Opinion
H048435
05-31-2022
THE PEOPLE, Plaintiff and Respondent, v. GUSTAVO ARMANDO CASTANEDA, JR., Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. Nos. C1913513, C1913636, C1919262)
GREENWOOD, P. J.
Defendant Gustavo Armando Castaneda, Jr., pleaded no contest to stalking, violating a protective order, and assault by means of force likely to produce great bodily injury. He admitted he had suffered a prior strike conviction. The trial court sentenced Castaneda to a total term of five years four months in prison and imposed various fines and fees.
Castaneda contends the trial court erroneously imposed the fines and fees without determining his ability to pay them as required under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). To the extent the claim was forfeited by his trial counsel's failure to object, he argues counsel rendered ineffective assistance. Castaneda further argues that a recent change in the law requires that we vacate the criminal justice administration fee imposed under former Government Code section 29550.1. 1
Because this claim concerns the effect of new legislation enacted post-judgment, Penal Code section 1237.2 does not require Castaneda to move for correction of the fines and fees in the trial court before bringing this appeal. (People v. Clark (2021) 67 Cal.App.5th 248, 257.)
The Attorney General concedes that the criminal justice administration fee must be vacated insofar as any balance on that fee was unpaid as of July 1, 2021. We accept the concession. For the reasons below, we conclude all other claims are without merit. We will modify the judgment to vacate any portion of the $259.50 criminal justice administration fee that remained unpaid as of July 1, 2021, and we will affirm the judgment in all other respects.
I. Factual and Procedural Background
A. Procedural Background
In case No. C1913513, the prosecution charged Castaneda with six counts: count 1-making criminal threats (Pen. Code, § 422, subd. (a)); count 2-dissuading a witness by use of force or threat of force (§ 136.1, subd. (c)(1)); count 3-domestic battery with a prior conviction for spousal battery (§ 273.5, subd. (f)(2)); count 4-assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4)); count 5-violation of a protective order (§ 166, subd. (c)(4)); and count 6-false imprisonment (§ 236). The prosecution further alleged Castaneda had suffered a prior violent or serious felony conviction (§§ 667, subds. (a), (b)-(i), 1170.12).
Subsequent undesignated statutory references are to the Penal Code.
In case No. C1913636, the prosecution charged Castaneda with two counts: count 1-making criminal threats (§ 422, subd. (a)); and count 2-violating a protective order (§ 166, subd. (c)(4)). The prosecution further alleged Castaneda had suffered a prior violent or serious felony conviction (§§ 667, subds. (a), (b)-(i), 1170.12).
In case No. C1919262, the prosecution charged Castaneda in count 1 with stalking while a protective order is in effect (§ 646.9, subd. (a)). The prosecution further alleged a prior strike conviction (§§ 667.5, subd. (c), 1170.12, subd. (b)(1)). 2
In December 2019, as part of a negotiated plea agreement, Castaneda pleaded no contest to count 4 in case No. C1913513 (assault by means of force likely to produce great bodily injury); count 1 in case No. C1919262 (stalking); and count 2 in case No. C1913636 (violating a protective order). He admitted the prior strike conviction that was alleged in each of the three cases.
In July 2020, the trial court imposed a total term of five years four months in prison as contemplated by the plea agreement. The term consisted of four years for the assault conviction and 16 months for the stalking conviction. For the conviction on violating a protective order, the court stayed a four-year term under section 654.
The trial court imposed various fines and fees, including restitution fines of $2, 400 and $300 under section 1202.4; court security fees totaling $120; criminal conviction assessment fees totaling $90; and a $259.50 criminal justice administrative fee. The court imposed but stayed parole revocation fines. Castaneda did not object to the imposition of any fine or fee.
The statement of facts is based on the probation report.
In March 2019, the police responded to a report of a disturbance at a restaurant. The victim, Castaneda's ex-girlfriend C.G., told police she had been driving and stopped at an intersection when Castaneda got into her vehicle. C.G. described Castaneda as homeless and told police he constantly followed her in violation of a restraining order. As she was driving, he became upset and pulled her hair. She suggested they stop at a restaurant, where he drank two beers and became upset again. He made various threats to kill her and to send someone to beat her up.
Two weeks later, the police responded to a report of a domestic disturbance at a motel room. The police observed injuries to C.G.'s face and neck. She told police Castaneda had entered her motel room, threatened to kill her, and struck her with his fist 3 approximately 20 to 50 times. He strangled her multiple times, pulled the phone out of the wall, and took her cell phone to prevent her from calling the police. A security guard at the motel heard C.G. yelling for help in the room, whereupon the guard attempted to intervene and Castaneda fled.
In July 2019, the police responded to a report of a violation of a domestic violence restraining order. C.G. told police Castaneda had been sending her hundreds of text messages and called her numerous times. The texts included various threats to kill C.G. and her children, and he made statements referring to being a gang member with access to firearms. C.G. told police Castaneda had also appeared at her home.
II. Discussion
A. Imposition of Fines and Fees Under Dueñas
As set forth above in section I.A., the trial court imposed various fines and fees including a total of $2, 400 in restitution fines, $120 in court operations fees, and $90 in criminal conviction assessments. The court also suspended $2, 700 in parole revocation fines. Castaneda contends the court improperly imposed these fines and fees without determining his ability to pay them under Dueñas, supra, 30 Cal.App.5th 1157. The Attorney General contends Castaneda forfeited this claim by failing to object below. Castaneda concedes he failed to object at sentencing, but he contends in the alternative that his trial counsel thereby rendered ineffective assistance. The Attorney General argues trial counsel did not render ineffective assistance because declining to object was not an objectively unreasonable decision and Castaneda has failed to show he was prejudiced.
This issue is currently under review in the California Supreme Court in People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.
We agree with the Attorney General that Castaneda forfeited his right to appeal from the imposition of fines and fees under Dueñas. Castaneda concedes he lodged no objections at sentencing. The general rule is that challenges to the imposition of fines 4 and fees are forfeited unless objections are made at sentencing. (People v. Aguilar (2015) 60 Cal.4th 862, 866.) The opinion in Dueñas was issued in January 2019, and Castaneda was sentenced in July 2020. Castaneda was therefore on notice that legal grounds existed for asserting an inability to pay, and he has not shown that an objection would have been futile. In these circumstances, the claim on appeal has been forfeited.
As to the claim of ineffective assistance of counsel, Castaneda bears the burden of showing trial counsel's performance was deficient: that counsel's performance "fell below an objective standard of reasonableness" in light of the prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 688.)" 'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."' [Citations.] '[W]e accord great deference to counsel's tactical decisions' [citation], and we have explained that 'courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight' [citation]. 'Tactical errors are generally not deemed reversible, and counsel's decision making must be evaluated in the context of the available facts.'" (People v. Weaver (2001) 26 Cal.4th 876, 925-926.) "In the usual case, where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions." (Id. at p. 926.) Second, Castaneda must show the asserted deficiency in counsel's performance resulted in prejudice: a"' "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." '" (Id. at p. 955.)
Castaneda has not established his trial counsel rendered deficient performance under Strickland. The record does not show why counsel did not object. Because the disposition was the result of a negotiated plea agreement, we cannot rule out the possibility that counsel declined to object to the fines and fees for the tactical purpose of 5 reaching a more favorable term of custody. Second, Castaneda has not shown that he suffered prejudice as the result of counsel's performance. Castaneda points out that he was represented by appointed counsel, and he cites the victim's statement to the police asserting Castaneda was homeless. But absent a more developed record with a hearing on or evidence of his inability to pay, Castaneda has not met his burden to show a reasonable probability the result of the proceeding would have been different had counsel objected.
For the reasons above, we conclude this claim is without merit.
B. Repeal of Criminal Justice Administration Fee by Assembly Bill No. 1869
At sentencing in July 2020, the trial court imposed a $259.50 criminal justice administration fee under former Government Code section 29550.1. Castaneda contends the fee must be vacated under recent changes to the law that repealed the fee. The Attorney General concedes Castaneda is entitled to the retroactive application of the law but the Attorney General argues Castaneda is only entitled to relief from any balance that is unpaid as of July 1, 2021.
Based on the plain language of the statute, the Attorney General is correct that Castaneda is only entitled to have the unpaid balance vacated. Effective July 1, 2021, Assembly Bill No. 1869 (Assembly Bill 1869) revised Government Code section 6111, which now provides, "On and after July 1, 2021, the unpaid balance of any court-imposed costs pursuant to . . . [Government Code] [s]ections 29550.1 . . . as those sections read on June 30, 2021, is unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated." (Gov. Code, § 6111, subd. (a).) "[B]y its plain terms the ameliorative changes of Assembly Bill 1869 apply retroactively to make any unpaid portion of the identified assessments, as they existed on June 30, 2021, 'unenforceable and uncollectible' as of July 1, 2021. (Stats. 2020, ch. 92, §§ 11, 62.)." (People v. Greeley (2021) 70 Cal.App.5th 609, 626.) "[A]lthough the unpaid balance of the identified fees is no longer enforceable and collectible, the statute also mandates that 6 any portion of a judgment imposing those fees be vacated. Accordingly, based on the plain language of the statute, the unpaid balance of the probation supervision and criminal justice administration fees must be vacated." (Id. at pp. 626-627, fns. omitted.)
Accordingly, we will vacate the portion of the judgment requiring payment of any balance on the criminal justice administration fee that remained unpaid as of July 1, 2021.
III. Disposition
The judgment is modified to vacate any portion of the $259.50 criminal justice administration fee that remained unpaid as of July 1, 2021. As so modified, the judgment is affirmed. 7
WE CONCUR: Grover, J., Lie, J. 8