Opinion
B297268
04-27-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA BEJARANO, Defendant and Appellant.
R. E. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Noah P. Hill and Wyatt E. Bloomfield, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. YA098488) APPEAL from judgment of the Superior Court of Los Angeles County. Amy N. Carter, Judge. Affirmed and remanded with directions. R. E. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Noah P. Hill and Wyatt E. Bloomfield, Deputy Attorneys General, for Plaintiff and Respondent.
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Joshua Bejarano appeals the judgment entered following a jury trial in which he was convicted of driving or taking a vehicle without consent. (Veh. Code, § 10851, subd. (a).) Appellant admitted a prior serious or violent felony conviction under the Three Strikes law (Pen. Code, §§ 667, subd. (d), 1170.12, subd. (b)) and the prior prison term allegation (Pen. Code, § 667.5, subd. (b)). The trial court denied appellant's Romero motion and sentenced appellant to five years in state prison, which consisted of the middle term of two years doubled plus one year for the prior prison term enhancement. The court also imposed a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)), imposed and stayed a $300 parole revocation fine (Pen. Code, § 1202.45), and imposed a $30 criminal conviction facilities assessment (Gov. Code, § 70373) as well as a $40 court operations assessment (Pen. Code, § 1465.8, subd. (a)(1)).
The second amended information alleged appellant had served two prior prison terms. (Pen. Code, § 667.5, subd. (b).) However, the two offenses resulted in only one prison commitment because appellant was convicted of the second offense (possession, manufacture, or attempted manufacture of a weapon while confined in any penal institution, Pen. Code, § 4502) while serving his prison sentence for the first.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
Undesignated statutory references are to the Penal Code.
Appellant contends the trial court abused its discretion in declining to exercise its discretion under Romero to strike the prior strike conviction and the matter should be remanded to afford the trial court the opportunity to conduct an ability to pay hearing in accordance with People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We reject these contentions and affirm the judgment of conviction. Appellant further asserts and respondent agrees that Senate Bill No. 136 requires that the one-year prior prison term enhancement be stricken because the prior conviction was not for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). We agree and remand the matter to the trial court for resentencing to strike the one-year prior prison term enhancement imposed pursuant to Penal Code section 667.5, subdivision (b).
FACTUAL BACKGROUND
On June 25, 2018, Gregory Elgin was at work at the bicycle shop in Manhattan Beach that he managed. Around 5:20 p.m. Elgin saw a white sedan come barreling into the parking lot outside the bike shop at about 40 miles per hour. While the vehicle was still moving, appellant jumped out, and the car crashed into an embankment and some bushes. Elgin chased appellant as he ran across the street into another parking lot.
Appellant tried to open the door of one of the businesses, without success, and continued running up a steep embankment. As he headed toward a nearby retirement center, appellant constantly looked around and checked over his shoulder. Elgin called the police as he continued to follow appellant from a safe distance. Police arrived and arrested appellant around 5:30 p.m.
The white sedan appellant was driving and crashed near Elgin's bike shop belonged to MV Transportation and had been reported stolen around 4:30 p.m. on June 25, 2018.
DISCUSSION
I. The Trial Court Properly Exercised Its Discretion in Denying Appellant's Romero Motion
Appellant contends the trial court erred in denying his Romero motion to strike appellant's prior strike conviction. It did not.
We review the trial court's refusal to strike a prior serious and/or violent felony conviction allegation for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376 (Carmony).) It is, of course, appellant's burden to show the trial court's exercise of its discretion was irrational or arbitrary: " 'In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' " (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978; Carmony, at pp. 376-377.) Further, because a reviewing court is without authority simply to substitute its judgment for that of the trial court, the decision of the trial court may not be reversed merely because reasonable people might disagree. (Carmony, at p. 377; Alvarez, at p. 978.) "Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Carmony, at p. 377.)
Although a sentencing court retains discretion to dismiss a defendant's prior strikes in furtherance of justice (Romero, supra, 13 Cal.4th at p. 504), our Supreme Court has "established stringent standards" that a sentencing court must follow in order to find an exception to the Three Strikes law (Carmony, supra, 33 Cal.4th at p. 377). In determining whether to strike a prior serious and/or violent conviction allegation, the sentencing court " 'must consider whether, in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.' " (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)
There is a strong presumption that any sentence conforming to the sentencing norms established by the Three Strikes law is both rational and proper, and a sentencing court will be found to have abused its discretion in failing to strike a prior felony conviction allegation only in extraordinary circumstances. (Carmony, supra, 33 Cal.4th at p. 378.) For example, a sentencing court abuses its discretion when it is entirely unaware of its discretion, when it considers impermissible factors, or when its refusal to strike a strike is irrational or arbitrary in light of the clear application of the Williams factors. (Ibid.) Even where the record is silent, the trial court is presumed to have correctly applied the law (People v. Gillispie (1997) 60 Cal.App.4th 429, 434), and " '[w]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance' " (Carmony, at p. 378).
Because the circumstances must be extraordinary to support a finding that a career criminal whose prior convictions place him squarely within the Three Strikes sentencing scheme actually falls outside the spirit of that scheme, "the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the [T]hree [S]trikes scheme must be even more extraordinary." (Carmony, supra, 33 Cal.4th at p. 378.) This case, however, is not extraordinary, nor do the Williams factors even remotely support appellant's Romero request.
According to his probation report, appellant suffered five misdemeanor and four felony convictions beginning in 2008 and continuing regularly through 2013. These included two misdemeanor convictions for vandalism (Pen. Code, § 594, subd. (b)(1)) in 2008, and a misdemeanor conviction for possession of a dirk or dagger (Pen. Code, § 12020, subd. (a)(1)) in another case in 2008. In 2009, appellant was again convicted of carrying a concealed dirk or dagger, but this time it constituted a felony. The following year, 2010, he suffered a conviction for misdemeanor infliction of corporal injury to a spouse or cohabitant. (Pen. Code, § 273.5, subd. (a).) In 2011, he was convicted of misdemeanor unauthorized entry of property. (Pen. Code, § 602.5, subd. (b).) He was convicted of possession of a controlled substance (Health & Saf. Code, § 11377), a felony, on April 19, 2012. In August 2012, appellant committed robbery (Pen. Code, § 211), for which he was convicted and thereby picked up his first strike on February 7, 2013. He was sentenced to three years in state prison for that offense. A month into his sentence for the robbery, he was convicted of another felony, possession of a weapon in prison (Pen. Code, § 4502, subd. (a)), for which he received a consecutive four-year prison sentence. According to the probation department, appellant is also a documented member of the "Blythe Street" gang.
Nothing about appellant's criminal history removes him from the spirit of the Three Strikes sentencing scheme.
Appellant argues that the trial court abused its discretion because it failed to take into consideration appellant's character, background, and history. Not so. In ruling on the Romero motion, the trial court specifically acknowledged it was required to consider the defendant's "background, character and prospects." The trial court expressly stated that it had "read and considered the probation report," which plainly detailed appellant's criminal history, as well as other aspects of his character and background. The court also noted that, having been convicted of possessing a weapon in prison, appellant's record after the robbery conviction was not unblemished.
Appellant also maintains the robbery conviction was too remote and dissimilar to the current felony to justify its application as a prior strike. But appellant committed the offense in this case in June 2018, after serving approximately four years in prison starting in 2013. As the trial court observed, "Remoteness is not viewed in a vacuum," and the court was entitled to take account of appellant's intervening conviction in 2013 as well as the rest of his criminal history. (Williams, supra, 17 Cal.4th at p. 161.) Finally, appellant argues but cites no authority for the proposition that a sentencing court is to consider whether similarities exist between the strike prior and the current offense in considering a Romero motion. There is no such requirement: The absence of similarity between the current and prior offenses has no bearing whatsoever in the court's analysis of a defendant's Romero request.
Accordingly, we find no abuse of discretion in the trial court's refusal to strike the prior conviction alleged under the Three Strikes law on this record.
II. Appellant Is Not Entitled to a Hearing to Determine His Ability to Pay the Fines and Assessments
Appellant contends the trial court's imposition of restitution and parole revocation fines as well as the criminal conviction assessment and the court security fee was unconstitutional under Dueñas, supra, 30 Cal.App.5th 1157. He thus asserts he is entitled to remand to enable the trial court to determine his ability to pay. We reject the claim.
The trial court imposed the fines and assessments at sentencing on January 11, 2019, shortly after the Dueñas decision was filed. However, appellant raised no objection to the financial obligations ordered by the court. Appellant's failure to object to the imposition of the restitution fine or assessments and his failure to assert any inability to pay them (unlike the defendant in Dueñas) thus forfeited the issue on appeal. Generally, where a defendant has failed to object to a restitution fine or court fees based on an inability to pay, the issue is forfeited on appeal. (People v. Aguilar (2015) 60 Cal.4th 862, 864 ["defendant's failure to challenge the fees in the trial court precludes him from doing so on appeal"]; People v. Avila (2009) 46 Cal.4th 680, 729.) We agree with our colleagues in Division Eight of this district that this general rule applies here to the restitution fine and the assessments imposed under the Penal and Government Codes. (People v. Bipialaka (2019) 34 Cal.App.5th 455, 464; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155; but see People v. Petri (2020) 45 Cal.App.5th 82, 88-89 ; People v. Castellano (2019) 33 Cal.App.5th 485, 488.)
Further, even if appellant did not forfeit his argument, we decline to extend Dueñas's broad holding beyond the extreme facts in that case, which are not present here. Dueñas was a disabled, unemployed, and often homeless mother of two young children. Over the course of several years she served jail time because she could not pay the fines imposed in connection with various misdemeanor vehicle offenses. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1162.) Applying a due process analysis to the particular facts before it, the appellate court concluded that "[b]ecause the only reason Dueñas cannot pay the fine and fees is her poverty, using the criminal process to collect a fine she cannot pay is unconstitutional." (Dueñas, at p. 1160.) By contrast, the situation in which appellant finds himself—subject to a state prison sentence for a second strike felony conviction—simply does not implicate the same due process concerns at issue in the factually unique Dueñas case. Appellant, unlike Dueñas, does not face incarceration because of an inability to pay court-imposed fines, fees, and assessments. And even if appellant does not pay the fines and assessments, he will suffer none of the cascading and potentially devastating consequences that Dueñas faced. (See Dueñas, at p. 1163.)
Finally, in People v. Hicks (2019) 40 Cal.App.5th 320, 322, 329, review granted November 26, 2019, S258946 (Hicks), we concluded that Dueñas was wrongly decided and rejected its holding that "due process precludes a court from 'impos[ing]' certain assessments and fines when sentencing a criminal defendant absent a finding that the defendant has a 'present ability to pay' them." (Accord, People v. Petri, supra, 45 Cal.App.5th at p. 92 [quoting Hicks, at p. 329: "The 'imposition of these financial obligations has not denied defendant access to the courts' and 'their imposition has [not] . . . result[ed] in defendant's incarceration' "]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1068 ["Dueñas was wrongly decided"]; People v. Caceres (2019) 39 Cal.App.5th 917, 923, 926-927 [Dueñas's due process analysis does not justify extending its "broad holding" beyond its "extreme facts"]; People v. Kingston (2019) 41 Cal.App.5th 272, 279-282 (Kingston) [no due process violation in imposition of assessments and restitution fine without first ascertaining defendant's ability to pay them]; People v. Kopp (2019) 38 Cal.App.5th 47, 96-97 ["there is no due process requirement that the court hold an ability to pay hearing before imposing a punitive fine and only impose the fine if it determines the defendant can afford to pay it"], review granted Nov. 13, 2019, S257844.)
The California Supreme Court ordered briefing deferred pending decision in People v. Kopp, S257844, which presents the following issues:
"(1) Must a court consider a defendant's ability to pay before imposing or executing fines, fees, and assessments? (2) If so, which party bears the burden of proof regarding the defendant's inability to pay?" (People v. Hicks, S258946, <https://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=2302457&doc_no=S258946&request_token=NiIwLSEmXkw8W1BZSCNNTEtIUEQ0UDxTJiBeIz5SUCAgCg%3D%3D> [as of Apr. 20, 2020], archived at <https://perma.cc/M53U-K638>.)
In Kingston, our colleagues in Division One of this district agreed with our opinion in Hicks that, contrary to Dueñas's analysis, "due process precludes a court from imposing fines and assessments only if to do so would deny the defendant access to the courts or result in the defendant's incarceration." (Kingston, supra, 41 Cal.App.5th at p. 279, citing Hicks, supra, 40 Cal.App.5th at p. 329.) Here, as in Kingston and Hicks, the "imposition of the [restitution fine], assessments and fees in no way interfered with [appellant's] right to present a defense at trial or to challenge the trial court's rulings on appeal . . . . And their imposition did not result in [appellant's] incarceration." (Kingston, at p. 281; Hicks, at p. 329.) Moreover, due process does not deny appellant the opportunity to try to satisfy these obligations. (See Hicks, at p. 327.)
III. Senate Bill No. 136 Changed the Law as Applied to Appellant's Case and Requires that the One-year Prior Prison Term Enhancement Imposed Under Section 667.5, Subdivision (b) Be Stricken
Senate Bill No. 136 was passed in 2019 during the regular legislative session and approved by the governor on October 8, 2019. (Sen. Bill No. 136 (2019-2020 Reg. Sess.) § 1 [<http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200SB136> [as of Apr. 20, 2020], archived at <https://perma.cc/L3MH-NZSM>].) Prior to the enactment of the legislation, Penal Code section 667.5, subdivision (b) provided for the imposition of a one-year enhancement for each separate prior prison term served for "any felony" (with an exception not applicable here). Senate Bill No. 136 amended Penal Code section 667.5, subdivision (b) to require that the one-year enhancement be imposed only for each separate prior prison term served for a conviction of "a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." (Stats. 2019, ch. 590, eff. Jan. 1, 2020.) The amendment took effect January 1, 2020. (Cal. Const., art. IV, § 8; Gov. Code, § 9600, subd. (a); People v. Camba (1996) 50 Cal.App.4th 857, 865 [" ' "Under the California Constitution, a statute enacted at a regular session of the Legislature generally becomes effective on January 1 of the year following its enactment except where the statute is passed as an urgency measure and becomes effective sooner" ' "].)
We apply a de novo standard of review to the question of whether a statute applies retroactively. (In re Marriage of Fellows (2006) 39 Cal.4th 179, 183.) Here, we conclude that Senate Bill No. 136, an ameliorative amendment with no express saving clause, applies to appellant's case and requires remand to the trial court to strike the enhancement under section 667.5, subdivision (b) and resentence appellant accordingly. (In re Estrada (1965) 63 Cal.2d 740, 744-745 (Estrada).)
The general rule of statutory construction holds that in the absence of any indication of a contrary intent in the statute, the Legislature is presumed to have intended only the prospective, not retroactive, operation of the statute. (§ 3; Estrada, supra, 63 Cal.2d at p. 746.) In Estrada, our Supreme Court announced an important qualification to that rule: "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final." (Estrada, supra, 63 Cal.2d at p. 745; People v. Brown (2012) 54 Cal.4th 314, 323.) Accordingly, absent evidence to the contrary, courts will presume "the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute's operative date." (Brown, at p. 323.)
Appellant's conviction was not final when Senate Bill No. 136 took effect because his case was (and remains) on appeal, and the time for filing a petition for writ of certiorari in the United States Supreme Court has not yet expired. (People v. Vieira (2005) 35 Cal.4th 264, 306; People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 5.) Accordingly, the amendment to section 667.5, subdivision (b) applies retroactively to this case.
The matter is remanded to the trial court to strike the one-year prior prison term enhancement and to resentence appellant accordingly.
DISPOSITION
The matter is remanded to the trial court for resentencing to strike the one-year prior prison term enhancement previously imposed pursuant to Penal Code section 667.5, subdivision (b). The trial court is further directed to correct the abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J. We concur:
CHAVEZ, J.
HOFFSTADT, J.