Opinion
B331139
06-11-2024
THE PEOPLE, Plaintiff and Respondent, v. ARONDO AUSTIN, Defendant and Appellant.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Rama R. Maline, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County No. YA009254, Nicole C. Bershon, Judge. Vacated with directions.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Rama R. Maline, Deputy Attorney General, for Plaintiff and Respondent.
SEGAL, J.
INTRODUCTION
In 1992 a jury convicted Arondo Austin of kidnapping to commit robbery and other crimes and found true certain allegations relating to the crimes. The trial court sentenced Austin to life in prison, plus eight years, which included a five-year firearm enhancement under Penal Code section 12022.5and a one-year prior prison term enhancement under section 667.5, subdivision (b). Austin appealed, and we affirmed the judgment as modified.
Statutory references are to the Penal Code.
Thirty years later, in 2022, Austin petitioned the superior court under section 1172.75 to strike the one-year prior prison term enhancement. After the superior court struck the enhancement and resentenced Austin, Austin petitioned the court again, this time asking the court to apply recent ameliorative legislation and to resentence him under former section 1170.03 (now section 1172.1). The superior court held a second resentencing hearing, acknowledged that in Austin's direct appeal we had modified the judgment to stay execution of the sentence on one of the counts, and reimposed the remaining terms of Austin's original sentence.
Austin argues the superior court abused its discretion in resentencing him because, according to Austin, the court was not aware it had the discretion to strike the five-year firearm enhancement under section 12022.5. Austin also argues the superior court erred in failing to determine his ability to pay certain fines and fees before imposing them and incorrectly computing his custody credits.
We conclude the superior court erred in not recognizing it had discretion to strike the firearm enhancement. We also conclude that Austin forfeited his challenge to the restitution fine and that the court incorrectly computed Austin's custody credits. Therefore, we vacate Austin's sentence and direct the superior court to exercise its discretion whether to strike the firearm enhancement and to recompute Austin's custody credits.
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Austin of Kidnapping To Commit Robbery and Other Crimes, the Trial Court Sentences Him, and We Affirm
One evening in 1991 Austin and another man stopped a tow truck driver, who had just mounted a car onto his truck. Austin pointed a gun at the driver, got into the truck, and directed the driver to drive to an alley and unload the car into a carport. Once the driver unhitched the car from the truck, other individuals arrived and began stripping the car. While still pointing a gun at the driver, Austin asked him whether he had any money. The driver gave Austin all the money he had. Austin's associates pushed the car down the alley, and Austin directed the driver to leave. As the driver backed his truck out, Austin and the other thieves drove away in the car.
A jury convicted Austin of kidnapping to commit robbery (§ 209, subd. (b)), second degree robbery (§ 211), and possession of a firearm by a felon (former § 12021, subd. (a)) and found true the firearm and prior prison term allegations. The trial court sentenced Austin to life in prison on the conviction for kidnapping to commit robbery, plus five years for the firearm enhancement under section 12022.5 and one year for the prior prison term enhancement under section 667.5, subdivision (b), and two years on the conviction for possession of a firearm by a felon. The court imposed and stayed under section 654 execution of a prison term on the robbery conviction. The court ordered Austin to serve the determinate portion of his sentence first. In Austin's direct appeal, we modified the judgment to stay execution of the two-year term on the conviction for possession of a firearm by a felon and affirmed the judgment as modified. (People v. Austin (June 28, 1993, B067949) [nonpub. opn.] (Austin I).)
The Legislature repealed former section 12021, subdivision (a)(1), effective January 1, 2012, but reenacted its provisions without substantive change as section 29800, subdivision (a)(1). (People v. Sanders (2012) 55 Cal.4th 731, 734, fn. 2.)
See section 3046, subdivision (a)(2); People v. Franklin (2016) 63 Cal.4th 261, 273.
B. Austin Files Two Petitions for Resentencing
In September 2022 Austin filed a petition for resentencing under section 1172.75. Austin asked the superior court to dismiss the one-year enhancement for his prior prison term under section 667.5, subdivision (b), because the enhancement was now invalid under section 1172.75, subdivision (a). The superior court struck the one-year prior prison term enhancement and resentenced Austin to life imprisonment, plus seven years, and ordered all other terms of the original sentence, including "any fines and fees and any restitution," to remain.
Which provides: "'Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense . . . is legally invalid.'" (See People v. Monroe (2022) 85 Cal.App.5th 393, 397.)
In December 2022 Austin filed a petition for recall and resentencing under section 1172.1. The superior court acknowledged Austin had filed a petition under section 1172.1, conferred with counsel off the record, and subsequently ordered a "further reduction of the determinate portion of [Austin's] sentence may be required in light of the remittitur issued by [this court] on September 20, 1993." The court set a "Second Resentencing Hearing."
At the second resentencing hearing in May 2023 the court confirmed with the prosecutor and counsel for Austin that, in Austin's direct appeal, we had stayed execution of the two-year sentence on the conviction for possession of a firearm by a felon. The court calculated that, after subtracting this two-year term and the one-year prior prison term under section 667.5, subdivision (b), from the determinate portion of the sentence, Austin's sentence should be life in prison, plus five years. The court asked the prosecutor, "Are the People willing to allow the court to stay the penalty of five years and just make it a life sentence?" The prosecutor refused. The court asked the prosecutor, "I can opt to run that concurrently, can I not?" The prosecutor answered, "But that hasn't been litigated. We're just fixing what was already done." The court asked counsel for Austin if she had anything to say, and counsel for Austin stated, "No." Counsel for Austin said she agreed the sentence should be life with the possibility of parole, plus five years.
The court asked the prosecutor and counsel for Austin to meet and confer about "the appropriate amended sentence" and to draft "some sort of stipulation" about the proper sentence. After a conference, the court confirmed "everybody" agreed on the sentence the court should impose. On the kidnapping to commit robbery conviction, the court sentenced Austin to life in prison, plus five years for the firearm enhancement under section 12022.5. The court imposed and stayed execution of the sentences on the other counts. The court also ordered Austin to serve the determinate sentence of five years before serving the indeterminate sentence of life. Finally, the court ordered the fines and fees imposed at the original sentencing to "remain as previously imposed." Austin timely appealed.
DISCUSSION
A. The Superior Court Erred in Not Recognizing It Had Discretion To Strike the Five-year Firearm Enhancement Under Section 12022.5
As a preliminary matter, the People argue Austin's challenge to the five-year firearm enhancement is moot because the trial court ordered Austin to serve the determinate portion of his sentence first and that this portion "would have been served prior to April 21, 2000." The People also argue that, even if Austin's appeal is not moot, the Legislature's amendment to section 12022.5 in 2018 to give the trial court discretion to strike a firearm enhancement does not apply to Austin's long-final sentence. Both arguments fail. On the merits, the record supports Austin's argument the superior court did not understand it had discretion to strike the firearm enhancement.
1. The Appeal Is Not Moot
Austin has served the determinate portion of his sentence. But his appeal is not moot. The Legislature contemplated that defendants like Austin who have served their sentences may still obtain resentencing relief under section 1172.1. Section 1172.1, subdivision (a)(1), authorizes the superior court to resentence the defendant "whether or not the defendant is still in custody." If serving the term imposed for the firearm enhancement deprived Austin of the ability to seek resentencing on that enhancement under section 1172.1, the statutory language extending the benefits of recall and resentencing to all qualified defendants regardless of their custody status would have no effect. (See People v. Valencia (2017) 3 Cal.5th 347, 357 ["we generally must 'accord[ ] significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose,' and have warned that '[a] construction making some words surplusage is to be avoided'"]; People v. Arias (2008) 45 Cal.4th 169, 180 ["we must follow the fundamental rule of statutory construction that requires every part of a statute be presumed to have some effect and not be treated as meaningless unless absolutely necessary"]; People v. Monroe (2022) 85 Cal.App.5th 393, 401 [courts should avoid statutory interpretations that render language in the statute "unnecessary surplusage"].)
Moreover, deciding this appeal may allow Austin to clear his criminal record of the finding under section 12022.5 that he used a firearm in committing the crimes. Where a defendant has served "'his full term for the offenses of which he was convicted'" and "'cannot obtain relief as to them so far as imprisonment is concerned,'" the defendant may still appeal from the judgment "'for the purpose of clearing his name.'" (People v. Delong (2002) 101 Cal.App.4th 482, 487-488; see In re Byrnes (1945) 26 Cal.2d 824, 827.) Although Austin has served the five-year term of imprisonment for the firearm enhancement under section 12022.5, if we agree with him the superior court erred in not understanding it had discretion to strike the firearm enhancement, we can direct the court to exercise its discretion whether to strike the enhancement (which, the record shows, the court was inclined to do). If the court strikes the enhancement, Austin will be able to clear his record of the firearm-use finding, as well as "the stigma of criminality" (Delong, at p. 492) that accompanies that finding. (See People v. Hernandez (2017) 10 Cal.App.5th 192, 204 ["Having one less felony conviction is undeniably a potential benefit, such that the issue is not moot."].)
2. Section 12022.5, Subdivision (c), Applies to Austin's Resentencing
Contrary to the People's assertion, section 12022.5, subdivision (c), applies to Austin's resentencing under section 1172.1. Section 12022.5, subdivision (a), provides that, except for circumstances not relevant here, "any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years." (See Nazir v. Superior Court (2022) 79 Cal.App.5th 478, 495.) The Legislature "amended section 12022.5, . . . effective January 1, 2018, to give the trial court discretion to strike, in the interest of justice, a firearm enhancement imposed" under section 12022.5, subdivision (a). (People v. Billingsley (2018) 22 Cal.App.5th 1076, 1079-1080; see § 12022.5, subd. (c).) The amended statute "applies retroactively to all nonfinal convictions." (People v. Humphrey (2020) 44 Cal.App.5th 371, 377; see Billingsley, at p. 1080.)
Amended section 12022.5, subdivision (c), does not apply retroactively to cases that are final. (People v. Hernandez (2019) 34 Cal.App.5th 323, 326; People v. Johnson (2019) 32 Cal.App.5th 938, 941-942; see People v. Padilla (2022) 13 Cal.5th 152, 162 ["a judgment becomes final '"where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari ha[s] elapsed"'"].) But Austin's case was not final. When the superior court resentenced Austin under section 1172.75 in October 2022, the court vacated the 1992 judgment. When the court resentenced Austin under section 1172.1 in May 2023, the court vacated the October 2022 judgment. Thus, amended section 12022.5, subdivision (c), applies to Austin's nonfinal case. (See People v. Montes (2021) 70 Cal.App.5th 35, 48 [applying ameliorative legislation to the defendant's nonfinal sentence because the "defendant's resentencing pursuant to section [1172.1] effectively vacated the earlier judgment"]; People v. Lopez (2020) 56 Cal.App.5th 835, 845 ["Because a resentencing under section [1172.1] replaces the original sentence, the original sentence is no longer operative, and the finality of the original sentence is no longer material."]; see also People v. Monroe, supra, 85 Cal.App.5th at p. 401 [amended section 12022.5, subdivision (c), "applies once resentencing is triggered by [section 1172.75]"].)
In addition, amended section 12022.5, subdivision (c), states the court's authority to strike the firearm enhancement "applies to any resentencing that may occur pursuant to any other law." A "resentencing after a recall under section [1172.1] is a resentencing pursuant to law." (People v. Pillsbury (2021) 69 Cal.App.5th 776, 786.) Because the superior court resentenced Austin under section 1172.1, section 12022.5, subdivision (c), applies.
3. The Superior Court Was Unaware It Had Discretion To Strike the Firearm Enhancement
"'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; see People v. Tirado (2022) 12 Cal.5th 688, 694 ["A court acting while unaware of the scope of its discretion is understood to have abused it."]; In re White (2020) 9 Cal.5th 455, 470 [same].) "In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (Gutierrez, at p. 1391; accord, People v. Barber (2020) 55 Cal.App.5th 787, 814; People v. Chavez (2018) 22 Cal.App.5th 663, 713; People v. McDaniels (2018) 22 Cal.App.5th 420, 425.)
The record does not clearly indicate the superior court would have imposed the same sentence had the court been aware of its discretion. (See People v. Billingsley, supra, 22 Cal.App.5th at p. 1081; People v. McDaniels, supra, 22 Cal.App.5th at pp. 427428.) To the contrary, the record clearly indicates that the superior court did not know it had discretion to strike the firearm enhancement under section 12022.5 and that the court would have stricken the enhancement had it been aware it had that discretion. The court's statements at the hearing reflected that the court was inclined to stay imposition or execution of the five-year enhancement or order Austin to serve it concurrently, but that the court believed it needed the prosecutor's concurrence to do so. Which strongly suggests that, had the court understood it had discretion to strike the enhancement under section 12022.5, subdivision (c), the court would have exercised that discretion. The People do not contend otherwise.
B. Austin Forfeited His Challenge to the Restitution Fine
Citing People v. Duenas (2019) 30 Cal.App.5th 1157 (Duenas), Austin argues the superior court erred in failing to determine whether he had the ability to pay the fines and fees the court imposed. Austin refers only to the $1,500 restitution fine the court reimposed under former Government Code section 13967, subdivision (a), and the record does not indicate the trial court (in 1992) or the superior court (in 2023) imposed any other fines or fees. Austin, however, forfeited his challenge to the $1,500 restitution fine.
At the time of Austin's sentencing in 1992, former section 1202.4, subdivision (a), "mandated the imposition of a restitution fine 'regardless of the defendant's present ability to pay' [citation], subject to the range identified in Government Code [former] section 13967, subdivision (a)." (People v. Wall (2017) 3 Cal.5th 1048, 1074; see Stats. 1990, ch. 45, § 4, p. 261.) The version of section 1202.4 in effect at the time of Austin's second resentencing in 2023 (which is also the current version) does not refer to Government Code former section 13967 (which the Legislature repealed in 1994). Section 1202.4, subdivision (b), now provides a court "shall" impose a restitution fine between $300 and $10,000, the amount of which "shall be set at the discretion of the court and commensurate with the seriousness of the offense." Section 1202.4, subdivision (c), states: "The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. A defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of subdivision (b)."
Former Government Code section 13967, subdivision (a), provided that, if a person "is convicted of one or more felony offenses, the court shall impose a separate and additional restitution fine of not less than one hundred dollars ($100) and not more than ten thousand dollars ($10,000)." (Stats. 1991, ch. 657, § 1, p. 3020.)
"In 1994, the Legislature deleted the restitution provisions in Government Code section 13967 . . . and incorporated substantively similar provisions into Penal Code section 1202.4." (People v. Giordano (2007) 42 Cal.4th 644, 653.)
In Duenas, supra, 30 Cal.App.5th 1157 this court acknowledged that section 1202.4, subdivision (b), requires the trial court to impose a restitution fine and that section 1202.4, subdivision (c), prohibits the court from "considering the defendant's ability to pay the minimum fine." (Duenas, at p. 1170.) To avoid serious constitutional questions, we held that, although the court must impose a restitution fine, "the court must stay the execution of the fine until and unless the People demonstrate that the defendant has the ability to pay the fine." (Id. at p. 1172; see People v. Castellano (2019) 33 Cal.App.5th 485, 488-489.) But Duenas involved the minimum restitution fine. (Duenas, at pp. 1170-1171; see People v. Cowan (2020) 47 Cal.App.5th 32, 50 ["Under the holding in Duenas these mandatory minimum fines must continue to be imposed, subject to a stay of execution where inability to pay is shown."], review granted June 17, 2020, S261952.) The superior court here (re)imposed a restitution fine that exceeded the minimum amount. At the time of Austin's second resentencing hearing in 2023, section 1202.4, subdivision (c), authorized the court to consider his ability to pay a restitution fine that exceeded the minimum amount of $300. Thus, Austin had the opportunity to argue he did not have the ability to pay the $1,500 restitution fine. His failure to do so forfeited the argument. (See People v. Miracle (2018) 6 Cal.5th 318, 356 [defendant forfeited his challenge to a fine in excess of the statutory minimum because he failed to object that he did not have the ability to pay it]; People v. Gamache (2010) 48 Cal.4th 347, 409 [defendant forfeited the argument he did not have the ability to pay a $10,000 restitution fine because he failed to object in the trial court and the law at the time of his sentencing "called for the trial court to consider his ability to pay in setting a restitution fine"]; People v. Ramirez (2023) 98 Cal.App.5th 175, 225 ["'even before Duenas 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'"].)
Moreover, Austin's May 2023 resentencing hearing occurred more than four years after our 2019 decision in Duenas. By failing to object to the restitution fine at the resentencing hearing, Austin doubly forfeited his argument. (See People v. Evers (2023) 97 Cal.App.5th 551, 556 ["Once case law exists holding that a hearing on ability to pay is constitutionally required when requested, a defendant who does not object or ask for a hearing forfeits the claim of error."]; People v. Greeley (2021) 70 Cal.App.5th 609, 624 ["At the time of defendant's sentencing hearing, Duenas had already been decided, and there is no reason why defendant could not have requested an ability-to-pay hearing based on Duenas."].)
C. The Court Erred in Computing Austin's Custody Credits
Austin argues, the People concede, and we agree the superior court incorrectly computed Austin's custody credits at the second resentencing hearing. "When . . . an appellate remand results in modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the 'subsequent sentence.'" (People v. Buckhalter (2001) 26 Cal.4th 20, 23; see People v. Sek (2022) 74 Cal.App.5th 657, 673.) The original abstract of judgment states that, when the trial court sentenced Austin in 1992, Austin had 250 days of custody credits. More than 30 years later, the third amended abstract of judgment indicates that, on May 12, 2023, Austin had the same number of credits he had in 1992-250 days. The superior court either incorrectly computed, or did not compute at all, Austin's custody credits. The superior court must calculate his credits again. (See Sek, at pp. 673-674 [directing the superior court to update the defendant's credits for actual time served between the original sentencing hearing and the resentencing hearing].)
DISPOSITION
The sentence is vacated. The superior court is directed to exercise its discretion whether to strike the firearm enhancement under section 12022.5, correctly compute Austin's custody credits, and prepare an amended abstract of judgment and send a copy of it to the Department of Corrections and Rehabilitation.
We concur: MARTINEZ, P. J., FEUER, J.