Opinion
A158372
08-13-2020
THE PEOPLE, Plaintiff and Respondent, v. HECTOR COSME, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 18-CR-015728)
A jury convicted defendant Hector Cosme of attempted second degree robbery and found true an allegation that he personally used a firearm. He raises three issues on appeal. First, he contends Senate Bill No. 136 (2019-2020 Reg. Sess.) applies retroactively and therefore prior prison term enhancements must be stricken under Penal Code section 667.5, subdivision (b) as amended. Second, he maintains the trial court miscalculated his custody credits. Third, he claims the imposition of various fees and fines without a determination of his ability to pay violated his due process rights under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). The Attorney General concedes the first two issues, and we agree the judgment must be modified in those respects. We otherwise affirm.
BACKGROUND
We recite only those facts relevant to the issues on appeal.
After committing the underlying offense in September 2018, defendant was charged by information with one count of attempted second degree robbery (Pen. Code, §§ 211, 664), with an allegation of personal firearm use (§§ 12022.5, subd. (a), 12022.53, subd. (b)). The information also alleged several prior conviction sentencing enhancements, including one strike prior and 12 other prior convictions (§ 667.5, subd. (b)). A jury found defendant guilty as charged and found true the personal use enhancement. The trial court then found defendant had served three prior prison terms (§ 667.5, subd. (b)), one for a robbery conviction (§ 211), one for a possession of marijuana for sale conviction (Health & Saf. Code, § 11359), and one for an unlawful taking or driving of a vehicle conviction (Veh. Code, § 10851).
All further statutory references are to the Penal Code unless otherwise indicated.
At the subsequent sentencing hearing, the court sentenced defendant to a total term of 19 years in state prison, consisting of the midterm of two years, doubled, for the attempted robbery conviction (§ 667, subd. (e)(1)), 10 years for the firearm enhancement, five years for his prior second degree robbery conviction (which was a serious violent felony) (§ 667, subd. (a)(1)), and two, one-year terms under section 667.5, subdivision (b) for the remaining prior prison terms to run concurrently with the five-year serious felony enhancement. The court awarded defendant 346 days of custody credit and imposed a $1,000 restitution fine (§ 1202.4, subd. (b)(1)), a $40 court operations assessment fee (§ 1465.8), and a $30 conviction assessment fee (Gov. Code, § 70373).
As the Attorney General notes, it is unclear from the record "whether the trial court struck or stayed the corresponding prior prison term enhancement" as to this offense. Since a section 667.5, subdivision (b) one-year enhancement for a prior prison term may not be imposed in addition to a five-year serious felony enhancement under section 667, subdivision (a), the issue is moot. (People v. Jones (1993) 5 Cal.4th 1142, 1150; CACRIMMJIC § 74:19 (4th ed. 2019).)
DISCUSSION
Senate Bill No. 136 (2019-2020 Reg. Sess.)
Defendant contends, and the Attorney General concedes, Senate Bill No. 136 (2019-2020 Reg. Sess.), which amended section 667.5, subdivision (b), applies to this case and requires that the enhancements for prison priors be stricken.
Prior to January 1 of this year, section 667.5, subdivision (b) required trial courts to impose a one-year sentence enhancement for prior prison terms. Senate Bill No. 136 (2019-2020 Reg. Sess.) amended that provision, and the statute now limits prior prison term enhancements to sexually violent offenses as defined in Welfare and Instruction Code section 6600, subdivision (b). Accordingly, under In re Estrada (1965) 63 Cal.2d 740, 744 (disapproved on another ground as stated in Californians for Disability Rights v. Mervyn's, LLC (2006) 39 Cal.4th 223, 230), the Courts of Appeal have, since January 1, stricken prior prison enhancements for other crimes. (E.g., People v. Matthews (2020) 47 Cal.App.5th 857, 865 [four, one-year non-sexually violent prior prison term enhancements stricken]; People v. Smith (2020) 46 Cal.App.5th 375, 396 [two non-sexually violent prior prison enhancements stricken]; People v. Cruz (2020) 46 Cal.App.5th 715, 730 [one non-sexually violent prior prison enhancement stricken]; People v. Gastelum (2020) 45 Cal.App.5th 757, 772-773 [one prior non-sexually violent prior prison sentence enhancement stricken].)
Here, the trial court imposed two, one-year enhancements for defendant's prison priors for offenses not coming within amended section 667.5, subdivision (b) (for possessing marijuana for sale (Health & Saf. Code, § 11359) and the unlawful taking or driving of a vehicle (Veh. Code, § 10851)). Accordingly, these enhancements must be stricken.
Generally, when part of a sentence is stricken, the case is remanded for resentencing. (People v. Buycks (2018) 5 Cal.5th 857, 893.) However, because the prison prior enhancements were ordered to run concurrently with the five-year term imposed for the prior serious felony conviction, and because the prison prior enhancements can no longer be legally imposed, there is no further sentencing discretion for the trial court to exercise and thus no reason to remand the case. (People v. Lopez (2019) 42 Cal.App.5th 337, 342 [remand not necessary where there is no need for trial court to exercise discretion].) Instead, we shall order the abstract of judgment be modified to reflect that the two, one-year prison prior enhancements imposed under section 667.5, subdivision (b) be stricken. (See People v. Scott (1994) 9 Cal.4th 331, 354 [when an unauthorized sentence comes to the attention of the reviewing court it is subject to correction].)
Custody Credits
At the sentencing hearing, the court ordered that defendant receive 346 days of custody credits and that was reflected in the abstract of judgment. However, the court minutes stated, "Defendant has been in custody for 346 actual days plus 346 days good time/work time credit for a total of 692 days as a result of the same criminal act(s) for which he has been convicted."
"A defendant may 'accrue both actual presentence custody credits under . . . section 2900.5 and conduct credits under . . . section 4019 for the period of incarceration prior to sentencing.' [Citation.] The calculation of actual credits is performed by simply adding together 'all days of custody' the defendant has served. (§ 2900.5, subd. (a).) In contrast, the calculation of conduct credits depends on the purpose for which they are being calculated. Under section 4019, a defendant can earn two conduct credits for every two actual credits. [Citations.] But under section 2933.1[, subdivision (c)], a defendant convicted of a violent felony 'cannot earn good behavior credits under section 4019 exceeding 15 percent of the actual time of confinement in a local facility "prior to placement in the custody of the Director [of Corrections and Rehabilitation]." ' [Citations.] We independently review whether a trial court has correctly applied these statutes in awarding custody credits." (People v. Arevalo (2018) 20 Cal.App.5th 821, 827, fn. omitted.)
Defendant contends, and the Attorney General concedes, he was entitled to conduct credits of 15 percent. We agree and order the trial court to issue a corrected minute order and abstract of judgment to reflect 346 days of presentence custody credit and 51 days of conduct credit. (See People v. Ramos (1996) 50 Cal.App.4th 810, 816; see, e.g., People v. Chism (2014) 58 Cal.4th 1266, 1337 ["combined total of defendant's presentence conduct credits awarded . . . may not exceed 15 percent of his actual period of confinement"].)
Fifteen percent of 346 is 51.9, and defendant urges we should round up to order 52 days of credit. However, we agree with the Attorney General that would be improper, as defendant would then receive credits exceeding 15 percent, which would be in violation of the statute.
Ability to Pay
The court imposed a $40 court operations assessment (§ 1465.8), a $30 criminal conviction assessment (Gov. Code, § 70373), and a $1,000 restitution fine (§ 1202.4, subd. (b)(1)). The court initially ordered a $5,700 restitution fine, as recommended by the Probation Department, but defense counsel asked the court to reconsider the amount, given that there was no "loss or physical injury in this case, given [defendant's] inability to pay." The court agreed stating, "I'm willing to reconsider that. The Probation Department requested $5,700. Since there was no loss." The court reduced the fine to a $1,000.
Citing Dueñas, supra, 30 Cal.App.5th 1157, defendant now claims the trial court violated his constitutional rights by imposing the assessments and restitution fine without holding a hearing on his ability to pay.
As the Attorney General points out, defendant does not identify the assessments and fines he challenges on appeal. However, the only assessments and fines mentioned in his briefs are the court operations assessment, criminal conviction assessment, and the $1,000 restitution fine. We therefore consider his challenge to be directed to those items.
In Dueñas, the defendant was a chronically-ill, unemployed homeless woman with cerebral palsy and a limited education who supported her two children through public aid. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) She had lost her driver's license because of her inability to pay her juvenile citations and then had acquired three misdemeanor convictions for driving without a license because the accumulating fines and fees prevented her from clearing the citations and recovering her license. (Id. at p. 1161.) She experienced a series of "cascading consequences" because of "a series of criminal proceedings driven by, and contributing to, [her] poverty," and she had already been ordered to pay the charges by the end of her probation period. (Id. at pp. 1160, 1163-1164.) The Court of Appeal reversed the challenged assessments, holding "the assessment provisions of Government Code section 70373 and Penal Code section 1465.8, if imposed without a determination that the defendant is able to pay, are . . . fundamentally unfair [and] imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process. . . ." (Dueñas, at p. 1168.) It ordered the trial court to stay the restitution fine "unless and until the People prove that [the defendant] has the present ability to pay it." (Id. at pp. 1172-1173.)
The Attorney General maintains defendant has forfeited his "Dueñas" challenge since he failed to raise the issue in the trial court. Defendant claims his failure to object should be excused (a) because Dueñas represented a "dramatic and unforeseen" change in the law and any objection would have been futile and (b) because imposition of the assessments and fine without first determining his ability to pay constitutes legal error, correctible despite his failure to preserve the issue on appeal.
Defendant was sentenced almost eight months after Dueñas was decided. Accordingly, even assuming Dueñas was a "dramatic and unforeseen" change in the law (compare People v. Johnson (2019) 35 Cal.App.5th 134, 137-138 (Johnson) [challenge to imposition of statutory minimum restitution fine was not forfeited because change in law caused by Dueñas was not reasonably foreseeable] with People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 [challenge to assessments and restitution fine in excess of statutory minimum was forfeited and "Dueñas was foreseeable. Dueñas herself foresaw it"]), that change had already occurred, months before defendant was sentenced. Therefore, defendant cannot avail himself of any supposed unforeseen change in the law.
Further, as to the restitution fine, because the court imposed a fine above the statutory minimum, defendant had "every incentive" to object based on inability to pay, and given this circumstance, his failure to object resulted in a forfeiture of the issue on appeal. (See People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1032-1033 [it was "unnecessary to address any perceived disagreement on the forfeiture issue" because the court imposed the statutory maximum restitution fine, and "even before Dueñas," defendants "had every incentive to object" because section 1202.4 "expressly permitted such a challenge"].) Moreover, defendant did object to the recommended restitution fine ($5,700) in part on inability to pay grounds, and he asked the trial court to reduce the fine, which it did (to $1,000). Thus, defendant not only forfeited any claim the trial court should have held a hearing on his ability to pay, he invited the court to do exactly what it did—reduce the amount of the fine.
Section 1202.4 provides, in pertinent part, as follows: "(b) In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. [¶] (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300) and not more than ten thousand ($10,000). . . . [¶] . . . [¶] (c) The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. A defendant's inability to pay shall be not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of subdivision (b)." (§ 1202.4, subds. (b)(1) & (c), italics added.)
This issue is currently on review by the California Supreme Court (People v. Kopp (2019) 28 Cal.App.5th 47, rev. granted, Nov. 13, 2019, S257844).
Finally, even assuming no forfeiture or invited error, the record demonstrates any supposed error in failing to hold an ability to pay hearing was harmless beyond a reasonable doubt. (See People v. Aviles (2019) 39 Cal.App.5th 1055, 1075-1077 [rejecting Dueñas claim where, although no ability to pay hearing was held, record showed any error was harmless].) Defendant was sentenced to a lengthy prison term. And while, at the time of sentencing, he had not worked since 1996, he was, at that time, 41 years old. Nothing in the record indicates he will be ineligible for or unable to perform prison work assignments. One can therefore reasonably infer that an amount sufficient to cover the $1,070 in fees and fines will be deducted from his prison wages over the course of his time there. (See Johnson, supra, 35 Cal.App.5th at pp. 139-140 [concluding any Dueñas error was harmless given long prison term and no evidence of inability to work].)
We therefore need not, and do not, address the Attorney General's assertion that the "proper analytic framework" for analyzing the constitutionality of fines and fees is "that of the excessive fines clause of the Eighth Amendment," rather than the due process principles utilized in Dueñas. --------
DISPOSITION
The judgment is modified to strike the two, one-year prior prison term enhancements imposed under former section 667.5, subdivision (b). The judgment is further amended to reflect 346 days of custody credit and 51 days of conduct credit, and the trial court is ordered to correct the court minutes to reflect this change. The trial court is also directed to prepare an amended abstract of judgement and forward it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Margulies, Acting P.J. /s/_________
Sanchez, J.