Opinion
C087806
05-15-2020
THE PEOPLE, Plaintiff and Respondent, v. ALLAN STARR BROWN, SR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CF00406)
Following a court trial, defendant Allan Starr Brown, Sr., was found guilty of one count of failing to register as a sex offender upon his release from incarceration (Pen. Code, § 290.015, subd. (a)) and one count of failing to register as a sex offender annually (§ 290.012, subd. (a)). Defendant contends that 1) his waiver of jury trial was invalid; 2) the imposition of fines and fees without assessing his ability to pay violated equal protection, due process, and the Eighth Amendment; and 3) Butte County lacked territorial jurisdiction over this case, or in the alternative trial counsel was ineffective in failing to object to the lack of territorial jurisdiction. In supplemental briefing, the parties agree that two of the three one-year sentence enhancements imposed on defendant pursuant to section 667.5, subdivision (b) must be stricken because of recently adopted legislation. We agree with the parties as to the supplemental contention; accordingly, we modify the judgment to strike the enhancements at issue and remand for resentencing.
Undesignated statutory references are to the Penal Code.
BACKGROUND
In 2004 Defendant was ordered to register as a sex offender under section 290 for a forcible rape committed in Merced County. Defendant's birthday is December 28. On July 28, 2016, defendant was released from a correctional facility in Kern County. He was released to postrelease community supervision in Merced County.
In January 2018 a Chico police officer was informed defendant had been squatting at an apartment in Chico, located in Butte County. The officer learned defendant was out of compliance with his duty to register. The California Sex and Arson Registry indicated defendant had not been registered anywhere since his release in July 2016.
Defendant claimed he was arrested in 2016, shortly before his birthday, so he could not register then. He also claimed he thought he had a 10-day grace period to register in 2017. He had a 2004 prior strike conviction, and had served three prior prison terms, two for offenses not deemed sexually violent.
The Butte County District Attorney filed a complaint charging defendant with one count of failing to register as a sex offender upon his release from incarceration (§ 290.015, subd. (a)), one count of failing to register as a sex offender annually (§ 290.012, subd. (a)), and possession of a controlled substance after a specified prior conviction (Health & Saf. Code, § 11377, subd. (a)). The complaint also alleged defendant had a prior strike conviction (§§ 667, subd. (d), 1170.12, subd. (b)) and had served three prior prison terms (§ 667.5, subd. (b)).
Defendant waived his right to a jury trial. The trial court found him guilty on counts 1 and 2, acquitted him on count 3, and found the prior strike and prison term allegations true. The court sentenced defendant to an aggregate term of seven years in state prison, including three consecutive one-year terms on the 2001, 2004, and 2015 prior prison terms. The court also imposed a $300 restitution fine (§ 1202.4, subd. (b)), imposed and suspended an identical parole revocation fine (§ 1202.45), an $80 court operations assessment (§ 1465.8), and a $60 court facilities assessment (Gov. Code, § 70373).
DISCUSSION
I
Jury Trial Waiver
Defendant first contends the record does not affirmatively show his waiver of jury trial was intelligent and voluntary under the totality of the circumstances. We disagree.
A. Background
Defendant received and signed a statement of rights. That statement included the following information on the right to a jury trial, "[i]f you are held to stand trial in Superior Court, you have a right to have your guilt . . . determined by either 12 jurors, who must all agree whether your guilt has been proven beyond a reasonable doubt, or by a judge in a court trial."
At the trial readiness conference, defense counsel indicated that defendant wanted to waive a jury trial and the People agreed. The following colloquy ensued:
"THE COURT: And, [defendant], is this how you want to handle your case today, waive jury?
"THE DEFENDANT: Yes, sir.
"THE COURT: Have you had enough time to talk about waiving jury with your attorney?
"THE DEFENDANT: Yes, sir.
"THE COURT: You understand that the difference between a jury trial and a court trial, a jury trial is where we basically fill up the courtroom with a bunch of prospective jurors. We select between 12 and 14 people, including alternates to hear your case. They would be the ones to decide the facts of the case.
"And the difference between that and a court trial is the evidence is going to the be the same, but you would be presenting the case to a judge, who would make a decision regarding the facts.
"Do you understand that difference between a jury trial and a court trial?
"THE DEFENDANT: Yes, sir.
"THE COURT: And what you would be doing is waiving your right to a jury trial and going forward with a court trial, and that's what you want to do?
"THE DEFENDANT: Yes, sir.
"THE COURT: And have you had enough time to discuss this with your attorney?
"THE DEFENDANT: Yes, sir.
"THE COURT: And has anybody made any threats to you or any promises to make you waive your right to a jury trial?
"THE DEFENDANT: No, sir.
"THE COURT: And are you waiving your right a jury trial and proceeding with a trial by court freely and voluntary [sic]?
"THE DEFENDANT: Yes, sir.
"THE COURT: And are you under the influence of alcohol, medication, or any drugs that would affect your judgment today?
"THE DEFENDANT: No, sir.
"THE COURT: Any alcohol?
"THE DEFENDANT: No alcohol.
"THE COURT: The reason I'm asking is you're pausing a little bit. You're taking some medication?
"THE DEFENDANT: I take blood pressure medication.
"THE COURT: Do you think that would affect your ability to make a judgment about this today?
"THE DEFENDANT: No, sir.
"THE COURT: All right. Do you now waive your right to a trial by jury in this case?
"THE DEFENDANT: Yes, sir.
"THE COURT: [Defense counsel], do you join in your client's waiver?
"[DEFENSE COUNSEL]: I do.
[¶] . . . [¶]
"THE COURT: So let's go ahead -- let me finish my spiel here, and then we'll go on next to scheduling.
"The Court accepts the waivers of the jury trial, finding that the defendant has made a knowing and voluntary waiver of that right, and that counsel joins in that waiver."
B. Analysis
A criminal defendant has the constitutional right to a jury trial. (People v. Sivongxxay (2017) 3 Cal.5th 151, 166 (Sivongxxay); U.S. Const., 6th Amend.; Cal. Const., art. I, § 16.) That right may be waived, provided the waiver is " 'knowing and intelligent, that is, " ' "made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it," ' " as well as voluntary " ' "in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception." ' " ' [Citations.] '[W]hether or not there is an intelligent, competent, self-protecting waiver of jury trial by an accused must depend upon the unique circumstances of each case.' " (Sivongxxay, at p. 166.)
Defendant contends he did not receive an adequate advisement by the trial court, as that court did not explicitly advise him that the jury would be comprised of jurors from his community, that he could participate in jury selection, that the jurors had to be impartial, and that they had to reach a unanimous verdict. He contends that because of the failure to expressly convey these details while taking the waiver, the record does not affirmatively show the waiver was intelligent and voluntary.
While acknowledging "the value of a robust oral colloquy," and providing "general guidance" to help ensure a jury trial waiver is knowing and intelligent, our Supreme Court has been careful to emphasize that its guidance is merely "advisory." (Sivongxxay, supra, 3 Cal.5th at pp. 169-170.) And, our high court has "persistently declined to mandate any specific admonitions describing aspects of the jury trial right." (People v. Daniels (2017) 3 Cal.5th 961, 992 (conc. & dis. opn. of Cuéllar, J.); see Sivongxxay, at p. 167 ["Our precedent has not mandated any specific method for determining whether a defendant has made a knowing and intelligent waiver of a jury trial in favor of a bench trial"].) In fact, while Sivongxxay did provide "general guidance" for trial courts "[g]oing forward" (Sivongxxay, at p. 169), the court was careful to "emphasize" that this "guidance is not intended to limit trial courts to a narrow or rigid colloquy" and observed, "[u]ltimately, a court must consider the defendant's individual circumstances and exercise judgment in deciding how best to ensure that a particular defendant who purports to waive a jury trial does so knowingly and intelligently." (Id. at p. 170.) The test of a valid waiver turns not on whether specific warnings or advisements were given, but on whether the record affirmatively shows that the waiver is voluntary and intelligent under the totality of the circumstances. (Id. at pp. 166-167.)
Here, at the time defendant waived his jury trial right, he was represented by counsel, was aware of his right to a jury trial, and had discussed waiving that right with counsel. Defendant initiated the request to waive a jury trial, rather than passively agreeing. (Sivongxxay, supra, 3 Cal.5th at p. 167.) He had previous experience in the criminal justice system, with three prior felony convictions. He received and signed a statement of rights that advised him of his right to a unanimous jury determining his guilt had been proven beyond a reasonable doubt and thereby indicated he understood the right to a jury trial. Further, during the colloquy with the trial court, he stated he understood the difference between a jury trial and a court trial and had enough time to discuss waiving a jury with his attorney. As to jury selection, the court advised defendant that the courtroom would be filled with prospective jurors, from which they would select between 12 and 14, including alternates, to decide the facts of his case. In addition, the trial court informed defendant "we" would select the jury, which strongly suggests defendant would be involved in the selection process. The court distinguished this from a court trial, where the evidence would be the same, but it would be the judge who would decide the facts. Although the trial court did not explain every detail of the respective choices and compare them, it was not obligated to advise a represented defendant about " 'all the ins and outs' " of a jury trial (People v. Wrest (1992) 3 Cal.4th 1088, 1105), or the relative advantages or disadvantages of the types of trials (People v. Castaneda (1975) 52 Cal.App.3d 334, 344; People v. Acosta (1971) 18 Cal.App.3d 895, 902).
On this record, there is nothing to suggest that defendant was confused as to his right to a jury trial or that he did not knowingly and intelligently waive that right. Further, there is no indication that counsel failed to adequately advise defendant of the basic mechanics of a jury trial, the fundamental differences between a jury trial and a bench trial, or the consequences of waiving a jury trial in lieu of a bench trial. Considering the totality of the circumstances, the record in this case affirmatively shows defendant knowingly and intelligently waived his right to a jury trial.
II
Ability to Pay
Defendant contends that, in light of People v. Dueñas (2019) 30 Cal.App.5th 1157, this case must be remanded for a hearing on his ability to pay the $300 restitution fine, the $80 court operations fee, and the $60 court facility fee. Defendant also contends the excessive fines clause of the Eighth Amendment to the United States Constitution mandates an ability to pay hearing for those costs.
Defendant's "excessive fines" claim is forfeited because he did not raise it below, and the argument could easily have been raised before a recent United States Supreme Court opinion extending that provision to the state courts. (See Timbs v. Indiana (2019) 586 U.S. ___ ; Cal. Const., art. I, § 17 ["Cruel or unusual punishment may not be inflicted or excessive fines imposed"]; People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 726-728 [discussing the applicability of both the Eighth Amendment and the California Constitution's "excessive fines" clauses to a California court judgment]; People v. Urbano (2005) 128 Cal.App.4th 396, 406 [considering defendant's claim that a restitution fine was "a constitutionally excessive fine" and referencing both Eighth Amendment case law and the California constitution]; People v. Baker (2018) 20 Cal.App.5th 711, 720 [defendant forfeited his Eighth Amendment claim].)
The Dueñas claim is not forfeited, because we agree with defendant that an objection based on the due process argument accepted in Dueñas would be "based on a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial," and the failure to object on that basis is not forfeiture. (People v. Castellano (2019) 33 Cal.App.5th 485, 489; contra, People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 ; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154-1155.) Thus, we reach the merits of the due process and equal protection claims.
In Dueñas the Court of Appeal held that due process prohibits a trial court from imposing court assessments under section 1465.8 and Government Code section 70373 and requires the trial court to stay execution of any restitution fines unless it conducts an ability to pay hearing and ascertains the defendant's ability to pay those assessments and fines. (People v. Dueñas, supra, 30 Cal.App.5th at p. 1164.) To support this conclusion, Dueñas relied on two lines of due process precedent. First, it cited authorities addressing access to courts and waiving court costs for indigent civil litigants. Second, it relied on due process and equal protection authorities that prohibit incarceration based on a defendant's indigence and inability to pay a fine or fee. (Id. at pp. 1165-1166, 1168.) The court also concluded that imposing costs on indigent defendants "blamelessly" unable to pay them, transformed a "funding mechanism for the courts into additional punishment." (Id. at p. 1168.)
People v. Hicks (2019) 40 Cal.App.5th 320, review granted November 26, 2019, S258946 (Hicks) rejected the reasoning of Dueñas, under both lines of due process authority. Hicks observed that imposition of fees after a determination of guilt does not deny a criminal defendant's access to the courts and does not interfere with a defendant's right to present a defense or challenge a trial court's rulings on appeal. (Id. at p. 326.) Further, imposition of fees, without more, does not result in incarceration for nonpayment of fines and fees due to indigence; thus, it does not infringe on a fundamental liberty interest. (Ibid.)
We find the reasoning in Hicks sounder and more persuasive than Dueñas. Accordingly, we conclude the imposition of fines, fees, and assessments on an indigent defendant without consideration of ability to pay does not violate due process or equal protection and there is no requirement the trial court conduct an ability to pay hearing prior to imposing these fines, fees, and assessments.
III
Territorial Jurisdiction
Defendant contends Butte County did not have authority to consider and decide the section 290.015 charge, as it lacked territorial jurisdiction under the statute. Recognizing counsel did not object on these grounds, defendant argues alternatively that counsel was ineffective.
Although the issues of venue and territorial jurisdiction frequently merge, they are not the same thing. (People v. Klockman (1997) 59 Cal.App.4th 621, 627; People v. Betts (2005) 34 Cal.4th 1039.) "[V]enue merely establishes the appropriate place for trial and does not 'implicate the trial court's fundamental jurisdiction in the sense of subject matter jurisdiction, which is the authority of the court to consider and decide the criminal action itself.' [Citation.] Territorial jurisdiction, by contrast, does implicate the authority of the court to consider and decide the criminal action." (Betts, at p. 1049.)
As relevant here, section 290.015 provides that a person required to register as a sex offender must register, or reregister upon release from incarceration or placement on probation. (§ 290.015, subd. (a).) If a person on postrelease community supervision, fails to register as required by subdivision (a), "the district attorney in the jurisdiction where the person was to be paroled or to be on probation may request that a warrant be issued for the person's arrest and shall have the authority to prosecute that person pursuant to Section 290.018." (§ 290.015, subd. (c)(1).) This language speaks to the jurisdiction of the court to adjudicate the case, not merely the appropriate location for trial. This is a territorial jurisdiction requirement. Defendant was released to postrelease community supervision in Merced County. Nothing in section 290.015 permitted territorial jurisdiction to be exercised by Butte County.
Even if defendant had not been on postrelease community supervision, under section 290.015 territorial jurisdiction would not have been in Butte County. It could have been in the jurisdiction in which he last registered, which appears to be in area code 209 which does not include Butte County (§ 290.015, subd. (c)(2)(A)) or the county in which he committed the registerable offense, Merced County (§ 290.015, subd. (c)(2)(C). --------
Territorial jurisdiction is a nonfundamental aspect of jurisdiction that consequently may be waived by defendant's consent or forfeited by failure to object. (People v. Gbadebo-Soda (1995) 38 Cal.App.4th 160, 170.) Defendant did not object to Butte County's exercise of jurisdiction over the section 290.015 charge. Therefore, that claim is forfeited.
Defendant argues the failure to object was ineffective assistance of counsel, contending it was unreasonable for his attorney not to object to invalid jurisdiction and because of the failure to object, trial commenced to his detriment.
" 'To establish ineffective assistance of counsel, a defendant must show that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant.' [Citation.]" (People v. Johnson (2015) 60 Cal.4th 966, 979-980.)
" 'Unless a defendant establishes the contrary, we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." ' [Citations.] When the record on direct appeal sheds no light on why counsel failed to act in the manner challenged, defendant must show that there was ' " 'no conceivable tactical purpose' " for counsel's act or omission.' " (People v. Centeno (2014) 60 Cal.4th 659, 674-675.)
Here defendant has not shown that there was no conceivable tactical purpose for trial counsel's failure to object. In addition to the section 290.015 charge, defendant was also charged with violating section 290.012. That section contains no territorial jurisdiction limitation. Thus, defendant was subject to prosecution on at least one count in Butte County. It was not an irrational tactical decision to subject defendant to only one trial in one county, rather than two separate trials in two separate counties, particularly given the nature of the charges. Counsel's performance did not fall "below an objective standard of reasonableness under prevailing professional norms." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Moreover, defendant has not shown prejudice. His sole claim as to prejudice is that he was required to stand trial on the section 290.015 charge, to his detriment. But territorial jurisdiction "establishes the court's authority to try the defendant, not the defendant's culpability." (People v. Betts, supra, 34 Cal.4th at p. 1050.) Although Butte County lacked territorial jurisdiction on the section 290.015 charge, territorial jurisdiction existed in Merced County; "the absence of territorial jurisdiction does not signify the defendant is not culpable. Although it is true that a defendant cannot be convicted of a crime unless territorial jurisdiction exists, neither should he or she be acquitted because territorial jurisdiction is lacking. Without jurisdiction, a court has no authority to act in the matter and cannot enter judgment either in favor of or against the defendant." (Betts, at p. 1050.) If the trial court is without territorial jurisdiction to try the defendant, defendant is not acquitted, and the court does not enter judgment in favor of defendant. (Ibid.) Rather, "If the offense was committed within the exclusive jurisdiction of another county of this State, the Court must direct the defendant to be committed for such time as it deems reasonable, to await a warrant from the proper county for his arrest" "and the Clerk must forthwith transmit a certified copy of the indictment or information, and of all the papers filed in the action, to the District Attorney of the proper county . . . ." (§ 1115.) Thus, had counsel objected to jurisdiction on the section 290.015 charge, defendant would likely have been held in custody awaiting process from Merced County. Accordingly, defendant cannot show prejudice from the failure to object.
IV
Senate Bill No. 136
In supplemental briefing, defendant contends two of his three one-year prior prison term enhancements imposed pursuant to section 667.5, subdivision (b) must be stricken pursuant to the amendment to section 667.5, subdivision (b) by Senate Bill No. 136 (2019-2020 Reg. Sess.) effective January 1, 2020. The People concede the issue agreeing that the 2001 and 2015 enhancements should be stricken.
Signed by the Governor on October 8, 2019, and effective January 1, 2020, Senate Bill No. 136 amends section 667.5, subdivision (b) to eliminate the one-year prior prison term enhancement for most prior convictions. (Stats. 2019, ch. 590, § 1.) An exception, accounting for only one of defendant's three enhancements here--his 2004 prior--is made for a qualifying prior conviction on a sexually violent offense, as defined in Welfare and Institutions Code section 6600, subdivision (b).
Because defendant's judgment is not yet final, we agree with the parties that the amended law applies to him retroactively. (See In re Estrada (1965) 63 Cal.2d 740, 744-745 [absent evidence of contrary legislative intent, ameliorative criminal statutes apply to all cases not final when statute takes effect].) Accordingly, two of defendant's section 667.5, subdivision (b) enhancements must be stricken.
Because the trial court imposed less than the maximum sentence on counts 1 and 2, we remand the matter for full resentencing to allow the court to exercise its discretion in light of the changed circumstances. (See People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15; People v. Hill (1986) 185 Cal.App.3d 831, 834.) While the trial court is entitled to reconsider its entire sentencing scheme, defendant may not be sentenced to a term in excess of his original sentence. (See People v. Burns (1984) 158 Cal.App.3d 1178, 1184.)
DISPOSITION
We modify the judgment to strike defendant's two eligible section 667.5, subdivision (b) enhancements, based on the 2001 and 2015 prior convictions. The matter is remanded for resentencing consistent with this opinion and preparation and distribution of a new abstract of judgment. In all other respects, the judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Raye, P. J. /s/_________
Blease, J.