Opinion
E070386
09-09-2019
THE PEOPLE, Plaintiff and Respondent, v. ORIN CADE BRECKENRIDGE, Defendant and Appellant.
Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Steve Oetting and Matthew Mulford, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI101201) OPINION APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed with directions. Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Steve Oetting and Matthew Mulford, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, Orin Cade Breckenridge, was tried by a jury and convicted of two counts of committing a forcible lewd act on a child under the age of 14. (Pen. Code, § 288, subd. (b)(1).) Defendant was sentenced to consecutive terms of six years for each offense, as well as fines, fees, and assessments that included a restitution fine. Defendant appealed.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant argues the trial court erred by implicitly finding that the two offenses occurred on separate occasions, requiring it to impose full and consecutive terms for both. In supplemental briefing, defendant argues that the assessments imposed under Penal Code section 1465.8 and Government Code section 70373 and the restitution fine should be stricken or stayed unless and until the People prove defendant has the ability to pay it. We affirm the conviction and sentence but remand to give defendant the opportunity to request a hearing on his ability to pay the restitution fine.
II. FACTUAL AND PROCEDURAL BACKGROUND
In February 2008, defendant and the minor victim, "S.," lived together in defendant's home, along with the minor's brother. S. was 13 at the time. On the day of the offense, defendant had been drinking "quite a bit." Defendant left the house at some point that night. When he returned, S. was awake and lying on her bed in her bedroom. She heard defendant put what sounded like a bottle on the counter.
We do not disclose the minor victim's name, and refer to her only by the initial S., to protect her privacy.
Defendant then came to S.'s room and stood in the doorway for a short period. Defendant entered the room and got on the bed with S. S. could smell alcohol when defendant got in bed with her. Defendant then unzipped his pants and put S.'s hand on his erect penis. Defendant made S.'s hand move up and down his penis for about 20 seconds.
S. pulled her hand away, and may have told defendant "no." Defendant reacted by slapping S. in the face hard. Defendant then grabbed S.'s hand again and put it back on his penis. Approximately 10 seconds elapsed between when S. pulled her hand away and when defendant put her hand back on his penis. This time, he did not move S.'s hand up and down. S. eventually pulled her hand away and left the room to sleep in her brother's room.
S. did not immediately tell anybody what had happened because she was still living with defendant. A week or so after the offense, while defendant and S. were in defendant's truck, defendant asked S. whether he had touched her or she had touched him. S. told him no.
S. did not tell anyone for three years. S. eventually told her mother in March 2011, at which point her mother called the police. An officer instructed S. to call defendant and record the call. During that call, defendant admitted he was drunk and apologized, but denied touching S.
During the call, defendant also admitted to a previous incident from 1991 involving another alleged minor victim, T. The People offered evidence of this incident at trial.
We do not disclose the minor victim's name, and refer to her only by the initial T., to protect her privacy.
Defendant testified and denied that he forced S. to touch him. He also denied touching or forcing T. to touch him.
The San Bernardino County District Attorney charged defendant with two counts of committing a forcible lewd act on a child under the age of 14 in May 2013. (§ 288, subd. (b)(1).) After multiple continuances, defendant was eventually tried by a jury in February 2018. The jury convicted defendant on all charges.
The trial court sentenced defendant to the middle term of six years for both convictions. The court ordered these terms be served consecutively. It also imposed fines, fees, and assessments, including a $9,600 restitution fine (Pen. Code, § 1202.4, subd. (b)), an $80 court operations assessment (Pen. Code, § 1465.8), and a $60 conviction assessment (Gov. Code, § 70373).
Defendant timely appealed.
III. DISCUSSION
Defendant argues that the trial court erred by sentencing him to consecutive terms under section 667.6. Defendant also argues that under new case law certain assessments and fines must be stricken or stayed pending an evidentiary hearing and proof from the People that defendant is capable of paying the assessments and fines. A. The Trial Court Did Not Err in Imposing Consecutive Sentences
With regards to his claims under section 667.6, defendant argues that the trial court did not properly apply the appropriate legal test in finding that the two offenses occurred on separate occasions, which requires that the court find defendant had "a reasonable opportunity for reflection" between the two acts. Defendant further argues that had the court applied the correct legal standard, it would not have been able to make the requisite factual finding to impose consecutive sentences. We disagree with defendant's contentions.
1. Relevant Background
The court heard argument on the issue of whether to sentence defendant to consecutive terms at the sentencing hearing. At the sentencing hearing, the People stated that "if the Court is going to give fully consecutive sentencing . . . [it] has to determine whether those occurred on, quote, separate occasions, unquote." The People also summarized that "the issue is whether in between the first incident and the second, did the defendant have the opportunity to . . . reflect upon his actions and nevertheless resume sexually assaultive behavior." The People thus argued that the 10-second break between the first and second lewd acts was "certainly[] enough time for him to think about it, to consider whether he's going to do it again." Thus, despite the fact that the two acts "were obviously within the same brief period of time, they were, quote, separate occasions, unquote, for the purposes of Penal Code Section 667.6[, subdivision] (d)."
Defendant argued that the two acts "were at the same place at the same time," and that they were therefore "one continuing act." Defendant also argued that he was drunk at the time, which impacted his state of mind, and that the witness had not been consistent about the time interval between the first and second lewd acts.
After considering these arguments, the court ordered the terms be served consecutively because it felt the convictions were "separate offenses." The court explained that "the law does not require a change of location nor does it require any specific amount of time, nor any different type of act," and that after S. removed his hand the first time, "it's a separate decision that he makes to assert his force against her in a different way than he had previously done." The court found that this "satisfies the requirement of these being two separate actions, two separate determinations," and "support[s] full and consecutive sentences."
2. The Court Knew and Applied the Correct Legal Test
Section 667.6, subdivision (e) applies to, among other crimes, any "[l]ewd or lascivious act, in violation of subdivision (b) of Section 288." (§ 667.6, subd. (e)(5).) Section 667.6, subdivision (d) requires that "[a] full, separate, and consecutive term shall be imposed for each violation of an offense in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions. [¶] In determining whether crimes against a single victim were committed on separate occasions . . . the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior."
When reviewing a challenge to the trial court's understanding or application of a legal test "[w]e must presume that the court knew and applied the correct statutory and case law." (Thompson v. Thames (1997) 57 Cal.App.4th 1296, 1308; see also Evid. Code, § 664.) Though this presumption is rebuttable, it "'"impose[s] upon the party against whom it operates the burden of proof as to the nonexistence of the presumed fact." [Citation.]'" (People v. Sullivan (2007) 151 Cal.App.4th 524, 549-550, quoting California Advocates for Nursing Home Reform v. Bonta (2003) 106 Cal.App.4th 498, 505.)
Defendant does not carry this burden here. The record discloses that the People informed the court of the correct standard, including that the ultimate question was whether defendant had a reasonable opportunity for reflection. The court also indicated that it understood and was applying the right legal test, as it correctly recognized that "the law does not require a change of location nor does it require any specific amount of time, nor any different type of act," to make the requisite factual finding justifying consecutive sentences. The court's use of this language is consistent with the language in section 667.6, subdivision (d), and case law dealing with that section. (People v. Jones (2001) 25 Cal.4th 98, 104.) The court also noted that the second offense occurred after S. pushed defendant's hand away and defendant slapped S. The court noted that this was a "separate decision that he makes to assert his force," against S.
The court's comments demonstrate that it considered whether defendant had "a reasonable opportunity for reflection" as required by section 667.6, subdivision (d). That the court expressed its ruling in terms of separate offenses, actions, decisions or determinations is not sufficient to rebut the presumption that the court applied the correct standard. The record therefore reflects that the court was apprised of, knew, understood, and applied the correct legal test in this case.
3. The Court's Determination that Defendant Had a Reasonable Opportunity to Reflect Is Supported by Substantial Evidence
"[O]nce the trial judge resolves the issue of 'separate occasions,' an appellate court is 'not at liberty to overturn the result unless no reasonable trier of fact could decide that there was a reasonable opportunity for reflection.'" (People v. Pena (1992) 7 Cal.App.4th 1294, 1314-1315, quoting People v. Corona (1988) 206 Cal.App.3d 13, 18, fn. 2.)
There is substantial evidence here to support the trial court's implied finding that the two offenses occurred on separate occasions. There is no dispute that defendant committed one lewd act, and was stopped when S. pulled her hand away. Defendant then resumed the unlawful sexual activity. The trial court implicitly concluded that this brief interruption was sufficient time for defendant to consider and reflect on his actions, and that resuming the activity showed a deliberate intention to commit another assault. This is supported by the fact that defendant slapped S. in order to obtain her compliance to the second lewd act. As the trial court acknowledged, this demonstrates that defendant knew he could have stopped, that S. wanted him to stop, and that he would need to use force in order to re-engage in the sexual act. His decision to employ such force and restart the act indicates that defendant had the opportunity to reflect and chose to go forward anyway.
This is consistent with case law permitting imposition of consecutive sentences even where the two alleged offenses are similar in nature and only briefly interrupted. For instance, in People v. Irvin (1996) 43 Cal.App.4th 1063, the court concluded that "a trial court could find a defendant had a 'reasonable opportunity to reflect upon his or her actions' even though the parties never changed physical locations and the parties 'merely' changed positions." (Id. at p. 1071.) This is because, though "[c]onsensual sex may include times when the participants go back and forth between varied sex acts, which they consider to be one sexual encounter . . . a sexual assault consisting of multiple types of sex acts committed against the victim . . . is frequently intended to degrade the victim." (Ibid.) Thus, "[s]exual acts, such as those committed by defendant, are the antithesis of a consensual sexual encounter and should not be viewed the same way." (Ibid.) Though the two sexual acts at issue here were very similar, defendant's decision to slap S. could be seen as an attempt to degrade S., supporting the conclusion that the two acts occurred on "separate occasions" under section 667.6.
Also instructive here is People v. King (2010) 183 Cal.App.4th 1281. In that case, a police officer was convicted of two sexual assaults for digitally penetrating a victim under the ruse of a traffic stop. (Id. at p. 1325.) The officer used one hand to do so, stopped briefly when he saw lights and a car drive by, then continued with another hand. (Ibid.) The trial court imposed consecutive sentences for these assaults on the basis that when the defendant removed his fingers the first time, "'[h]e could have stopped at that point. This was the opportunity giving [King] the opportunity to reflect about his actions.'" (Ibid.) Yet "'[a]fter the coast was clear, this intelligent experienced man then decided to re-insert a finger.'" (Ibid.) Despite the fact that the first and second assaults were nearly identical, and only briefly separated, the reviewing court affirmed the trial court's imposition of consecutive sentences. (Id. at p. 1326.)
Based on this record, we cannot say that a reasonable trier of fact could not have determined that defendant had a reasonable opportunity to reflect between the first and second sex acts. We therefore affirm the trial court's imposition of consecutive sentences. B. Defendant Was Entitled to an Ability to Pay Hearing Prior to Imposition of the Restitution Fine
In supplemental briefing, defendant argues that this court must strike or stay the restitution fine until the People prove he has the ability to pay it. Defendant relies on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), arguing that striking and staying this fine is necessary because the trial court did not make a finding as to defendant's present ability to pay them. The People did not file a brief in response.
Section 1202.4 requires the sentencing court to impose a minimum restitution fine of $300 for all felony convictions "unless it finds compelling and extraordinary reasons for not doing so." (§ 1202.4, subd. (c).) However, the statute instructs that "inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine," and "may be considered only in increasing the amount of the restitution fine in excess of the minimum." (Ibid.) This was the law at the time the court imposed defendant's restitution fine.
But Dueñas changed the law and found unlawful section 1202.4's prohibition on considering inability to pay for minimum restitution fines. Indeed, the Dueñas court found that due process required an ability to pay hearing, concluding "that although Penal Code section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Dueñas, supra, 30 Cal.App.5th at p. 1164.)
Dueñas applies retroactively to cases on direct appeal or cases which are not yet final at the time of decision, which includes this case. (See Griffith v. Kentucky (1987) 479 U.S. 314, 328 ["[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past."].) There is no dispute that the trial court in this case did not consider defendant's ability to pay before imposing the restitution fine. Because Dueñas obligates trial courts to consider ability to pay before imposing any restitution fine, failure to do so generally requires that the execution of a defendant's restitution fine must be stayed until it is determined that the defendant has the ability to pay the fine. (People v. Castellano (2019) 33 Cal.App.5th 485, 489-490.) Therefore, defendant is entitled to remand for an ability to pay hearing unless he is found to have forfeited the issue or the trial court's failure to consider ability to pay was harmless. (See People v. Jones (2019) 36 Cal.App.5th 1028 (Jones).)
On the first point, we note that defendant has arguably forfeited his right to challenge the restitution fine on appeal. Recently, our colleagues in Division 1 published People v. Gutierrez (2019) 35 Cal.App.5th 1027, which held that when a trial court imposes a restitution fine in excess of the minimum, defendants must raise inability to pay or else risk forfeiting their ability to challenge the restitution fine on appeal. (Id. at p. 1033.) However, the People do not raise forfeiture—indeed, they do not respond at all to defendant's argument. Because the People do not raise forfeiture, we do not address it further, and therefore address the merits of defendant's argument.
Because we decline to address whether defendant has forfeited his right to challenge the restitution fine, we turn to whether the Dueñas error was harmless. Only "[a] '"very limited class"' of federal constitutional errors are 'subject to per se reversal'; all others are 'amenable to harmless error analysis.'" (Jones, supra, 36 Cal.App.5th at p. 1035, quoting People v. Aranda (2012) 55 Cal.4th 342, 363.) Because "Dueñas did not address whether Dueñas error requires an automatic reversal," we "consider whether the error here was harmless beyond a reasonable doubt." (Jones, supra, at p. 1035.)
We cannot conclude that the error here was harmless beyond a reasonable doubt. The record contains very little information about defendant's financial status, but what it does contain suggests that he is unlikely to have the ability to pay the $9,600 restitution fine. Defendant was unemployed, had no assets, and had been living with his mother for seven years prior to his conviction. He is also indigent and disabled. Therefore, there is not sufficient evidence in the record of defendant's ability to pay for us to conclude beyond a reasonable doubt that he has the present ability to pay the $9,600 restitution fine.
Nor is there sufficient evidence to conclude defendant has the future ability to pay. While it is true defendant can earn wages while incarcerated, the pay per month for inmates ranges from $12 to $56 per month. (Cal. Code Regs., tit. 15, § 3041.2, subd. (a)(1); Cal. Dept. of Corrections and Rehabilitation, Operations Manual, ch. 5, art. 12, § 51120.6, pp. 354-355 (Jan. 1, 2019) <https://www.cdcr.ca.gov/regulations/wp-content/uploads/sites/171/2019/07/Ch_5_2019_DOM.pdf?label=Chapter%205&from=https://www.cdcr.ca.gov/regulations/adult-operations/dom-toc/> [as of Sept. 6, 2019].) Half of these wages (along with half of any deposits made into his trust account) must be used to pay the restitution fine. (Pen. Code, § 2085.5, subd. (a); Cal. Code Regs., tit. 15, § 3097, subd. (f).) Even assuming defendant is employed, earns the maximum possible wage for his entire sentence, and devotes every penny to the restitution fine, defendant will have only paid off $8,064 of the $9,600 restitution fine after 12 years. Therefore, we cannot conclude beyond a reasonable doubt that defendant has a future ability to pay this fine based on the record before us.
Though Dueñas only refers to a defendant's present inability to pay, future earning capacity is relevant to the issue of prejudice, including a defendant's ability to earn prison wages. (See, e.g., Jones, supra, 36 Cal.App.5th at p. 1035; People v. Johnson (2019) 35 Cal.App.5th 134, 139-140.)
Given the error and resulting prejudice, we remand the case to the trial court with directions to stay the execution of the restitution fine unless and until the People prove that he has the ability to pay it. C. Any Dueñas Error with Regards to the Assessments Was Harmless
Defendant also challenges the two assessments imposed by the trial court. Prior to Dueñas, Penal Code section 1465.8 and Government Code section 70373 imposed mandatory assessments on every criminal conviction except parking convictions. (Dueñas, supra, 30 Cal.App.5th at p. 1163.) However, the court in Dueñas held "that due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373." (Id. at p. 1164.) Just as with the restitution fine, because the record is clear that the court did not perform an ability to pay hearing before imposing these assessments it is uncontested that under Dueñas there was error.
We again note that the People have failed to raise the issue of forfeiture, and therefore we address defendant's arguments on the merits. We also note that another panel of this court recently held a defendant does not forfeit his right to challenge the imposition of mandatory assessments by failing to object at the trial court. (See Jones, supra, 36 Cal.App.5th at pp. 1031-1032.)
Because we decline to find that defendant forfeited his right to challenge these assessments, and because the error is uncontested, we turn again to the harmless error analysis. Our treatment of the harmless error analysis in Jones is instructive. In that case, the trial court imposed the minimum restitution fine and a court operations assessment, both of which the defendant challenged. (Jones, supra, 36 Cal.App.5th at p. 1031.) In determining whether the court's failure to hold an ability to pay hearing was harmless, we held that though "it is not defendant's burden on appeal to establish his eligibility for relief. . . . [W]e will find Dueñas error harmless if the record demonstrated he cannot make such a showing." (Id. at p. 1035.) Applying this rule, this court concluded that because the defendant could earn a minimum of $12 per month while incarcerated, $6 of which would go to his restitution fine, he had the ability to pay the relatively small combined total of his restitution fine and assessments. (Ibid.)
The exact same analysis applies here. Even accounting for the fact that defendant's wages may eventually be halved to pay his restitution fine, defendant would still be able to pay off the $140 in assessments in no more than two years of his 12-year sentence. Since the assessments represent a relatively small amount of money that defendant will be able pay off while incarcerated, we conclude that defendant could not have made a case for his inability to pay these assessments and therefore any Dueñas error was harmless.
IV. DISPOSITION
The matter is remanded to the trial court with directions to stay execution of the restitution fine unless and until the People prove that defendant has the ability to pay it. In all other respects, the conviction and sentence are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. MILLER
J.