Opinion
D076015
04-28-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSE ANGEL AVILA, Defendant and Appellant.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION
NO CHANGE IN JUDGMENT
THE COURT:
It is ordered that the opinion filed on April 28, 2019 be modified as follows: Page 2, the first two sentences of the second full paragraph, beginning "Avila appeals again and contends:" are deleted and the following two sentences are inserted in their place:
Avila appeals again and contends: 1) the superior court erred in declining to strike the enhancements; 2) several enhancements pursuant to section 667.5, subdivision (b), must also be stricken based on recent amendments to that statute; 3) the fines and assessments imposed on Avila must be stricken pursuant to the recent decision in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas); and 4) the abstract of judgment must be modified to reflect the oral pronouncement as directed in this court's previous opinion. The People concede that the section 667.5, subdivision (b), enhancements must be stricken and that the abstract of judgment must be modified to reflect the superior court's oral pronouncement of judgment, and we agree.
This modification does not change the judgment.
HALLER, Acting P. J. Copies to: All parties
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCS274093) APPEAL from a judgment of the Superior Court of San Diego County, Theodore M. Weathers, Judge. Affirmed as modified. Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
Jose Angel Avila was involved in two gang-related shootings and was convicted on multiple charges, including murder, attempted murder, and a number of charges related to the possession and use of firearms. Avila appealed, and this court previously affirmed the conviction but remanded the matter to the superior court with instructions to correct the abstract of judgment to reflect the superior court's oral pronouncement of the sentence and to allow the court to exercise its discretion to strike certain enhancements in light of recent amendments to Penal Code sections 12022.5 and 12022.53. (See People v. Avila (September 7, 2018, D071736) [nonpub. opn].) On remand, the superior court declined to strike the enhancements and found that the previously imposed sentence remained appropriate.
All further statutory references are to the Penal Code.
Avila appeals again and contends: 1) the superior court erred in declining to strike the enhancements; 2) several enhancements pursuant to section 667, subdivision (b), must also be stricken based on recent amendments to that statute; 3) the fines and assessments imposed on Avila must be stricken pursuant to the recent decision in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas); and 4) the abstract of judgment must be modified to reflect the oral pronouncement as directed in this court's previous opinion. The People concede that the section 667, subdivision (b), enhancement must be stricken and that the abstract of judgment must be modified to reflect the superior court's oral pronouncement of judgment, and we agree. With respect to Avila's remaining arguments, we conclude that the superior court did not err in declining to exercise its discretion to strike the other enhancements and that Avila waived his arguments pursuant to Dueñas.
FACTUAL AND PROCEDURAL BACKGROUND
As the facts of this case were set forth in detail in our previous opinion, we do not repeat them here, except to the extent necessary to address the issues now before us. (See People v. Avila, supra, D071736.)
Avila was involved in two separate gang-related shootings, one on July 26, 2014, and one on August 1, 2014. A jury convicted him of one count of shooting at an occupied vehicle in violation of section 246; three counts of attempted murder in violation of sections 664 and 187, subdivision (a); three counts of assault with a semi-automatic firearm in violation of section 245, subdivision (b); one count of murder in violation of section 187, subdivision (a); two counts of possessing a firearm following a conviction for a violent offense in violation of section 29900, subdivision (a)(1); possessing a short-barreled rifle in violation of section 33215; and possessing prohibited ammunition in violation of section 30305, subdivision (a)(1). The jury also found numerous associated allegations true, including that Avila discharged a firearm during counts 2, 4, 6, and 7 and that he personally used a firearm during counts 3, 5, and 8. (§§ 12022.53. subds. (b)-(d); 12022.5. subd. (a).). In addition, Avila admitted a prison prior, a serious felony prior and a strike prior. (See §§ 667.5, subd. (b); 668; 667, subd. (a)(1); 1192.7, subd. (c); 667, subds. (b)-(I); 1170.12.)
On January 27, 2017, the superior court sentenced Avila to an indeterminate term of 199 years to life, and a determinate term of 33 years eight months.
Avila appealed, and this court affirmed the conviction but remanded the matter to the superior court with instructions to amend the abstract of judgment to reflect the superior court's oral pronouncement of the sentence and to allow the court to exercise its discretion to strike certain enhancements in light of recent amendments to sections 12022.5 and 12022.53. (See People v. Avila, supra, D071736.)
On remand, Avila asked the superior court to strike or dismiss firearm enhancements pursuant to amended sections 12022.53, subdivision (h), and 12022.5, subdivision (c). In addition, he also filed a motion to strike a serious prior felony enhancement pursuant to section 667, subdivision (a)(1), based on amendments to section 667, subdivision (a)(1), and section 1385 that went into effect in January 2019.
On May 17, 2019, after considering the briefing and arguments of the parties, the superior court found, "[b]ased upon the serious and senseless nature of the crimes committed and the danger that the defendant presents to the community . . . that the sentence imposed on January 27, 2017, was appropriate and remains appropriate," and declined to exercise its discretion to modify the previously imposed sentence.
Avila appeals once more.
DISCUSSION
I. The Superior Court Did Not Abuse its Discretions by Declining to Strike the Serious Felony or Firearm Enhancements
Section 1385 permits the superior court discretion to strike serious felony enhancements alleged pursuant to section 667, subdivision (a), and firearm enhancements alleged pursuant to sections 12022.5, subdivision (a), and 12022.53. (§§ 667; 1385; 12022.5, subd. (c); 12022.53, subd. (h); Legis. Counsel's Dig., Sen. Bill No. 1393 (2017-2018 Reg. Sess.) Stats. 2018, ch. 1013, §§ 1, 2 ["This bill would delete the restriction prohibiting a judge from striking a prior serious felony conviction in connection with imposition of [a] 5-year enhancement"].) When applying its discretion under section 1385, the trial court should consider generally applicable sentencing principles such as the defendant's background, character and prospects, and should avoid the imposition of an unjust sentence. (People v. Williams (1998) 17 Cal.4th 148, 160-161; People v. Garcia (1999) 20 Cal.4th 490, 500 (Garcia).)
On appeal, we review the superior court's sentencing decision for an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376 (Carmony); People v. Ortega (2000) 84 Cal.App.4th 659, 666.) We presume the superior court acted to achieve legitimate sentencing objectives. (Carmony, supra, at pp. 376-377.) Accordingly, we will affirm the superior court's decision so long as the record indicates the court balanced the relevant facts and reached an impartial decision that comports with the sprit of the law. (Id. at p. 373.) Avila, as the appellant, has the burden to prove that the court's decision was instead irrational or arbitrary. (Id. at pp. 376-377.)
Avila argues the superior court abused its discretion by declining to strike the enhancements at issue here, but he has not met his burden to prove the court's determination was irrational or arbitrary. The record indicates the superior court considered the arguments of the parties, including the factors Avila alleges weighed in favor of striking the enhancements, but concluded that the sentence including the enhancements was appropriate based on the serious and senseless nature of the crimes and the danger Avila posed to society.
Indeed, Avila shot at several individuals, on two separate occasions, and killed one, on behalf of a gang and without provocation. Although he did have a period of only relatively minor legal infractions in the years leading up to the offenses at issue, he had a long-standing relationship with a gang and had previously committed an assault with a deadly weapon on behalf of the gang in 2003 and was on parole until November 2010.
Avila points out that his sentences on the underlying convictions had already been doubled as a result of the Three Strikes law and asserts the imposition of enhancements for the prior offense and firearms resulted in a sentence that was patently absurd. (See Carmony, supra, 33 Cal.4th at p. 378; Garcia, supra, 20 Cal.4th at p. 500.) However, each of the enhancements serves a separate purpose and the mere fact that the court applied multiple enhancements does not make the sentence patently absurd. (Carmony, supra, at p. 378; People v. Frausto (2009) 180 Cal.App.4th 890, 898 ["stated legislative purpose of section 12022.53 is to impose progressively longer prison sentences on felons who use firearms in the commission of enumerated crimes"]; § 667, subd. (b) ["It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of one or more serious or violent felony offenses"].) Here, Avila was convicted of 12 underlying offenses related to two separate shootings, including one count of murder and three counts of attempted murder and the lengthy sentence was, in part, a result of the numerous serious offenses.
Accordingly, we conclude the superior court did not abuse its discretion in declining to strike the serious felony or firearms enhancements. II. The Section 667 .5, Subdivision (b) Enhancement Must Be Stricken
Prior to January 1, 2020, section 667.5, subdivision (b), required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant served a separate prior prison term and had not remained free of custody for at least five years. (Former § 667.5, subd. (b).) Effective January 1, 2020, Senate Bill No. 136 amended section 667.5, subdivision (b), by limiting the one-year enhancement to prior prison terms to sexually violent offenses, as defined by Welfare and Institutions Code, section 6600, subdivision (b). (§ 667.5, subd. (b); Stats. 2019, ch. 590, § 1.)
Here, Avila admitted a prison prior for his previous conviction for assault with a deadly weapon. The superior court imposed but stayed a one-year sentence for the prior offense on each count pursuant to section 667.5, subdivision (b). (People v. Jones (1993) 5 Cal.4th 1142, 1150; People v. Lopez (2004) 119 Cal.App.4th 355, 364.) Assault with a deadly weapon is not a sexually violent offense, as defined by Welfare and Institutions Code, section 6600, subdivision (b).
Avila contends, and the People concede, that the amendments to section 667.5 are retroactive and the retroactivity applies to him as his appeal was not yet final when the amendments became effective on January 1, 2020. We agree. (See In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada) [discussing retroactivity]; People v. Jennings (2019) 42 Cal.App.5th 664, 681-682 [finding Senate Bill No. 136 retroactive under Estrada].)
We therefore strike each of the section 667.5, subdivision (b), enhancements from Avila's sentence.
III. Avila Waived His Arguments Regarding Dueñas
The abstract of judgment the superior court reaffirmed imposes a number of fines, fees, and assessments on Avila, including a $360 criminal conviction assessment (Gov. Code, § 70373), a $485 court security fee (Pen. Code § 1465.2), a $154 criminal justice administration fee (Government Code § 29550.1), a $10,000 restitution fine (Pen. Code, § 1202.4) and an additional suspended $10,000 restitution fine (§ 1202.45).
In January 2019, a few months after we issued our previous opinion in this matter (People v. Avila, supra, D071736), the Second Appellate District issued its opinion in Dueñas. Therein, the court concluded that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373" and that, "although Penal Code section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Dueñas, supra, 30 Cal.App.5th at p. 1164.)
Avila now asserts, in reliance on Dueñas and for the first time in this second appeal, that the imposition of the above-listed fines and fees without any findings regarding his ability to pay those fines and fees violated his right to due process. In People v. Gutierrez (2019) 35 Cal.App.5th 1027 (Gutierrez), this court concluded that a similar challenge to imposed fees and fines was forfeited because the defendant had every incentive to object to the imposition of a maximum restitution fine based on inability to pay, and the statute (§ 1202.4, subd. (c)) expressly permitted such a challenge, but the defendant failed to make such an objection. (Gutierrez, supra, 35 Cal.App.5th at p. 1033.) We also stated in Gutierrez, "[a]s a practical matter, if Gutierrez chose not to object to a $10,000 restitution fine based on an inability to pay, he surely would not complain on similar grounds regarding an additional $1,300 in fees." (Ibid.)
Applying that same reasoning to the case at hand, we conclude Avila forfeited the arguments he now raises under Dueñas by failing to object to the assert an inability to pay objection when the superior court imposed a restitution fine exceeding the statutory minimum. (See also, People v. Jenkins (2019) 40 Cal.App.5th 30, 39-41 [Dueñas arguments forfeited where defendant did not object to statutory maximum restitution fee]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1059, 1061 [same]; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154 [same].) Moreover, Avila also did not raise the issue at the May 17, 2019 resentencing hearing, despite the fact that the Dueñas opinion was filed in January 2019. (Dueñas, supra, 30 Cal.App.5th 1157.)
To avoid this forfeiture, Avila asserts that his counsel was ineffective for failing to object and, thus, to preserve a valid legal issue for appeal. (See People v. Hart (1999) 20 Cal.4th 546, 623-625.) To prove this claim, Avila must show that his counsel's failure to request a hearing on his ability to pay fell below "an objective standard of reasonableness under prevailing professional norms" and that he was prejudiced as a result. (See Strickland v. Washington (1984) 466 U.S. 668, 687, 690 (Strickland).)
Once again, Avila has not met his burden. The record is devoid of any information regarding counsel's reasons for not raising an ability to pay argument or whether counsel's failure to do so prejudiced Avila. (See People v. Lucas (1995) 12 Cal.4th 415, 437.) Avila asserts that he is indigent and claims there is no reasonable explanation for counsel's failure to raise the ability to pay issue but does not offer any further evidence indicating that he undoubtedly did not have the ability to pay. To the contrary, Avila was a member of a carpenter's union, the record indicates he has experience working in bridge construction, and there is no indication that he would not be able to earn wages while in prison. (See, e.g., People v. Jones (2019) 36 Cal.App.5th 1028, 1030, 1035; People v. Frye (1994) 21 Cal.App.4th 1483, 1487.) Accordingly, on this record, we cannot say that counsel's failure to raise Avila's ability to pay the fines and fees was objectively unreasonable. (Strickland, supra, 466 U.S. at p. 687; see also People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268; People v. Arredondo (2019) 8 Cal.5th 694, 711.)
Finally, even if we were to address the merits, in light of Avila's ineffective assistance of counsel claims, we would find no constitutional error under Dueñas. The validity of the court's decision in Dueñas has been questioned in several subsequent opinions. (See, e.g., People v. Allen (2019) 41 Cal.App.5th 312, 318, 326-327 [discussing several other cases and rejecting the analysis in Dueñas].) Most notably, the court in Dueñas based its due process analysis on a right of access to the courts and a bar to incarceration based on the failure to pay criminal penalties when that failure is not willful. (Dueñas, supra, 30 Cal.App.5th at pp. 1165-1169; People v. Hicks (2019) 40 Cal.App.5th 320, 325, rev. granted Nov. 26, 2019 (S258946); Allen, supra, 41 Cal.App.5th at pp. 326-328; People v. Caceres (2019) 39 Cal.App.5th 917, 927.) In the present case, Avila was not denied access to the courts and the incarceration that was imposed was not based on his failure to pay fines. Accordingly, Dueñas is not applicable. (See Hicks, supra, at p. 329; Allen, supra, at p. 327; Caceres, supra, at pp. 926-928.)
We cite Hicks for its persuasive value in accordance with California Rules of Court, rule 8.115(e)(1). --------
IV. The Abstract of Judgment Must be Modified to Reflect the Oral Pronouncement and in Accordance with This Court's Previous Opinion
As a final matter, in our previous opinion we concluded that the abstract of judgments should be amended to reflect a base term of 14 years to life on count 7, as reflected in the sentencing transcript and felony minutes.
On remand, the superior court found that the prior sentence was appropriate and remained appropriate, and therefore declined to exercise its discretions to modify the sentence. The parties did not raise, and the superior court did not address, our previous amendment to the abstract of judgment, and it appears that an amended abstract of judgment has not been placed into the record.
Avila requests that this court again direct the superior court to correct the abstract of judgment, and the People concede that the abstract of judgment should be amended. We therefore reiterate that the judgment is modified to reflect a base sentence of 14 years to life for count 7, and also to strike the section 667.5, subdivision (b), enhancements as discussed ante in Section II of this opinion.
DISPOSITION
The judgment is modified to reflect a base sentence of 14 years to life for count 7 and to strike the section 667.5, subdivision (b), enhancements. The superior court is directed to prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
O'ROURKE, J. WE CONCUR:
HALLER, Acting P. J.
IRION, J.