Opinion
E071853
11-21-2019
THE PEOPLE, Plaintiff and Respondent, v. LAZARO FRANCISCO GARCIA, Defendant and Appellant.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1203092) OPINION APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge. Affirmed with directions. Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, Lazaro Francisco Garcia, appeals from the amended judgment of conviction and sentence, entered on October 26, 2018, following defendant's appeal in People v. Garcia (Mar. 12, 2018, E064247) [nonpub. opn.] (Garcia I)). Before his appeal in Garcia I, defendant stood convicted in two counts, 3 and 4, of having sexual intercourse with his niece, Jane, when Jane was under age 10. (Pen. Code, § 288.7, subd. (a).) On August 13, 2015, defendant was sentenced to consecutive terms of 25 years to life for his convictions on counts 3 and 4. (Garcia I, supra, E064247 [at p. 2].)
Unspecified statutory references are to the Penal Code.
In Garcia I, we reversed defendant's conviction on count 4 on ex post facto grounds and remanded the matter to the sentencing court with directions to strike defendant's 25-year-to-life sentence on count 4. (Garcia I, supra, E064247 [at pp. 3-4, 11, 18-20, 49].) We also directed the court to reduce defendant's section 290.3 fines of $800 on counts 3 and 4 to $300 on count 3. (Garcia I, supra, E064247 [at pp. 45-47, 49].) Defendant was resentenced on October 26, 2018. In accordance with our disposition and the remittitur in Garcia I, the sentencing court struck defendant's 25-year-to-life sentence on count 4 and reduced his section 290.3 fines to $300 on count 3. Defendant's conviction on count 3 stands as his only conviction.
In Garcia I, we concluded that even though substantial evidence showed that defendant had sexual intercourse with Jane at least five times when she was under age 10, the evidence was insufficient to show that defendant had sexual intercourse with Jane at least two times after section 288.7 went into effect on September 20, 2006. Thus, we reversed one of defendant's two section 288.7 convictions—his conviction on count 4—but we affirmed his conviction on count 3. (Garcia I, supra, E064247 [at pp. 18-20]; Stats. 2006, ch. 337, § 9, p. 2590; People v. Rojas (2015) 237 Cal.App.4th 1298, 1306.)
As we explained in Garcia I, section 290.3 requires the court to impose a fine against a defendant convicted of a sex offense listed in section 290, subdivision (c), which includes a section 288.7 conviction. (Garcia I, supra, E064247 [at pp. 45-46].) Section 290.3 was amended, effective September 20, 2006, to require the court to impose a $300 fine for the first qualifying conviction and a $500 fine for the second and each subsequent qualifying conviction. (Garcia I, supra, E064247 [at p. 46]; Stats. 2006, ch. 337, § 18, p. 2610.) Because we reversed defendant's conviction on count 4, we directed the trial court to reduce defendant's $800 section 290.3 fines on counts 3 and 4 to a $300 fine on his remaining qualifying conviction on count 3. (Garcia I, supra, E064247 [at pp. 45-46, 49].)
In this appeal from the amended October 26, 2018, judgment, defendant claims, and the People agree, that: (1) defendant is entitled to "actual" presentence custody credits of 2,171 days through October 26, 2018, and (2) defendant's abstract of judgment must be corrected for clerical errors. We agree that these claims have merit. But we reject defendant's additional claim that the sentencing court violated his due process rights in imposing the $300 section 290.3 fine without determining that defendant was able to pay the fine. (See People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).) As the People argue, defendant has forfeited this claim of Dueñas error. His defense counsel did not object to the section 290.3 fine on an inability to pay ground, even though section 290.3 authorized the court to consider defendant's ability to pay the fine before imposing it. Lastly, defendant has not shown that his defense counsel rendered ineffective assistance in failing to object to the $300 section 290.3 fine on an inability to pay ground.
Thus, we remand the matter to the sentencing court with directions to: (1) award defendant a total of 2,171 actual days of presentence custody credits; (2) issue a new and supplemental sentencing minute order reflecting this change to defendant's sentence; and (3) correct clerical errors in the abstract of judgment. In all other respects, we affirm defendant's October 26, 2018, amended judgment of conviction and sentence.
II. DISCUSSION
A. The Undisputed Sentencing and Clerical Errors
1. Defendant Is Entitled to 2,171 "Actual" Days of Presentence Custody Credits
Defendant claims, and the People agree, that in resentencing defendant on October 26, 2018, the court erroneously failed to award defendant a total of 2,171 days of "actual" presentence custody credits, reflecting the total number of days defendant was actually in custody from November 16, 2012, the day he was arrested, through October 26, 2018, the day he was resentenced. Instead, the court awarded defendant a total of 1,001 days of actual presentence custody credits, the number of days he was in actual custody through August 13, 2015, the date he was originally sentenced. This claim has merit.
"[W]hen a prison term already in progress is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified [and subsequent] sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody." (People v. Buckhalter (2001) 26 Cal.4th 20, 29; id. at p. 23; §§ 2900.5, subds. (a), (d), 2900.1.) Thus here, defendant's sentence must be corrected to award him 2,171 days of "actual" presentence custody credits, rather than 1,001 days. Defendant is also entitled to 150 days of "local conduct" credits, the same number of local conduct credits he was originally awarded. (People v. Buckhalter, supra, at p. 29 ["[G]ood behavior credits [are] applicable only to custody which precedes any sentence, commitment, and delivery to prison."]; id. at p. 23.) Thus, defendant is entitled to total presentence custody credits of 2,321 days, rather than 1,151 days.
2. Corrections to Defendant's Abstract of Judgment
Defendant claims, and the People agree, that defendant's abstract of judgment, which was filed on January 16, 2019, following defendant's resentencing on October 26, 2018, must be corrected in three respects: (1) to delete the reference to defendant's section 288.7 conviction on count 4, and defendant's 25-year-to-life sentence on count 4, given that this conviction was reversed in Garcia I and the sentence was stricken following remand in Garcia I (Garcia I, supra, E064247 [at pp. 2, 11, 18-20, 49]); (2) to reflect defendant's resentencing date of October 26, 2018, rather than his original sentencing date of August 13, 2015; and (3) to reflect that defendant has 2,321 days of total presentence custody credits through October 26, 2018 (2,171 actual days plus 150 days of local conduct credits). We agree.
Courts have inherent authority to correct clerical errors in court records. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Thus, when an abstract of judgment includes clerical errors which do not not accurately reflect the judgment, the error can be corrected at any time. (Ibid.) "It is, of course, important that courts correct errors and omissions in abstracts of judgment," given that "'the certified abstract of the judgment constitutes the commitment'" and is the document the prison used to execute the judgment. (Ibid.) B. Defendant Has Forfeited His Claim That the Court Erroneously Failed to Determine He Was Able to Pay his $300 Reduced Section 290 .3 Fine Before It Imposed the Fine, and His Alternative Ineffective Assistance Claim Lacks Merit
Defendant claims that the matter must be remanded to the sentencing court to conduct an ability to pay hearing on his $300 section 290.3 fine on count 3, under the recently decided case of Dueñas, supra, 30 Cal.App.5th 1157. The People claim defendant has forfeited his claim of Dueñas error because defense counsel did not ask the court to determine whether defendant was able to pay the (reduced) $300 section 290.3 fine when at the resentencing hearing. We agree. We also reject defendant's alternative claim that defense counsel rendered ineffective assistance in failing to raise the ability to pay issue at resentencing.
Defendant was ordered to pay additional fines and fees at his original sentencing hearing, including a $300 restitution fine, but he did not challenge any of these fines or fees in Garcia I, and he does not challenge them in this appeal.
1. Defendant Has Forfeited His Claim of Dueñas Error
Dueñas was decided in January 2019, after defendant was resentenced on October 26, 2018. It was concerned with court facilities and operations assessments and restitution fines, not section 290.3 sex offender fines. It held 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 Penal Code section 1465.8 and Government Code section 70373," and that "although Penal Code section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed 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, 30 Cal.App.5th at p. 1164.)
More generally, however, Dueñas recognized that "[i]mposing unpayable fines on indigent defendants is not only unfair, it serves no rational purpose, fails to further the legislative intent, and may be counterproductive. . . ." (Dueñas, supra, 30 Cal.App.5th at p. 1167.) Thus, defendant argues that the reasoning of Dueñas should be applied to require a court to determine that a defendant is able to pay a section 290.3 sex offender fine, before the court may impose the fine. We disagree.
Section 290.3 sex offender fines are already statutorily subject to an ability to pay determination. When defendant was originally sentenced, and when he was resentenced, section 290.3, subdivision (a) provided, and still provides, that: "Every person who is convicted of any offense specified in subdivision (c) of Section 290 shall, in addition to any imprisonment or fine, or both, imposed for commission of the underlying offense, be punished by a fine of three hundred dollars ($300) upon the first conviction . . . unless the court determines that the defendant does not have the ability to pay the fine."
Restitution fines are similarly also subject to an ability to pay determination—if and to the extent that the court imposes a restitution fine in excess of the statutory minimum of $300. "Section 1202.4, subdivision (b), requires a court to impose a restitution fine in an amount not less than $300 and not more than $10,000 in every case where a person is convicted of a felony unless it finds compelling and extraordinary reasons not to do so. Section 1202.4, subdivision (c), specifies a defendant's inability to pay is not a compelling and extraordinary reason to refuse to impose the fine, but inability to pay 'may be considered only in increasing the amount of the restitution fine in excess of the minimum fine [of $300].'" (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154.)
Thus, unlike restitution fines, for which the court may consider the defendant's inability to pay only if and to the extent the court imposed a restitution fine above the statutory minimum of $300 (§ 1202.4, subd. (c)), the court may consider the defendant's inability to pay the entire amount of a sex offender fine, and decline to impose the fine if the defendant is unable to pay it. (§ 290.3, subd. (a).)
Relying on Dueñas, the defendant in Frandsen asked the appellate court to stay his $10,000 restitution fine unless and until the People proved he was able to pay it, even though the defendant failed to object to the imposition of the fine at his sentencing hearing. (People v. Frandsen, supra, 33 Cal.App.5th at p. 1153.) Frandsen held that the defendant forfeited his claim of Dueñas error, specifically, his claim that the imposition of his $10,000 restitution fine violated his due process rights because he was unable to pay the fine: "While the defendant bears the burden of demonstrating his or her inability to pay [a restitution fine in excess of $300], a separate hearing for the restitution fine is not required. (§ 1202.4, subd. (d).) Given that the defendant is in the best position to know whether he has the ability to pay, it is incumbent on him to object to the fine and demonstrate why it should not be imposed." (People v. Frandsen, supra, at p. 1154.) This part of Frandsen is based on Supreme Court case law which holds that a defendant may not challenge a restitution fine on appeal on the ground the sentencing court did not consider the defendant's ability to pay the fine, if the defendant did not raise his inability to pay the fine at sentencing. (Ibid.; People v. Nelson (2011) 51 Cal.4th 198, 227; People v. Gamache (2010) 48 Cal.4th 347, 409; People v. Avila (2009) 46 Cal.4th 680, 729.)
Likewise, courts have long recognized that a defendant may not assert an appellate challenge to a section 290.3 fine on an inability to pay ground, unless the defendant raised the inability to pay issue at sentencing. (People v. McMahan (1992) 3 Cal.App.4th 740, 748-750 [interpreting § 290.3 as placing the burden on the defendant to raise the inability to pay issue at sentencing]; People v. Acosta (2018) 28 Cal.App.5th 701, 705-707 [urging sentencing courts to inquire sua sponte whether a defendant is able to pay a § 290.3 fine, but recognizing that a defendant forfeits his or her appellate challenge to the fine on an ability to pay ground unless the defendant raises the ability to pay issue at sentencing].) Thus here, defendant has forfeited his claim that the imposition of his $300 section 290.3 sex offender fine violates his due process rights under Dueñas, given that he did not claim he was unable to pay the fine at his resentencing hearing. (See also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1032-1034 [distinguishing Frandsen from cases holding that claims of Dueñas error are not forfeited if the claims involve statutory minimum restitution fines or other fines and fees for which the defendant has no statutory right to claim an inability to pay].)
Defendant erroneously argues that he had "no statutory right to an ability to pay determination" before his section 290.3 fine was imposed. This argument disregards the express language of section 290.3, subdivision (a).
2. Defendant Has Not Demonstrated Ineffective Assistance of Counsel
Defendant claims that his defense counsel rendered ineffective assistance in failing to object to his $300 section 290.3 fine at resentencing on the ground that defendant was unable to pay the fine. This claim lacks merit.
"The test for ineffective assistance of counsel is a demanding one. It requires that a criminal defendant establish both that his counsel's performance was deficient and that he suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 . . . .) [The defendant] bears the burden of demonstrating by a preponderance of the evidence that his counsel's performance fell below an objective standard of reasonableness. [Citation.] Ineffective assistance of counsel is particularly difficult to demonstrate on direct appeal, where we are limited to the record from the trial court. 'The appellate record . . . rarely shows that the failure to object was the result of counsel's incompetence; generally, such claims are more appropriately litigated on habeas corpus, which allows for an evidentiary hearing where the reasons for defense counsel's actions or omissions can be explored.' [Citation.] '"Unless a defendant establishes the contrary, we shall presume that 'counsel's performance fell within the wide range of professional competence . . . .'"' [Citation.] '"If the record 'sheds no light on why counsel acted or failed to act in the manner challenged,' an appellate claim of ineffective assistance of counsel must be rejected '. . . unless there simply could be no satisfactory explanation.'"' [Citation.]" (People v. Acosta, supra, 28 Cal.App.5th at p. 706.)
Defendant argues "there can be no legitimate tactical reason" for defense counsel's "failure to argue against the imposition" of the section 290.3 fine, given that "[s]uch objection only could have inured to [defendant's] benefit." We disagree. On the record before us, we cannot say that there cannot be a satisfactory explanation for defense counsel's failure to object to imposition of the $300 sex offender fine on the ground defendant was unable to pay it.
To be sure, at the original sentencing hearing, the court imposed the minimum restitution fine of $300 (§ 1202.4, subd. (b)(1)) based on defendant's "inability to pay" a greater restitution fine, together with the court's "expectation" that defendant would subsequently be ordered to pay "more victim restitution." But defendant was only 31 years old when he was originally sentenced in August 2015, and around 34 years old when he was resentenced in October 2018. The record does not show that defendant was in poor health, disabled, or lacked any earning capacity. Thus, defendant may have well been able to pay the $300 section 290.3 fine over time, in addition to the other fines and fees that were imposed at his original sentencing hearing.
Among other fees and fines, the court ordered defendant to pay $3,604.50 to the Victim Compensation Government Claims Board (§ 1202.4, subd. (f)(2)) at defendant's original sentencing hearing. (See fn. 5, ante.)
Defendant declined to be interviewed by the probation department prior to his original sentencing hearing,(PCT 517} and the record does not contain a supplemental probation report for the resentencing hearing.
See footnotes 5 and 6, ante.
Further "a defense counsel's decision whether to object to the imposition of fines and fees can encompass factors beyond a defendant's financial circumstances, especially in serious cases involving potentially long prison sentences. . . . We cannot speculate, given the absence of information before us, what led to defense counsel's decision not to object, but a myopic focus on [defendant's] financial circumstances that neglects any of the other factors at play in a sentencing hearing may not provide an accurate picture of counsel's strategic calculus." (People v. Acosta, supra, 28 Cal.App.5th at p. 707.)
In sum, the record does not show that there could be no satisfactory explanation for defense counsel's failure to object to the imposition of the $300 section 290.3 fine at defendant's resentencing hearing. And, because the record does not show that defendant is unable to pay the $300 section 290.3 fine over time, together with the other fines and fees imposed at the original sentencing hearing, defendant has not met his burden of demonstrating that he has been prejudiced by his counsel's failure to object to the imposition of the $300 section 290.3 fine at resentencing.
See footnotes 5 and 6, ante.
III. DISPOSITION
The matter is remanded to the sentencing court with directions to award defendant a total of 2,171 days of actual presentence custody credits through October 26, 2018, or 2,321 days of total presence custody credits, comprised of 2,171 actual days plus 150 days of local conduct credits. The court is directed to issue a new and supplemental minute order reflecting this modification to defendant's October 26, 2018, sentence.
The court is further directed to issue a new and corrected abstract of judgment that (1) deletes any reference to defendant's reversed section 288.7 conviction on count 4 and his stricken 25-year-to-life sentence on count 4; (2) reflects that defendant was resentenced on October 26, 2018, rather than on August 13, 2015, the date of his original sentence; and (3) reflects that defendant has 2,321 days of total presentence custody credits through October 26, 2018, comprised of 2,171 days of actual time served, plus 150 days of local conduct credits.
The judgment is affirmed in all other respects.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: McKINSTER
Acting P. J. MILLER
J.