Opinion
A162432
06-29-2022
THE PEOPLE, Plaintiff and Respondent, v. CHEO POU SAECHAO, Defendant and Appellant.
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. 141654)
POLLAK, P. J.
Defendant Cheo Pou Saechao appeals an amended judgment entered after he was resentenced pursuant to Penal Code section 1170, subdivision (d). He contends the court erred by refusing to reconsider at the resentencing hearing a previously imposed restitution fine. We agree that defendant was entitled to present evidence regarding his inability to pay the fine. Accordingly, we shall reverse the judgment and remand for further proceedings.
All further statutory references are to the Penal Code.
While his appeal was pending, the Legislature amended the resentencing provisions of the Penal Code and defendant filed a supplemental brief requesting relief under the new law. The parties agree that if this court determines that the matter should be remanded, defendant may request to be resentenced under the new statutory scheme.
Background
On January 31, 2002, defendant was convicted of attempted premeditated murder (§§ 187, subd. (a), 664, subd. (a)), two counts of assault with a firearm (§ 245, subd. (a)(2)), and one count of shooting at an inhabited dwelling/occupied building (§ 246). The jury also found true allegations of personal firearm use and discharge (§§ 12022.53, subds. (b), (c), & (d), 12022.5, subd. (a)), and street gang participation (§ 186.22, subd. (b)(1)).
The trial court sentenced defendant, who was 21 years old at the time of the offenses, to an aggregate prison term of 56 years, four months to life. Defendant's sentence comprised concurrent indeterminate life terms on both the substantive offense and the firearm enhancement under count one (attempted premeditated murder) and a consecutive determinate term of 31 years, four months on the remaining counts and enhancements.
Defendant was also ordered to pay a $10,000 restitution fine pursuant to section 1202.4, subdivision (b) and a parole revocation fine of the same amount, pursuant to section 1202.45, to be stayed unless parole is revoked. On November 6, 2003, this court affirmed defendant's conviction and sentence on all counts.
On February 5, 2020, the California Department of Corrections and Rehabilitation (CDCR) provided the trial court with a recommendation for resentencing pursuant to section 1170, subdivision (d). The CDCR's letter explained that the determinate term imposed on one of defendant's convictions for assault with a firearm improperly included two enhancements based on his use of a firearm, contrary to People v. Rodriguez (2009) 47 Cal.4th 501.
Former section 1170, subdivision (d)(1) authorized the trial court to "upon the recommendation of the secretary or the Board of Parole Hearings in the case of state prison inmates, . . . recall [defendant's] sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence." (Stats. 2018, ch. 1001, § 1, eff. Jan. 1, 2019.)
At the resentencing hearing, the prosecution recommended a term of 20 years to life; defense counsel requested a determinate term. The court, declining to grant a determinate sentence, indicated that it intended to impose a term of 20 years to life. The trial judge acknowledged the good work defendant had done for the last five years in prison, but explained that he would not "substitute [the court's] judgment for the parole board's judgment, because . . . the most relevant aspect of Mr. Saechao's history at this point might be his conduct in prison as opposed to the commitment offense."
The parties stipulated to the term of 20 years to life, with the court leaving intact the life sentence on the premeditated attempted murder count and striking the section 12022.53, subdivision (d) enhancement on count one and replacing it with a subdivision (c) enhancement for a term of 20 years. The court also stayed the section 186.22, subdivision (b)(1) gang enhancements and imposed concurrent terms on the remaining three counts. In response to defendant's request that the court consider reducing his restitution fine, the court indicated restitution fees and fines and credits would "stay the same." Defendant timely filed a notice of appeal from the amended judgment.
On August 26, 2021, the trial court amended the abstract of judgment to award defendant actual custody credits of 7, 207 days through February 17, 2021.
Discussion
Defendant contends the court erred by refusing his request to consider reducing the $10,000 restitution fine. He argues that whether analyzed under principles of due process or the excessive fines clause of the Eighth Amendment, he was entitled to present evidence regarding his inability to pay restitution. (See People v. Cowan (2020) 47 Cal.App.5th 32, 48 ["Because ability to pay is an element of the excessive fine calculus under both the federal and state Constitutions, . . . a sentencing court may not impose . . . restitution fines without giving the defendant, on request, an opportunity to present evidence and argument why such monetary exactions exceed the ability to pay."], review granted June 17, 2020, S261952.) We agree. Accordingly, we shall remand the matter so that defendant may present evidence as to his inability to pay. (See id. at pp. 49-50 ["[O]n remand . . . the court must hold a hearing at which defendant will have an opportunity to bear his burden of proof on the issue of ability to pay."].)
While defendant's appeal was pending, the Governor signed Assembly Bill No. 1540 which, effective January 1, 2022, "moves the recall-and-resentencing provisions of . . . section 1170, subdivision (d)(1) to a new section, 1170.03, and revises the terms of that provision." (People v. Cepeda (2021) 70 Cal.App.5th 456, 471.) Newly enacted section 1170.03, subdivision (a) includes several provisions that defendant suggests are relevant in this case: subdivision (a)(3)(B) grants the trial court authority to vacate the defendant's conviction and impose judgment on any necessarily included lesser offense or lesser related offense, whether or not that offense was charged in the original pleading, and then resentence the defendant to a reduced term of imprisonment; subdivision (a)(2) authorizes the court to "apply any changes in law that reduce sentences or provide . . . discretion so as to eliminate [sentence] disparity . . . and promote [sentencing] uniformity"; and subdivision (a)(4) directs the court to consider if a defendant has or had "psychological, physical, or childhood trauma," or if defendant was a youth at the time of the offenses, and whether those were contributing factors of the offense.
Defendant acknowledges that the trial court already reduced his sentence considerably, having considered both his recent good behavior in prison and his relative youth at the time of the offenses, but suggests nonetheless that the additional authority and direction provided by Assembly Bill No. 1540 could result in the imposition of a determinative term. The parties agree that the new statutory provision will govern the proceedings on remand.
Accordingly, we remand this case to the trial court for a further hearing on the CDCR's recommendation for recall and resentencing, including reconsideration of the restitution fine based on defendant's showing regarding his ability to pay and reconsideration of defendant's sentence under section 1170.3.
Disposition
We reverse the amended judgment and remand the matter for further proceedings consistent with this opinion.
WE CONCUR: STREETER, J., BROWN, J.