Opinion
B299046 c/w B301212
04-14-2020
THE PEOPLE, Plaintiff and Respondent, v. CHARLES BAKER, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. YA035420) THE COURT:
In 1997, the Los Angeles District Attorney's Office filed an amended felony complaint against Charles Baker (appellant), and codefendants Ollie Antoine Wilkins (Wilkins) and Kevin Anthony Bookman (Bookman). Count 1 alleged that they murdered Evan F. (Pen. Code, § 187.) Counts 2-4 alleged that they attempted to murder, respectively, Alec F., Rhonda F., and Pierre N. As to count 2, the complaint alleged that appellant "personally inflicted great bodily injury upon [Alec F.] . . . within the meaning of . . . Section 12022.7[, subdivision (a)][.]" (§§ 664, 187.) As to all counts, the complaint alleged that in the commission and attempted commission of the offenses: a principal was armed with a rifle within the meaning of section 12022, subdivision (a)(1); appellant and Wilkins personally used an assault rifle and .22 rifle within the meaning of section 1203.06, subdivision (a)(1) and section 12022.5, subdivision (a)(1); appellant "personally used an assault rifle within the meaning of . . . section 12022.5, subdivision (b)(2)."
All further statutory references are to the Penal Code, unless otherwise indicated.
In 1999, appellant pleaded guilty to three counts of attempted murder and one count of second degree murder. (§§ 182, 187.) He admitted that the allegation that he and Wilkins personally used an assault rifle and a .22 rifle. (Former § 12022.5, subd. (a)(1).) The trial court sentenced appellant to 26 years to life in state prison, which included seven years on count 4, 15 years on count 1, and an additional four years for the personal gun use enhancement. He was ordered to pay $10,000 to the restitution fund under section 1202.4. The trial court imposed but stayed a $10,000 parole revocation fine under section 1202.45.
The record does not directly indicate whether appellant admitted the allegation pursuant to section 12022.5, subdivisions (a)(1) or (2). However, the trial court selected the midterm of four years as to the enhancement. Four years is the midterm only for subdivision (a)(1). --------
Senate Bill No. 1437 went into effect on January 1, 2019. (See Stats. 2018, ch. 1015, § 4.) It added section 1170.95 and amended sections 188 and 189. "As amended, section 188 limits a finding of malice: 'Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.' (§ 188, subd. (a)(3).) As added by Senate Bill 1437, subdivision (e) of section 189 reads: 'A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) . . . in which a death occurs is liable for murder only if one of the following is proven: [¶] '(1) The person was the actual killer. [¶] '(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] '(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life[.]" (People v. Ramirez (2019) 41 Cal.App.5th 923, 928.) Section 1170.5 permits a defendant to file a petition with the court that sentenced the defendant for resentencing if he was convicted under a theory of felony murder or murder under the natural and probable consequences doctrine, and if he could not have been convicted under the changes to sections 188 and 189 made effective January 1, 2019. (People v. Ramirez, at p. 929.)
On February 25, 2019, appellant filed a petition for resentencing pursuant to section 1170.95. The petition was denied after the trial court determined that the evidence showed that appellant was Foster's actual killer. Appellant appealed that ruling in case No. B299046. On June 28, 2019, appellant filed a motion to waive imposition of the $10,000 restitution fine. The trial court denied the motion because appellant's judgment was final. Appellant appealed that ruling in case No. B301212.
In both appeals, appellant's appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) raising no issues. On December 24, 2019, in case No. B299046 and on December 27, 2019, in case No. B301212 we notified appellant of his counsel's briefs and gave him leave to file his own brief or letter stating grounds for appellate relief. Appellant filed a letter only regarding case No. B301212 and asked us to consider Assembly Bill No. 227 (AB 227).
We consolidated the two appeals for purposes of decision.
I. Petition for Resentencing.
Appellant's petition contained the probation officer's report. It stated that Rhonda F. came out of a recreational building with her two children—Evan F. and Alec F.—and walked to her car, loaded her children into the back seat, and got into the driver's seat. Pierre N. was in a Cadillac next to Rhonda F.'s car. A third car stopped in front of Pierre N.'s Cadillac. One or two suspects exited the third car with guns and began firing in Pierre N.'s direction. Pierre N. fled. Evan F. was hit by a bullet and killed. The suspects got back into the third car and exited the parking lot. Appellant and his codefendants were identified as the individuals involved in the murder. Also, they were all identified as gang members.
In opposition to the petition, the prosecutor offered a transcript of appellant's police interview in which he confessed to killing Evan F. Also, the prosecutor offered an investigation report from the Inglewood Police Department. It recounted that several confidential informants told the police that "Baby Nine Ball" had shot Evan F. The police later determined that "Baby Nine Ball" is appellant. Bookman told the police that Wilkins (also known as "Baby G Down") had pointed a .22 rifle at Pierre N.'s car but shouted that the rifle was jammed. Then appellant exited their car with a "Mac 90" and fired several shots at Pierre N. Bookman could see the bullets hitting the windshield of the car next to the Cadillac. Wilkins also informed the police that he yelled that his rifle was jammed, and that appellant was the one who fired.
In the trial court's written decision, it stated in part, "A review of the court file reveals that [appellant] was the actual killer of Evan [F.], not someone convicted . . . on the natural and probable consequences doctrine or the felony murder rule. [¶] [Appellant] is not entitled to relief under section 1170.95 as a matter of law."
The trial court did not err. Based on appellant's confession that he was the shooter, and based on the statements made by the codefendants, appellant could be convicted of murder even after the changes to sections 188 and 189. He was not entitled to be resentenced.
II. Motion to Strike Fines and Fees.
In his motion to stay the $10,000 restitution fine, appellant argued that it constituted an illegal sentence and can be challenged at any time. He relied on People v. Serrato (1973) 9 Cal.3d 753, 763 [if an unauthorized sentence is imposed, "the law is well settled that such a sentence would have been subject to judicial correction whenever the error came to the attention of the trial court or a reviewing court"] and People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168-1169 (Dueñas) [it violates due process to impose court operations and facilities fees without first determining ability to pay]. He suggested that the fine was illegal on the theory that the sentencing court abused its discretion by imposing it without first ordering him to disclose his assets.
In denying the motion, the trial court stated, "The appellant is provided an allowance while in prison. A portion of that allowance may be used to pay his fines and fees. As to the [appellant's] reliance on Dueñas, the case does not appear to refine the holding of a prior case, apply existing precedent to a different fact situation, or draw a conclusion clearly implied by other holdings. [Citation.] [¶] Thus, it appears to be establishing a new rule. . . . It follows that Dueñas would apply in all cases not yet final. [Citation.] The [appellant's] case has been final for some time now. [¶] With regard to retroactivity, since Dueñas' holding requires a consideration of a defendant's ability to pay with respect to certain fines and fees[,] the new rule defines a procedural right, and this does not point plainly towards retroactivity. Likewise, it does not go to the integrity of the fact-finding process, nor does it implicate questions of guilt and innocence. Accordingly, Dueñas does not have retroactive effect. [Citations.]"
We find no basis to reverse.
Case law establishes that an illegal sentence is one "which was not authorized by statutes that govern sentencing. [Citation.]" (People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1588.) Below, appellant did not cite any case law holding that a sentence is considered illegal if it would violate due process under later precedent.
The relevant statute required a trial court to impose a restitution fine of at least $200 for a felony unless it found a compelling and extraordinary reason not to impose the fine. A defendant's inability to pay was not a compelling and extraordinary reason. (Former § 1202.4, subds. (b) & (c).) A trial court had discretion to increase the amount to $10,000. In doing so, it was required to consider "any relevant factors including, but not limited to, the defendant's inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered any losses as a result of the crime, and the number of victims involved in the crime." (Former § 1202.4, subd. (d).) Continuing on, the statute provided, "Those losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime. Consideration of a defendant's inability to pay may include his or her future earning capacity. A defendant shall bear the burden of demonstrating his or her inability to pay. Express findings by the court as to the factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be required." (Former § 1202.4, subd. (d).)
Former section 1202.4, subdivision (f) gave a defendant a right to a hearing to dispute the amount of restitution. He or she was required to prepare and file a disclosure identifying all assets, income, and liabilities.
Contrary to what appellant argued in his motion, the trial court was not required to order him to disclose his assets before imposing a restitution fine. Further, appellant had the burden of proving his inability to pay. A review of the record reveals that inability to pay was not raised at the sentencing hearing. We conclude that the trial court imposed the restitution fine as authorized by statute. He cannot challenge that fine now; the time to appeal has long expired.
AB 227 does not alter our analysis.
It is proposed legislation that would, inter alia, amend section 1202.4 to provide that a trial court must impose a restitution fine unless it finds the defendant lacks the ability to pay. It would, however, continue to place the burden of proof on the defendant. This proposed legislation does not factor into our analysis because it is not law and, in any event, it would not allow appellant's untimely challenge.
III. Conclusion.
Upon due consideration, we are satisfied that appellant's counsel complied with his responsibilities. We conclude appellant has received adequate and effective appellate review of the judgment entered against him due to counsel's compliance with the Wende procedure as well as our review of the record. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 123-124.)
The denial of appellant's petition for resentencing and the denial of his motion to waive the $10,000 restitution fine are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. /s/_________
LUI, P. J. /s/_________
ASHMANN-GERST, J. /s/_________
CHAVEZ, J.