Opinion
H045486
09-27-2019
THE PEOPLE, Plaintiff and Respondent, v. ORLANDO ROJAS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 211268)
In 2006 and 2007, then 17-year-old defendant Orlando Rojas conspired and carried out a series of shootings with several codefendants that were allegedly in retaliation against a rival gang. After a jury trial, Rojas was convicted of conspiracy to commit murder, three counts of murder, and four counts of attempted murder and was sentenced to life without the possibility of parole, consecutive to life with the possibility of parole, consecutive to 175 years to life. In 2014, this court reversed Rojas's convictions and remanded the matter to the trial court for a resentencing hearing in light of Miller v. Alabama (2012) 567 U.S. 460 (Miller) and People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez). On remand, Rojas moved to transfer his case to the juvenile court under Proposition 57, which the trial court denied. Subsequently, the trial court conducted a new sentencing hearing and reimposed the original sentence, from which Rojas now appeals.
On appeal, Rojas argues that under People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara), he is entitled to a conditional remand for a transfer hearing because Proposition 57 retroactively applies to his case. He claims that he is also entitled to resentencing under Senate Bill No. 620, and the trial court must be given the opportunity to strike the firearm enhancements (Pen. Code, § 12022.53, subd. (d)) that were imposed. He further argues that if the matter is returned to the trial court following the transfer hearing, he must be given a new sentencing hearing because the trial court did not properly consider the factors described in Miller, supra, 567 U.S. 460 when it reimposed the sentence of life without the possibility of parole. Finally, he argues that under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the trial court erroneously imposed fines and fees absent a determination of his ability to pay.
Unspecified statutory references are to the Penal Code.
We conditionally reverse and remand the matter so that the juvenile court may conduct a transfer hearing. We also agree with Rojas that Senate Bill No. 620 retroactively applies to his case. We reject Rojas's other claims of error.
BACKGROUND
1. Rojas's Offenses
Rojas was 17 years old when he conspired and carried out a series of shootings with several codefendants in 2006 and 2007. The shootings were allegedly carried out in retaliation for the killing of a member of the El Hoyo Palmas (Palmas) gang, which Rojas was a member of, by a rival Sureño gang member on December 3, 2006. The evening of the Palmas member's killing, Rojas, along with several other Palmas members, volunteered at a meeting to " 'go do stuff.' "
On June 17, 2019, we granted the Attorney General's request to take judicial notice of the record in Rojas's first appeal (case No. H037353). A detailed factual background of Rojas's offenses can be found in our opinion in Rojas's first appeal, People v. Sanchez et al., previously published at 232 Cal.App.4th 197, review granted March 11, 2015, S223722. We take the facts of Rojas's offenses from this previously published opinion. We focus on the facts of Rojas's offenses. Our previously published opinion contains details about additional offenses committed by Rojas's codefendants.
On January 20, 2007, shots were fired at a party on Waverly Avenue, a Norteño neighborhood. Two Sureño gang members were wounded. A Palmas member, Hector Delreal, testified that Rojas told him that he and two other Palmas members were at the party that evening. After seeing Sureños at the party, they left to get their guns, came back, and shot into the party. Rojas admitted to Delreal that he was one of the shooters. One of the Palmas members that was with Rojas at the party was later charged with two counts of attempted murder.
On January 27, 2007, Rigoberto Gonzalez was shot to death after meeting friends outside his apartment on San Tomas Aquino Parkway. Josafat Hernandez testified that he met Gonzalez and another friend that night, and Gonzalez had gotten out of the car so that Hernandez could get into the backseat. Two men approached Gonzalez while he was outside the car and asked him in Spanish what neighborhood he belonged to. Gonzalez answered that he did not belong to a neighborhood and was shot. Hernandez was shot in the leg. Delreal testified that Rojas told him that he and two other Palmas members were involved in the shooting, one of the other Palmas members approached the man coming out of the car, asked if he was a Sureño, and shot him. Rojas shot the man after he was on the ground. Rojas and two codefendants were charged with murder and attempted murder.
On February 5, 2007, three men were fired on by two men while parked in a car on Poco Way. At trial, one of the victims identified Rojas as one of the shooters. Delreal testified that he had driven with Rojas and another Palmas member when they saw some Sureños in a car. When the car turned on Poco Way, Delreal dropped Rojas and the other Palmas members off. He later saw them shoot into the car. Rojas was charged with three counts of attempted murder.
On March 28, 2007, 15-year-old Edgar Martinez, a Sureño, was found dead lying in the gutter with at least six gunshot wounds. Officers found 10 shell casings at the scene. Delreal testified that Rojas discussed Martinez's murder with him. Rojas told Delreal that he and three other individuals were out when Rojas approached another individual. Rojas told the individual that he was from Palmas, and the individual ran away. Rojas chased him down and " 'unloaded the clip on him.' " Rojas and two codefendants were charged with murder.
On March 30, 2007, San Jose Police Officer James Hussey was surveilling one of Rojas's codefendants when he saw the codefendant and Rojas leave in a pickup truck. Along the way, Rojas and his codefendant picked up another codefendant. Two hours later, the truck parked in a parking lot. Two individuals with hoods over their heads approached a man, later identified as Hernan Koba, who was working on his car. After 30 seconds, Officer Hussey saw one of the hooded men point a gun at Koba and heard eight to 10 gunshots. The hooded men ran back to the truck, which was quickly surrounded by multiple patrol cars. Koba's wallet was found in the truck. Delreal testified that Rojas talked about the shooting with him, and Rojas said that he and a codefendant approached Koba with the intent to rob him. Rojas told Delreal that Koba gave them his wallet but refused to give them the cell phone that was hanging around his neck, so Rojas shot him. At trial, Rojas testified that he shot Koba after a drug deal gone bad. Rojas and two codefendants were charged with murder.
Following a jury trial, Rojas was convicted of conspiracy to commit murder, three counts of murder, and four counts of attempted murder. The jury also found true gang enhancements (§ 186.22, subd. (b)(1)(C)), multiple murder and gang special circumstance allegations (§ 190.2, subd. (a)(3), (a)(22)) and multiple firearm enhancements (§ 12022.53, subds. (b), (c), (d)). The trial court sentenced Rojas to life without the possibility of parole, consecutive to life with the possibility of parole, consecutive to 175 years to life.
2. Proceedings Following Rojas's Appeal and Remand From This Court
In 2014, this court reversed Rojas's convictions and remanded the matter to the trial court for a new sentencing hearing in light of Miller, supra, 567 U.S. 460 and Gutierrez, supra, 58 Cal.4th 1354.
On remand, Rojas moved to transfer his case to the juvenile court under Proposition 57. Rojas argued that he was entitled to a juvenile transfer hearing because Proposition 57 retroactively applied to his case. The People opposed Rojas's motion. Following a hearing, the trial court denied Rojas's motion.
Subsequently, the trial court conducted a new sentencing hearing. Rojas submitted a personal letter to the trial court apologizing for his actions and certificates indicating that he had completed a course in paralegal studies, participated in Alcoholics/Narcotics Anonymous classes, and obtained a high school equivalency certificate while incarcerated. Rojas also submitted a psychological report prepared by Dr. Rahn Minagawa, a clinical and forensic psychologist, who interviewed Rojas five times over the course of 15 hours in March, April, and June 2017. During the sentencing hearing, Minagawa testified about the results of his report, expressly stating that he did not believe that Rojas was irredeemable or would continue to be a danger to society. The probation officer prepared a supplemental memorandum, recommending that Rojas be sentenced to 190 years to life in prison in lieu of life without the possibility of parole.
After the sentencing hearing, the trial court sentenced defendant to the same sentence that was previously imposed—life without the possibility of parole, consecutive to life with the possibility of parole, consecutive to 175 years to life. The term of 175 years to life consisted of seven consecutive terms of 25 years to life imposed for seven firearm enhancements under section 12022.53, subdivision (d). The trial court also ordered the following fines and fees: "Court will impose a restitution fine of $10,000 pursuant to Penal Code section 1202.4[,] [subdivision] (b). Court security fee of $210 is imposed pursuant to section 1465.8. A criminal conviction assessment fee of $210 is imposed pursuant to Government Code 70373. A $129.75 criminal justice administrative fee to the City of San Jose is imposed pursuant to Government Code 29550, 29550.1 and 29550.2."
According to the abstract of judgment, the sentences imposed for the other firearm enhancements found true by the jury (§ 12022.53, subds. (b), (c)) were stayed pursuant to section 12202.53, subdivision (f).
DISCUSSION
1. Retroactivity of Proposition 57
Rojas argues that Proposition 57 retroactively applies to his case, and we must remand the matter to the juvenile court for a transfer hearing. The Attorney General concedes that a transfer hearing is required, and we find the concession appropriate.
When Rojas was initially tried, the law in effect at the time permitted the prosecutor to charge the case directly in adult court. In November 2016, before Rojas's case became final, voters passed Proposition 57, the Public Safety and Rehabilitation Act of 2016. (Lara, supra, 4 Cal.5th at p. 303.) Under Proposition 57, prosecutors are prohibited from charging juvenile offenders directly in adult court. Prosecutors are now required to commence actions in juvenile court, and if a prosecutor wishes to try a juvenile in adult court, the juvenile court must conduct a transfer hearing to determine whether the matter should remain in juvenile court or if it should be transferred to adult court. (Welf. & Inst. Code, § 707, subd. (a).) In Lara, supra, 4 Cal.5th 299, our Supreme Court determined that Proposition 57 applies to those defendants whose sentences were not yet final at the time it was enacted under the principles of In re Estrada (1965) 63 Cal.2d 740. (Lara, supra, at pp. 308-310.)
Since Rojas's sentence was not yet final when Proposition 57 came into effect, Proposition 57 retroactively applies to his case. (Lara, supra, 4 Cal.5th at pp. 308-310.) Thus, Rojas is entitled to a conditional remand to the juvenile court for a transfer hearing.
2. Retroactivity of Senate Bill No. 620
While Rojas's appeal was pending, the Legislature enacted Senate Bill No. 620. Senate Bill No. 620 amended section 12022.53, subdivision (h), which now reads: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." Senate Bill No. 620 took effect on January 1, 2018. Prior to its passage, trial courts did not have the discretion to strike or dismiss firearm enhancements imposed under section 12022.53.
Rojas argues that Senate Bill No. 620 retroactively applies to his case, and we should remand the matter to the trial court so it may exercise its discretion in deciding whether to strike his firearm enhancements. The Attorney General concedes that Senate Bill No. 620 retroactively applies to defendant's case because his judgment was not yet final when it came into effect, and we agree with this concession. (See People v. McDaniels (2018) 22 Cal.App.5th 420, 424-425 (McDaniels).)
Even though Senate Bill No. 620 is retroactive to defendant's case, remand is not automatic. We must determine whether a remand is required or if it would be an " 'idle act.' " (People v. Gamble (2008) 164 Cal.App.4th 891, 901.) Generally, "when the record shows that the trial court proceeded with sentencing on the . . . assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) The rationale for this general rule is that "[d]efendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion." (Ibid.) There is an exception to this rule, however, where " 'the record shows that the trial court would not have exercised its discretion even if it believed it could do so,' " in which case, " 'remand would be an idle act and is not required.' " (Gamble, supra, at p. 901.)
In McDaniels, supra, 22 Cal.App.5th 420, the appellate court addressed the appropriate standard to "apply in assessing whether to remand a case for resentencing in light of Senate Bill [No.] 620." (Id. at p. 425.) Relying on People v. Gutierrez (1996) 48 Cal.App.4th 1894, which dealt with reconsidering three strikes sentencing in light of the California Supreme Court's decision in People v. Superior Court (Romero) (1996) 13 Cal.4th 497, McDaniels determined that a "remand is required unless the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken a firearm enhancement." (McDaniels, supra, at p. 425.) McDaniels held that the salient question is whether the trial court "express[ed] its intent to impose the maximum sentence permitted." (Id. at p. 427.) "When such an expression is reflected in the appellate record, a remand would be an idle act because the record contains a clear indication that the court will not exercise its discretion in the defendant's favor." (Ibid.) Likewise, in People v. Almanza (2018) 24 Cal.App.5th 1104, the appellate court remanded the matter for resentencing because the court's imposition of consecutive sentences was not a clear indication of how the trial court would ultimately rule on remand. (Id. at pp. 1110-1111.)
In contrast, the appellate court in People v. McVey (2018) 24 Cal.App.5th 405 determined that remand for resentencing under Senate Bill No. 620 was unnecessary because the record reflected no possibility that the trial court would exercise its discretion to strike the firearm enhancement that was imposed. (Id. at p. 419.) In McVey, the trial court chose the maximum term for the firearm enhancement, described the defendant's attitude as " 'pretty haunting,' " and commented that " 'the high term of 10 years on the enhancement is the only appropriate sentence on the enhancement.' " (Ibid.) Thus, the appellate court concluded that "remand in these circumstances would serve no purpose but to squander scarce judicial resources." (Ibid.) And in People v. Jones (2019) 32 Cal.App.5th 267, the appellate court determined that remand was unnecessary after observing that the trial court denied the defendant's new trial motion and commented during sentencing that it had " 'great satisfaction in imposing the very lengthy sentence here today.' " (Id. at p. 274.)
The Attorney General contends that the record in this case demonstrates that the trial court would not have struck Rojas's firearm enhancements. The Attorney General argues that the trial court had the discretion at resentencing to impose a term of 25 years to life for Rojas's conviction for special circumstance murder but deliberately chose to reinstate the term of life without the possibility of parole.
We disagree with the Attorney General's characterization of the sentencing hearing. The trial court's comments at the sentencing hearing reflect its consideration of the factors described in Miller, supra, 567 U.S. 460 in the context of its decision to impose a term of life without the possibility of parole. Although the trial court's statements indicate that it intended to impose a harsh punishment and it believed that a term of life without the possibility of parole was appropriate, it is undisputed that the trial court had no discretion to strike the firearm enhancements when Rojas was sentenced. The trial court, though unsympathetic toward Rojas and concerned with the severity and nature of his crimes, made no comments that affirmatively indicated that it would not have stricken the firearm enhancements had it had the opportunity to do so.
Thus, if the juvenile court transfers the matter back to the trial court following our conditional remand, the trial court should exercise its discretion to strike or dismiss Rojas's firearm enhancements. Alternatively, if the juvenile court decides not to transfer the matter after the transfer hearing, the juvenile court shall likewise exercise its discretion to strike or dismiss Rojas's firearm enhancements.
3. The Sentencing Hearing
In the event that the juvenile court transfers the matter to the trial court, Rojas argues that the trial court must hold a new sentencing hearing because it failed to properly apply the factors outlined in Miller, supra, 567 U.S. 460 during the initial sentencing hearing. Rojas claims that the trial court focused almost exclusively on his crimes and did not properly take into consideration evidence that demonstrated his capacity to change. As we explain, we find no merit in Rojas's contentions.
a. General Legal Principles and Standard of Review
In Miller, the United States Supreme Court determined that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." (Miller, supra, 567 U.S. at p. 479.) "Under Miller, a state may authorize its courts to impose life without parole on a juvenile homicide offender when the penalty is discretionary and when the sentencing court's discretion is properly exercised in accordance with Miller." (Gutierrez, supra, 58 Cal.4th at p. 1379.)
"Miller discussed a range of factors relevant to a sentencer's determination of whether a particular defendant is a ' "rare juvenile offender whose crime reflects irreparable corruption." ' " (Gutierrez, supra, 58 Cal.4th at p. 1388.) In Gutierrez, the California Supreme Court understood Miller to require sentencing courts to admit and consider relevant evidence of the following five factors:
"First, a court must consider a juvenile offender's 'chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences.' " (Gutierrez, supra, 58 Cal.4th at p. 1388.) "Second, a sentencing court must consider any evidence of other information in the record regarding 'the family and home environment that surrounds [the juvenile]—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional.' " (Id. at pp. 1388-1389.) "Third, a court must consider any evidence or other information in the record regarding 'the circumstances of the homicide offense, including the extent of [the juvenile defendant's] participation in the conduct and the way familial and peer pressures may have affected him.' " (Id. at p. 1389.) "Fourth, a court must consider any evidence or other information in the record as to whether the offender 'might have been charged and convicted of a lesser offense if not for incompetencies associated with his youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys.' " (Ibid.) "Finally, a sentencing court must consider any evidence or other information in the record bearing on 'the possibility of rehabilitation.' " (Ibid.)
"[T]he trial court must consider all relevant evidence bearing on the 'distinctive attributes of youth' discussed in Miller and how those attributes 'diminish the penological justifications for imposing the harshest sentences on juvenile offenders.' " (Gutierrez, supra, 58 Cal.4th at p. 1390.) Not all factors will be relevant in every case, but the trial court must take into account " 'how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.' " (Ibid.) In Montgomery v. Louisiana (2016) 577 U.S. ___ , the United States Supreme Court explained that under Miller, "[e]ven if a court considers a child's age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects ' "unfortunate yet transient immaturity." ' [Citations.] Because Miller determined that sentencing a child to life without parole is excessive for all but ' "the rare juvenile offender whose crime reflects irreparable corruption" ' [citations], it rendered life without parole an unconstitutional penalty for 'a class of defendants because of their status'—that is, juvenile offenders whose crimes reflect the transient immaturity of youth." (Id. at p. ___ .)
The trial court's decision to sentence a juvenile offender to a term of life without possibility of parole is a decision that is soundly within its discretion. On appeal, "[a] court's exercise of discretion will not be disturbed on appeal absent a showing that the court acted in an arbitrary, capricious, or patently absurd way, resulting in a manifest miscarriage of justice." (People v. Blackwell (2016) 3 Cal.App.5th 166, 199.)
b. Evidence Presented at the Sentencing Hearing
In Rojas's sentencing memorandum, Rojas claimed that he had dropped out of the gang that he was in when he committed his crimes. While incarcerated, Rojas had also completed a course in paralegal studies, participated in Alcoholics/Narcotics Anonymous classes, and obtained a high school equivalency certificate. Rojas presented certificates confirming his completion of these courses. He also submitted a two-page letter in which he described the murders as "senseless acts," apologized for his actions, and explained that he had dropped out of his gang.
Dr. Rahn Minagawa, a clinical and forensic psychologist, interviewed Rojas five times over the course of 15 hours in March, April, and June 2017, and prepared a report. Minagawa described that Rojas was raised in a "broken and abusive family milieu" that included acts of domestic violence perpetrated by Rojas's mother's ex-boyfriend against Rojas's mother and Rojas. According to Rojas, his father told him that he was not his son because he suspected that Rojas's mother had an affair during their marriage. Rojas used drugs and was exposed to gang culture at an early age. Minagawa assigned a "low" level of risk to Rojas's risk of future violence, serious physical harm, and imminent violence.
Minagawa opined that Rojas was a teenager when he committed the offenses, and at the time his adolescent brain worked differently than an adult brain, relying more on the emotional part of the brain. Furthermore, Rojas was raised in an area marked by gang violence, and Rojas himself was almost shot on two occasions. Rojas's past history of drug and alcohol use also impacted his development. According to Minagawa, Rojas's behaviors had changed progressively over the intervening years since his incarceration, and he had now achieved a level of maturity and insight commensurate with his age. During the sentencing hearing, Minagawa testified about the results of his report, expressly stating that he did not believe that Rojas was irredeemable or would continue to be a danger to society.
The probation officer prepared a supplemental memorandum. The probation officer concluded: "Despite the urging of one victim's family and the horrendous nature of the offenses committed by the defendant, in keeping with the spirit of Gutierrez and Miller, 190 years to Life in lieu of three consecutive terms of Life without the Possibility of Parole is recommended given the defendant has taken steps while in custody to show he is not 'irreparably corrupt, beyond redemption, and thus unfit ever to reenter society.' "
c. The Trial Court's Decision
After hearing the arguments made by counsel and reviewing the evidence submitted for the hearing, the trial court concluded that Rojas was the "rare juvenile offender whose crimes reflect irreparable corruption resulting in permanent incorrigibility" and his was the "rare and unique case" where a sentence of life without the possibility of parole was warranted. Thereafter, the trial court reimposed the original sentence.
During the hearing, the trial court explained in detail the reasoning behind its decision, specifically discussing each of the factors described in Miller and reiterated in Gutierrez, and stating that it was considering the evidence "with an eye towards distinctive attributes of youth and determination of whether Rojas is that rare juvenile offender whose crimes reflect irreparable corruption."
First, the trial court considered Rojas's age at the time of the offenses. The trial court observed that Rojas committed his first murder and attempted murder when he was approximately 17 years and seven months old, and the second and third murders when he was approximately 17 years and eight and a half months old. The trial court noted that there was no credible evidence that Rojas was pressured to commit the crimes. Furthermore, it was unclear what impact domestic violence had on Rojas because it appeared that Rojas's mother left the abusive ex-boyfriend when Rojas was 13 years old, and any abuse ended three years before Rojas committed the first murder. The domestic violence had no impact on Rojas's siblings, who had no criminal histories.
Based on the evidence presented at Rojas's trial and during the resentencing hearing, the trial court concluded that Rojas's crimes did not suggest immaturity, impetuosity, or a failure to appreciate risks and consequences.
The trial court stated, "Rojas had almost two months to reflect and consider whether he wanted to be involved or participate in any killing to retaliate the death of an EHP member." The trial court concluded that the first murder and attempted murder did not appear to be a rash decision, it was deliberate, planned, calculated and premeditated. Specifically, "Rojas . . . started shooting the victim after he was on the ground." Nine days later, Rojas and his accomplice shot numerous rounds at a parked car based on "signs being exchanged while driving in different cars." A month and a half later, Rojas "located a 15-year-old juvenile, chased him through an apartment complex, shooting at him. The victim fell into the gutter bleeding. Rojas approached the 15-year-old minor, Edgar Martinez, and shot him in the head." The trial court observed that Martinez's murder did not reflect youthful impetuosity; it was a "planned, deliberate, horrific killing." Two days later, Rojas encountered his last victim, Koba, a 33-year-old father of two, who was alone either in his car or working on his car. Rojas, along with his accomplice, intended to rob Koba, who gave them his wallet. But when Koba refused to hand over his cell phone, Rojas shot Koba between nine and 14 times.
Finally, the trial court noted that "during this two month killing spree, Rojas asked for permission from his gang to kill Nadine Rios, who had driven Rojas and others around 'scrap hunting' and was a witness. Apparently, this request to kill was denied."
Second, the trial court considered Rojas's family and home environment. The trial court noted that it had considered evidence of Rojas's family life from Minagawa's report and testimony, which was based on interviews with Rojas and a one-hour telephone interview with Rojas's mother. Based on the information provided, the trial court observed that Rojas's parents were divorced, but his father kept in constant contact with him and was the person who called the police when Rojas reported that his mother's ex-boyfriend choked him. The alleged choking incident took place when Rojas was 13 years old. According to Rojas, he was emotionally abused by his father, who claimed that Rojas was not his biological son. The trial court, however, observed that Rojas's father was religious and "read the Bible to Rojas and taught him moral values." Rojas's mother indicated that her ex-boyfriend was abusive to her in front of her children, and her ex-boyfriend abused alcohol and marijuana. Rojas's mother stated that she was not able to provide adequate supervision for her children because she worked. Rojas said that his mother provided him with alcohol and marijuana, and she herself drank alcohol in the evenings after work. Rojas said that he began spending time with gang members when he was 10 years old and started smoking marijuana between the ages of 10 and 15. He further claimed that there was a large gang presence in the neighborhoods where he grew up.
The trial court expressly stated that it considered Minagawa's report but noted its disappointment that Minagawa received no input from other family members, neighbors, or teachers who knew Rojas's family. The trial court concluded that "[i]t is apparent Rojas did not have the ideal family environment, however Rojas had a mother who worked full time and overtime on a regular basis in order to provide food, clothing and shelter for her family. She also took him to medical and dental appointments and had Rojas attend church. [¶] His natural father remained in regular contact, and Rojas was provided an opportunity to obtain an education. His home environment was not nearly as brutal and dysfunctional that is sadly often seen in this community."
Third, the trial court considered evidence regarding the circumstances of Rojas's homicide offenses, including the extent of Rojas's participation in the crimes and the way that family, peer pressures, and drugs may have affected him. The trial court concluded that "it [had] addressed this factor in detail earlier when the Court discussed and addressed Factor one. There did not appear to be credible evidence presented that any alcohol, marijuana or other drug played any role or a substantial role or contributed in any way to the killings Mr. Rojas committed."
Fourth, the trial considered evidence and other information as to whether Rojas might have been charged and convicted of a lesser offense if not for the incompetency associated with his youth. The trial court determined that based on the record, it did not "find any evidence that would apply favorably under this factor for Rojas."
Finally, the trial court considered evidence and other information that bore on the possibility of rehabilitation and the extent or absence of Rojas's past criminal history. The trial court stated that it had reviewed and considered "the records and information provided by Rojas relating to his incarceration in the county jail and CDC since his arrest." The trial court further stated that it had reviewed Minagawa's report and testimony and was aware of Rojas's lack of a criminal history prior to the commission of the murders. The trial court also observed that Rojas had "done reasonably well while housed in CDC, a controlled, highly secure, structured facility, suffering only two serious rule violations, possession by an inmate of manufactured alcohol and getting into a fight."
d. The Trial Court Did Not Abuse Its Discretion
Rojas argues that the trial court abused its discretion when it imposed a term of life without the possibility of parole because its decision was almost exclusively based on the circumstances of his crimes and did not take proper consideration of his capacity to change. We disagree. The record reflects that the trial court considered each of the factors described in Miller and Gutierrez before it came to its sentencing decision.
We agree with Rojas that based on the trial court's comments, it appears that it accorded a significant amount of weight to the severity of Rojas's crimes. However, the fact that the trial court determined that this factor deserved greater consideration is not an abuse of discretion. "No particular factor, relevant to the decision whether to impose LWOP [life in prison without the possibility of parole] on a juvenile who has committed murder, predominates under the law. Hence, as long as a trial court gives due consideration to an offender's youth and attendant characteristics, as required by [Miller], it may . . . give such weight to the relevant factors as it reasonably determines is appropriate under all the circumstances of the case." (People v. Palafox (2014) 231 Cal.App.4th 68, 73; People v. Blackwell, supra, 3 Cal.App.5th at p. 200.)
In particular, Rojas cites to evidence in the record that is favorable to his position that he believes the trial court failed to adequately examine. He argues that the trial court merely " 'considered' " the probation report that recommended against a sentence of life without the possibility of parole. Considering the probation report, however, is all that was required of the trial court. As observed in Gutierrez, it is the trial court's duty to "consider all relevant evidence bearing on the 'distinctive attributes of youth' discussed in Miller and how those attributes 'diminish the penological justifications for imposing the harshest sentences on juvenile offenders.' " (Gutierrez, supra, 58 Cal.4th at p. 1390.) The trial court did not need to adopt the recommendations made in the report; it was entitled to draw its own conclusions.
Rojas also argues that the trial court failed to consider all of the evidence that was submitted for his resentencing. He claims that the trial court did not mention his two-page letter in which he expressed remorse for his crimes, describing them as senseless acts. Although the trial court did not mention the letter during the sentencing hearing, it did not make statements indicating that it did not consider the letter. Thus, we must presume that the trial court considered the letter and found it to be unpersuasive under the circumstances. (Evid. Code, § 664.) Rojas also claims that the trial court did not mention the courses that he had completed while incarcerated, such as his high school equivalency certificate and his completion of Alcoholics/Narcotics Anonymous courses. Rojas's claim is contradicted by the record. The trial court expressly stated that it had reviewed and considered "the records and information provided by Rojas relating to his incarceration in the county jail and CDC since his arrest."
Additionally, Rojas contends that the trial court's view of his family life directly conflicted with Minagawa's report, which revealed that Rojas was the subject of domestic violence by his mother's ex-boyfriend, used alcohol and marijuana as early as age eight or nine, and had suffered emotional abuse from his father. We believe that Rojas misinterprets the trial court's comments during the sentencing hearing, which reflect that the court considered all of the relevant information but ultimately concluded that Rojas's home life "was not nearly as brutal and dysfunctional that is sadly often seen in this community." Other evidence in the record supported the trial court's determination. During Rojas's interview with the probation officer, he acknowledged that his biological father was religious and "taught him moral values." In the same interview, Rojas also acknowledged that although his mother constantly worked, she prepared food before she left for work in the mornings, she took him to medical and dental appointments, and she expressed gratitude toward Rojas when he helped out with chores.
Finally, Rojas argues that a recent case from the Ninth Circuit Court of Appeals, United States v. Briones (9th Cir. 2019) 929 F.3d 1057 (Briones) is analogous to his case. The defendant in Briones was sentenced to life without the possibility of parole for felony murder after a robbery. (Id. at p. 1060.) The Ninth Circuit reversed the defendant's sentence after determining that the district court failed to sufficiently explain its sentencing decision to permit meaningful review. (Id. at p. 1067.) In its decision, the Ninth Circuit observed that the district court's sentencing remarks "focused on the punishment warranted by the terrible crime [the defendant] participated in, rather than whether [the defendant] was irredeemable." (Id. at p. 1066.) The defendant had provided evidence related to numerous Miller factors during his resentencing issue, including "abundant evidence" on the critical factor of whether he was irreparably corrupt. (Ibid.) The district court's sentencing remarks, however, were "quite brief," encompassing around two pages of transcript. (Id. at p. 1062.) In its remarks, the district court stated that it had considered the defendant's mitigating evidence, including his abusive father, his youth and immaturity, and the fact that the defendant was a model inmate. (Ibid.) But the district court stated that " 'some decisions have lifelong consequences' " and described the defendant's role in the crime as " 'be[ing] the pillar of strength for the people involved to make sure they executed the plan.' " (Ibid.)
Rojas's case is not analogous to Briones. First, the Ninth Circuit did not suggest that a sentence of life without the possibility of parole was improper under the circumstances in Briones; it merely concluded that the district court's statements did not sufficiently reflect that it meaningfully reviewed the Miller factors. (Briones, supra, 929 F.3d at p. 1067.) Second, the trial court in this case discussed each Miller factor in detail and specifically stated that it was reviewing the evidence "with an eye towards distinctive attributes of youth and determination of whether Rojas is that rare juvenile offender whose crimes reflect irreparable corruption."
The record in this case demonstrates that the trial court considered the relevant evidence and expressly concluded that Rojas was the rare juvenile offender whose crimes reflected irreparable corruption. (See Gutierrez, supra, 58 Cal.4th at p. 1390.) This decision was not patently unreasonable given the evidence in the record. As a result, the trial court did not abuse its discretion by sentencing Rojas to life without the possibility of parole. (See People v. Blackwell, supra, 3 Cal.App.5th at p. 199.)
4. Fines and Fees
At sentencing, the trial court imposed the following fines and fees: "Court will impose a restitution fine of $10,000 pursuant to Penal Code section 1202.4[,] [subdivision] (b). Court security fee of $210 is imposed pursuant to section 1465.8. A criminal conviction assessment fee of $210 is imposed pursuant to Government Code 70373. A $129.75 criminal justice administrative fee to the City of San Jose is imposed pursuant to Government Code 29550, 29550.1 and 29550.2." Rojas contends that under the reasoning articulated by the Second Appellate District in Dueñas, supra, 30 Cal.App.5th 1157, the trial court should not have imposed fines and fees without first determining his ability to pay. As we explain, we find that Rojas has forfeited his challenges to the restitution fine. With respect to his other fines, we find Dueñas distinguishable and conclude that remand for an ability-to-pay hearing is unnecessary.
a. Dueñas
In Dueñas, the defendant was an unemployed homeless probationer with cerebral palsy who spent her benefits and food stamps on her two children. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) The defendant had received juvenile citations when she was a teenager, which led to fines, which led to her driver's license getting suspended after she could not repay her debts. (Id. at p. 1161.) She was then convicted several times for driving with a suspended license, which resulted in her spending time in jail because she could not afford paying the fines associated with her convictions. (Ibid.) After her most recent conviction of driving with a suspended license, the defendant requested that the trial court set a hearing to determine her ability to pay the attorney fees that had been previously assessed and other court fees. (Id. at p. 1162.) After an ability-to-pay hearing, the trial court determined that the defendant lacked the ability to pay attorney fees and waived them. (Id. at p. 1163.) The trial court, however, also determined that the criminal conviction assessment imposed under Government Code section 70373 and the court operations assessment imposed under section 1465.8 were mandatory regardless of the defendant's ability to pay, and the defendant had not shown the " 'compelling and extraordinary reasons' " required by section 1202.4, subdivision (c) to justify waiving the fine. (Dueñas, supra, at p. 1163.)
On appeal, the Second Appellate District reversed the trial court's order. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) With respect to the criminal conviction and court operations assessments, Dueñas first observed that both assessments were not intended to be punitive in nature. (Id. at p. 1165.) Dueñas then examined several California and United States Supreme Court decisions involving indigent defendants and fees: Griffin v. Illinois (1956) 351 U.S. 12, which held that due process and equal protection principles require that all people charged with a crime be treated equally, In re Antazo (1970) 3 Cal.3d 100, which invalidated the practice of requiring defendants to serve jail time if they were unable to pay a fine and penalty assessment, and Bearden v. Georgia (1983) 461 U.S. 660, which held that it violated the federal Constitution to revoke an indigent defendant's probation for failing to pay a fine and restitution. (Dueñas, supra, at pp. 1166-1169.) Relying on these three cases, Dueñas held that imposing the criminal conviction and court operations assessment without determining a defendant's ability to pay was fundamentally unfair and violated due process. (Id. at pp. 1168-1169.)
b. Forfeiture
Typically, a failure to object to fines and fees in the trial court forfeits the issue on appeal. (See People v. Aguilar (2015) 60 Cal.4th 862, 864.) The Attorney General argues that Rojas has forfeited his arguments because he did not object below to the imposed fines and fees. Rojas disagrees and urges us not to find forfeiture. We agree with the Attorney General that Rojas forfeited his challenge to the imposition of the $10,000 restitution fine.
Under section 1202.4, subdivision (d), if the trial court imposes a restitution fine above the minimum, it "shall consider any relevant factors, including, . . . the defendant's inability to pay . . . . A defendant shall bear the burden of demonstrating his or her inability to pay." Since the trial court imposed a restitution fine above the minimum amount, we presume that it considered relevant factors and determined that Rojas had an ability to pay. (People v. Avila (2009) 46 Cal.4th 680, 729.) Since Rojas did not object below to this determination, he has forfeited his claim. (Ibid.)
In his reply brief, Rojas claims that he did not contest the restitution fine "because that statute specifically directed trial courts not to consider a defendant's ability to pay." Rojas appears to have misread the statute. Section 1202.4, subdivision (d) expressly states that the trial court shall consider a defendant's inability to pay when imposing a fine above the statutory minimum. Rojas's $10,000 restitution fine is above the statutory minimum.
c. Any Error Was Harmless
Even if we assume that Rojas did not forfeit his challenges to the imposition of the court operations assessment, the criminal conviction assessment, and the criminal justice administrative fee, we reject his contention that he is entitled to remand under Dueñas because we find Dueñas to be distinguishable and any alleged error is harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Johnson (2019) 35 Cal.App.5th 134, 140 (Johnson); People v. Jones (2019) 36 Cal.App.5th 1028, 1035 (Jones).)
Unlike the unemployed probationer in Dueñas, Rojas has been sentenced to multiple life terms in prison. "Wages in California prisons currently range from $12 to $56 a month." (Jones, supra, 36 Cal.App.5th at p. 1035.) Since the challenged assessments total $549.75 (a $210 court operations assessment under section 1465.8, a $210 criminal conviction assessment under Government Code section 70373, and a $129.75 criminal justice administrative fee), Rojas will have sufficient time to earn this amount while incarcerated even if we assume that he will earn only the minimum wage.
As a result, we find any argument that Rojas is unable to pay the challenged assessments is foreclosed. (Jones, supra, 36 Cal.App.5th at p. 1035 [Dueñas error harmless beyond a reasonable doubt when defendant was sentenced to six years in prison and ordered to pay $370 in fines and fees]; Johnson, supra, 35 Cal.App.5th at p. 140 [Dueñas error harmless beyond a reasonable doubt when defendant was sentenced to eight years in prison and ordered to pay $370 in fines and fees]; People v. Santos (2019) 38 Cal.App.5th 923, 934 [a defendant's present ability to pay includes prison wages].)
We acknowledge that the Attorney General alternatively argues that Rojas's arguments are precluded because the imposition of fines and fees was not within the scope of this court's initial remand to hold a sentencing hearing in light of Miller, supra, 567 U.S. 460 and Gutierrez, supra, 58 Cal.4th 1354. Given our conclusion that Rojas has forfeited his challenge to the restitution fine and, to the extent his claims are not forfeited, Dueñas is distinguishable, we need not address this argument. --------
DISPOSITION
Rojas's conviction and sentence are conditionally reversed and remanded to the juvenile court to conduct a juvenile transfer hearing. (Welf. & Inst. Code, § 707.) When conducting a transfer hearing, the juvenile court shall, to the extent possible, treat the matter as though the prosecutor had originally filed a juvenile petition in juvenile court and had then moved to transfer Rojas's cause to a court of criminal jurisdiction. (Welf. & Inst. Code, § 707, subd. (a)(1).)
If, after conducting the juvenile transfer hearing, the juvenile court determines that it would have transferred Rojas to a court of criminal jurisdiction because he is "not a fit and proper subject to be dealt with under the juvenile court law," then Rojas's convictions are to be reinstated. (Welf. & Inst. Code, § 707.1, subd. (a).) The trial court shall exercise its discretion under Penal Code section 12022.53, subdivision (h). If the trial court strikes any of the enhancements, it shall resentence defendant. If it declines to strike any of the enhancements, it shall reinstate the judgment.
On the other hand, if the juvenile court finds that it would not have transferred Rojas to a court of criminal jurisdiction, then it shall treat Rojas's convictions as juvenile adjudications, exercise its discretion under Penal Code section 12022.53, subdivision (h), and impose an appropriate disposition within its discretion.
/s/_________
Premo, J. WE CONCUR: /s/_________
Greenwood, P.J. /s/_________
Elia, J.