Opinion
E071259
06-11-2020
THE PEOPLE, Plaintiff and Respondent, v. ADRIANA AELENA COVARRUBIAS, Defendant and Appellant.
Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Lynne G. McGinnis and Kelley Johnson, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FWV1600092-2) OPINION APPEAL from the Superior Court of San Bernardino County. Shahla Sabet and Mary E. Fuller, Judges. Affirmed as modified with directions. Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Lynne G. McGinnis and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
Retired judge of the San Bernardino Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
I. INTRODUCTION
In May 2016, when she was 15 years old, defendant and appellant, Adriana Aelena Covarrubias, pled guilty to assault with a semiautomatic firearm. On June 17, 2016, the court suspended imposition of sentence, placed defendant on formal (supervised) probation for three years, and imposed, among other costs, a $300 restitution fine and $70 in court assessments. On June 22, 2018, defendant admitted and the court found that she had violated her probation, terminated her probation, imposed but suspended a nine-year state prison sentence, and ordered her to successfully complete a rehabilitation program at the Delancey Street Foundation (Delancey Street program), as a condition of suspending her sentence. On July 13, 2018, the court found that defendant left the Delancey Street program on July 2 without completing it, ordered the nine-year sentence executed, and imposed an additional $330 restitution fine and an additional $70 in court assessments.
Judge Sabet issued the June 22, 2018 order imposing but suspending defendant's nine-year sentence and ordering her to successfully complete the Delancey Street program. Judge Fuller issued the July 13, 2018 order executing the sentence and imposing the additional $330 restitution fine and the additional $70 in court assessments.
Defendant appeals from the July 13, 2018 order, raising three claims. First, she claims her nine-year sentence is unauthorized and she must be ordered released, because when the nine-year term was imposed but suspended on June 22, 2018, the court terminated probation and, as a result lost jurisdiction to impose any sentence. We conclude the nine-year sentence was validly imposed. Notwithstanding the court's June 22, 2018 statement that it was "terminating" probation, the court effectively placed defendant on informal probation when it required her to successfully complete the Delancey Street program as a condition of suspending her nine-year sentence.
Second, defendant claims she is entitled to a juvenile court transfer hearing under Proposition 57 to determine whether she would have been treated as a juvenile offender rather than as an adult in criminal court had Proposition 57 been in effect when she committed her crime in December 2015. The People concede and we agree that defendant is entitled to a juvenile court transfer hearing. Proposition 57 applies retroactively to judgments not final on appeal when the legislation became effective on November 9, 2016. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 304, 308-309 (Lara).) Defendant's judgment of conviction and sentence were not imposed until June 22, 2018, and was therefore not final on appeal when Proposition 57 became effective on November 9, 2016. (See People v. McKenzie (2020) 9 Cal.5th 40, 44-48 (McKenzie).)
Third, defendant claims that the $330 restitution fine and $70 in court assessments that the court imposed on July 13, 2018, must be stayed and vacated, respectively, unless and until the People prove she is able to pay them. (People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).) We conclude that this fine and the assessments were unauthorized and must be stricken, given that the court imposed a $300 restitution fine and $70 in assessments when it placed defendant on formal probation on June 17, 2016.
In sum, we affirm the July 13, 2018 order directing the execution of defendant's nine-year sentence, but we strike the $330 restitution fine and $70 in court assessments that the court imposed on July 13, 2018. We remand the matter to the juvenile court with directions to conduct a transfer hearing in order to determine whether defendant should be treated as a juvenile offender rather than as an adult in criminal court.
II. FACTS AND PROCEDURE
On May 18, 2016, defendant then age 15, pled guilty to one count of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)), and was placed on formal probation for three years. In exchange for her plea, the court dismissed three attempted murder counts (§§ 664, 187, subd. (a)), one active gang participation count (§ 186.22, subd. (a)), and several enhancement allegations.
In one attempted murder count, it was alleged that defendant discharged a firearm from a motor vehicle (§ 12022.55) and personally inflicted great bodily injury (§ 12022.7, subd. (a)). In each attempted murder count, it was alleged that defendant personally used a firearm (§ 12022.5, subds. (a), (d)) and committed the offense for the benefit of, in association with, or at the direction of a criminal street gang (§ 186.22, subd. (b)).
The evidence adduced at defendant's preliminary hearing provided the factual basis for her plea: On December 18, 2015, when she was age 15, defendant was a member of the Fontana-based criminal street gang, "Another Latin Crew" or "ALC." That day, she committed a drive-by shooting, targeting a rival gang member. While riding in the backseat of a vehicle driven by an ALC associate, she shot at rival gang members, hitting one of them in the leg. The shooting was defendant's idea. She told another ALC gang member that the shooting was in retaliation for the murder of another ALC gang member by the rival gang.
On June 17, 2016, the court expressly withheld pronouncement of judgment, suspended imposition of sentence, and placed defendant on formal (supervised) probation for three years. On her plea form and in entering her plea, defendant acknowledged that she would be sentenced to three, six, or nine years in state prison if she violated her probation. She also acknowledged that she would be required to pay a restitution fine of up to $10,000 plus additional fines, fees, and assessments. As a condition of placing defendant on formal probation, the court ordered defendant to pay, among other amounts, a $300 restitution fine (Pen. Code, § 1202.4), a $40 court security fee (Pen. Code, § 1465.8), and a $30 criminal conviction fee (Gov. Code, § 70373).
On July 28, 2016, the county probation department filed a petition to revoke defendant's formal probation, and the court revoked defendant's probation pending a hearing on whether she had violated it. Meanwhile, defendant was placed in juvenile hall and was evaluated for placement in the Delancey Street program. She was ineligible to enter the Delancey Street program until she turned age 18 in late June 2018.
On June 22, 2018, several days before her 18th birthday, defendant admitted and the court (Judge Sabet) found that defendant had violated the terms of her probation. The court then expressly "terminated" probation and imposed a nine-year state prison sentence, effective on defendant's 18th birthday, but suspended the sentence and ordered defendant to complete the Delancey Street program, on the condition that her nine-year sentence would be executed if she failed to successfully complete the program. The court ordered defendant to remain in juvenile hall until her 18th birthday.
The prosecutor objected to terminating defendant's probation, saying "we should keep probation, because we're going to suspend the sentence and put her on probation." The court disagreed, saying, "With Delancey Street, probation is terminated. I impose the nine years in state prison . . . . In lieu of that, I order her to complete Delancey Street. No probation. No supervision. She's already got that. If she walks away, Delancey Street will notify us, and she will automatically go [to state prison] for nine years . . . ." On July 2, 2018, defendant left the Delancey Street program without completing it.
On July 13, 2018, defendant admitted and the court (Judge Fuller) found that defendant left the Delancey Street program without completing it, ordered the execution of defendant's nine-year sentence, and imposed an additional $330 restitution fine and an additional $70 in court assessments. Defense counsel objected on the ground the court lost jurisdiction to sentence defendant when it terminated her probation on June 22. The court asked counsel whether probation was not "implied for [defendant] to complete Delancey Street." Counsel argued it was not, given the language of the court's June 22 order expressly terminating probation. But counsel admitted that probation was implicitly extended to defendant's 18th birthday, when she was transported from juvenile hall to the Delancey Street program "or else I don't think . . . juvenile hall would be able to keep her in custody. So essentially probation was extended for a week until her 18th birthday." The court disagreed. Defendant appeals from the July 13, 2018 order.
III. DISCUSSION
A. The Court Was Authorized to Impose but Suspend Defendant's Nine-Year Sentence on June 22, 2018 Because the Court Effectively Placed Defendant on Informal Probation When It Ordered Her to Successfully Complete the Delancey Street Program
Defendant claims her nine-year sentence is unlawful and unauthorized, and this court must order her released from state prison, because the trial court had no jurisdiction to suspend her nine-year sentence except as an incident to granting her probation. (§ 1203.1.) Thus, she argues, when the court terminated her probation on June 22, 2018, it lost jurisdiction to either impose or suspend her nine-year sentence and to later order the sentence executed. We conclude that the sentence was lawfully imposed, suspended, and ordered executed. The June 22, 2018 order requiring defendant to successfully complete the Delancey Street program as a condition of suspending her nine-year sentence was effectively an order placing her on informal probation.
"A court has no power to suspend part or all of a sentence except as incident to granting probation. (Pen. Code, §§ 1203, 1203.1, 1203a)." (People v. Victor (1965) 62 Cal.2d 280, 287; see Oster v. Municipal Court (1955) 45 Cal.2d 134, 139; People v. Superior Curt (Roam) (1999) 69 Cal.App.4th 1220, 1230.) "[T]herefore, when a court after pronouncing judgment and sentence of imprisonment orders part or all of the sentence to be suspended, such order is deemed to be an 'informal' but effective grant of probation." (People v. Victor, at p. 287, italics added.)
This rule of construction does not apply if the suspension order is made after the court has expressly denied probation and it is clear the court did not intend to grant probation. (Oster v. Municipal Court, supra, 45 Cal.2d at p. 139.) "In such cases the suspension order has been said to be ineffectual as a grant of probation." (Ibid.) But an order suspending a sentence will be deemed an order granting probation, if the record shows that the court intended to grant and did in fact grant probation. (Id. at pp. 139-140.) This is precisely the situation here. The court's comments at the June 22, 2018 hearing show that it intended to place, and effectively did place, defendant on informal probation when it ordered her to successfully complete the Delancey Street program as a condition of suspending her nine-year sentence. (§ 1203.1, subd. (j).) As defendant concedes, without an order placing her on probation, the court would not have been authorized to order her held in juvenile hall until she turned age 18 and was transferred to the Delancey Street program several days after June 22, 2018.
Section 1203.1, subdivision (j), authorizes the trial court, in granting probation, to impose "reasonable conditions, as it may determine are fitting and proper . . . generally and specifically for the reformation and rehabilitation of the probationer, . . ." The order requiring defendant to successfully complete the Delancey Street program, as a condition of suspending her nine-year state prison sentence, is such a reasonable condition.
Defendant argues we are not "at liberty" to construe the court's June 22, 2018 order suspending her sentence and requiring her to complete the Delancey Street program as an order granting informal probation, given that the court expressly stated that it was "terminating" probation. We disagree. It is clear from the court's comments at the June 22 hearing that it was only terminating defendant's formal, supervised probation, which it granted on June 17, 2016. The order requiring defendant to complete the Delancey Street program was in purpose and effect a grant of informal, unsupervised probation. Indeed, the probation department was not going to supervise defendant's completion of the Delancey Street program; rather, the Delancey Street Foundation was to perform that function. As the court said at the June 22, 2018 hearing: "If she walks away, Delancey Street will notify us, and she will automatically go [to state prison] for nine years . . . ." B. Defendant is Entitled to a Juvenile Court Transfer Hearing Under Proposition 57
Proposition 57, the Public Safety and Rehabilitation Act of 2016, was approved by the state's voters on November 8, 2016, and took effect the next day. (Cal. Const., art. II, § 10., subd. (a); Lara, supra, 4 Cal.5th 299, 303-304.) " 'Among other provisions, Proposition 57 amended the Welfare and Institutions Code so as to eliminate direct filing by prosecutors. Certain categories of minors . . . can still be tried in criminal court, but only after a juvenile court judge conducts a transfer hearing to consider various factors such as the minor's maturity, degree of criminal sophistication, prior delinquent history, and whether the minor can be rehabilitated. (Welf. & Inst. Code, § 707, subd. (a)(1).)' [Citation.]" (Lara, at pp. 305-306.) Proposition 57 applies retroactively to all criminal judgments not final on appeal on its effective date. (Id. at pp. 308-309.)
As indicated, defendant was charged as an adult and entered her plea in criminal court in May 2016, although was only 15 years old when she allegedly committed the charged offenses in December 2015. She now claims she is entitled to a juvenile court transfer hearing under Proposition 57, in order to determine whether her case would have been transferred to and tried in the adult criminal court had it originally been filed in the juvenile court, consistent with Proposition 57. The People concede and we agree that Proposition 57 applies retroactively to defendant. Her judgment of conviction and sentence were not rendered until June 22, 2018—after Proposition 57 took effect on November 9, 2016. Thus, defendant is entitled to a juvenile court transfer hearing.
We first observe that defendant's judgment of conviction was rendered on June 17, 2016, when the court accepted her guilty plea, suspended imposition of sentence, and placed her on formal probation for three years. A judgment of conviction is a final judgment under Penal Code section 1237 and is directly appealable. (Pen. Code, § 1237.5, subd. (a); People v. Superior Court (Rodas) (2017) 10 Cal.App.5th 1316, 1325; People v. Kelly (2013) 215 Cal.App.4th 297, 307.) Defendant did not obtain a certificate of probable cause (Pen. Code, § 1237.5) to appeal her June 17, 2016 judgment of conviction. Nor did she file a notice of appeal by August 16, 2016, within 60 days after the judgment was entered. (Cal. Rules of Court, rule 8.308(a).) Thus, defendant's judgment of conviction was final on appeal on August 16, 2016, 60 days after it was rendered (see People v. Barboza (2018) 21 Cal.App.5th 1315, 1319) and before Proposition 57 took effect on November 9, 2016.
But the finality on appeal of a judgment of conviction—in a case like this one in which the court originally suspended imposition of sentence and placed the defendant on probation—is not the touchstone for determining whether ameliorative statutory amendments like those enacted by Proposition 57 apply retroactively to the defendant. Rather, under the Estrada rule, such amendments apply retroactively to all defendants whose judgments of conviction and sentence were not final on appeal when the amendments went into effect. (McKenzie, supra, 9 Cal.5th at pp. 44-48; People v. Conley (2016) 63 Cal.4th 646, 657 ["The Estrada rule rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not."].)
In re Estrada (1965) 63 Cal.2d 740.
In McKenzie, our Supreme Court rejected the People's claim that an amendatory statute did not retroactively apply to the defendant because his judgment of conviction and concomitant order placing him on probation were final on appeal when the amendments took effect. (McKenzie, supra, 9 Cal.5th at pp. 47-48.) The court explained that, under section 1237, an order granting probation is deemed to be a final judgment for the limited purpose of appealing the order, but not for other purposes. (Id. at pp. 47-48.) Thus, an order granting probation following a judgment of conviction is not a final judgment for purposes of the Estrada rule. (Id. at pp. 47-48.)
Rather, what must be final on appeal for purpose of the Estrada rule is the judgment of conviction and sentence. The court explained: "In criminal actions, the terms 'judgment' and ' "sentence" ' are generally considered 'synonymous' [citation], and there is no 'judgment of conviction' without a sentence [citation]." (McKenzie, supra, 9 Cal.5th at p. 46.) Moreover, the Estrada court "referred to the cutoff point for application of ameliorative amendments as the date when the 'case[]' [citation] or 'prosecution[]' is 'reduced to final judgment' [citation]." (Ibid.) And, in People v. Rossi (1976) 18 Cal.3d 295, the court "stated that an amendatory statute applies in ' " any [criminal] proceeding [that], at the time of the supervening legislation, has not yet reached final disposition in the highest court authorized to review it." ' " (McKenzie, at p. 46.) Thus, an order granting probation is not a final judgment for purposes of the Estrada rule—that is, for determining whether subsequently-enacted amendatory statutes apply retroactively to the defendant. (Id. at p. 47.)
Like the defendant in McKenzie, defendant's judgment of conviction and sentence were not final on appeal, and her criminal proceeding did not conclude, before Proposition 57 took effect on November 9, 2016. Rather, her judgment of conviction and sentence were not rendered until June 22, 2018, when the court imposed but suspended the imposition of her nine-year state prison sentence pending her successful completion of the Delancey Street program. Thus, Proposition 57 applies retroactively to defendant, and she is entitled to its ameliorative benefits including a juvenile court transfer hearing. C. Defendant's Claim of Dueñas Error
When, on July 13, 2018, the court ordered the execution of defendant's nine-year sentence, it imposed a $330 restitution fine (Pen. Code, § 1202.4, subd. (b)), a $40 court security fee, or court operations assessment (Pen. Code, § 1465.8) and a $30 criminal conviction fee, or court facilities assessment (Gov. Code, § 70373). Based on Dueñas, supra, 30 Cal.App.5th 1157, defendant claims the court violated her due process rights in imposing the $330 restitution fine and $70 in assessments on July 13, 2018, without a determination that she had a present ability to pay them. She argues her restitution fine must be ordered stayed and her assessments vacated, unless and until the People can prove she has the present ability to pay them.
Dueñas was decided in January 2019, after the challenged fine and assessments were imposed on July 13, 2018. 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" court operations and court facilities assessments before the court may impose them. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) In order to avoid an unconstitutional interpretation of Penal Code section 1202.4, Dueñas further held that a trial court must order a restitution fine stayed, "until and unless the People demonstrate that the defendant has the ability to pay the fine." (Dueñas, at pp. 1169-1172.)
The People claim defendant has forfeited her claims of Dueñas error by failing to object in the trial court, on due process grounds, to the imposition of the $330 restitution fine and the $70 assessments, when the court imposed them on July 13, 2018. The People do not "take issue" with Dueñas in so far as it holds that court operations and court facilities assessments may not be imposed if the defendant demonstrates a present inability to pay them. But they claim that the question of a defendant's ability to pay a restitution fine should be analyzed under the excessive fines clause of the Eight Amendment, where ability to pay is a factor but not a prerequisite to imposing punitive fines, including a restitution fine.
The People further argue that defendant's claims of Dueñas error are not cognizable in this appeal because she has not obtained a certificate of probable cause and, as part of her May 2016 plea, she agreed to pay a restitution fine of up to $10,000 and other mandatory fines and fees, including court facilities and operations assessments. (Pen. Code, § 1237.5.) Defendant claims she has not forfeited her claims of Dueñas error, and her claims are cognizable in this appeal without a certificate of probable cause, because they do not challenge her conviction.
It is unnecessary to determine the merits of the parties' competing claims. In light of the court's June 17, 2016 order, the $330 restitution fine and $70 in court assessments that the court imposed on July 13, 2018, were duplicative and unauthorized and must be stricken. When, on June 16, 2016, the court placed defendant on formal probation, it imposed a $300 restitution fine and $70 in court assessments. Thus, the later-imposed, July 13, 2018 restitution fine and court assessments are unauthorized and must be stricken. (See People v. Scott (1995) 9 Cal.4th 331, 353-354 [Court is required to impose sentence in a lawful manner; sentence is unauthorized where it could not lawfully be imposed under any circumstances in the particular case; and the " 'unauthorized sentence' concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal."].) D. Timeliness of Appeal and Cognizable Issues
The People argue this appeal is untimely and must be dismissed. They argue that each claim defendant raises in this appeal was only cognizable in an appeal from either the June 22, 2018 order imposing but suspending her nine-year sentence, or from her June 17, 2016 judgment of conviction and grant of formal probation.
Defendant's notice of appeal is from the July 13, 2018 order directing the execution of her nine-year sentence, and was filed on September 4, 2018. As the People point out, defendant only had until August 21, 2018 (60 days) to appeal from the June 22, 2018 order, and she did not do so. (Cal. Rules of Court, rule 8.308(a) [notice of appeal in criminal case must be filed within 60 days "after the rendition of the judgment or the making of the order being appealed."].) And, as noted, defendant did not obtain a certificate of probable cause and did not appeal from her June 17, 2016 judgment of conviction, and it has been final since August 16, 2016.
We agree that defendant's first claim, challenging the court's authority to impose but suspend her nine-year sentence, is untimely and not cognizable in this appeal from the July 13, 2018 order directing the execution of the sentence. Rather, this claim was only cognizable in an appeal from the June 22, 2018 order.
"When a court imposes sentence but suspends its execution at the time probation is granted [as occurred here on June 22, 2018], the defendant has the opportunity to challenge the sentence in an appeal from the order granting probation. (People v. Amons (2005) 125 Cal.App.4th 855, 868-869 . . . .) If the defendant allows the time for appeal to lapse during the probationary period, the sentence becomes final and is not appealable. (Id. at p. 869.) This is so regardless of the fact the defendant will not serve the sentence unless the court revokes and terminates probation before the probationary period expires. (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421 . . . .)" (People v. Kelly, supra, 215 Cal.App.4th 297, 307.) An order granting probation is identified in section 1237 as a final judgment for purposes of taking an appeal. (People v. Mazurette (2001) 24 Cal.4th 789, 792.)
Nevertheless, we have addressed defendant's first claim—that the court lacked jurisdiction to impose but suspend her nine-year sentence—and have found it lacking in merit. (§ 1259.) Our conclusion should foreclose any claim that defendant's appointed counsel rendered ineffective assistance in failing to appeal from the June 22, 2018 order. Any such claim would lack merit, because defendant would be unable to demonstrate resulting prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687-689.)
Defendant's second claim—that she is entitled to a juvenile court transfer hearing under Proposition 57 is cognizable in this appeal. Her probation was not terminated and her nine-year sentence was not imposed until July 13, 2018, and her appeal from the July 13, 2018 order is timely. Defendant's third and final claim of Dueñas error—her challenge to the July 13, 2018-imposed $330 restitution fine and $70 in court assessments—is likewise timely and cognizable in this appeal from the July 13, 2018 order. This fine and these assessments were unauthorized and must therefore be stricken, given that the court imposed a duplicative $300 restitution fine and $70 in court assessments when it placed defendant on probation on June 17, 2016. Defendant could not have challenged the July 13, 2018-imposed fine and assessments in any earlier appeal.
IV. DISPOSITION
The July 13, 2018 order directing the execution of defendant's nine-year state prison sentence is affirmed, but the $330 restitution fine and the $70 in court assessments that the court imposed on July 13, 2018 are stricken.
The matter is remanded to the juvenile court with directions to conduct a transfer or fitness hearing (Welf. & Inst. Code, § 707) in order to determine whether defendant is "not a fit and proper subject to be dealt with under the juvenile court law." (Welf. & Inst. Code, § 707.1; People v. Vela (2018) 21 Cal.App.5th 1099, 1113-1115.) In conducting the transfer hearing, the juvenile court shall treat the matter as though the prosecutor had originally filed a juvenile petition in the juvenile court and had then moved to transfer the case to the criminal court. If, after conducting the transfer hearing, the court determines that defendant is "not a fit and proper subject to be dealt with under the juvenile court law" (Welf. & Inst. Code, § 707.1), then the juvenile court shall reaffirm defendant's June 22, 2018 judgment of conviction and nine-year state prison sentence. If, on the other hand, the juvenile court concludes that it would not have transferred defendant's case from the juvenile court to the criminal court, then it shall treat defendant's conviction as a juvenile court adjudication and impose an appropriate juvenile court disposition within its discretion. (Vela, at pp. 1113-1115.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. CODRINGTON
J.