Opinion
D074493
03-26-2020
THE PEOPLE, Plaintiff and Respondent, v. MARCO TURLEY, Defendant and Appellant.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Alana Butler, and Amanda Lloyd, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. SCN372384, SCN354882) APPEAL from a judgment of the Superior Court of San Diego County, Blaine K. Bowman, Carlos O. Amour, Judges. Affirmed in part and remanded with directions. Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Alana Butler, and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In November 2016, Marco Turley was charged in case No. SCN354882 (case No. 882) with felony residential burglary (Pen. Code, § 459; count 1) and the misdemeanor offense of giving false information to an officer (§ 148.9, subd. (a); count 2). It was also alleged that another person, other than an accomplice, was present in the residence (§ 667.5, subd. (c)(21)), that Turley had two violent serious felony prior convictions (§ 667, subd. (a)(1)), and three strike prior convictions (§ 667, subds. (b)-(i)). He retained an attorney sometime before the preliminary hearing.
Further statutory references are to the Penal Code unless otherwise specified.
In June 2017, Turley was separately charged in case No. SCN372384 (case No. 384) with felony residential burglary (§ 459; count 1), the willful and unlawful use of the personal identifying information of another (§ 530.5, subd. (a); count 2), and fraudulent use of another's access card (§ 484f, subd. (b); count 3). It was also alleged that another person, other than an accomplice, was present in the residence (§ 667.5, subd. (c)(21)), that each count was committed while Turley was out on bail, and that Turley had two violent serious felony prior convictions (§ 667, subd. (a)(1)), and three strike prior convictions (§ 667, subds. (b)-(i)).
Following separate jury trials, Turley was found guilty on all counts, and the court sentenced Turley in the two cases together. Turley was sentenced in case No. 882 to 25 years to life, plus 10 years for each of the section 667, subdivision (a)(1) enhancements. The court imposed a consecutive sentence in case No. 384. (§ 12022.1, subd. (b).) Turley received 25 years to life for count 1, burglary, plus the midterm of two years doubled to four years for count 2, the use of personal identifying information. The court added an additional 10 years for the two serious prior felonies and two years under section 12022.1, subdivision (b). It stayed sentence on count 3, pursuant to section 654. The aggregate term of prison is 50 years to life plus 26 years.
On appeal, Turley contends counts 2 and 3 in case No. 384 should be reversed because his charge of under $950 on the access card constitutes shoplifting, which must be sentenced as a misdemeanor under Proposition 47, the Safe Schools and Neighborhood Act. He next contends that because he was denied his request to discharge his retained counsel on the first day of trial in case No. 882, his Sixth Amendment right to choice of counsel was violated. He further contends remand is required to allow the trial court to consider whether to strike any of the five-year enhancements that were imposed under section 667, subdivision (a). Finally, he contends that because the fines, fees, and assessments were imposed without a hearing on ability to pay, the matter must be remanded with instructions that none can be imposed without a finding by the court that he has the ability to pay them.
We agree that changes in law require us to remand the matter to the trial court for consideration of its discretion on imposing enhancements under section 667, subdivision (a), and we will remand the matter for that purpose. In all other respects, we will affirm.
I.
PROPOSITION 47 AND IDENTITY THEFT
Although Turley was convicted in case No. 384 of two non-theft crimes, unauthorized use of personal identifying information of another (§ 530.5, subd. (a)) and fraudulent use of another's access card (§ 484f, subd. (b)), he contends these charges are precluded by Proposition 47's shoplifting statute (§ 459.5), which he maintains was the appropriate charge for this case. On appeal, we are asked to assess whether the creation of a shoplifting crime displaces his convictions for two non-theft crimes. We conclude it does not.
To reach our conclusion, we must interpret Proposition 47. We review questions of law de novo. (People ex. rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) This includes interpretations of voter-approved propositions, which we interpret to evaluate the voters' intent. (People v. Park (2013) 56 Cal.4th 782, 796.) We look first to the words of the statute and give them their ordinary meaning. (Ibid.) When the language is ambiguous, we consider other indicia of voter intent, including "the analyses and arguments contained in the official ballot pamphlet." (People v. Rizo (2000) 22 Cal.4th 681, 685.)
In 2014, California voters approved Proposition 47, the Safe Neighborhoods and Schools Act, which reduced penalties for some drug and theft offenses through amendment to existing statutes. (People v. Gonzales (2017) 2 Cal.5th 858, 863 (Gonzales).) "Section 1170.18 now permits a defendant serving a sentence for one of the enumerated theft or drug offenses to petition for resentencing under the new, more lenient, provisions." (Id. at p. 863.) If the felony offense committed "by an eligible defendant would have been a misdemeanor under [Proposition 47], resentencing is required unless 'the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' " (Ibid., fn. omitted.)
Proposition 47 also established a new misdemeanor offense, shoplifting, which is defined in section 459.5 as "entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950)." (Id., subd. (a).) Shoplifting is punished as a misdemeanor, and "[a]ny act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property." Section 459.5, subdivision (b) prohibits the prosecution from charging the defendant with a separate theft offense in addition to, or instead of, shoplifting even if the elements of a theft crime are met.
Here, Turley was charged with and convicted of violating section 530.5, which is commonly referenced as "identity theft." (People v. Truong (2017) 10 Cal.App.5th 551, 561 (Truong).) The Supreme Court recently addressed whether an offense charged under section 530.5, subdivision (a) as identity theft comes within the definition of shoplifting under section 459.5, requiring its reclassification as a misdemeanor under section 459.5. (People v. Jimenez (2020) 9 Cal.5th 53 (Jimenez).) It held that a felony conviction for misuse of personal identifying information under section 530.5, subdivision (a) cannot be reduced to misdemeanor shoplifting on Proposition 47 because a conviction under section 530.5 is not a theft offense. (Id. at p. 58.) Thus, Turley is not eligible for reclassification under section 459.5.
"Although misuse of identifying information is sometimes colloquially described as 'identity theft,' the language, context, and history of section 530.5, subdivision (a) tells us no 'burglary or theft' offense is committed by virtue of a defendant violating the statute." (Jimenez, supra, 9 Cal.5th at p. 58.) There is no mention of theft in that statute. (Id. at p. 63.) It does not require the information to be stolen, and it does not require the victim's information to be taken with intent to permanently deprive the victim of a possession. (Id. at p. 63.) "Section [530.5] criminalizes the willful use of someone's personal identifying information for an unlawful purpose, not an unlawful taking. It is not a theft offense because criminal liability pivots on how the information was used rather than how it was acquired." (Id. at p. 59.) Indeed, "by its very terms, the offense of misuse of personal identifying information can be accomplished by acquiring the information with valid consent, using it for an unlawful purpose, and returning it." (Id. at p. 63.)
Moreover, shoplifting and identity theft statutes are "fundamentally different, and they reflect different legislative rationales." (Jimenez, supra, 9 Cal.5th at pp. 65, 71.) The shoplifting offense protects the entity from which the defendant is stealing. (Id. at p. 71.) While the merchant may be a victim to the shoplifting under section 495.5, the cardholder is not a victim to the theft itself; the cardholder is harmed by the unlawful use of the card. (People v. Sanders (2018) 22 Cal.App.5th 397, 403 (Sanders), review granted, July 25, 2018, S248775; Truong, supra, 10 Cal.App.5th at p. 561.) In contrast, section 530.5, subdivision (a) protects primarily the person or entity whose information was used without consent. (Ibid.) Identity theft charges exist to protect against the disruption of the cardholder's lives; the harm they suffer goes beyond the actual property obtained through the misuse of their identity. (Sanders, at p. 405, citing People v. Valenzuela (2012) 205 Cal.App.4th 800, 808.) The use of the personal identifying information forms the basis for a section 530.5 charge, not the intent to commit theft. (Sanders, at p. 400.) Thus, the use of the cardholder's information to steal from a merchant does not amount to theft from a cardholder. (Id. at p. 403.)
The Supreme Court recognized that "[p]eople who violate section 530.5, subdivision (a) will often use the information to commit some manner of theft, making the theft an important element of that second crime." (Jimenez, supra, 9 Cal.5th at p. 70.) But "commit[ting] shoplifting in the course of identity theft does not alter the fact that [the defendant has] committed identity theft." (Ibid.) Accordingly, we conclude that Turley's identity theft conviction is not precluded by Proposition 47.
Turley's reliance on Gonzales, supra, 2 Cal.5th 858 and People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski) do not alter our opinion. In Gonzales, the defendant stole checks from his grandmother, then took them to a bank and cashed them for $125 each. (Gonzales, at p. 862.) The defendant was charged with felony burglary and forgery, and he pled guilty to the burglary charge. (Id. at p. 862.) The defendant later sought a reduction to a misdemeanor conviction under Proposition 47, arguing his conduct would have been shoplifting under section 459.5 because he entered the bank with the intent to steal. (Gonzales, at p. 871.) The Supreme Court held that the burglary conviction could be reduced to shoplifting. (Id. at p. 862.)
The Supreme Court subsequently distinguished the facts in Gonzales from those in Jimenez, explaining that unlike the defendant in Gonzales, the defendant in Jimenez was not charged with burglary. (Jimenez, supra, 9 Cal.5th at pp. 58-59.) It also noted that the correct inquiry was not whether Jimenez's conduct could be properly called shoplifting, but more broadly if the offense defined in section 530.5, subdivision (a) qualifies as a theft offense, and the Supreme Court concluded it could not. (Jimenez, at pp. 59, 66.) The Supreme Court explained: "Only if the offense is eligible for reclassification must a court consider whether a defendant's conduct fulfills the elements of shoplifting, bringing it within Proposition 47's scope." (Id. at p. 66.) Although Gonzales's conduct could have been charged as misuse of identifying information, he was "eligible for a reduction because he was charged and convicted of burglary, which Proposition 47 did alter." (Id. at p. 66.)
Such is not the case here. Turley was not charged with or convicted of any theft crimes. And even if Turley's conduct could have been charged as a theft crime, that does not bear on whether section 530.5, subdivision (a) creates a "theft" offense, which is the issue before us. (Jimenez, supra, 9 Cal.5th at pp. 64-65.) "[S]ection 530.5, subdivision (a) contains no separate provision that, when violated, exclusively constitutes shoplifting or even theft." (Id. at p. 68.) The elements of the two crimes do not overlap. (Ibid.) Proving shoplifting is not sufficient to prove misuse of identifying information under section 530.5 because identity theft requires more than entering the commercial establishment during business hours with intent to commit larceny. (Jimenez, at p. 68.) Likewise, "misuse of personal identifying information contains none of the elements of section 459.5, subdivision (a)." (Ibid.) Like Jimenez, Turley is not eligible for a reduction in sentencing under Proposition 47.
Romanowski is also not instructive. In Romanowski, the Supreme Court concluded that the theft of an access card is a form of grand theft, bringing the offense within the scope of section 490.2, created by Proposition 47. (Romanowski, supra, 2 Cal.5th at pp. 907-908.) The court also explained that section 484e, subdivision (d) punishes the theft of access card information, "not of whatever property a defendant may have obtained using a stolen access card or stolen information." (Romanowski, at p. 914.) But section 484e focuses on the theft of the card, not its use. In contrast, identity theft is not a theft offense; it is the misuse and not the taking of the personal information that forms the basis of the crime. (Jimenez, supra, 9 Cal.5th at pp. 58-59; Sanders, supra, 22 Cal.App.5th at p. 400.) Thus, this case is not applicable.
Fraudulent use of another's access card (§ 484f, subd. (b)) likewise does not constitute misdemeanor shoplifting. Section 484f, subdivision (b) specifies that a person other than the cardholder who signs the name of another to an access card, sales slip, sales draft, or instrument for payment of money which evidences an access card transaction is guilty of forgery. Proposition 47 amended the punishment provision for forgery found in section 473 to specify that forgeries involving "a check, bond, bank bill, note, cashier's check, traveler's check, or money order" with a value of $950 or less could be punished only as misdemeanors. (§ 473, subd. (b).) "[T]he specific language used in section 473(b) means forgery crimes are classified as straight misdemeanors only when one of the seven listed instruments is used to commit the crime." (People v. Bloomfield (2017) 13 Cal.App.5th 647, 652.) Remaining forgeries are wobblers, leaving them eligible for punishment as felonies. (§ 473, subd. (a); Boomfield, at p. 653.) The plain language of the statue excludes access cards, sales slips, sales drafts, and instruments for payment evidencing an access card transaction from among those items for which forgeries are punishable only as misdemeanors. (See § 473, subd. (b).) This leaves the use of an access card as a wobbler, meaning it can be properly charged as a felony, as was the case here. Finally, Turley's conviction was precluded from qualifying as a misdemeanor even under the wobbler statute because a misdemeanor charge is not available to a "person who is convicted of both forgery and identity theft, as defined in Section 530.5" (§ 473, subd. (b)), and Turley was convicted under section 530.5, subdivision (a).
II
REQUEST TO DISCHARGE COUNSEL
A. Additional Facts
On January 25, 2016, in case No. 882, Turley was arraigned on two charges, felony residential burglary of the first degree (§ 459; count 1) and misdemeanor giving false information to a peace officer (§ 148.9, subd. (a); count 2), along with allegations of two strike convictions (§ 667, subds. (b) - (i)). A public defender was appointed to represent him. He retained counsel sometime before the readiness conference held June 15, 2016, at which time his public defender was discharged. Retained counsel represented him at the preliminary hearing, which had been continued to September 28. After three continuances, the trial readiness hearing finally occurred June 6, 2017.
Before being assigned to a court room for trial, his retained attorney confirmed he was ready for trial, and the case was assigned to a trial department. Turley's attorney spent the morning meeting with the district attorney to try to work out a plea deal. Turley would not agree to any plea that included a life sentence. The district attorney would not agree to a plea that excluded one.
That afternoon when jury selection was set to begin in case No. 882, the court prepared to arraign Turley in case No. 384. Retained counsel requested to be relieved from case No. 384, and the court granted the request. A public defender was immediately appointed. The public defender asked the court to also appoint her in case No. 882 and three trailing misdemeanors for which Turley was charged, because Turley no longer believed his relationship with his retained attorney was fruitful. The public defender explained there was a potential felony three strikes case upon conviction in case No. 882, and she and Turley believed it was in Turley's best interest to have all potential charges handled by a single attorney in order to engage in a meaningful discussion about potential disposition, either by trial or plea. However, she was not prepared to go to trial that day in case No. 882.
Turley's retained counsel told the court he was not "prepared to actually start a trial," but he knew the case and could do a trial, and he could not say honestly that he was not prepared to go to trial. He also told the court that Turley had expressed a desire to discharge him late in the previous week, after which Turley did not want to discuss the cases any further. Retained counsel also believed the cases needed to be resolved together because of the potential for a three strikes conviction. However, the parties had been unable to negotiate a resolution because the People were unwilling to make a deal that did not include a life sentence.
The People opposed the request to continue trial, arguing the case was already 18 months old, retained counsel handled the preliminary hearing, and there had been no discovery since then. The prosecutor also explained that the victim, a combat veteran with severe PTSD, suffered from severe anxiety as a result of the incident, and she needed the case to be resolved so she could move forward. She argued there would be no benefit in delaying the case because the parties would be unable to reach resolution other than through a trial.
Defense counsel expressed apprehension at taking the matter to trial, commenting, "I feel like I would be committing malpractice when he has another three strikes case being handled by other attorneys." The court assured the attorney that it would not be malpractice if the court forced him to trial and also noted that the attorney was ready for trial.
The public defender argued that it would be "horribly inefficient" to go to trial because Turley wanted to engage in fruitful conversations, and the People could avoid any inconvenience to victims by making an offer that did not include a life sentence.
The court determined that there was not good cause to continue the trial, taking into consideration that the case had been "languishing for 18 months," that the People would not agree to anything less than a life sentence in negotiations, and that the defendant was clear that such a sentence was not acceptable to him. Although the court was open to joining the cases in the interest of judicial economy, it concluded the two sides were too far apart to reach a settlement.
Turley then asked the court if he were going to trial right then, and the court said he was. He told the court he had not anticipated going to trial that day, explaining he did not have clothes and looked like a mess. He told the court he had wanted his attorney to be discharged two weeks earlier because the relationship was not what it had been in the past. Turley asked the court to put in a writ of mandate to stay the proceedings and give it to a judge to decide because he was not ready for trial that day; he did not want his retained attorney to represent him because their relationship was "fickle."
Turley initially refused to enter the courtroom and indicated he would fight deputies. He later told the judge he was "mak[ing] a nuisance of [him]self" because he did not want to be starting trial that day. Ultimately, Turley waived his presence for jury selection so he could shave and wear different clothing before the jury when he appeared the next day.
The court told Turley that seeking to relieve retained counsel on the day of trial placed the court in a difficult position because it could be seen as an attempt to delay the trial when he could have made the motion any time over the past year but waited until after witnesses had been subpoenaed and the case was sent for trial. The court noted that the retained attorney was ready for trial, and there were jurors waiting.
Turley's retained attorney argued the charges that had been brought since April, in case No. 384, changed the calculus. He said Turley had wanted to discharge him in April, but they held off to aid the district attorney to more efficiently get to the preliminary hearing in case No. 384 because the victim was 93 years old. He told the court that it had been consistently conveyed to the district attorney's office that this case was not going to go to trial.
At this point, the district attorney argued the motion was untimely; she said she learned of the request to discharge retained counsel the Friday before trial, or one court day. She also reiterated that a continuance would not change the outcome, implying no settlement would be reached, so they would still need to go to trial.
The court told Turley there was nothing in the record that would suggest Turley did not want his retained attorney until just now, on the day of trial. The court weighed that against the witness who suffered from PTSD and was anxious for resolution. The court commented, "Your constitutional rights are my overriding concern right now." Then the court told Turley the request was not timely, and there was not good cause to continue the matter. It denied the request.
B. Analysis
In California, the right to retained counsel, generally guaranteed under the Sixth Amendment of the federal constitution, also reflects the defendant's right to discharge an attorney he hired but whom he no longer wishes to retain. (People v. Lopez (2018) 22 Cal.App.5th 40, 46 (Lopez), citing People v. Verdugo (2010) 50 Cal.4th 263, 310-311 (Verdugo).) A criminal defendant's right to decide how to defend himself should be respected unless it will result in "significant prejudice" to the defendant or in a " 'disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.' " (People v. Ortiz (1990) 51 Cal.3d 975, 982 (Ortiz), quoting People v. Crovedi (1966) 65 Cal.2d 199, 208.)
To justify discharging retained counsel, a defendant does not need to demonstrate the attorney is providing inadequate representation or that the defendant and the attorney are embroiled in irreconcilable differences. (Ortiz, supra, 51 Cal.3d at pp. 982-987.) Instead, as long as the motion is timely brought, the court considers whether the discharge of a defendant's retained counsel will cause the defendant significant prejudice or disrupt the orderly processes of justice. (Id. at p. 982; People v. Lau (1986) 177 Cal.App.3d 473, 479 (Lau).) Thus, the opportunity to secure counsel of choice is limited by a countervailing state interest in proceeding with prosecution " ' "on an orderly and expeditious basis, taking into account the practical difficulties of 'assembling the witnesses, lawyers, and jurors at the same place at the same time.' " ' " (People v. Keshishian (2008) 162 Cal.App.4th 425, 428 (Keshishian), citing People v. Gzikowski (1982) 32 Cal.3d 580, 587.) In determining whether to allow the discharge of retained defense counsel, a court should balance the defendant's interests in new counsel against the disruption caused by a substitution. (Keshishian, at p. 429, citing People v. Lara (2001) 86 Cal.App.4th 139, 153 (Lara).)
We review a denial of a defendant's request to discharge retained counsel for an abuse of discretion. (Lopez, supra, 22 Cal.App.5th at p. 47.) The erroneous denial of a defendant's right to discharge retained counsel is presumptively prejudicial and automatically requires reversal. (Ibid.)
Appellate courts have treated the timeliness of the motion for discharge as a prerequisite to weighing prejudice to the defendant against the orderly process of justice. (Lau, supra, 177 Cal.App.3d at p. 479 ["The condition precedent to consideration of the Stevens factors is that the request for substitution be timely made"]; People v. Stevens (1984) 156 Cal.App.3d 1119, 1128 ["Absent a proper finding of unwarranted disruption of the orderly processes of justice, a court may not force a defendant who timely requests substitution to go to trial represented by retained counsel he no longer trusts"].) However, when the Supreme Court adopted the Stevens factors in Ortiz, it also explained a motion to discharge retained counsel is "not timely, . . . if it will result in 'disruption of the orderly processes of justice.' " (Ortiz, supra, 51 Cal.3d at p. 983; see also People v. O'Malley (2016) 62 Cal.4th 944, 1004 [defining untimeliness as when granting the motion would result in " ' "disruption of the orderly processes of justice" ' [citation]"]; People v. Maciel (2013) 57 Cal.4th 482, 512 [same]; Verdugo, supra, 50 Cal.4th at p. 311 [same].) Here, the court concluded both that the motion was untimely and that there was not good cause when balancing prejudice to Turley against the disruption of the orderly processes of justice.
Turley urges us to follow Lopez, arguing he was presumptively entitled to discharge his attorney, and the trial court's denial of the request to do so was erroneous. In Lopez, the defendant had retained counsel near the beginning of his case, before the preliminary hearing. (Lopez, supra, 22 Cal.App.5th at p. 44.) There had been three unopposed continuances, two at the request of defense. (Ibid.) When defense counsel represented that the defendant would waive his right to a jury trial and have the court try the case instead, the defendant seemed unsure. (Ibid.) The following day, after retained counsel said he was prepared to begin trial the following week, Lopez requested to retain new counsel or have counsel appointed to represent him. (Id. at pp. 44-45.) The appellate court noted the case was two years old, and both parties had received continuances. (Id. at p. 48.) Lopez's request to discharge retained counsel occurred before it was clear whether the case would proceed to trial, and the trial court did not indicate it believed the defendant had improper motives in seeking to discharge counsel. (Ibid.) However, the defendant had not retained the attorney for trial, and the appellate court was concerned that there could be risk that requiring him to go to trial with unpaid counsel against his wishes could result in him getting "what he paid for." (Ibid.) The appellate court explained that a trial court cannot assume that discharge would lead to substantial delay based only on timing, and the court did not explicitly weigh concerns about the case's progress against Lopez's rights to discharge his attorney. (Id. at p. 49.) The appellate court concluded that the age of the case and the timing of the motion just before trial was set to begin did not justify the court's denial of his motion. (Id. at p. 48.)
Although the Lopez case was older than Turley's at the time of the motion and both defendants had received continuances, the factual similarities end there. In Lopez, the defendant had not retained the attorney for trial, and he requested the discharge before it was clear that the case would proceed to trial (Lopez, supra, 22 Cal.App.5th at p. 48), whereas here retained counsel had been hired for trial and was prepared to try the case. In Lopez, there was no indication the defendant had any improper motives (ibid), while here the court expressed concern that the timing of the request could be seen as an attempt to delay the trial, a concern amplified by Turley's unwillingness to enter the court because he did not want to start trial that day. Finally, while the court in Lopez failed to explicitly weigh concerns about the case's progress against the defendant's rights to discharge his attorney (ibid), here the court considered Turley's rights and compared them to countervailing concerns.
Lopez relied heavily on Lara. Lara is likewise distinguishable because the trial court there applied incorrect legal factors to determine whether the defendant should have been granted the continuance. (Lara, supra, 86 Cal.App.4th at pp. 163-164, 166.) --------
This case is more akin to Keshishian. There the defendant requested a continuance on the first day of trial, after the case had been pending for two and a half years and the defendant had received numerous continuances. (Keshishian, supra, 162 Cal.App.4th at p. 428.) The prosecution objected, citing the passage of time, age of the case, and problems with witnesses. (Ibid.) The court of appeal affirmed the trial court's denial, explaining that the defendant had not identified new counsel, and witnesses would have been further inconvenienced by an indefinite delay. (Id. at p. 429.) The appellate court concluded the defendant's "lost confidence" in his prepared attorney did not constitute good cause for granting the continuance or justify the disruption to the judicial process. (Ibid.)
Similarly here, Turley requested the discharge on the first day of trial, necessitating a continuance, after the case had been pending for 18 months and there had been multiple continuances. The relationship between the defendant and retained counsel in Keshishian was deteriorated (Keshishian, supra, 162 Cal.App.4th at p. 429), and Turley likewise described his relationship with retained counsel as "fickle." In both cases, the prosecution objected, arguing the motion was untimely due to the passage of time and explaining the delay would negatively impact witnesses. (Ibid.) Moreover, the delay here would not have prejudiced Turley because the parties were too far apart in their settlement negotiations to reach a plea in case No. 882. Even though the court concluded the motion was untimely here, it also balanced Turley's interests against the disruption further delay would cause. Specifically, it considered Turley's retained counsel's preparedness and knowledge, whether the request was a delay tactic, and the impact of a delay on the witnesses and orderly process of justice. Accordingly, we find no abuse of discretion here.
III.
SECTION 667 ENHANCEMENTS FOR PRIORS
At the time of sentencing, the trial court lacked jurisdiction to strike a prior serious felony conviction in connection with the five-year enhancement under section 667, subdivision (a)(1). (See People v. Valencia (1989) 207 Cal.App.3d 1042, 1045-1047.) Section 667 required imposition of the enhancement under subdivision (b) of section 1385, which did "not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667." (§ 1385, subd. (b).) However, Senate Bill No. 1393, which eliminated the mandatory imposition of five-year terms for serious prior felony convictions, became effective January 1, 2019, and it applies retroactively. (People v. Garcia (2018) 28 Cal.App.5th 961, 972.) Remand for resentencing for the court to decide whether to exercise its discretion is not required when the record shows the trial court would not have stricken the enhancement if it had the discretion to do so at the time. (People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.)
Although the court's explanation for why it opted not to strike any strike priors provides some indication the court might similarly use its discretion to decline to strike the five-year enhancements under section 667, without something more direct and specific, we decline to second-guess what the court might have done. Here, the court applied the mandatory five-year enhancements required at the time. Accordingly, we will remand the matter for resentencing. On remand, the trial court should contemplate its discretion to strike prior serious felony convictions.
IV.
FINES AND FEES
Turley argues the imposition of fines and fees without holding a hearing on ability to pay violated his due process rights and asks us to strike them. We decline.
A restitution fine under section 1202.4, subdivision (b), is a punishment for a crime. (People v. Castellano (2019) 33 Cal.App.5th 485, 489.) Inability to pay "may not be considered a compelling and extraordinary reason not to impose the restitution fine; inability to pay may be considered only when increasing the amount of the restitution fine above the minimum required by statute." (Ibid; People v. Romero (1996) 43 Cal.App.4th 440, 448 [ability to pay is a relevant factor in setting restitution fine exceeding statutory minimum].) The statutory minimum restitution fine is $300 per case. (§ 1202.4, subd. (b)(1).)
Here, the court awarded a restitution fine of $10,000 under section 1202.4, subdivision (b) for each crime, exceeding the $300 statutory minimum. (See ibid.) Turley did not object even though the amounts exceeded the minimum and he had a statutory right to do so. (See id., subd. (c).) Turley's failure to challenge these fines forfeits his challenge now based on ability to pay. (People v. Avila (2009) 46 Cal.4th 680, 729 [failure to object to imposition of restitution fine under section 1202.4 based on ability to pay led to forfeiture]; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 (Frandsen) [defendant who failed to challenge assessments and restitution fine at sentencing forfeited argument on appeal].)
Turley separately contends the court's failure to hold a hearing on his ability to pay the court fees and assessments under the Government Code violated his due process and equal protection rights. To support his position, he relies on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), a Second Appellate District case that concluded due process requires a trial court to determine whether a defendant has the ability to pay court facilities and operation assessments under Government Code section 70373 and Penal Code section 1465.8 before imposing them. (Dueñas, at pp. 1171-1172.) Although Turley recognizes the failure to object to the imposition of these fines and fees would ordinarily forfeit his right to raise the issue on appeal, he maintains that because Dueñas had not yet been decided at the time, he could not have reasonably anticipated that the court would entertain the argument, and so raising the issue would have been futile. (People v. Welch (1993) 5 Cal.4th 228, 237-238 [When objection would have been futile, reviewing courts traditionally excuse failure to object].)
We need not determine whether the holding in Dueñas was foreseeable. As we previously explained, under the facts of this case, Turley forfeited any ability-to-pay argument regarding the restitution fine by failing to object to its imposition. The same is true of the fees the court imposed. Turley had the opportunity and incentive at sentencing to object for lack of ability to pay, but he did not. Turley's silence during sentencing in the face of $20,462 in challengeable fines, fees, and assessments—that is, all but $610 of the total—"is a classic example of the application of the forfeiture doctrine relied upon by the California Supreme Court in numerous criminal sentencing cases decided well before Dueñas." (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 (Gutierrez), citing People v. Aguilar (2015) 60 Cal.4th 862, 864 [applying the forfeiture rule to challenges to probation-related costs and an order for reimbursement of fees paid to appointed trial counsel]; People v. Trujillo (2015) 60 Cal.4th 850, 853-854 [applying the forfeiture rule to an unpreserved claim regarding probation-related fees and defendant's inability to pay them]; People v. Nelson (2011) 51 Cal.4th 198, 227 [defendant's claim that the trial court erred by failing to consider ability to pay a restitution fine is forfeited by the failure to object].)
If Turley chose not to object to the $20,000 in restitution fines based on an inability to pay or the $462 in administrative fees that are challengeable, he would not have objected to an additional $610 in fees and assessments. Accordingly, we conclude Turley forfeited any challenge to the assessments and fees for failure to object to their imposition at sentencing. (See Gutierrez, supra, 35 Cal.App.5th at p. 1033 [failure to challenge restitution fine greater than minimum on grounds of inability to pay forfeits objection to fees on same grounds]; Frandsen, supra, 33 Cal.App.5th at pp. 1154-1155.) Moreover, "even before Dueñas a defendant had every incentive to object to imposition of" a significant restitution fine and other fees and assessments that expressly permit a challenge on the basis of the defendant's inability to pay. (Gutierrez, at p. 1033.) By failing to do so here, Turley forfeited his right to raise this challenge on appeal.
DISPOSITION
The matter is remanded to the trial court with directions to consider its discretion to strike prior serious felony enhancements under section 667. We direct the court to prepare an amended abstract of judgment reflecting any modification and to forward a certified copy of the abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: HALLER, J. AARON, J.