Opinion
F077509
08-31-2020
THE PEOPLE, Plaintiff and Respondent, v. NATHANAEL MAINE, Defendant and Appellant.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Angelo S. Edralin, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. BF152495A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge. Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Detjen, J. and Peña, J.
-ooOoo-
INTRODUCTION
Appellant/defendant Nathanael Maine was convicted of torture and sentenced to life with the possibility of parole plus a determinate sentence of 11 years. He filed an appeal but did not challenge his sentence, and this court affirmed the judgment.
After the judgment was final, the California Department of Corrections and Rehabilitation (CDCR) advised the trial court that defendant's indeterminate sentence was unauthorized because he had one prior strike conviction and the trial court failed to clarify that the minimum eligible parole date (MEPD) of seven years had to be doubled to 14 years. CDCR requested the court to review the matter for resentencing.
At the resentencing hearing, the trial court again sentenced defendant to life with the possibility of parole and doubled the MEPD of seven years to 14 years based on his prior strike conviction, with the same determinate term of 11 years.
Defendant has filed an appeal from his resentencing hearing. He argues his attorney was prejudicially ineffective because he raised meritless arguments at the resentencing hearing, and instead should have requested the court dismiss his prior strike conviction pursuant to Penal Code section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), based on his record of good behavior while serving his prison term up to that time, in order to avoid having the MEPD doubled.
All further statutory citations are to the Penal Code unless otherwise indicated.
Defendant also argues the matter must be remanded for the court to decide whether to exercise its discretion to dismiss the five-year term imposed for the prior serious felony enhancement, based on Senate Bill No. 1363's amendments to section 667, subdivision (a); correct the calculation of his presentence credits; and determine his ability to pay the restitution fine and fees that were imposed. He also argues the one-year prior prison term enhancement must be stricken based Senate Bill No. 136's amendments to section 667.5, subdivision (b).
We remand the matter on sentencing issues and otherwise affirm.
FACTS
The parties agree the facts for defendant's convictions are stated in the record of defendant's first appeal and this court's nonpublished opinion in People v. Maine (March 17, 2017, F069906), review denied, May 24, 2017, S241299.
On August 30, 2017, the California Supreme Court denied defendant's petition for writ of habeas corpus. (Maine v. Sherman (E.D.Cal. Jan. 31, 2018, 1:17cv01307AWIJLT (HC)) 2018 WL 646127 *1 [nonpub. opn.].) On October 2, 2017, defendant filed a habeas petition with the United States District Court; it was denied. (Ibid.)
New Year's Day Attack
At the time of trial, six months after the incident, Kayla M. was 19 years old with two children from defendant, both under two years old. Kayla testified she was in a romantic relationship with defendant for three years and still loved him.
On December 31, 2013, Kayla was drinking from a half gallon bottle of Captain Morgan rum at her kitchen table with defendant, her sister, and other friends.
Kayla stated she did not recall anything else from that evening except waking up the next day at 9:00 a.m. in her parents' house. When she awoke, Kayla had a black eye, which she could not open for about six hours, and her eye and head were in pain. Kayla's eye took days to heal, and her lip remained swollen for another day. Kayla testified she did not recall how she received her injuries. She said she remembered nothing from New Year's Eve and did not remember telling her mother what had happened. Kayla denied making statements to sheriff's deputies about the incident.
About a week after the incident, Kayla talked to a social worker from child protective services. The social worker was looking at the injury to Kayla's eye. Kayla told the social worker she did not know what had happened, though she admitted she and defendant were involved in domestic violence on New Year's Eve. The social worker told Kayla she knew what had happened and advised Kayla to get a restraining order on defendant, or Kayla's children would be taken from her. Kayla denied making specific statements about the incident to the social worker.
Kayla told the social worker she had had a food fight with defendant at their home in March 2013. In retaliation, defendant threw a perfume bottle at her, hitting her in the left cheek. Kayla's mother came over and took Kayla to her home where she called the sheriff's office because Kayla had asked her to do so. Kayla talked to a deputy about the incident. She told the deputy that defendant had stomped on her pinky toe, and she showed the deputy the injury.
A few days after the New Year's Day incident, Kayla filled out an application for a protective order prepared by someone from Family Alliance who had read the deputy's report of the incident. Kayla obtained a protective order against defendant. Three recorded phone conversations Kayla had with defendant in January 2014 were played for the jury. Kayla admitted she visited defendant in January 2014 and several times since then. Defendant's parents visited Kayla. Kayla said she did not want defendant prosecuted for what happened on New Year's Eve 2013 and January 1, 2014, because she still loved defendant and wanted him to come home.
On New Year's Eve 2013 and New Year's Day 2014, Kimberly H. lived next door to Kayla and defendant. Kayla's bathroom window was five feet from Kimberly's front door. Kimberly was awakened by her daughter who heard a woman screaming for help from the residence next door. Kimberly recognized Kayla's voice because their children played together. She heard Kayla screaming, "Stop. Stop. Help." She also heard defendant yelling at Kayla and calling her "slut, bitch, whore." Kimberly heard defendant repeatedly hitting and slapping Kayla for 30 minutes.
Kimberly did not have a phone and could not immediately intervene, but she got to a phone 30 minutes later and called 911. The recording of Kimberly's 911 call was played to the jury. When deputies arrived and talked to Kimberly, she heard defendant slap Kayla again. Defendant was arrested. Kayla told Kimberly once that defendant was very physically and mentally abusive to her. Kayla thanked Kimberly for saving her life because defendant would have killed her. After Kimberly was subpoenaed to testify at trial, Kayla told her not to come to court. Kimberly was convicted twice for theft in 2014.
Kern County Deputy Sheriff Eric Hughes was dispatched together with Deputies John Puga and David Rutter to Kayla's home at 3:00 a.m. on January 1, 2014. Hughes announced his presence, knocked on the door, and saw defendant walking down the hallway. Hughes could see defendant peeking out of the blinds and run down the hallway before coming back a minute and a half later and opening the door eight or nine inches. Hughes explained he was investigating a domestic disturbance. Defendant told Hughes Kayla and their children were asleep. Hughes, however, saw blood on defendant's hand and realized he needed to make entry to check on the welfare of the other inhabitants. Hughes pushed the door open and ordered defendant to sit on a couch.
Kayla stepped out of the bathroom. Her face had blood running down it, her lip was busted, and her eye was swollen. Kayla was distraught and crying. Her pants were down around her ankles. Kayla told Deputy Hughes defendant had beaten her. She was transported to the hospital.
The jury was shown photographs taken by Deputy Puga on the evening of the incident depicting the extent of Kayla's injuries. Puga explained that when he went towards the bathroom to check on Kayla, she reached out to grab his hand. Kayla's lips were swollen and bleeding, her eyes were swollen shut, her face was bloody, and she was crying. Kayla told Puga she was afraid that if she did not get up from the floor, the deputies would leave, and defendant would come back and continue beating her. Kayla was afraid for her life. Puga did not believe Kayla was intoxicated and saw no symptoms of her being under the influence of an alcoholic beverage.
Deputy Puga followed Kayla to the hospital where she was able to answer his questions without hesitation. Kayla told Puga defendant had a prior domestic violence incident in which she was the victim about a year earlier. Kayla explained defendant got together with friends at a New Year's Eve party, had several alcoholic beverages, accused her of cheating on him, and started hitting her. Kayla screamed and pled for defendant to stop. At one point during defendant's attack, Kayla lost consciousness when defendant kicked her in the face.
Kayla was treated at the hospital by a physician's assistant. She suffered from a contusion and abrasion along her face on the right superior orbit, resulting in a hematoma. Kayla complained of a head injury and loss of consciousness.
At defendant and Kayla's residence, Deputy Hughes noticed the bathroom and bedroom doors had large holes in them. The frame of the bathroom door was cracked. Both Hughes and Deputy Puga believed someone tried to kick the doors open.
Social Worker Debra Vallejo with the Kern County Department of Human Services was assigned to Kayla's case. Vallejo contacted Kayla on January 7, 2014, and observed an injury to Kayla's eye that included swelling and broken blood vessels in the eye itself. The skin underneath the eye was yellow. Kayla told Vallejo she and defendant had been partying on New Year's Eve and got into a physical altercation when they got home. Defendant broke down the bathroom door and hit Kayla several times. Defendant pulled Kayla by the hair onto the bathroom floor, kicking her head and her body. Additional prosecution evidence
Pursuant to Evidence Code section 1101, subdivision (b), the prosecution introduced evidence that defendant and a companion were arrested on June 14, 2009, for beating a man at a 7-Eleven convenience store.
The prosecution also introduced evidence that on March 30, 2013, Kayla reported to a sheriff's deputy that she had been drinking with defendant, they had too much, they argued, and defendant punched her.
An expert testified for the prosecution about the pattern of domestic violence between cohabitants, and that a victim may recant allegations for many reasons: to prevent a partner from being arrested, from a sense of guilt, a feeling by the victim that he or she initiated the assault, the victim will take personal responsibility for being assaulted, and concern the partner will receive a lengthy prison sentence. Defense evidence
Kayla's older sister, Karissa, testified she picked up Kayla on New Year's Eve 2013, and they went out to be with friends. Karissa said Kayla cannot handle alcohol very well and was "get[ting] crazy," so Karissa took her home. Though Kayla does not drink alcohol very often, when she does drink, she is overindulgent. Kayla was irritated when Karissa brought her home. Kayla was acting out by yelling at people and falling on the ground. She was also hitting her face and head. Karissa supports Kayla's relationship with defendant. When Kayla was back home, she was hurting her face in the bathroom. According to Karissa, defendant was trying to calm down Kayla and did not lay a hand on her.
Kayla's mother testified that Kayla does not have a drinking problem but does not handle alcohol well. She also explained Kayla has a mental health issue. When she was 13 or 14 years old, Kayla tried to hurt herself a lot and received counseling. Kayla would bang her head on the wall and the ground. Once she had four or five knots on her head and caused herself to have two black eyes. Kayla's mother was not present at the New Year's Eve party.
Defendant testified lies had been told about him at trial and disputed the prosecution's evidence about beating a man at the 7-Eleven convenience store. Defendant admitted he went to prison and had convictions for theft and making a "beer run" with prior theft convictions.
Defendant saw Kayla hurt herself. Once she tried to cut herself with a knife. Kayla reported defendant was responsible for the knife incident, but it was a false report of domestic violence. Defendant described Kayla as the love of his life, but said she drank too much and had mental health issues. Defendant said Kayla hurt her head 20 times in the past, and he witnessed 12 or 15 of those events. During the food fight episode, it was Kayla who accused defendant of cheating on her, and she was the one yelling at him. Defendant did not hit Kayla but only threw food back at her. Kayla threw a half empty bottle of a hair care product at defendant. He "tossed" it back at Kayla but did not throw it at her. During the incident, Kayla stubbed her toe and blamed defendant.
On New Year's Eve, defendant and Kayla were having a good time. She had recently given birth to their second child and was recovering. They invited their friend Clay, his girlfriend, and Karissa to their home. Defendant was drinking beer and smoking cigarettes while Kayla and her friends drank shots from a half gallon of Captain Morgan rum. Around 7:30 p.m., the three women decided to go to a party. Defendant and Clay stayed behind but eventually took four beers with them and walked to Clay's residence. Defendant said he was not drunk.
Just before midnight, defendant, without Clay, walked over to the party the women attended. Defendant talked to Kayla but did not drink. Kayla was drinking rum and whiskey and became "sloshy." Kayla asked for defendant's wallet and house keys so she could go buy alcohol. It was about midnight. Kayla came back from the party being supported by Karissa as they walked. Defendant described Kayla as "falling down drunk." Kayla suffered a fall outside their residence.
Defendant said he heard a metal chair screeching in the kitchen and then a "boom, boom, boom, like somebody hitting the table." He heard Kayla speaking to Karissa, accusing defendant of breaking her cell phone. When he went inside, he found Kayla on the ground. She had fallen and hit her head. Defendant said he heard Kayla and her sister "starting to get into it" and "bumping heads." Although Karissa was trying to hold Kayla, Kayla fell and hit her head on the wall of the residence. Kayla injured her right eye.
According to defendant, Kayla went to the bathroom by herself. Defendant heard a noise. Kayla had hit herself falling again. Defendant could hear Karissa "[s]creaming like bloody murder, stop, stop." It was about 3:00 a.m. Defendant said he heard Kayla grabbing at the counter and a metal towel rack when she slipped again and hit the plastic bathtub. Kayla was bleeding from her nose. Defendant did not hit Kayla's face. Karissa closed the bathroom door because Kayla still needed to urinate, and Karissa left.
Defendant explained he took off his shirt to get ready for bed when he heard another bang. He went to the bathroom, but the door was locked. Defendant yelled to Kayla to find out what happened, but she did not respond. Defendant kicked a hole in the door and then reached his hand through the hole to open it. Kayla was bloody, lying on the ground, and her pants were not around her ankles. There was a knock on the door that turned out to be from the sheriff's deputies.
Defendant denied an adjudication he had when he was 13 years old for an assault causing serious bodily injury, offering an alternative explanation of events. Defendant admitted committing a prior vandalism, denying he committed a robbery. When asked if he was prosecuted for assaulting and trying to steal cigarettes from a 7-Eleven clerk, defendant said he just smashed the window of the store and did time for attempted robbery. Defendant denied his conviction in 2009 for robbery was anything more than committing a petty theft with prior convictions. Defendant then admitted he pled no contest to robbery. Defendant conceded he was served with a restraining order prohibiting him from contacting Kayla shortly after the New Year's Day incident.
PROCEDURAL BACKGROUND
On January 22, 2014, an information was filed that charged defendant with count 1, infliction of corporal injury resulting in a traumatic condition (§ 273.5, subd. (a)) and count 2, torture (§ 206), with great bodily injury enhancements for both counts (§ 12022.7, subd. (e)).
It was alleged that defendant had three prior strike offenses: a juvenile adjudication for battery with serious bodily injury in 2005, a juvenile adjudication for attempted robbery in 2008, and a conviction for robbery in 2009. It was also alleged he had one prior serious felony enhancement based on his robbery conviction (§ 667, subd. (a)); and one prior prison term enhancement (§ 667.5, subd. (b)) based upon a conviction for possession of a stolen vehicle (§ 496d).
On July 11, 2014, after a jury trial, defendant was convicted of counts 1 and 2, and the jury found the great bodily injury enhancements true.
The court initially found all the special allegations true. The court subsequently clarified that defendant's two prior juvenile adjudications were not strike offenses, and he had only one strike based on his robbery conviction in 2009. The first sentencing hearing
On August 8, 2014, the trial court conducted the first sentencing hearing.
Request to dismiss the prior strike offense
Defendant requested the court dismiss his prior strike conviction for robbery because it was based on a nonviolent " 'beer run,' " and he served two years in prison. Defense counsel argued that while defendant was not a "stellar citizen," he was not within the spirit of the "Three Strikes" law since his other prior offenses were committed as a juvenile. The prosecutor replied defendant's prior conviction was not from "a beer run" but a violent robbery, and defendant continued to engage in violent behavior based on his convictions in this case.
The court found after serving time for the 2009 robbery conviction, defendant was paroled in 2011 but there were "some violations of probation, failure to complete DUI school multiple times. And then there's a [violation] of [section] 148 in September of 2013."
The court denied defendant's motion to dismiss the prior strike conviction based on the seriousness of the current offenses, defendant's background, and his prior juvenile adjudications and adult convictions. The court reviewed defendant's lengthy record and found he began to commit offenses when he was 13 years old in 2004, and his prior strike conviction for robbery in 2009 was not "very remote."
"So I look at - I look at all of this record and regretfully this gentleman cannot be in the spirit of the Romero case and I wouldn't be doing my job if I would strike the prior in this case - strike the prior strike. It just would not be in the furtherance of justice. And the callousness in which he treated - the jury found and the evidence I saw the callousness in which the mother of his children was treated just does not support setting aside a strike or striking the strike. Suffice it to say there's no place in our community for domestic violence."
Sentencing
The court sentenced defendant to life with the possibility of parole on count 2, torture (§ 206.1), but did not specify the MEPD. It also imposed an aggregate determinate term of 11 years based on the special allegations attached to count 2: five years for the great bodily injury enhancement, five years for the prior serious felony enhancement, and one year for the prior prison term enhancement. The court stayed the sentence and the enhancements imposed for count 1 pursuant to section 654.
The court noted that defendant had one prior strike conviction and asked the probation officer when defendant would be eligible for parole consideration. The probation officer said defendant would first serve the determinate sentence and then serve the indeterminate term, and it would be up to CDCR "to count against that." The court was not sure if defendant's MEPD was 10 or 14 years. The probation officer agreed there was a minimum period until he was eligible for parole.
As we will explain, torture is punishable by a life term with the possibility of parole. (§ 206.1). The MEPD for a life term is seven years where the statute does not otherwise specify a minimum term. (§ 3046, subd. (a)(1).)
The court imposed a restitution fine of $300 (§ 1202.4, subd. (b)), suspended the parole revocation fine of $300 (§ 1202.45), and ordered victim restitution in an amount to be determined (§ 1202.4, subd. (f)). As to each count, the court imposed a court security fee of $40 for a total of $80 (§ 1465.8) and a criminal conviction assessment of $30 for a total of $60 (Gov. Code, § 70373). The first appeal
On March 17, 2017, this court affirmed defendant's convictions and held the trial court properly admitted evidence about his prior assaultive acts pursuant to Evidence Code sections 1101, subdivision (b) and 352; the trial court properly denied defendant's motion for mistrial and the prosecutor did not commit misconduct; and defendant's motion for discovery pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 was properly denied.
THE INSTANT APPEAL
CDCR's letter
The proceedings leading to the instant appeal began on November 20, 2017, eight months after this court affirmed defendant's convictions and three years after defendant's sentencing hearing, but while his habeas petition in the United States District Court was pending.
CDCR sent a letter to the trial court stating that defendant had received an unauthorized sentence. CDCR stated that based on the minute order and abstract of judgment, the trial court found defendant had one prior strike conviction. As to count 2, torture, the court sentenced defendant to life with the possibility of parole but did not specify the MEPD or otherwise account for defendant's prior strike conviction.
CDCR stated defendant's sentence should have been life with the possibility of parole, with the MEPD of seven years doubled to 14 years because of the prior strike conviction, plus the 11-year determinate sentence.
CDCR requested the trial court review the record and determine if defendant's sentence should be corrected and prepare a modified abstract of judgment accordingly. It further stated: "When notified by [CDCR] that an illegal sentence exists, the trial court is entitled to reconsider all sentencing choices. People v. Hill [(1986)] 185 Cal.App.3d 831." The initial hearing on remand
On April 4, 2018, the court convened a hearing in response to CDCR's letter. Defendant was present with Mr. Cadman, his deputy public defender from his trial. Defense counsel objected to CDCR's recommendations to increase defendant's MEPD from seven years to 14 years. Defense counsel argued defendant's sentence was already litigated at the first sentencing hearing, resentencing was barred by principles of res judicata and collateral estoppel, it was too late to reconsider defendant's sentence and the parole eligibility date, and CDCR only raised the issue because defendant was participating in the appropriate prison programs in anticipation of his parole date.
Defense counsel further stated that defendant had not received any disciplinary violations or committed any offenses while in prison, he was a model prisoner, and he had relied on the court's original sentence to plan an accelerated process of working towards a certain parole date with his correctional counselor.
The district attorney replied that defendant received an unauthorized sentence because the trial court failed to consider his prior strike conviction when it calculated the MEPD for the indeterminate term, and his sentence had to be corrected.
The court asked the probation officer how defendant's life sentence would change if the MEPD was doubled from seven to 14 years. The probation officer explained that at the first sentencing hearing, the court imposed the indeterminate life term for count 2 without stating a MEPD. As a result, the MEPD was presumed to be the statutory period of seven years, but it should have been doubled to 14 years because of his prior strike conviction.
The court directed the parties to file briefs on the resentencing issue. The parties' sentencing briefs
On April 11, 2018, defense counsel filed an objection and argued resentencing was barred by res judicial and collateral estoppel because the court's imposition of sentence was a final judgment. Defense counsel also argued the alleged sentencing issue was never addressed in his appeal, too much time had passed to relitigate his sentence, he relied on the previously imposed sentence while serving his term, and CDCR's suggested modification would add significant time to his sentence.
On May 10, 2018, the People filed opposition and argued defendant had received an unauthorized sentence that could be corrected at any time, res judicata and collateral estoppel did not bar resentencing, and the trial court had found one prior strike conviction true but failed to correctly impose a second strike term. The resentencing hearing
On May 15, 2018, the trial court conducted the resentencing hearing. The court stated it was going to correct defendant's unauthorized sentence and double the MEPD from seven to 14 years because of defendant's prior strike conviction, and he was going to receive the same 11-year determinate term.
Defense counsel argued defendant's sentence was a final judgment and he relied on that sentence to work toward his parole date. Counsel argued the People should be bound by the original sentence, and the court should not increase defendant's sentence.
The court overruled defendant's objections and agreed with the People that defendant had received a legally unauthorized sentence that had to be corrected.
The court sentenced defendant to an indeterminate term of life in prison for count 2, torture, with the MEPD of seven years doubled to 14 years, based on defendant's prior strike conviction, plus the same determinate term of 11 years.
The corrected abstract of judgment stated defendant was sentenced to life in prison for count 2, with a determinate term of 11 years based on five years for the great bodily injury enhancement, five years for the prior serious felony conviction enhancement, and one year for the prior prison term enhancement; with the sentence and enhancements stayed for count 1. The abstract restated the same fines and fees as previously imposed at the first sentencing hearing.
On May 15, 2018, defendant filed a notice of appeal from the resentencing hearing.
DISCUSSION
I. Ineffective Assistance
Defendant contends his defense attorney was prejudicially ineffective at the resentencing hearing because he raised a "frivolous and meaningless objection" because he relied on principles of res judicata and collateral estoppel in opposition to CDCR's recommendation to correct his indeterminate sentence and double the MEPD. Defendant asserts that his attorney should have instead filed another motion to dismiss the prior strike conviction pursuant to Romero based on evidence of his good conduct in prison as a mitigating circumstance, so that he did not have a prior strike conviction and his MEPD would have remained seven years.
"To show ineffective assistance, defendant must show that 'counsel's performance was deficient, and that the defendant was prejudiced, that is, there is a reasonable probability the outcome would have been different were it not for the deficient performance.' [Citations.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citation.] ... 'A reviewing court will not second-guess trial counsel's reasonable tactical decisions.' [Citation.]" (People v. Woodruff (2018) 5 Cal.5th 697, 761-762.)
A. Unauthorized Sentences
The state has a "powerful interest in the finality of its judgments," and this interest "is particularly strong in criminal cases, for '[w]ithout finality, the criminal law is deprived of much of its deterrent effect.' [Citations.]" (In re Harris (1993) 5 Cal.4th 813, 831.)
"In a criminal case, judgment is rendered when the trial court orally pronounces sentence. [Citations.]" (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9.) "A judgment becomes final when the availability of an appeal and the time for filing a petition for certiorari with the United States Supreme Court have expired. [Citation.]" (People v. Buycks (2018) 5 Cal.5th 857, 876, fn. 5.)
Generally, a trial court lacks jurisdiction to resentence a criminal defendant once execution of the sentence has begun. (People v. Howard (1997) 16 Cal.4th 1081, 1089; People v. Karaman, supra, 4 Cal.4th at p. 344.) An exception to this rule is that an unauthorized sentence may be corrected at any time. (People v. Scott (1994) 9 Cal.4th 331, 354-355; People v. Turrin (2009) 176 Cal.App.4th 1200, 1205.) "[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (People v. Scott, supra, 9 Cal.4th at p. 354; People v. Martinez (1998) 65 Cal.App.4th 1511, 1519.) "For example, a sentencing court's computational error resulting in an unauthorized sentence can be corrected at any time," even if the correction results in a more severe sentence. (People v. Turrin, supra, 176 Cal.App.4th at p. 1205; People v. Roth (2017) 17 Cal.App.5th 694, 703; People v. Cabrera (2018) 21 Cal.App.5th 470, 477; People v. Hill, supra, 185 Cal.App.3d at p. 834.)
The court's erroneous imposition of an unauthorized sentence is not subject to forfeiture and can never be harmless. (People v. Scott, supra, 9 Cal.4th at p. 354; People v. Soto (2016) 245 Cal.App.4th 1219, 1235.)
B. Analysis
In this case, defendant was convicted of torture in violation of section 206, and the court found he had one prior strike conviction. As noted above, a torture conviction carries an indeterminate life term with a MEPD of seven years. (§ 206.1; § 3046, subd. (a)(1).) At the first sentencing hearing, the court failed to specify the MEPD, and should have doubled the MEPD from seven to 14 years based on his prior strike conviction. As a result, the court's sentence for count 2 was unauthorized and subject to correction when CDCR brought the error to the court's attention.
Defendant concedes that the court was required to correct the original unauthorized sentence but argues defense counsel was prejudicially ineffective at the resentencing hearing for only raising objections based on res judicata and collateral estoppel. Defendant argues it was objectively unreasonable for counsel to rely on these theories because they are not applicable to criminal convictions, and he lacked a basic understanding of the legal issues raised at the resentencing hearing. Defendant argues that counsel should have instead renewed his prior request under Romero for the court to dismiss the prior strike conviction to keep the MEPD at seven years, or dismiss the great bodily injury enhancement, based on defendant's record of good behavior in prison up to that point as mitigating evidence.
There are several problems with this argument. First, while defense counsel objected to the resentencing and raised res judicata and collateral estoppel, he did so as part of his larger argument - that it was too late to reconsider his sentence and increase the MEPD because the court's imposition of his indeterminate sentence was a final judgment. Counsel specifically argued: "What happened on sentencing day was a final judgment, and that provoked certain time frames...."
As explained above, a court generally lacks jurisdiction to resentence a defendant once a judgment is final. (People v. Howard, supra, 16 Cal.4th at p. 1089.) The court reviewed defense counsel's argument and correctly rejected it because, as also explained above, the existence of a final judgment does not prevent a court from correcting an unauthorized sentence at any time, even if it results in a longer term. (People v. Roth, supra, 17 Cal.App.5th at p. 703; People v. Cabrera, supra, 21 Cal.App.5th at p. 477.) However, defense counsel did not remain silent when it became apparent that defendant's sentence was going to be increased and attempted to raise a viable argument that resentencing should not occur.
As for a Romero request, the trial court has discretion to dismiss a prior strike conviction in furtherance of justice under section 1385. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529-530.) In considering whether to exercise its discretion, the trial court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) "Because the circumstances must be 'extraordinary ... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack' [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary." (People v. Carmony (2004) 33 Cal.4th 367, 378.)
At the first sentencing hearing, defense counsel requested the court dismiss the prior strike conviction and argued defendant was outside the spirit of the Three Strikes law. The court made lengthy findings and denied the Romero request based on the seriousness of the current offenses, and defendant's record of juvenile adjudications and adult convictions.
At the resentencing hearing, defense counsel stated that defendant had not received any disciplinary violations or committed any offenses in prison, and he was a model prisoner, but did not offer any evidence to support these assertions. In any event, defense counsel may not have relied on this argument to renew his Romero request because the trial court had already denied the identical motion based on his prior record and the seriousness of the current offenses.
To the extent that counsel should have renewed his Romero request, we cannot find that it was reasonably probable the court would have granted that request and dismissed the prior strike conviction, because defendant's good record in prison would not have changed the court's findings that defendant was not outside the spirit of the three strikes law, and counsel's failure to raise the issue was not prejudicial.
II. Defendant's Presentence Credits
Defendant contends and the People concede the matter must be remanded because the trial court failed to recalculate his presentence credits at the resentencing hearing.
III. The Prior Serious Felony Enhancement
At the first sentencing hearing, the court imposed a five-year term for the prior serious felony enhancement pursuant to section 667, subdivision (a). At the resentencing hearing, the abstract of judgment states the court reimposed the same term for the enhancement. At the time of both hearings, the court did not have discretion to dismiss or strike the prior serious felony enhancement.
Defendant contends, and the People concede, that the matter must be remanded based on amendments enacted by Senate Bill No. 1393 that now permit the trial court to determine whether to exercise its discretion to dismiss the prior serious felony enhancement, and that such amendments are retroactive to defendant's case since it is not yet final.
Effective January 1, 2019, after the resentencing hearing in this case, sections 667 and 1385 were amended by Senate Bill No. 1393 to remove the prohibitions on striking or dismissing a prior serious felony enhancement. (See Stats. 2018, ch. 1013, §§ 1-2.) The amended statutes apply retroactively to all cases that are not yet final. (People v. Stamps (2020) 9 Cal.5th 685; People v. Garcia (2018) 28 Cal.App.5th 961, 971-973; People v. Zamora (2019) 35 Cal.App.5th 200, 208.) "Remand is required unless the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so. [Citation.] Without such a clear indication of a trial court's intent, remand is required when the trial court is unaware of its sentencing choices." (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110; People v. McDaniels (2018) 22 Cal.App.5th 420, 425.)
We accept the People's concession and remand to the trial court for it to determine whether to exercise its discretion to dismiss the prior serious felony enhancement.
In People v. Stamps, supra, 9 Cal.5th at pages 695, 697-698, the court held the amendments were retroactive, but also held that a defendant who entered into a plea agreement could seek remand for resentencing under the amended version of section 667, subdivision (a), and the court's decision to dismiss the prior serious felony enhancement could affect the underlying plea agreement. Stamps's holding on this point is not relevant to this case since defendant was convicted after a jury trial and not a plea.
IV. The Prior Prison Term Enhancement
Defendant contends that the court's true finding on the prior prison term enhancement and the one-year term imposed in this case must be stricken based on the subsequent amendments to section 667.5, subdivision (b).
On October 8, 2019, Senate Bill No. 136 was signed into law. (Stats. 2019, ch. 590, § 1.) As a result, effective January 1, 2020, the one-year prior prison enhancement imposed pursuant to section 667.5, subdivision (b) is inapplicable to all prior prison terms except those served for a sexually violent offense within the meaning of Welfare and Institutions Code section 6600, subdivision (b). As with Senate Bill No. 1393, the amendments enacted by Senate Bill No. 136 to section 667.5, subdivision (b) apply retroactively to cases not yet final on appeal. (People v. Jennings (2019) 42 Cal.App.5th 664, 681-682; People v. Lopez (2019) 42 Cal.App.5th 337, 341-342.)
Defendant's prior prison term enhancement was based on his conviction for possession of a stolen vehicle (§ 496d) and not for a sexually violent offense, and thus must be stricken.
A. The People's Arguments
As discussed in issue III, ante, the People agree that the matter must be remanded for the court to consider whether to dismiss the prior serious felony enhancement because the subsequent amendments to section 667, subdivision (a) are retroactive and defendant's case is not yet final.
As to this separate but related issue of the prior prison term enhancement, the People acknowledge that defendant's prior prison term was not served for a sexually violent offense and would otherwise be excluded by the amendments to section 667.5, subdivision (b). The People further agree these amendments are retroactive to cases not yet final on appeal.
In contrast to the prior serious felony enhancement, however, the People assert the subsequent enactment of Senate Bill No. 136 and the amendments to section 667.5, subdivision (b) are not retroactive in this case. The People argue defendant was sentenced to the additional one-year term in 2014, his sentence became a final judgment in 2017, the trial court only recalled the matter after being advised by CDCR of the sentencing error for the indeterminate term, and the resentencing hearing did not address the determinate term. The People further assert that defendant forfeited this challenge to the prior prison term enhancement because he had the opportunity to raise this issue in his first appeal but failed to do so.
The People have not explained the conflicting positions taken on finality and retroactivity for the two enhancements.
Defendant has not forfeited this challenge to the prior prison term enhancement because the amendments to section 667.5, subdivision (b) had not taken effect or even been enacted at the time of defendant's first appeal in 2017.
As for the People's claim that the instant judgment is final, defense counsel attempted to rely on that same argument at the resentencing hearing when he asserted the court could not resentence defendant and increase the MEPD. As explained above, however, an unauthorized sentence is an exception to the finality rule that allows the court to correct the calculation of defendant's sentence in this case. (People v. Roth, supra, 17 Cal.App.5th at p. 703; People v. Cabrera, supra, 21 Cal.App.5th at p. 477.)
When the CDCR notifies a trial court about an illegality in a sentence, "the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices." (People v. Hill, supra, 185 Cal.App.3d at p. 834; People v. Torres (2008) 163 Cal.App.4th 1420, 1431.) While "[n]othing in the sentencing for the determinate term crimes is affected by the sentence for the indeterminate crime," once the court determines what sentence is to be imposed for the indeterminate and the determinate offenses, "it combines the two to reach an aggregate total sentence." (People v. Neely (2009) 176 Cal.App.4th 787, 798.)
In CDCR's letter to the trial court, it stated that upon being notified about an illegal sentence, "the trial court is entitled to reconsider all sentencing choices," citing People v. Hill, supra, 185 Cal.App.3d 831. Once the court was notified of the unauthorized sentence, it could have changed any aspect of either the determinate or indeterminate term that composed defendant's aggregate sentence. Both the prior serious felony and the prior prison term enhancements were part of defendant's determinate term. The exception to the finality of the judgment applies and he may raise this issue on appeal.
B. Federico
In People v. Federico (2020) 50 Cal.App.5th 318, petition for review pending, petition filed July 14, 2020, S263082 (Federico), the court addressed an issue similar to the argument raised by the People, and held the defendant could not claim the benefit of certain subsequent amendments at a resentencing hearing because his judgment was final. In that case, the defendant entered into a plea agreement in 2008, pleaded guilty to assault with a firearm, and admitted firearm, great bodily injury, and gang enhancements for a sentence of 20 years in prison. The defendant was 15 years old when he committed the offenses. Ten years later, CDCR advised the superior court that it improperly imposed terms for both the great bodily injury and gang enhancements in light of People v. Gonzalez (2009) 178 Cal.App.4th 1325.
At the resentencing hearing in Federico, the defendant requested the court transfer jurisdiction of his case to juvenile court based on Proposition 57, which was enacted and became effective in November 2016. It prohibits prosecutors from charging juveniles directly in adult court, and instead requires that such actions begin in juvenile court to determine whether the charged individual should be treated as a juvenile instead of an adult. The defendant argued Proposition 57 was retroactive and required transfer of his case to the juvenile court for a fitness hearing to determine whether the matter should remain there or be returned to adult court. (Federico, supra, 50 Cal.App.5th at p. 322.) The trial court resentenced defendant pursuant to Gonzalez, but it denied his Proposition 57 request to transfer the matter to juvenile court for a fitness hearing and held his judgment was final long before the initiative took effect. (Federico, at p. 323.) The trial court found it would be "unfair for the plea bargain process to be completely undermined by it now engaging in weighing and reweighing factors [for a juvenile court fitness hearing] that were not part of the bargained-for process." (Ibid.)
Federico held the trial court properly denied the defendant's request for relief under Proposition 57. Federico held that when the case was returned to the trial court because of the sentencing error, the court could resentence the defendant on all counts, but the scope of the court's authority had not otherwise been expanded. As a result, the entire judgment was not reopened for reconsideration to permit remanding the matter to the juvenile court for a fitness hearing pursuant to Proposition 57. (Federico, supra, 50 Cal.App.5th at pp. 324, 327.)
We find Federico distinguishable and reject the People's argument in this case that defendant's judgment was final and that he cannot claim the benefit of the amendments to section 667.5, subdivision (b). Federico concluded the judgment in that case was final and did not permit remand to juvenile court for a fitness hearing since the trial court only had the authority to correct the unauthorized sentence. In contrast, the court in defendant's case could have reconsidered both the determinate and indeterminate terms when it corrected the unauthorized sentence, and the prior prison term enhancement was part of the determinate term. (People v. Hill, supra, 185 Cal.App.3d at p. 834; People v. Torres, supra, 163 Cal.App.4th at p. 1431.) We agree with defendant that his prior prison term enhancement must be stricken. V. The Court's Imposition of the Restitution Fine, Fees, and Assessments
At the first sentencing hearing, the court imposed a restitution fine of $300, and total court security fees of $80 (§ 1465.8) and total criminal conviction assessments of $60 (Gov. Code, § 70373). The abstract of judgment filed after the resentencing hearing states the court imposed the same fines and fees. Defendant did not object to these amounts.
Defendant relies on People v. Dueñas (2019) 30 Cal.App.5th 1157 and argues the court violated his due process rights because it imposed the fine and fees without determining whether he had the ability to pay these amounts, and the matter must be remanded for an ability to pay hearing.
The California Supreme Court is currently considering whether trial courts must consider a defendant's ability to pay before imposing or executing fines, fees, and assessments; and if so, which party bears the applicable burden of proof. (See People v. Kopp (2019) 38 Cal.App.5th 47, 94-98, review granted Nov. 13, 2019, S257844.)
We first note that, contrary to the People's argument, defendant did not forfeit review of this issue. Subdivisions (c) and (d) of section 1202.4 only permit a party to raise an ability to pay objection when the court imposes a restitution fine above the statutory minimum. In this case, the court imposed the statutory minimum restitution fine of $300 pursuant to section 1202.4, subdivision (b). Under the governing law at the time of both sentencing hearings, defendant could not object to the restitution fine and the other fees. (Cf. People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154.)
While the People argue defendant forfeited his ability to pay argument and separately challenge the merits of Dueñas, we note that in contrast to the prior prison term enhancement issue, the People have not argued that defendant is foreclosed from challenging the restitution fine and fees because they were imposed as part of a final judgment at the first sentencing hearing. --------
We find any error arising from the court's failure to make an ability to pay finding was harmless beyond a reasonable doubt since defendant has the ability to pay the fine and fees imposed in this case. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Jones (2019) 36 Cal.App.5th 1028, 1030-1031.)
" 'Ability to pay does not necessarily require existing employment or cash on hand.' [Citation.] '[I]n determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendant's present ability but may consider a defendant's ability to pay in the future.' [Citation.] This include[s] the defendant's ability to obtain prison wages and to earn money after his release from custody. [Citation.]" (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837; People v. Frye (1994) 21 Cal.App.4th 1483, 1487; People v. Ramirez (1995) 39 Cal.App.4th 1369, 1377.)
We can infer from the instant record that defendant has the ability to pay the aggregate amount of fine and fees from probable future wages, including prison wages. (People v. Ellis (2019) 31 Cal.App.5th 1090, 1094; People v. Douglas (1995) 39 Cal.App.4th 1385, 1397.) There is nothing in the record to show that defendant would be unable to satisfy the fine and fees imposed by the court while serving his lengthy prison term, even if he fails to obtain a prison job. While it may take defendant some time to pay the amounts imposed in this case, that circumstance does not support his inability to make payments on these amounts from either prison wages or monetary gifts from family and friends during his prison sentence. (See, e.g., People v. Lewis (2009) 46 Cal.4th 1255, 1321; People v. DeFrance (2008) 167 Cal.App.4th 486, 505; People v. Potts (2019) 6 Cal.5th 1012, 1055-1057.)
DISPOSITION
The court's true finding and the one-year consecutive term imposed for the prior prison term enhancement pursuant to section 667.5, subdivision (b) is stricken.
The matter is remanded for the court to recalculate defendant's presentence credits, and determine whether to dismiss the section 667, subdivision (a) prior serious felony enhancement.
On remand, the trial court is directed to prepare and forward to the California Department of Corrections and Rehabilitation a new abstract of judgment reflecting the modification.
As modified, the judgment is affirmed.