Opinion
H047623
02-23-2021
THE PEOPLE, Plaintiff and Respondent, v. CARLOS ERNEST BURNIAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1884548)
I. INTRODUCTION
Defendant Carlos Ernest Burnias was convicted by jury of two counts of acquiring or retaining possession of personal identifying information with intent to defraud and a prior conviction (Pen. Code, § 530.5, subd. (c)(2); counts 1 & 2), one misdemeanor count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 3), and one misdemeanor count of possession of controlled substance paraphernalia (Health & Saf. Code, § 11364, subd. (a); count 4). The jury also found true the allegation that he had served one prior prison term (§ 667.5, former subd. (b)). The trial court sentenced defendant to four years, which consisted of two years in jail and two years on mandatory supervision. (See § 1170, subd. (h)(5)(B).) The court also imposed various fines, fees, and assessments but, in response to an objection by defendant, the court stated that it would "stay the fees" pending an ability to pay showing.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that the prior prison term enhancement must be stricken because the enhancement no longer applies to him based on legislation that went into effect after he was sentenced. (See § 667.5, subd. (b).) Second, defendant contends that the abstract of judgment must be corrected to reflect that the trial court stayed or did not impose certain amounts.
For reasons that we will explain, we will reverse the judgment and remand with directions to strike the prior prison term enhancement and resentence defendant.
II. BACKGROUND
Because the facts underlying defendant's offenses are not relevant to the issues on appeal, we do not include them.
At defendant's October 18, 2019 sentencing hearing, the trial court sentenced defendant to four years in jail. (See § 1170, subdivision (h)(1).) The court ordered that two years be served in jail, and that the remaining two years be served on mandatory supervision. (See § 1170, subd. (h)(5)(B).) The four-year sentence consists of the upper term of three years on count 1 (§ 530.5, subd. (c)(2)), a concurrent term of three years on count 2 (§ 530.5, subd. (c)(2)), a consecutive term of one year for the prison prior (§ 667.5, former subd. (b)), and concurrent 30-day terms on counts 3 and 4 (Health & Saf. Code, §§ 11377, subd. (a), 11364, subd. (a)).
The trial court made a general order of restitution. The court also initially ordered defendant to pay the following amounts: a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)), a suspended $300 restitution fine (Pen. Code, § 1202.45), a $160 court operations assessment (Pen. Code, § 1465.8), a $120 court facilities assessment (Gov. Code, § 70373), a $129.75 criminal justice administration fee (see Gov. Code, §§ 29550, 29550.1, 29550.2), a presentence investigation fee not to exceed $400 (Pen. Code, § 1203.1b), a supervision fee not to exceed $40 per month (Pen. Code, § 1203.1b), and a $100 laboratory analysis fee (Health & Saf. Code, § 11372.5). The court waived the penalty assessment for the laboratory analysis fee and waived a drug program fee.
After the trial court initially imposed the above amounts, defense counsel stated, "[W]e are asking the Court to waive any fees that the Court is able to under People v. Dueñas. My client is not currently employed and will not be employed for the foreseeable future." (Italics added & underscoring omitted.) The court responded, "Okay. With regard to the fees, the Court will stay the fees pending his release from custody and information from the District Attorney's Office that he has the ability to pay fines and fees."
The clerk's minutes of the sentencing hearing lists all the amounts initially imposed by the trial court, along with a separate line stating, "FINE STAYED purs. to People v. Duenas." The abstract of judgment similarly lists all the amounts initially imposed by the trial court, along with the statement, "Fine stayed pur Duenas."
III. DISCUSSION
A. Prior Prison Term Enhancement
Defendant contends that his prior prison term enhancement should be stricken based on an amendment to section 667.5, subdivision (b) effective January 1, 2020, and that remand for resentencing is unnecessary.
The Attorney General concedes that the amendment applies retroactively to defendant, that his prior prison term enhancement should be stricken, and that remand for resentencing is unnecessary.
We agree with the parties that defendant's prior prison term should be stricken, but we determine that the matter must be remanded for resentencing.
Section 667.5, subdivision (b) was amended after defendant was sentenced. (People v. Lopez (2019) 42 Cal.App.5th 337, 340, 341 (Lopez).) Effective January 1, 2020, the one-year enhancement under section 667.5, subdivision (b) applies only if the defendant's prior prison term was "for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." (See Lopez, supra, at p. 341.) The amendment applies retroactively to all defendants whose judgments are not yet final as of that date. (Id. at pp. 341-342.) " '[F]or the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed. [Citations.]' [Citation.]" (People v. Vieira (2005) 35 Cal.4th 264, 306.)
Defendant's case was not final on the effective date of the amendment to section 667.5, subdivision (b), and therefore the amendment applies to him. His prior prison term was for a conviction under section 530.5, subdivision (c)(3) [acquiring or retaining possession of personal identifying information of 10 or more people with intent to defraud], which is not a sexually violent offense. (See Welf. & Inst. Code, § 6600, subd. (b).) We will order defendant's prior prison term enhancement stricken.
"[W]hen part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.' [Citations.]" (People v. Buycks (2018) 5 Cal.5th 857, 893 (Buycks).) If, however, the trial court "imposed the maximum possible sentence, regardless of whether [an] enhancement was stricken, there is no need to remand the matter to the trial court to exercise its sentencing discretion anew." (Id. at p. 896, fn. 15.)
In this case, the parties contend that resentencing is not necessary because the trial court ordered defendant to serve the upper term of three years on counts 1 and 2. The Attorney General further argues that both counts 1 and 2 must be served concurrently, as ordered by the trial court, because the trial court found that both counts arose from a single course of conduct.
The trial court, however, imposed a "split sentence" (People v. Catalan (2014) 228 Cal.App.4th 173, 178) pursuant to section 1170, subdivision (h)(5)(B), consisting of two years in jail followed by two years on mandatory supervision. When imposing a jail sentence for a felony under section 1170, subdivision (h), "[u]nless the court finds that, in the interests of justice, it is not appropriate in a particular case, the court . . . shall suspend execution of a concluding portion of the term for a period selected at the court's discretion." (Id., subd. (h)(5)(A), italics added.) "The portion of a defendant's sentenced term that is suspended pursuant to this paragraph shall be known as mandatory supervision" and, while on mandatory supervision, "the defendant shall be supervised by the county probation officer." (Id., subd. (h)(5)(B).) Because the trial court has discretion to determine anew, following the striking of defendant's prior prison term enhancement, what period, if any, of defendant's sentence should be served on mandatory supervision, remand for resentencing is appropriate. (See Buycks, supra, 5 Cal.5th at p. 893.)
B. Fines , Fees , and Assessments
Defendant contends that "the trial court did not intend to impose any fines and fees that could be waived pursuant to People v. Duenas (2019) 30 Cal.App.5th 1157," but that "[t]his is clearly not reflected in the abstract of judgment which indicates that all fees were imposed." Pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant requests that (1) the court operations assessment (Pen. Code, § 1465.8) be deleted from the abstract of judgment, (2) the court facilities assessment (Gov. Code, § 70373) be deleted from the abstract of judgment, and (3) the abstract of judgment be amended to indicate that the restitution fine (Pen. Code, § 1202.4, subd. (b)) is stayed.
The Attorney General contends that the clerk's minutes of the sentencing hearing and the abstract of judgment "are ambiguous because they do not specify which fines or fees were waived by the court." The Attorney General also implicitly argues that the trial court's oral pronouncement itself was unclear as to which fines and fees were waived in response to defendant's reliance on Dueñas at the sentencing hearing. The Attorney General contends that this court should remand the matter to the trial court to correct the clerk's minutes and abstract of judgment "to conform with the trial court's oral pronouncement."
In Dueñas, the appellate court reversed an order imposing the court operations assessment (§ 1465.8) and the court facilities assessment (Gov. Code, § 70373) after concluding that it was "fundamentally unfair" and violated due process under the federal and California Constitutions to impose the assessments without a determination of the defendant's ability to pay. (Dueñas, supra, 30 Cal.App.5th at pp. 1168, 1172.) The court also concluded that the execution of a restitution fine under section 1202.4 "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, at p. 1164.)
In this case, the trial court initially imposed, without suspending, seven different fines, fees, and assessments. Subsequently, defense counsel asked the court "to waive any fees that the Court is able to under People v. Dueñas" based on defendant's inability to pay. (Italics added & underscoring omitted.) The court responded, "Okay. With regard to the fees, the Court will stay the fees pending his release from custody and information from the District Attorney's Office that he has the ability to pay fines and fees." (Italics added.) It is not clear from this statement by the trial court which fees the court was referring to among the seven different fines, fees, and assessments it had just imposed. It is also not clear, in view of the holding and disposition in Dueñas, whether the court in the present case intended not to impose the court operations assessment (§ 1465.8) and the court facilities assessment (Gov. Code, § 70373) at all as contended by defendant on appeal, or intended to stay those assessments pending "information from the District Attorney's Office that [defendant] has the ability to pay fines and fees." Because we are remanding for resentencing, we need not resolve this ambiguity in the sentencing record.
We note that the Courts of Appeal, including panels of our own court, have reached conflicting conclusions on whether Dueñas was correctly decided. (See, e.g., People v. Santos (2019) 38 Cal.App.5th 923, 927 [applying "the principles articulated [in Dueñas]"]; id. at pp. 935-939 (dis. opn. of Elia, J.); People v. Adams (2020) 44 Cal.App.5th 828, 832 [concluding that "Dueñas was wrongly decided"]; id. at pp. 832-833 (dis. opn. of Premo, J.); People v. Petri (2020) 45 Cal.App.5th 82, 90 [finding that Dueñas was not "persuasive"]; id. at p. 95 (dis. opn. of Premo, J.).) The issue of whether an ability to pay determination must be made is currently pending before the California Supreme Court. (See, e.g., People v. Kopp (2019) 38 Cal.App.5th 47, 95 [agreeing with Dueñas that due process requires an ability to pay determination before imposition of court operations or court facilities assessment], review granted Nov. 13, 2019, S257844). --------
IV. DISPOSITION
The judgment is reversed, and the matter is remanded with directions to strike the prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) and resentence defendant.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
GREENWOOD, P.J. /s/_________
ELIA, J.