Opinion
F077426
10-07-2020
THE PEOPLE, Plaintiff and Respondent, v. IVAN DAVIS, Defendant and Appellant.
Peter J. Boldin and Deanna F. Lamb, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Lowe and Clifford E. Zall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Tulare Super. Ct. No. VCF294982)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. Peter J. Boldin and Deanna F. Lamb, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Lowe and Clifford E. Zall, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant appeals from a judgment rendered from his resentencing on a plea bargain. He contends the matter should be remanded because Senate Bill No. 1393 (2017-2018 Reg. Sess.; Senate Bill 1393) came into effect after his resentencing, and that the court erred in imposing certain fines and fees without properly determining his ability to pay. We find defendant's ability-to-pay argument forfeited, but remand pursuant to Senate Bill 1393 and People v. Stamps (2020) 9 Cal.5th 685.
BACKGROUND
Defendant was convicted of first degree burglary (Pen. Code, §§ 459, 460, subd. (a); count 1); unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); count 2); receiving a stolen motor vehicle (§ 496d, subd. (a); count 3); and pled no contest to misdemeanor domestic battery (§ 243, subd. (e)(1); count 4). Defendant admitted he previously suffered prior strike and serious felony convictions (§§ 667, subds. (a), (b)-(i), 1170.12, subds. (a)-(d)). (People v. Davis (Sept. 25, 2017, F071582) at pp. 2-3 [nonpub. opn.] (Davis I).)
All further statutory references are to the Penal Code unless otherwise noted.
Neither party describes the facts of the underlying charges as they are not material to the issues raised on appeal. We will follow suit.
In an unpublished opinion filed in September 2017, this court reversed the convictions on counts 1 and 3, affording the prosecution the option to retry count 1, but dismissing count 3. (Davis I, supra, F071582, at p. 9.) We otherwise affirmed the judgment. (Ibid.)
On remand, the parties reached a plea bargain. On January 23, 2018, defendant pled no contest to count 1 (first degree burglary), and admitted he had a prior conviction under section 667, subdivision (a)(1). Before accepting the plea, the court said:
"So what we're talking about here is that as to Count 1, you would enter a plea to a first degree residential burglary, which is a strike.... [¶] ... [¶] So - and the Court would strike the strike and impose the mid term of four years plus an additional five years, and run it concurrent with the time you're already doing."
On April 4, 2018, the court sentenced defendant to nine years in prison, comprised of four years for first degree burglary and five years for the prior conviction enhancement. (§ 667, subd. (a)(1).) The court also imposed a restitution fine of $5,000; a suspended parole revocation restitution fine of $5,000; a court operations assessment of $120; and a criminal convictions assessment of $90. The court found that defendant had no ability to pay his appointed attorney fees.
The court also sentenced defendant to a concurrent term of two years on count 2 (unlawful driving or taking of a vehicle) and imposed no imprisonment time for count 4.
Defendant appealed. In a prior opinion, we concluded that defendant's requested remand pursuant to Senate Bill 1393 would be futile, and therefore did not address the Attorney General's alternative argument that defendant's claim is noncognizable in the absence of a certificate of probable cause. We also found that defendant forfeited his ability-to-pay claim. The Supreme Court subsequently issued its decision in People v. Stamps (2020) 9 Cal.5th 685 (Stamps) and directed us to reconsider this case in light of that decision. We have done so and remand the matter pursuant to Stamps.
DISCUSSION
I. Defendant Forfeited his Challenge to Fees Imposed Under Sections 1202.4, 1465.8 and Government Code section 70373
Defendant contends the court erred by imposing fees under sections 1202.4, 1465.8 and Government Code section 70373 without determining whether he had the ability to pay. (See generally People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).) The Attorney General argues, and we agree, that defendant forfeited this challenge by failing to object below.
In Dueñas, the Second District held that "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 ... section 1465.8 and Government Code section 70373." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) This court has held that Dueñas was "wrongly decided." (People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1068.) Important here, we also held that a defendant forfeits an "ability to pay challenge" by failing to object to the amounts imposed at the sentencing hearing. (Id. at pp. 1073-1075.)
Whether a court must consider a defendant's ability to pay before imposing fines, fees, and assessments is currently under review by the Supreme Court. (See People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.)
Defendant concedes he did not object below. Under Aviles, this failure to object forfeited his ability-to-pay challenge. II. Remand Under People v. Stamps
Defendant asks us to reconsider Aviles, which we decline to do.
In accordance with defendant's plea bargain, he was sentenced to a total of nine years in state prison. Five of those years were imposed for the prior serious felony enhancement (§ 667, subd. (a)(1)) he admitted to as part of the plea bargain.
"Prior to 2019, trial courts had no authority to strike a serious felony prior that is used to impose a five-year enhancement under section 667, subdivision (a)(1). Senate Bill 1393 removed this prohibition. (Stats. 2018, ch. 1013, §§ 1, 2.) The legislation became effective January 1, 2019. [Citation.]" (People v. Jones (2019) 32 Cal.App.5th 267, 272.) By virtue of Senate Bill 1393's modifications to section 1385, a court may now strike a prior serious felony enhancement (or the additional punishment therefore) if doing so would be "in furtherance of justice." (§ 1385, subd. (b).)
Defendant argues, and the Attorney General agrees, that Senate Bill 1393 applies to him retroactively. Defendant contends we must therefore remand for the trial court to decide how it wishes to exercise the discretion provided by Senate Bill 1393.
Defendant also argued his failure to obtain a certificate of probable cause is not fatal to his claim. That issue was subsequently resolved in defendant's favor by Stamps. (See Stamps, supra, 9 Cal.5th at p. 696.) Therefore, we will proceed to the merits of defendant's claim. --------
In circumstances similar to the present case, the Supreme Court held:
"At the time the court accepted the plea agreement and sentenced defendant, the law did not allow it to consider striking the serious felony
enhancement in furtherance of justice under section 1385. Senate Bill 1393 changed the law to allow such discretion, and we have now concluded that provision applies retroactively. If he desires, defendant should be given the opportunity to seek the court's exercise of its section 1385 discretion. If the court on remand declines to exercise its discretion under section 1385, that ends the matter and [the] defendant's sentence stands." (Stamps, supra, 9 Cal.5th at p. 707.)
Pursuant to Stamps, we will "remand the matter to the superior court to allow defendant an opportunity to seek relief under Senate Bill 1393." (Stamps, supra, 9 Cal.5th at p. 707.)
DISPOSITION
The matter is remanded to the superior court to allow defendant an opportunity to seek relief under Senate Bill 1393.
POOCHIGIAN, Acting P.J. WE CONCUR: DETJEN, J. FRANSON, J.