Opinion
D075578
04-15-2020
THE PEOPLE, Plaintiff and Respondent, v. STEPS WINN DAVIS, Defendant and Appellant.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis, A. Natasha Cortina and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING NO CHANGE IN JUDGMENT THE COURT:
It is ordered that the opinion filed herein on April 15, 2020, be modified as follows:
1. On page 9, second line from the top, delete footnote 4.
2. On page 9, delete the disposition paragraph and replace with the following:
The sentence is vacated, and the trial court is ordered to strike the enhancement under Penal Code section 667.5, subdivision (b), resentence Davis accordingly, and forward the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
There is no change in the judgment.
The petition for rehearing is denied.
HUFFMAN, Acting P. J. Copies to: All parties
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. SCD276592 & SCD278493) APPEAL from a judgment of the Superior Court of San Diego County, Polly H. Shamoon, Judge. Affirmed in part; remanded with directions. Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis, A. Natasha Cortina and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
In case No. SCD276592, Steps Winn Davis pled guilty to transportation for sale of a controlled substance—cocaine base (Health & Saf. Code, § 11352, subd. (a), and Pen. Code, § 1210, subd. (a); count 1); possession for sale and purchase for purposes of sale of cocaine base, with priors (Health & Saf. Code, §§ 11351.5 and 11370, subd. (a), and Pen. Code, § 1203.07, subd. (a)(11); count 2); and possession for sale of a controlled substance—cocaine base, with priors (Health & Saf. Code, §§ 11351 and 11370, subd. (a), and Pen. Code, § 1203.07, subd. (a)(3); count 3).
In case No. SCD278493, Davis pled guilty to possession for sale and purchase for purposes of sale of cocaine base, with priors (Health & Saf. Code, § 11351.5, and Pen. Code, §§ 1203.07, subd. (a)(11), and 12022.1, subd. (b); count 1); and possession for sale of a controlled substance—methamphetamine, with priors (Health & Saf. Code, § 11378, and Pen. Code, §§ 1203.07, subd. (a)(11), and 12022.1, subd. (b); count 2).
The court sentenced Davis to prison for nine years, consisting of six years in case No. SCD278493 and a consecutive term of three years in case No. SCD276592. The court also imposed various assessments, fees, and fines, which will be discussed in detail below.
Davis appeals. Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Davis contends the court erred in imposing such fines, fees, and assessments without first conducting a hearing to determine his present ability to pay. Appellate counsel recognizes the defense did not object to the imposition of any of the fines, fees, or assessments, but argues that Dueñas does not permit forfeiture. We disagree and find these issues have been forfeited by failure to timely raise them in the trial court.
After the briefing in this case was completed, Davis moved to file a supplemental brief. We granted the motion, and Davis filed a supplemental brief that he is entitled to resentencing under Senate Bill No. 136, which became effective January 1, 2020. The statute affects the imposition of one-year consecutive terms for the prison prior enhancement under Penal Code section 667.5, subdivision (b). In his supplemental brief, Davis contends the one-year term imposed for the prison prior in this case is unauthorized after January 1, 2020. In their supplemental brief, the People correctly agree with Davis's contention. We will direct the trial court to strike the term imposed for the enhancement and to modify the abstract of judgment accordingly. In all other respects, we affirm the judgment.
DISCUSSION
Because the facts of Davis's crimes are not important to the determination of the issues raised in the instant appeal, we eschew our usual discussion of them in this opinion.
I
FINES, FEES, AND ASSESSMENTS
In case No. SCD278493, the trial court imposed a $615 drug program fee under Health and Safety Code section 11372.7, a $205 lab analysis fee under Health and Safety Code section 11372.5, an $80 court operations assessment under Penal Code section 1465.8, a $154 criminal justice administration fee under Government Code section 29550, a $60 criminal conviction assessment under Government Code section 70373, and a $3,600 restitution fine under Penal Code section 1202.4, subdivision (b).
In case No. SCD276592, the trial court imposed a $300 restitution fine under Penal Code section 1202.4, subdivision (b). The court did not impose any additional fees.
Relying on Dueñas, supra, 30 Cal.App.5th 1157, Davis contends that imposition of these various fines, fees, and assessments, without a determination of his ability to pay, violated his constitutional right to due process. He contends his case should be remanded to allow the trial court to determine whether he has the ability to pay these amounts. Yet, as the People point out and Davis concedes, he did not object to the imposition of any of these fines or request an ability to pay hearing below. As such, as we explain, we conclude Davis forfeited the claimed Dueñas error.
Dueñas involved an indigent, disabled, and homeless mother of young children who, due to illness, did not complete high school and subsisted on public aid. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) Dueñas objected on due process grounds to the trial court's imposition of various fines and fees. (Id. at p. 1162.) "The court rejected Dueñas's constitutional arguments that due process and equal protection required the court to consider her ability to pay these fines and assessments . . . ." (Id. at p. 1163.) In reversing, the Court of Appeal in Dueñas observed, "Imposing unpayable fines on indigent defendants is not only unfair, it serves no rational purpose, fails to further the legislative intent, and may be counterproductive." (Id. at p. 1167.) The court therefore 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.) The Dueñas court also held 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." (Ibid.)
The Courts of Appeal have reached different conclusions regarding the substantive merits of the Dueñas opinion as well as the question of whether a defendant forfeits any claim of error by failing to raise the issue in the trial court. Where a statutory basis to object based on inability to pay exists, but a defendant fails to assert such a claim, the claim is forfeited. For example, in Gutierrez, this court held that a defendant who fails to object to a restitution fine above the statutory minimum forfeits any ability-to-pay argument. (Gutierrez, supra, 35 Cal.App.5th at p. 1033.) We reasoned that the statute governing imposition of restitution fines "expressly permitted such a challenge" even before Dueñas. (Ibid.)
For example, the courts in People v. Hicks (2019) 40 Cal.App.5th 320, 326, review granted November 26, 2019, S258946, and People v. Aviles (2019) 39 Cal.App.5th 1055, 1061 disagreed with Dueñas, whereas the court in People v. Belloso (2019) 42 Cal.App.5th 647, 654-656, review granted March 11, 2020, S259755, followed Dueñas. The Supreme Court has granted review in People v. Kopp (2019) 38 Cal.App.5th 47, 95-96, review granted November 13, 2019, S257844. We need not address the validity of Dueñas given our conclusion here that Davis forfeited his claim of error.
For example, the courts in People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 (Gutierrez), People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154-1155, and People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 found forfeiture, but the courts in People v. Johnson (2019) 35 Cal.App.5th 134, 137-138, People v. Castellano (2019) 33 Cal.App.5th 485, 489, and People v. Jones (2019) 36 Cal.App.5th 1028, 1033 did not find forfeiture.
This case is like Gutierrez. Here, the court issued a restitution fine above the minimum statutory amount of $300 under Penal Code section 1202.4. Therefore, the court was to consider Davis's ability to pay any fine above the statutory minimum. (See Pen. Code, § 1202.4, subd. (d).) However, Davis did not object or ask the court to consider his ability to pay at the sentencing hearing. Accordingly, Davis forfeited his ability to pay argument here. (See Gutierrez, supra, 35 Cal.App.5th at p. 1033.)
Further supporting forfeiture here, Davis did not object or request an ability to pay hearing when the court assessed a $615 drug program fee under Health and Safety Code section 11372.7. Subdivision (b) of that section permits judicial consideration of a defendant's ability to pay. Nevertheless, Davis did not object to the imposition of the drug program fee or request an ability to pay hearing. As such, he also forfeited his current objection to the drug program fee by not raising it below.
Davis's remaining fines and fees were mandatory regardless of ability to pay. (See Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1170.) But he plainly could have challenged about 84 percent of the total—$4,215 of $5,014—based on ability to pay. Presumably, if he would struggle to pay the full amount, objecting to 84 percent would be both significant and rational. (See, e.g., Gutierrez, supra, 35 Cal.App.5th at p. 1033.) For this reason, we conclude he forfeited his challenge to all the fines and fees assessed.
In somewhat of a throw-away argument, Davis contends that if we find forfeiture on appeal, then of necessity his counsel provided ineffective assistance of counsel under the Sixth Amendment of the United States Constitution. Davis bears the burden of showing counsel's representation was defective, and he was prejudiced as a result. (Strickland v. Washington (1984) 466 U.S. 668, 690.) The record does not establish either prong of the Strickland test. We have no idea why counsel did not raise the ability to pay issue. We have no idea whether the fines, fees, or assessments were of any consequence. And nothing enlightens us on the significance of any failure of Davis in the future to pay any of the amounts.
Our Supreme Court addressed the issue of establishing ineffective assistance of counsel on a silent record in People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268. The court found it difficult to establish error or prejudice without a full record. The court suggested the defendant's remedy, if any, must be by way of a petition for habeas corpus. (Ibid.)
II
SENATE BILL NO. 136
The court sentenced Davis to a total of nine years, comprised of six years for case No. SCD278493 and a consecutive three years under case No. SCD276592. In the latter case, on count 2, the trial court imposed one-third of the middle term and doubled it as a strike for two years. The court then added one year for one of the three prior-prison-term enhancements under Penal Code section 667.5, subdivision (b), to reach the total of three years. It is this prison prior enhancement that runs afoul of Senate Bill No. 136.
Senate Bill No. 136 amended Penal Code section 667.5, subdivision (b) regarding prior prison term enhancements. Former Penal Code section 667.5, subdivision (b) imposed an additional one-year term for each prior separate prison term or county jail felony term, except under specified circumstances. However, amended Penal Code section 667.5, subdivision (b) imposes that additional one-year term only for each prior separate prison term served for a conviction of a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (Pen. Code, § 667.5, subd. (b).) "By eliminating [Penal Code] section 667.5, subdivision (b) enhancements for all prior prison terms except those for sexually violent offenses, the Legislature clearly expressed its intent in Senate Bill No. 136 . . . to reduce or mitigate the punishment for prior prison terms for offenses other than sexually violent offenses." (People v. Jennings (2019) 42 Cal.App.5th 664, 682, citation omitted.)
Because Davis did not serve any of his prior prison terms for a sexually violent offense, his Penal Code section 667.5, subdivision (b) enhancement is now unauthorized under the amended statute. The parties agree that Senate Bill No. 136 applies to Davis because the statute is retroactive and applies to all cases not yet final as of its effective date. (In re Estrada (1965) 63 Cal.2d 740, 742; People v. Keene (2019) 43 Cal.App.5th 861, 865.) Accordingly, the now-inapplicable enhancement under Penal Code section 667.5, subdivision (b) currently attached to Davis's sentence should be stricken.
Although not raised by the parties, during our review of the record, we noticed the abstract of judgment is inconsistent with the fines levied at the sentencing hearing. Specifically, the trial court imposed a fine of $3,600 under Penal Code section 1202.4, subdivision (b). However, in the abstract of judgment, that restitution fine is listed as $6,600. The general rule is that oral pronouncements of the court are presumed correct. (See People v. Mesa (1975) 14 Cal.3d 466, 471.) Further, the parties agree that the accurate restitution fine is $3,600. Thus, on remand, the abstract of judgment should be amended to reflect the actual fine levied by the trial court. --------
DISPOSITION
The sentence is vacated, and the trial court is ordered to strike the enhancement under Penal Code section 667.5, subdivision (b) and resentence Davis accordingly. Following resentencing, the court shall amend the abstract of judgment, to include the correct restitution fee under Penal Code section 1202.4, subdivision (b), and forward the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: O'ROURKE, J. IRION, J.