. E.R.'s mother and ex-girlfriend were at the apartment. Defendant asked for methamphetamine and offered E.R. his girlfriend's cellular telephone as payment. E.R. took the phone but told defendant he would bring the methamphetamine over to defendant's apartment in a few minutes because he did not want to give defendant drugs in front of his mother. E.R. was holding a small paring knife in his hand when he answered the door because he was cutting a speaker wire.
E.R. went to defendant's apartment a few minutes later. E.R. cut off a piece of the methamphetamine for defendant with the paring knife that he had in his pocket. Defendant took the methamphetamine and E.R. put the knife back in his pocket. They both separately went in the bathroom and smoked methamphetamine. Defendant told E.R. that defendant's girlfriend was going to be upset about defendant giving away her phone. E.R. gave defendant the phone back. Defendant offered to allow E.R. to perform oral sex on him but E.R. refused. Defendant once again told E.R. that he thought he wanted to kill him. E.R. felt awkward so he went back to his apartment.
When E.R. returned to his apartment, he stashed his methamphetamine and took the paring knife out of his pocket. He discovered that defendant had sent him several text messages telling him to come back and "suck [his] dick." E.R. shared his phone with his mother and had told defendant not to send him vulgar messages or mention drugs on the phone. E.R. was upset and he walked back over to defendant's apartment. He had his phone with him but not the paring knife.
E.R. got near defendant's apartment and saw that defendant was standing outside his door on the stairs leading down from his apartment. E.R. started walking up the stairs and yelled at defendant "What the fuck are you doing?" Defendant then raised his arm up and was holding a large kitchen knife. He swung it at E.R. who put up his arm to block it. The knife slashed his arm. Defendant then stabbed E.R. in the stomach. E.R. walked backward down the stairs watching the knife the entire time telling defendant "Don't do it, Richard." Defendant responded, "This is what the fuck I do." Defendant kept walking toward E.R.; he had a "blank stare on his face." Defendant continued to follow E.R. At some point E.R. dropped his cellular telephone, which had blood on it.
Defendant stopped following E.R. when they got to an area where some people, including the apartment manager, were standing. E.R. yelled to the apartment manager to call the police because he was hurt. There was blood coming from his stomach and arm and he was afraid he was going to bleed to death. Defendant headed back toward his apartment. Police officers and an ambulance arrived at the apartment complex.
E.R. received 11 to 12 staples to close the knife wound on his arm. He had a scar, his fingers were still numb, and he could not make a fist at the time of trial. His stomach wound also had to be closed with staples.
At the time of the incident E.R. was 43 years old; defendant was 22 years old. Defendant seemed depressed to E.R. Police located E.R.'s bloody phone on the ground at the apartments. There were blood drops on the staircase leading to defendant's apartment. When defendant was detained in his apartment, there was a knife on the kitchen floor. The handle was broken; it was found in the living room.
2. MURDER OF JOSEPH GARCIA
On August 21, 2015, Riverside County Sheriff's Deputy Scott Overton was working at the Southwest Detention Center (SDC) in housing unit E. That evening, he was in the control room of the E housing unit; he was in charge of opening and closing cell doors remotely by computer. He was able to see into the four dayrooms where inmates were allowed to gather together. Defendant was assigned to cell number 57 in the E housing unit. Joseph Garcia was his cellmate. There were no other inmates in cell number 57.
Deputy Overton explained that inside each cell was an intercom; an inmate could call the control room deputy for help or to ask questions. Each of the cells had air conditioning vents, which could be used to communicate with persons in another cell. Deputy Overton could not see into cell number 57 from the control room. Security checks of the cells were conducted every hour.
At 6:46 p.m., Deputy Overton instructed another correctional deputy, Christine Zanetel, to conduct a security check in the E housing unit. She reported no problems. At 7:20 p.m., Deputy Overton was still in the control room when he received a call from defendant from cell number 57 advising him that Garcia was dead. Defendant claimed that Garcia had choked on peanut butter and fell and hit his head on the toilet. Defendant was breathing heavy and seemed frantic. Deputy Zanetel and an additional correctional deputy, Adrian Cotoia, responded to defendant's cell within 30 seconds. Deputy Cotoia looked in the window of the cell and saw Garcia laying on the floor face up with a towel over his face. He was not breathing. Defendant was curled up in a fetal position on the top bunk facing away from the cell's doorway, with a blanket covering him. Deputy Zanetel reported to Deputy Overton that it appeared Garcia was dead; she asked for medical assistance.
As the deputies entered the cell, defendant was yelling over and over again, "Get me out of here." Defendant followed commands to come down off the bunk and walk backward towards the deputies to be handcuffed. Defendant's face was flush and he appeared to be sweating.
Medical personnel arrived and commenced required resuscitation efforts; resuscitation efforts were then stopped. Defendant had injuries on his face including scratches and dried blood under his eye. No weapons were found in the cell.
An autopsy was performed on Garcia on August 24, 2015, and the cause of death was determined to be strangulation.
Donovan McConnell, another inmate in the E housing unit, reported that defendant had been aggravated on the day Garcia was killed and defendant had tried to start fights with other inmates. Defendant asked McConnell if he looked like a killer, because he felt like one. McConnell, who was in the cell below defendant, heard thudding and choking sounds above him prior to medical personnel arriving to attend to Garcia.
B. DEFENSE CASE
Defendant testified on his own behalf. Defendant had just turned 23 years old on June 30, 2015. He had been living with his girlfriend and her son at the Indio apartment for just over one month. At that time defendant was prescribed medication to treat his bipolar disorder and anxiety but he was inconsistent in taking them; he had been diagnosed with bipolar disorder when he was 19 years old. Defendant was subject to mood swings and since a young age he had been suicidal. He tried to hang himself when he was 21 years old.
Defendant met E.R. and asked E.R. where he could obtain marijuana. Instead of marijuana, he obtained methamphetamine from E.R. He would hallucinate and become paranoid when he took methamphetamine. Defendant stopped taking his medications and started just using methamphetamine. Defendant was "creeped out" by E.R.'s sexual advances because E.R. was much older; defendant denied that he was bisexual. However, he engaged in sexual acts with E.R. because he needed the methamphetamine. Defendant recalled believing at the time of the stabbing that E.R. wanted to kill him. Defendant was delusional from the methamphetamine.
Defendant admitted he gave his girlfriend's cellular telephone to E.R. for methamphetamine but wanted to get it back. He went to E.R.'s apartment on June 30; E.R. was outside and he was holding a knife or box cutter. E.R. agreed to give the phone back and bring the methamphetamine to defendant's apartment and defendant agreed to perform a sexual act in exchange for the methamphetamine. Defendant went back to his apartment and smoked the methamphetamine he still had left. E.R. arrived with the drugs and the cellular phone. E.R. cut off a piece of methamphetamine for defendant with a knife he brought with him. Defendant was concerned that E.R. had the knife; he was paranoid. They both used the methamphetamine. E.R. asked to perform oral sex on defendant but defendant refused. Defendant mentioned to E.R. that he felt E.R. was trying to kill him. E.R. left the apartment but defendant texted him to come back and perform oral sex on him.
E.R. returned to defendant's apartment. Defendant suddenly felt that he was in danger and that he needed to get E.R. out of his apartment. He grabbed the largest kitchen knife and stabbed E.R. twice. Defendant believed that E.R. was showing hostility and aggression toward him. Defendant was not trying to kill E.R.; he just wanted him out of the house. They were inside the apartment when he stabbed E.R.; E.R. ran out of the apartment. Defendant followed him outside for about 20 feet and then went back to his apartment.
Defendant was sitting on the couch crying when the police arrived. Defendant was very emotional while being held at the jail. Defendant testified he thought he saw E.R. with a gun before E.R. entered defendant's apartment but admitted that he told the police that E.R. did not have a weapon. There was no blood found in defendant's apartment. Defendant told the police E.R. was unarmed and defendant "Fucked up." Despite being out of control and high on methamphetamine, he could recall the details of the incident.
Defendant was not taking his medication while in jail. He was put on suicide watch because he was depressed. He thought he had killed E.R. After he was transferred to SDC, Garcia was his cellmate. Garcia kept to himself but he and defendant got along. Defendant admitted he killed Garcia.
On August 21, defendant came back to cell number 57 after being out in the common area. He accused Garcia of stealing from him because defendant was missing items that had been in this cell. They got into a heated argument and Garcia punched him on the side of the head. Garcia tried to punch him again but defendant was able to get behind him and put him in a chokehold; he just wanted to render Garcia unconscious. While defendant was holding Garcia in the chokehold, they lost balance and Garcia fell forward, hitting his head on the toilet. Defendant thought Garcia was unconscious but Garcia got up and tried to punch him again. Defendant put Garcia in another chokehold and choked him until he was sure Garcia was unconscious. Defendant did not mean to kill Garcia. His bipolar disorder caused him to be impulsive.
Defendant was remorseful for what had happened to Garcia. He denied he told anyone that he felt like a killer. He was regularly taking his medication at the time of trial. Defendant had methamphetamine in his blood after he was arrested for stabbing E.R. He had not taken methamphetamine before strangling Garcia. Defendant lied about Garcia choking on peanut butter.
Marjorie Graham-Howard was a licensed clinical psychologist. Defense counsel had hired Graham-Howard to evaluate defendant. She evaluated and interviewed him for over 14 hours. She had reviewed defendant's medical and family history. As a child, defendant was exposed to domestic violence between his mother and father, and was a victim of sexual abuse. Graham-Howard indicated that methamphetamine use worsened mental health symptoms. Defendant had been hospitalized numerous times for being suicidal.
Graham-Howard diagnosed defendant with "Bipolar I Disorder, the most recent episode depressed severe." Defendant reported that during the incident involving E.R. that defendant was delusional and seeing things. Defendant was suffering from his bipolar disorder. She determined this based on defendant advising her that he thought E.R. was going to harm him. Methamphetamine played a part in the incident involving E.R. Defendant exhibited bipolar disorder symptoms including depression and manic symptoms. Defendant advised Graham-Howard that in the 30 days leading up to June 30, 2015, he was not using his medication.
As to the incident involving Garcia, defendant advised Graham-Howard he was not taking all of his medication and was still paranoid. He also was having suicidal thoughts. Prior to killing Garcia, defendant believed that law enforcement was after him. He cut himself and smeared blood on the cell door to help keep out the devil. Based on the police reports, and speaking with defendant, Graham-Howard determined that he was still suffering from bipolar disorder when he killed Garcia. He was diagnosed with severe bipolar disorder. Although she diagnosed defendant with bipolar disorder she could not rule out that he had a substance abuse induced psychotic disorder.
DISCUSSION
A. MENTAL IMPAIRMENT AND IMPERFECT SELF-DEFENSE
Defendant contends the trial court's instructions did not allow the jury to consider his mental disorder in deciding whether he had the state of mind required for imperfect self-defense. The instructions deprived him of due process and a fair trial.
In his opening brief, defendant contends that the instructions were also erroneous as the jury was not instructed it could consider his voluntary intoxication for imperfect self-defense. However, in appellant's reply brief, citing to section 29.4 [voluntary intoxication admissible solely on issue of whether the defendant actually formed a required specific intent or when charged with murder as it relates to express malice and premeditation, and deliberation] and People v. Soto (2018) 4 Cal.5th 968, 978, he concedes that evidence of voluntary intoxication cannot be considered for imperfect self-defense.
1. ADDITIONAL FACTS
The jury was instructed on attempted murder. The instruction included language that, "[t]o prove that that the defendant is guilty of attempted murder, the People must prove that: [¶] One, the defendant took at least one direct, but ineffective step toward killing another person; and two, the defendant intended to kill that person." They were also instructed that "When a person commits an unlawful killing but does not intend to kill and is not acting with conscious disregard for human life, then the crime is involuntary manslaughter."
The jury was also instructed on voluntary manslaughter due to imperfect self-defense for the attempted murder (CALCRIM No. 571) as follows: "An attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill a person because he acted in imperfect self-defense.
"If you conclude the defendant acted in complete self-defense, his action was lawful and you must find him not guilty of any crime. The difference between complete self-defense and imperfect self-defense depends on whether the defendant's belief in the need to use deadly force was reasonable.
"The defendant acted in imperfect self-defense if:
"One, the defendant took at least one direct, but ineffective step towards killing a person; two, the defendant intended to kill when he acted; three, the defendant believed he was in imminent danger of being killed or suffering great bodily injury; and four, the defendant believed that the immediate use of deadly force was necessary to defend against the danger. But at least one of the defendant's beliefs was unreasonable.
"Belief in future harm is not sufficient no matter how great or how likely the harm is believed to be. The defendant must have actually believed there was an imminent danger of death or great bodily injury to himself.
"In evaluating the defendant's beliefs, consider all circumstances as they were known and appeared to the defendant.
"The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense. If the People have not met this burden, you must find the defendant not guilty of attempted murder."
The jury was additionally instructed with CALCRIM No. 3428, which provided, "You have heard evidence that the defendant may have suffered from a mental disorder. You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crime the defendant acted with the intent or mental state required for that crime. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state, specifically malice aforethought, deliberation, premeditation, and the intent to kill. If the People have not met this burden, you must find the defendant not guilty of murder." When the parties had discussed giving this instruction to the jury, they had agreed the standard instruction of CALCRIM No. 3428 should refer to malice aforethought, deliberation, premeditation, or the intent to kill. Defense counsel approved the instruction.
"Manslaughter, a lesser included offense of murder, is an unlawful killing without malice. . . . Two factors may preclude the formation of malice and reduce murder to voluntary manslaughter: heat of passion and unreasonable self-defense." (People v. Elmore (2014) 59 Cal.4th 121, 133 (Elmore).) Imperfect self-defense is not a justifiable defense to a homicide (like complete or perfect self-defense); however, imperfect self-defense negates malice (an unlawful intent to kill) and thereby reduces a homicide, which would otherwise be murder to voluntary manslaughter. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.)
A defendant may present evidence of "mental disease, defect, or disorder to support a claim of unreasonable self-defense based on a mistake of fact. A defendant who misjudges the external circumstances may show that mental disturbance contributed to the mistaken perception of a threat, without presenting the jury with the same question it would confront at a sanity trial. The jury must find there was an actual, unreasonable belief in the necessity of self-defense based on the circumstances, and it should be so instructed." (Elmore, supra, 59 Cal.4th at p. 146.)
However "[u]nreasonable self-defense was never intended to encompass reactions to threats that exist only in the defendant's mind." (Elmore, supra, 59 Cal.4th at p. 137.) "Moreover, for either perfect or imperfect self-defense, the fear must be of imminent harm. 'Fear of future harm—no matter how great the fear and no matter how great the likelihood of the harm—will not suffice. The defendant's fear must be of imminent danger to life or great bodily injury.' " (People v. Humphrey, supra, 13 Cal.4th at p. 1082.)
Initially, the People contend defendant forfeited this instructional error claim on appeal by failing to object to CALCRIM No. 3428 in the trial court. Here, defendant did not object to the wording of the mental impairment instruction at trial and did not request an additional or qualifying instruction. In fact, he agreed that the instruction should include the following mental states: intent to kill, malice aforethought, premeditation and deliberation. He now insists the jury was unaware that this instruction also applied to imperfect self-defense and appears to contend that such language should have been added to CALCRIM No. 3428. Despite this failure to object to the failure to include imperfect self-defense in CALCRIM No. 3428, defendant insists he can raise the issue on appeal because the instructional error impacted his substantial rights. We agree that defendant can raise this issue on appeal. (See People v. Townsel (2016) 63Cal.4th 25, 59-60 ["We may review defendant's claim of instructional error, even absent objection, to the extent his substantial rights are affected," citing to § 1259)].)
Nonetheless, even if this court were to consider that the trial court's instructions were erroneous because the jury was never instructed on the meaning of malice for the attempted murder charge, and were unaware that imperfect self-defense could negate malice aforethought, any conceivable error was harmless. It is not reasonably probable that an outcome more favorable to defendant would have resulted in the absence of the instructional error. (People v. Watson (1956) 46 Cal.2d 818, 836; see also People v. Ocegueda (2016) 247 Cal.App.4th 1393, 1410 (Ocegueda).)
In Ocegueda, supra, 247 Cal.App.4th 1393, the defendant admitted he shot the victim at a New Year's eve party because he believed that the victim was pulling a gun on him. (Id. at pp. 1397, 1400-1401.) A clinical psychologist testified that the defendant exhibited difficulty in processing auditory and visual information. (Id. at p. 1402.) At trial, the jury was instructed on imperfect self-defense and with CALCRIM No. 3428, that it could consider the defendant's mental disabilities as it related only to the "intent to kill." (Id. at p. 1405.) The appellate court found that the jury was not properly instructed on the effect of mental disabilities and imperfect self-defense, finding, the "trial court erred by precluding the jury from considering evidence of [the] defendant's mental disabilities in deciding whether he harbored the state of mind required for imperfect self-defense." (Id. at p. 1410.)
However, the Ocegueda court concluded such error was harmless. (Ocegueda, supra, 247 Cal.App.4th at p. 1410.) It noted the only evidence supporting the defendant's version of the events was his own self-serving testimony. No other witness observed the victim make any threatening move toward the defendant prior to the shooting and there was no evidence of a weapon on the victim after the shooting. (Id. at p. 1410.) The court concluded, "Absent defendant's self-serving claims, the defense presented no evidence to support a theory of self-defense. Thus, even if the jury had been allowed to consider evidence of defendant's mental disabilities in assessing his state of mind for imperfect self-defense, it is not reasonably probable the jury would have reached an outcome more favorable to him." (Ibid.)
Here, the only evidence supporting defendant's imperfect self-defense claim was his own self-serving testimony that he was afraid of E.R. and thought E.R. was trying to kill him. However, defendant admitted to the police that he had not seen E.R. with a gun right before the stabbing and that he "Fucked up." Also, defendant told E.R. that "This is what the fuck I do," while pursuing him with the knife. Finally, E.R. was not holding a weapon at the time he was stabbed.
Defendant at no time testified that he toiled under the belief, when he stabbed E.R., that he was in imminent danger of great bodily injury. Imperfect self-defense requires imminent fear of great bodily injury, even if unreasonable. Defendant's testimony belied that at the time he stabbed E.R. he believed he was in danger of imminent great bodily injury. Rather, defendant's testimony generally provided that he had thought for days that E.R. was trying to kill him. There was no evidence to support defendant's version of the events. Even if the jury had been instructed specifically that it could consider his mental disability as it related to imperfect self-defense, it is not reasonably probably defendant would have received a more favorable outcome. Any conceivable instructional error was harmless.
B. FRANKLIN HEARING
Defendant seeks limited remand pursuant to section 3051 to enable him to make a record of youth-related factors that led to his crime in anticipation of a youth offender parole hearing.
Section 3051, subdivision (b), requires the Board of Parole Hearings to conduct a "youth offender parole hearing" during a juvenile offender's incarceration depending on the controlling offense. (§ 3051, subd. (b).) A juvenile offender whose controlling offense carries a term of 25 years to life or greater is "eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing, unless previously released or entitled to an earlier parole consideration hearing pursuant to other statutory provisions." (§ 3051, subd. (b)(3).)
Effective January 1, 2018, the Legislature amended section 3051 to raise the cutoff to persons who were "25 years of age or younger" at the time of their offense. (§ 3051, subd. (a)(1); Stats. 2017, ch. 684, § 1.5.) Defendant was sentenced on March 2018, after section 3051 was amended. Defendant was 23 years old when he committed the offenses herein. He was sentenced to 25 years to life on the first degree murder. Defendant's counsel made no record as to the youth-related factors that led to his crime.
"The Legislature's intent in enacting sections 3051 and 4801 was ' "to establish a parole eligibility mechanism that provides a person serving a sentence for crimes that he or she committed as a juvenile the opportunity to obtain release" ' upon a showing of maturation and rehabilitation." (In re Cook (2019) 7 Cal.5th 439, 449.) In People v. Franklin, supra, 63 Cal.4th 261, the California Supreme Court made clear that juvenile offenders are entitled to make a record of mitigating evidence tied to their youth at the sentencing hearing. (Id. at pp. 268-269, 284.) "Franklin authorized postjudgment proceedings to effectuate that intent. A Franklin proceeding gives 'an opportunity for the parties to make an accurate record of the juvenile offender's characteristics and circumstances at the time of the offense so that the Board, years later, may properly discharge its obligation to "give great weight to" youth-related factors (§ 4801, subd. (c)) in determining whether the offender is "fit to rejoin society". . . .' [Citation.] At the proceeding, 'the court may receive submissions and, if appropriate, testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the California Rules of Court, and subject to the rules of evidence. [The defendant] may place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender's culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors.' " (Cook, at pp. 449-450.) These factors include a defendant's "cognitive ability, character, and social and family background at the time of the offense." (Franklin, at p. 269)
In People v. Rodriguez (2018) 4 Cal.5th 1123, the defendant contended that he was not provided an adequate opportunity to make a record of relevant information for a future youth offender parole hearing and remand was necessary in order for him to present such evidence. (Id. at p. 1130.) The appellate court had rejected that remand was necessary, stating " 'Information from the probation reports prepared for both defendants, the juvenile fitness hearing reports, their pretrial statements to officers, as well as what was provided at the sentencing hearings, would all be available for consideration at the youth offender parole hearing. . . . It appears [defendants] had "sufficient opportunity to put on the record the kinds of information" deemed relevant to a youth offender parole hearing, although they are not precluded from submitting additional information for review by the parole board.' " (Id. at p. 1131.)
The California Supreme Court disagreed with the appellate court and found the defendant "is entitled to remand for an opportunity to supplement the record with information relevant to his eventual youth offender parole hearing. Although a defendant sentenced before the enactment of Senate Bill No. 260 could have introduced such evidence through existing sentencing procedures, he or she would not have had reason to know that the subsequently enacted legislation would make such evidence particularly relevant in the parole process. Without such notice, any opportunity to introduce evidence of youth-related factors is not adequate in light of the purpose of Senate Bill No. 260." (People v. Rodriguez, supra, 4 Cal.5th at p. 1131.)
The People contend that since defendant was sentenced after the amendment to section 3051 raising the age to 25, he had adequate opportunity and incentive to put information on the record related to a future youth offender parole hearing. In his appellant's opening brief, defendant preemptively contends that his counsel was ineffective for failing to present such evidence at the sentencing hearing. In order to avoid such ineffective assistance of counsel claim, we will order limited remand to the trial court for both parties to "to make an accurate record of [defendant's] characteristics and circumstances at the time of the offense so that the Board, years later, may properly discharge its obligation to 'give great weight to' youth-related factors . . . in determining whether the offender is 'fit to rejoin society' despite having committed a serious crime." (Franklin, supra, 63 Cal.4th at p. 284.)
C. ABILITY TO PAY RESTITUTION FINE AND COURT OPERATION AND ASSESSMENT FEES
Defendant claims, relying on the recent decision in Dueñas, supra, 30 Cal.App.5th 1157 that the trial court violated his federal constitutional rights to due process by failing to determine his ability to pay the fines and fees imposed by the trial court. Defendant requests that the case be remanded to the trial court for a determination of whether he has the ability to pay the fees and the restitution fine.
1. ADDITIONAL FACTUAL BACKGROUND
At the time of sentencing, the trial court ordered a mandatory court facilities assessment of $90 imposed pursuant to Government Code section 70373; the court operations fee in the amount of $120 imposed pursuant to Penal Code section 1465.8, subdivision (a)(1); and a restitution fine of $10,000 imposed pursuant to section 1202.4, subdivision (b), with an additional stayed parole revocation fine in the same amount (§ 1202.45). There was no discussion of defendant's ability to pay the fees or the $10,000 restitution fine. Defendant did not object to the fees or fines.
2. ANALYSIS
Government Code section 70373, subdivision (a)(1), provides "To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense, including a traffic offense." Penal Code section 1465.8, subdivision (a)(1), provides that "[t]o assist in funding court operations, an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal offense, including a traffic offense." These sections do not include language regarding the defendant's ability to pay the fees. Penal Code section 1202.4, subdivision (b), provides for a mandatory minimum restitution fine in the amount of $300 absent "compelling and extraordinary reasons for not doing so." If the trial court wishes to exceed $300, it must determine if the defendant has the ability to pay the additional fine. (Pen. Code, § 1202.4, subd. (d).)
On January 8, 2019, after sentencing in this case, the Court of Appeal issued an opinion in Dueñas, supra, 30 Cal.App.5th 1157. In Duenas, the defendant was a probationer who suffered from cerebral palsy, was indigent, homeless and the mother of young children. She requested and received a full hearing on her ability to pay the court facilities fee, court operations fee and the mandatory minimum restitution fine. Despite her clear inability to pay these fees and fine, the trial court mandatorily imposed them. (Dueñas, supra, at pp. 1162-1163.)
The appellate court held that the trial court violated defendant's right to due process under both the United States and California Constitutions by imposing court operations and facilities assessments pursuant to Government Code section 70373 and Penal Code section 1465.8 without making a determination as to the defendant's ability to pay even though such determination was not required by the statute. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) Further, the court concluded that the imposition of restitution fines pursuant to Penal Code section 1202.4, subdivision (b), raises similar constitutional concerns, and therefore held that, while the trial court must impose the minimum restitution fine even if the defendant demonstrates an inability to pay, "the court must stay the execution of the fine until and unless the People demonstrate that the defendant has the ability to pay the fine." (Dueñas, supra, at p. 1172.)
Initially, the People contend that defendant forfeited this constitutional claim by failing to object to the imposition of these fines and arguing an inability to pay at the time of sentencing. However, Dueñas had not been decided at the time of defendant's sentencing. In People v. Castellano (2019) 33 Cal.App.5th 485, the court rejected this forfeiture argument and found " 'no California court prior to Dueñas had held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant's ability to pay. . . . When, as here, the defendant's challenge on direct appeal is based on a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial, reviewing courts have declined to find forfeiture." (Id. at p. 489.) Other courts have found forfeiture when there was a failure to object finding (1) this was not purely a legal challenge; and (2) that the change in the law was foreseeable. (See People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154 [defendant forfeited challenge by not objecting to fines and assessments at sentencing in a case involving a restitution fine greater than the minimum].)
As for the $10,000 restitution fine that was imposed pursuant to section 1202.4, subdivision (b), long-standing precedent supports that defendant was required to object the imposition of the $10,000 maximum restitution fine based on ability to pay or forfeit his challenge. "Even before Dueñas a defendant had every incentive to object to imposition of a maximum restitution fine based on inability to pay because governing law as reflected in the statute (§ 1202.4, subd. (c)) expressly permitted such a challenge." People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.) A defendant's silence in the face of the imposition of a maximum section 1202.4, subdivision (b) restitution fine "is a classic example of the application of the forfeiture doctrine relied upon by the California Supreme Court in numerous criminal sentencing cases decided well before Dueñas." (Gutierrez, at p. 1033; see also People v. Frandsen, supra, 33 Cal.App.5th at pp. 1153-1154 [objection to restitution fine based on inability to pay would have been futile based on the governing law at the time of sentencing].) Hence, defendant has waived any objection to the imposition of the $10,000 restitution fine.
As for the court assessment and operations fees, we need not determine whether defendant forfeited his claim on appeal or whether Dueñas was properly decided. Even if Dueñas applies to this case, the record supports defendant has the ability to pay the court assessment and court operations fees based on his prison wages rendering any conceivable constitutional error harmless beyond a reasonable doubt.
In People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837, the court held the ability to pay includes a defendant's ability to pay in the future, such as the earning of prison wages. In People v. Frye (1994) 21 Cal.App.4th 1483, 1487, the court found that the trial court could consider both the defendant's present ability and the ability to pay in the future through the use of prison wages. Moreover, Government Code section 70373 and Penal Code section 1465.8 say nothing about the current ability to pay.
In People v. Johnson (2019) 35 Cal.App.5th 134, a case decided after Dueñas, the court held, relying upon Hennessey, supra, "Not only does the record show Johnson had some past income-earning capacity, but going forward we know he will have the ability to earn prison wages over a sustained period. [Citation.] The idea that he cannot afford to pay $370 while serving an eight-year prison sentence is unsustainable. Thus, even if we were to assume Johnson is correct that he suffered a due process violation when the court imposed this rather modest financial burden on him without taking his ability to pay into account, we conclude that, on this record, because he has ample time to pay it from a readily available source of income while incarcerated, the error is harmless beyond a reasonable doubt." (Hennessey, at pp. 139-140.)
Here, defendant has been sentenced to 33 years to life in state prison. Prisoners earn wages while in prison and restitution fines can be deducted from these wages to pay these fines. (See §§ 2700, 2085.5.) "Wages in California prisons currently range from $12 to $56 a month. [Citation.] And half of any wages earned (along with half of any deposits made into his trust account) are deducted to pay any outstanding restitution fine." (People v. Jones (2019) 36 Cal.App.5th 1028, 1035.) Given the length of defendant's sentence, he will no doubt have enough money to pay the assessment and court operations fees out of his prison wages. As in People v. Johnson, supra, 35 Cal.App.5th 134 even if we were to assume defendant suffered a due process violation when the court imposed the fees without taking his ability to pay into account, we conclude, because he has ample time to pay the fines and fees from a readily available source of income while incarcerated, the error is harmless beyond a reasonable doubt.
D. CORRECTION OF ABSTRACT OF JUDGMENT
The abstract of judgment provided in the clerk's transcript shows that defendant was convicted of second degree murder in count 1. At a hearing on June 8, 2018, the trial court noted the error on the abstract of judgement and ordered that it be corrected. However, the record on appeal does not include the amended abstract of judgment so it is unclear if such modification was made. As such, we will order that a corrected abstract of judgment be prepared, if not already done, and forwarded to the California Department of Corrections and Rehabilitation.
DISPOSITION
The cause is remanded to the trial court for the limited purpose of giving the parties an opportunity to supplement the record with information relevant to defendant's youth offender parole hearing. In addition, the trial court shall prepare, if it has not already done so, a corrected abstract of judgment reflecting defendant was convicted of first degree murder on count 1 and forward to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.