Opinion
E071352
04-29-2020
THE PEOPLE, Plaintiff and Respondent, v. SALVADOR LOPEZ SANCHEZ, Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Alana R. Butler and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1603426) OPINION APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Alana R. Butler and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On June 21, 2018, a first amended complaint charged defendant and appellant Salvador Lopez Sanchez with four counts of unlawful sexual intercourse or sodomy with a child age 10 or under, pursuant to Penal Code section 288.7, subdivision (a) (counts 1, 3, 5, 7); four counts of aggravated sexual assault of a child under age 14 under section 269, subdivision (a)(1) (counts 2, 4, 6, 8); and one count of felony child abuse under section 273d (count 9). On June 29, 2018, a jury found defendant guilty on all counts.
All statutory references are to the Penal Code unless otherwise specified.
On August 31, 2018, the trial court imposed an aggregate sentence of six years, plus 100 years to life comprised as follows: four consecutive terms of 25 years to life for the section 288.7, subdivision (a), convictions for counts 1, 3, 5, and 7; and the upper term of six years for the child abuse conviction under section 273d in count 9. The court then stayed each 15-years-to-life sentences for counts 2, 4, 6, and 8, which were based on the same acts of sexual intercourse that formed the basis for the convictions in counts 1, 3, 5 and 7. Moreover, the trial court imposed a $5,000 restitution fine, $360 in criminal operations assessment fees, and $270 in facilities fees. The court waived the remaining fines and fees due to defendant's indigency and awarded defendant 1,088 days of presentence custody credit.
On September 21, 2018, defendant filed a timely notice of appeal.
B. FACTUAL HISTORY
Jane Doe was born in April 2006. In 2010, when Doe was four years old, she was riding in a car driven by defendant, who was her father. Corona police officers conducted a traffic stop on the car after seeing it traveling in the wrong direction of traffic. Although the officers ordered defendant to stay in the car, he got out. Defendant then pulled Doe from the back seat, using her as a human shield, then "took a fighting stance" toward the officers. Defendant refused to put Doe down but the officers eventually subdued him. The trial court admitted this testimony as uncharged domestic violence evidence under Evidence Code section 1109.
Five years later, when Doe was nine years old, she lived with defendant; he was raising her by himself. Defendant would hit her with a leather whip, which would sometimes leave marks. Defendant slapped her face with his hand, threw sandals and a boot at her, and hit her with a belt. Defendant once punched her in the chest with his fist; it knocked Doe to the ground and made it difficult for her to breath. Defendant would also threaten to put spiders on her if she did not comply with his orders.
When Doe was still nine years old, defendant got a roommate who moved into the second bedroom. Doe, therefore, began to sleep in defendant's room where the two of them shared a bed. Defendant would have sexual intercourse with Doe almost every night. She told him to stop; he did not. When defendant asked Doe if she liked it, she said no. Doe tried kicking defendant, but it did not stop him. Sometimes, Doe cried because it hurt and defendant would tell her to be quiet. Doe would see "gooey clear stuff" where defendant penetrated her. Defendant repeatedly told Doe not to tell anyone.
A couple of months after Doe turned 10, she told a neighbor that defendant had whipped her and had been touching her private parts. The neighbor called defendant's sister, Doe's aunt (aunt). When aunt seemed "unmoved," the neighbor called the police. When aunt arrived she appeared to be upset that the neighbor had called the police; when she was told the police were coming, aunt took Doe and left quickly.
The police conducted a forensic interview of Doe on July 7, 2016; the jury watched a video recording of the interview. At the time of the interview, Doe was staying with aunt. Aunt let defendant speak to Doe on the telephone; he told Doe his future was in her hands. Doe was afraid that defendant would go to jail for what he did, and she might not be able to see him again. Doe stated defendant had punched her hard in the chest a couple of weeks earlier. Defendant last used the whip on Doe the prior Wednesday or Thursday. The whippings left a mark on her shoulder and leg. Doe also stated that defendant had sexual intercourse with her "only . . . four times," beginning in March 2016, when she was nine, and continuing through June 2016, when she was 10.
On July 11, 2016, a nurse practitioner performed a forensic exam on Doe for abuse. The examination revealed a loop-shaped bruise on Doe's shoulder; this was consistent with Doe being hit by a leather whip. An external genital exam did not reveal any injuries. This finding, however, was common and not inconsistent with the sexual abuse Doe described.
On July 13, 2016, the police interviewed defendant; the jury watched a video of the interview. Defendant admitted hitting Doe with the leather whip. He also admitted threatening Doe with spiders. Defendant, however, denied any sexual abuse. Police searched the apartment and found lubricants, sex toys, and a leather whip in the bedroom defendant and Doe shared.
DISCUSSION
A. INEFFECTIVE ASSISTANCE OF COUNSEL (IAC)
Defendant contends that "defense counsel rendered constitutionally deficient performance at sentencing in violation of [defendant's] sixth amendment right to counsel." Specifically, defendant contends that defense counsel rendered IAC because his attorney "failed to inform the sentencing court of its discretion to impose concurrent terms for Counts 1, 3, 5 and 7 and failed to object to the absence of reasons for imposing consecutive terms."
1. STANDARD OF REVIEW
In order to establish a claim of IAC, a defendant must demonstrate that "(1) counsel's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation prejudiced the defendant, i.e., there is a 'reasonable probability' that, but for counsel's failings, defendant would have obtained a more favorable result. [Citations.] A 'reasonable probability' is one that is enough to undermine confidence in the outcome." (People v. Dennis (1998) 17 Cal.4th 468, 540-541.) Hence, an IAC claim has two components: deficient performance and prejudice. (People v. Ledesma (1987) 43 Cal.3d 171, 217.) If defendant fails to establish either component, his claim fails. An appellate court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (Strickland v. Washington (1984) 466 U.S. 668, 697, 687-694.) Trial counsel's performance is deemed reasonably competent unless the record does not provide an explanation for his performance, or " ' "there simply could be no satisfactory explanation." ' " (People v. Lopez (2008) 42 Cal.4th 960, 966.)
2. ANALYSIS
We need not determine whether counsel's performance was deficient in this case because defendant cannot show that counsel's deficient representation prejudiced defendant—whether there is a reasonable probability that, but for counsel's failings, defendant would have obtained a more favorable result.
Here, both parties agree that the trial court had the discretion to impose either concurrent or consecutive sentences on counts 1, 3, 5 and 7 (unlawful sexual intercourse or sodomy with a child age 10 or under) under section 669.
"When a person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively." (§ 669, subd. (s).) Rule 4.425 of California Rules of Court enumerates criteria for courts to consider when deciding whether to impose a consecutive or concurrent sentence (People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262-1263, and "[o]nly one criterion is necessary to impose a consecutive sentence." (People v. King (2010) 183 Cal.App.4th 1281, 1323.) Rule 4.425 specifies three such criteria related to a defendant's offense conduct: whether "[t]he crimes and their objectives were predominantly independent of each other," whether "[t]he crimes involved separate acts of violence or threats of violence," or whether "[t]he crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior." (Cal. Rules of Court, rule 4.425(a)(1)-(3).) In addition, rule 4.425 permits a trial court to rely on "[a]ny circumstances in aggravation or mitigation" to impose a consecutive sentence except a fact used to impose an upper term sentence, a fact otherwise used to enhance a defendant's prison sentence, or a fact that is an element of the crime. (Cal. Rules of Court, rule 4.425(b)(1)-(3).)
In this case, there is nothing in the reporter's transcript or clerk's transcript indicating that the trial court was aware or unaware of its discretion to impose concurrent or consecutive sentences. However, "[a] trial court is generally presumed to be aware of its sentencing discretion. (People v. Mosley (1997) 53 Cal.App.4th 487, 496.) Courts will not infer from a silent record that a trial court was ignorant of its sentencing discretion. (People v. Fuhrman (1997) 16 Cal.4th 930, 944-945; People v. Brown (2007) 147 Cal.App.4th 1213, 1229 [error may not be presumed from a silent record].) Unless there is affirmative evidence to the contrary, a reviewing court will presume a trial court was aware of its discretion to impose concurrent terms. (People v. Booth (2018) 25 Cal.App.5th 450, 452.)"
Before sentencing in this case, the probation officer filed a report, which identified several aggravating factors in defendant's case. This case involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness. Moreover, the victim was particularly vulnerable; the manner in which the crimes were committed showed planning, sophistication, or professionalism; defendant took advantage of a position of trust or confidence to commit the offenses; defendant engaged in violent conduct that indicated a serious danger to society; and defendant's prior convictions were numerous or of increasing seriousness. The probation officer noted that defendant was ineligible for probation and each count in counts 1 through 8 carried a mandatory life sentence. Therefore, the officer recommended that the court impose an aggregate sentence of one determinate six-year upper term for count 9 (child abuse), and four indeterminate terms of 25 years to life on counts 1, 3, 5, and 7 (sexual intercourse or sodomy with a child 10 years or younger), for a total indeterminate term of 100 years to life. Under section 654, the probation officer also recommended that the court stay four indeterminate terms of 15 years to life on counts 2, 4, 6, and 8 (aggravated sexual assault of a child).
At the sentencing hearing, defense counsel stated: "I understand what my client did was a despicable thing to his own daughter. I know it's a life sentence, but under unusual circumstances the Court may have the ability to give probation. He does have some misdemeanor convictions. He doesn't have a terrible record. He is a person in his fifties right now. He is 51 years old." The court responded that probation was prohibited, even under unusual circumstances. Defense counsel then stated, "Very well, Your Honor. Then I would ask the Court to follow the probation's recommendation on page 15." Thereafter, the court stated that it had read the probation officer's report.
The trial court then indicated that it would follow the probation officer's recommended sentence. As reasons for imposing the upper term on count 9, the court stated: "I am sentencing the defendant to the upper term on Count 9 based upon the following aggravated circumstances:
"Rule 4.421(a)(1) that the crime involved great violence, great bodily harm threat of great bodily harm, or other acts disclosing a high degree of cruelty or viciousness or callousness. In particular, using the spiders in the bottle on the victim is very callous and very cruel in order to affect his will on her.
"Obviously the victim was particularly vulnerable; that's Rule 4.421(a)(3)."
The court then went on to state: "So I'm going to use those two factors to support the imposition of the upper term. There are other factors, but those two are sufficient. There are no factors in mitigation." (Italics added.)
Thereafter, the court imposed consecutive terms for counts 1, 3, 5 and 7, for a total indeterminate term of 100 years to life. The court stayed the indeterminate sentences for counts 2, 4, 6 and 8 under section 654.
Based on the above, we agree with the People that defendant has failed to demonstrate prejudice: "The record does not establish a reasonable probability the court would have imposed concurrent terms had defense counsel said the court had discretion to do so, argued for concurrent terms, or asked the court to state its reasons for imposing consecutive terms. The court decided the aggravating factors outweighed any mitigating factors, and only one aggravating factor was needed to justify the court's decision to impose consecutive terms."
Therefore, we find defendant's IAC argument to be without merit.
B. THE IMPOSITION OF MANDATORY FINES AND FEES
Defendant contends that "the court's imposition of the mandatory fines and fees without holding a hearing to determine [defendant's] present ability to pay them violates due process and [the fees] should be stricken with an order that no fines or fees be imposed unless and until the prosecutor can show [defendant] has the ability to pay them." (All caps and boldface omitted.)
In this case, the trial court imposed $360 in court operations assessment fess under Penal Code section 1465.8, $270 in criminal conviction assessment fees under Government Code section 70373, and a $5,000 restitution fine under Penal Code section 1202.4. The trial court did not hold a hearing to determine defendant's ability to pay these fees and fines. The court, however, waived payment of other fees and fines based on defendant's inability to pay after concluding that defendant was indigent.
In People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the court held, in pertinent part, that the imposition of a restitution fine, without a determination that the defendant has the present ability to pay the fine, violates a defendant's due process rights under the state and federal Constitutions. (Id. at p. 1172.) The People contend that, because defendant "did not raise his claims in the trial court," his argument has been forfeited.
1. RESTITUTION FINE UNDER SECTION 1202 .4
In this case, the trial court imposed a $5,000 section 1202.4 restitution fine.
In People v. Gutierrez (2019) 35 Cal.App.5th 1027 (Gutierrez), the Fourth District Court of Appeal, Division One addressed the emerging body of case law regarding Dueñas and forfeiture of restitution fines. The court pointed out that there exists a potential split in authority on Dueñas and forfeiture principals. At least two cases, People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano) and People v. Johnson (2019) 35 Cal.App.5th 134, 138-139 (Johnson), have found that failure to object to imposition of restitution fines and other fines, fees, and assessments at the time of their imposition did not forfeit the issue because Dueñas was " 'a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial.' " (Gutierrez, at p. 1032, quoting Castellano, at p. 489.) However, in another case, Frandsen (2019) 33 Cal.App.5th 1126 (Frandsen), the court found that defendant had forfeited the issue for a variety of reasons, including that "even pre-Dueñas governing law permitted a challenge to a maximum restitution fine based on ability-to-pay grounds." (Gutierrez, at p. 1032.) Nevertheless, Gutierrez held that these cases were not actually at odds. Indeed, the court in Gutierrez ultimately found "it unnecessary to address any perceived disagreement on the forfeiture issue," because both "Castellano and Johnson involved situations in which the trial court imposed the statutory minimum restitution fine," while in the case before them "as in Frandsen, the trial court imposed the statutory maximum restitution fine." (Id. at pp. 1032-1033, italics added.) This was relevant because, "as Frandsen correctly notes, even before Dueñas a defendant had every incentive to object to imposition of a maximum restitution fine based on inability to pay because governing law as reflected in the statute [citation] expressly permitted such a challenge." (Id. at p. 1033.) According to this reading of Johnson, Castellano, and Frandsen, these cases are not contradictory, but counsel two different approaches depending on whether the challenged restitution fine was the minimum or some amount in excess of that. That is, a defendant can be found to have forfeited his right to challenge a restitution fine on ability to pay grounds only if that fine was greater than the minimum.
At the time defendant was sentenced on August 31, 2018, trial courts were statutorily authorized to consider a defendant's inability to pay a restitution fine " 'in increasing the amount of the restitution fine in excess of the minimum fine [of $300].' " (§ 1202.4, subd. (c); Frandsen, supra, 33 Cal.App.5th at pp. 1153-1154.) Hence, in this case, it would not have been futile or unsupported by the substantive law then in existence for defendant to have objected to the $5,000 fine on the ground he did not have the means or ability to pay it, at the time it was imposed.
Moreover, in a recent opinion in People v. Taylor (2019) 43 Cal.App.5th 390 (Taylor), a trial court imposed a $10,000 restitution fine under section 1202.4 and a $840 court operations and facilities fees under section 1465.8 without holding an ability to pay hearing. (Taylor, at p. 397.) The People contended that the defendant "forfeited this argument and even if he did not, there was no Dueñas error." (Ibid.) This court concluded that the defendant "forfeited the argument as to the $10,000 restitution fine but not as to the $850 in court operations and facilities fees." (Ibid.) After discussing the specific facts that applied to the case in Taylor, we reversed the order imposing the operations and facilities fees and remanded the case for an ability-to-pay hearing. (Taylor, at p. 397.)
In this case, we are persuaded by Taylor, and Gutierrez's reasoning and its reading of Johnson, Castellano, and Frandsen. Accordingly, because the trial court in this case imposed a $5,000 restitution fine—well above the $300 minimum fine, we find that defendant's failure to object to the restitution fine forfeited his ability to challenge the imposition of the restitution fine.
2. ASSESSMENTS UNDER PENAL CODE SECTION 1465 .8 AND GOVERNMENT CODE SECTION70373
As noted above, here, the trial court imposed $360 in court operations assessment fess under Penal Code section 1465.8, and $270 in criminal conviction assessment fees under Government Code section 70373.
Penal Code section 1465.8 and Government Code section 70373, unlike Penal Code section 1202.4, do not provide a mechanism for challenging assessments on the basis of inability to pay. Therefore, this court recently held a defendant does not forfeit his right to challenge the imposition of mandatory assessments by failing to object at the trial court. (People v. Jones (2019) 36 Cal.App.5th 1028, 1033 (Jones).) In Jones, we recognized that ' "[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence' " (Id., at p. 1031, quoting People v. Welch (1993) 5 Cal.4th 228, 237), and that at the time of defendant's conviction "the relevant statutes all but foreclosed any due process objections to the court facilities or court operations assessments." (Jones, at p. 1032.) In Jones, we acknowledged that in Frandsen, supra, 33 Cal.App.5th 1126, the court previously held challenges to assessments could be forfeited but expressly rejected that determination. Although we agreed with Frandsen's reasoning that a defendant can forfeit an objection to a restitution fine greater than the minimum, "[w]ith regard to the court facilities and court operations assessments," Frandsen's conclusion that Dueñas was foreseeable was "[i]n our view . . . incorrect." (Jones, at p. 1033.) Moreover, as noted above, in a recent opinion, we found that the defendant did not forfeit his right to challenge the imposed court operations and facilities fees. (Taylor, supra, 43 Cal.App.5th at p. 397.) Accordingly, we agree with defendant that he did not forfeit his right to challenge the imposed assessments by failing to object at the trial court level.
Because we find that defendant did not forfeit his right to challenge either the assessments, we turn to whether the Dueñas error requires reversal. Error under Dueñas is not reversible per se, but instead subject to harmless error analysis. (Jones, supra, 36 Cal.App.5th at pp. 1034-1035.) Since an alleged error under Dueñas involves a violation of due process, we consider whether the error was harmless beyond a reasonable doubt. (Jones, at p. 1035; see Chapman v. California (1967) 386 U.S. 18, 24.)
In this case, the monetary assessment and fines imposed totaled $630. Defendant was sentenced to six years plus 100 years to life. Any inquiry into defendant's ability to pay the assessments and fines at issue would necessarily include consideration of his future earning capacity, and specifically his ability to obtain prison wages during the course of his incarceration. (Jones, supra, 36 Cal.App.5th at p. 1035; Johnson, supra, 35 Cal.App.5th at pp. 138-139.) At the time of sentencing, defendant was 51 years old and nothing in the record indicated that he had any health conditions that would prevent him from working. Given the length of defendant's prison sentence, we have no doubt that defendant will have the ability to pay the assessments and fines at issue here. We agree with the court in Johnson that "[t]he idea that he cannot afford to pay $370 . . . is unsustainable. Thus, even if we were to assume [defendant] is correct that he suffered a due process violation when the court imposed this rather modest financial burden on him without taking his ability to pay into account, we conclude that, on this record, because he has ample time to pay it from a readily available source of income while incarcerated, the error is harmless beyond a reasonable doubt." (Johnson, at pp. 139-140.)
In Taylor, supra, 43 Cal.App.5th at page 402, we reversed an order imposing $840 in fees because we could not find that the Dueñas order was harmless. In Taylor, defendant was 70 years old at the time of his sentencing, and assumed that he would secure a minimum monthly prison wage. Assuming "that the entire $10,000 fine is outstanding, [the defendant] will have at least $5.40 per month available to settle $840 in fees. At that rate, he will pay off the fees in 156 months, or 13 years." The facts in this case are distinguishable. Here, defendant was only 51 years old, as opposed to 70 years old, at the time of sentencing. Moreover, the restitution fine imposed in this case was $5,000—half of the restitution fine imposed in Taylor. Additionally, the fees imposed was $630 in total, as compared to the $840 fees imposed in Taylor. Furthermore, defendant in this case was sentenced to six years, plus 100 years to life—which would give him ample opportunity to pay off his fines and fees.
Thus, we conclude that any error under Dueñas was harmless.
DISPOSITION
The judgment of conviction is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: SLOUGH
J. FIELDS
J.