Opinion
G057044
04-16-2020
THE PEOPLE, Plaintiff and Respondent, v. MARIA DEL CARMEN URIBE, Defendant and Appellant.
Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey and Peggy Z. Huang, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15CF2707) OPINION Appeal from a judgment of the Superior Court of Orange County, Robert Alan Knox, Judge. Affirmed with directions. Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant Maria Del Carmen Uribe of second degree robbery against a vulnerable victim, with a previous robbery conviction (Pen. Code, §§ 211, 212.5, subd. (c), 667.9, subd. (b), counts one and two; all further undesignated statutory references are to this code), and various other crimes. The court found true allegations defendant had suffered two prior serious or violent felony (strike) convictions (§§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A)); two prior serious felony convictions (§ 667, subd. (a)); and three prison prior convictions (§ 667.5, subd. (b)). The court initially sentenced defendant to a total term of 37 years to life.
In a prior opinion (People v. Uribe (Feb. 14, 2018, G054826) [nonpub. opn.]; Uribe 1), we affirmed the convictions but conditionally reversed and remanded with directions to allow defendant the opportunity to invite the court to exercise its discretion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On remand, the court exercised its discretion to dismiss one of defendant's strikes and sentenced her to a total of 24 years and 8 months as follows: On count one, the upper term of five years, doubled to 10 years, plus two years for the vulnerable victim with a prior enhancement (§ 667.9, subd. (b)); on count two, a consecutive sentence of one-third the midterm, i.e., one year, doubled to two years, plus eight months for the vulnerable victim with a prior enhancement (§ 667.9, subd. (b)); plus a five-year term for each of the two prior serious felony convictions (§ 667, subd. (a)). The court imposed and stayed sentence on the remaining counts (§ 654).
The court also ordered defendant to pay a $7,000 restitution fine (§ 1202.4, subd. (b)), a $7,000 parole revocation fee, which was stayed pending completion of parole (§ 1202.45), a $40 per count court operations fee totaling $320 (§ 1465.8), and a $30 per count criminal conviction assessment fee totaling $240 (Gov. Code, § 70373, subd. (a)(1)).
Defendant appeals, arguing the court erred in (1) relying on the victims' vulnerability to impose the upper term and to enhance the sentence on count one; and (2) in relying on the fact of multiple victims as an aggravating factor in imposing the upper term on count one because it also relied on that fact to impose consecutive sentences. Defendant also maintains the court violated her due process rights by imposing fees and fines without first determining her ability to pay. We disagree and affirm the judgment.
FACTS AND PROCEDURAL HISTORY
In resentencing defendant, the court recognized she was statutorily ineligible for probation. Even if defendant were eligible, the court would have denied probation based on California Rules of Court, rule 4.414 factors, including the facts of the crime; the "nature, seriousness, and circumstances of the crime" compared to the same crime in other instances; the victims' vulnerability based on their age; defendant's substantial record with two prior robbery convictions; and defendant's prior performance on parole and probation showed she would not succeed on probation.
All further references to rules are to the California Rules of Court.
In selecting the upper term on count one, the court relied on the victims' vulnerability and the fact there were multiple victims. In addition, the court imposed a consecutive term of two years for the vulnerable victim enhancement under section 667.9, subdivision (b). As to count two, the court imposed a consecutive term of two years, eight months consisting of one-third the midterm of three years, i.e., one year, doubled, plus one-third the two-year vulnerable victim enhancement under section 667.9, subdivision (b), also consecutive to count one.
Defense counsel objected to using the victims' vulnerability as an aggravating factor for selecting the upper term on count one because it was an element of the two-year enhancement imposed. Defense counsel did not object to using multiple victims as an aggravating factor.
DISCUSSION
1. Sentencing
a. General Principles and Standard of Review
When sentencing a defendant, aggravating factors as to the crime include: the crime involved great bodily harm or the threat of great bodily harm; great violence; other acts showing a high degree of viciousness, cruelty, or callousness; the defendant was armed or used a weapon; and the victim was especially vulnerable. (Rule 4.421(a).) Aggravating factors as to the defendant include: numerous or increasingly serious adult convictions; violent conduct manifesting a serious danger to society; service of a prison term; and unsatisfactory performance on parole or probation. (Rule 4.421(b).)
A fact that is an element of a crime may not be used to impose the upper term. (Rule 4.420(d).) But the court is not precluded from "using facts to aggravate a sentence when those facts establish elements not required for the underlying crime." (People v. Castorena (1996) 51 Cal.App.4th 558, 562, italics omitted.) In addition, "the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law." (§ 1170, subd. (b); rule 4.420(c).)
Where there is a claim of improper dual use of facts, we look at "whether the trial court could have based the aggravating factor on evidence other than that which gave rise to the enhancement. If so, the sentence may stand." (People v. Garcia (1995) 32 Cal.App.4th 1756, 1775, italics omitted.) "'Improper dual use of the same fact for imposition of both an upper term and a consecutive term or other enhancement does not necessitate resentencing if "[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error."'" (People v. Osband (1996) 13 Cal.4th 622, 728.)
We review sentencing for abuse of discretion and do not reverse the sentence "'"unless its decision is so irrational or arbitrary that no reasonable person could agree with it."'" (People v Nicolas (2017) 8 Cal.App.5th 1165, 1182.)
b. Vulnerability of Victims
Defendant contends the court erred in relying on the vulnerability of the victims to both impose the upper term and to enhance the sentence on count one and thus the case must be remanded for resentencing. We are not persuaded.
Only one aggravating factor is needed to impose the upper term. (People v. Osband, supra, 13 Cal.4th at pp. 728-729.) Here, the record reveals there were other aggravating factors for which the court could have imposed the upper term, including numerous or increasingly serious adult convictions; violent conduct manifesting a serious danger to society; and unsatisfactory performance on parole or probation. Because, the court could have relied on any of these factors to support the upper term, it is not reasonably probable the court would have imposed a more favorable sentence absent its reliance on victim vulnerability for the upper term and the enhancement on count one. (Ibid.) Thus, even if we assume the court erred resentencing is not required.
c. Multiple Victims
Defendant argues the court also erred in relying on the fact of multiple victims to impose the upper term on count one because it also relied on that fact to impose a consecutive sentence on the count one enhancement and a consecutive sentence on count two relating to the second victim. However, as she acknowledges, defendant did not object to this in the trial court. Thus, she forfeited the argument. (People v. Scott (1904) 9 Cal.4th 331, 353 (Scott).)
Citing People v. Dotson (1997) 16 Cal.4th 547, 557, footnote 6, defendant asserts we may consider the issue because the sentence was unauthorized. (See also Scott, supra, 9 Cal.4th at p. 354.) But the sentence here was not unauthorized. An unauthorized sentence is one that could not be lawfully imposed under any circumstance. (Ibid.) The definition of an unauthorized sentence specifically excludes an alleged error based on double counting a specific sentencing factor. (Id. at p. 353.)
As an alternative argument, defendant asserts she received ineffective assistance of counsel based on the failure to object at trial. We disagree with this argument as well.
"To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel's performance fell below a standard of reasonable competence, and that prejudice resulted. [Citations.] When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.] Even where deficient performance appears, the conviction must be upheld unless the defendant demonstrates, prejudice, i.e., that '"'but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'"' [Citations.]" (People v. Anderson (2001) 25 Cal.4th 543, 569; see Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Camino (2010) 188 Cal.App.4th 1359, 1377.)
We need not decide whether defense counsel's failure to object was deficient but may first look at whether defendant was prejudiced by the lack of objection. (People v. Cox (1991) 53 Cal.3d 618, 656, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see also In re Alvernaz (1992) 2 Cal.4th 924, 945 ["'[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed'"].) Defendant has not demonstrated prejudice.
As the People note, and as discussed above, there were other aggravating factors on which the court could have relied to impose the upper term on count one. Consequently, defendant has failed to demonstrate she would have obtained a more favorable result if her attorney had objected. It follows defendant has not shown the requisite prejudice and her ineffective assistance claim must fail. 2. Fines and Fees
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant argues the court violated her due process rights by imposing the court operations and criminal conviction assessment fees and the $7,000 restitution fine without first determining her financial ability to pay them. We disagree.
In Dueñas, the defendant was a disabled, unemployed, and homeless woman with young children who had had several convictions for driving with a suspended license. Her license had been previously suspended because she could not afford to pay fines for three juvenile citations or to pay fees to have her license reinstated. She then suffered three additional convictions for driving with a suspended license. After the defendant was again convicted for driving without a license, the court imposed $70 in fees for court facility and operations and a $150 restitution fine, although the defendant objected and provided evidence of her inability to pay at the time of sentencing.
Dueñas reversed, holding imposing the financial penalties violated due process unless the court first determined the defendant's ability to pay them. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) "Imposing unpayable fines on indigent defendants is not only unfair, it serves no rational purpose, fails to further [any] legislative intent, and may be counterproductive." (Id. at p. 1167.) The "additional, potentially devasting consequences suffered only by indigent persons in effect transform a funding mechanism for the courts into additional punishment for a criminal conviction for those unable to pay." (Id. at p. 1168.)
This case is not governed by Dueñas. Here, unlike in Dueñas, the court imposed a restitution fine in excess of the $300 statutory minimum under section 1202.4. Thus, under that statute, the court could have considered defendant's inability to pay, if she had objected and requested an inability to pay hearing. (§ 1202.4, subds. (c) [a defendant's inability to pay may be considered where fine exceeds $300 statutory minimum], (d) [in imposing fine in excess of minimum court may consider the defendant's ability to pay; the defendant has burden to demonstrate inability].) "[E]ven before Dueñas a defendant had every incentive to object to imposition of a maximum restitution fine based on inability to pay." (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 (Gutierrez).)
Defendant did not object to the $7,000 restitution fine at the time of sentencing or request an ability to pay hearing. Thus, she forfeited any objection to the amount of the fine. (Gutierrez, supra, 35 Cal.App.5th at p. 1033.)
We are not persuaded by defendant's contrary claim based on People v. Castellano (2019) 33 Cal.App.5th 485. Castellano held there was no waiver for failure to object in the trial court because Dueñas was the first case to hold due process was violated for imposing fines without a hearing on the ability to pay. (Id. at p. 489.) But in Castellano, no inability to pay objection was required because only the minimum statutory restitution fine was imposed. (Ibid.) That was true as well in People v. Jones (2019) 36 Cal.App.5th 1028 and People v. Johnson (2019) 35 Cal.App.5th 134 on which defendant also relies.
Defendant's challenge to the other fines and assessments imposed is forfeited as well. "As a practical matter, if [defendant] chose not to object to a [$7,000] restitution fine based on an inability to pay, [she] surely would not complain on similar grounds regarding an additional [$560] in fees." (Gutierrez, supra, 35 Cal.App.5th at p. 1033.)
Finally, even if none of the foregoing were true, the facts in this case are not at all comparable to those in Dueñas. In Dueñas the defendant was subjected to "cascading" and "devasting consequences" caused by the repeated imposition of unpayable fines and fees. (Dueñas, supra, 30 Cal.App.5th at pp. 1163, 1168.) Defendant has not made any such showing in this case. There is no evidence defendant's crimes and recidivism were the result of any fines or fees assessed against her in prior cases. Thus, Dueñas is not applicable. 3. Correction of Abstract of Judgment
The Attorney General pointed out the abstract of judgment did not conform to the oral pronouncement of judgment and asks that we order the trial court to correct the abstract. Specifically, the court ordered a $40 court operations fee for each count, totaling $320, and a $30 criminal conviction fee for each count, totaling $240. Yet the abstract of judgment shows only one $40 court operations fee and one $30 criminal conviction fee.
Defendant did not respond to this request in the reply brief.
Where there is a difference between the sentence pronounced by the court and the abstract of judgment, the oral pronouncement controls. (People v. Leon (2020) 8 Cal.5th 831, 855.) We have the inherent power to correct the abstract of judgment (People v. Jones (2012) 54 Cal.4th 1, 89) and we direct the trial court to do so.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of judgment to reflect a $320 court operations fee and a $240 criminal conviction fee.
THOMPSON, J. WE CONCUR: MOORE, ACTING P. J. FYBEL, J.