Opinion
B296136
02-07-2020
THE PEOPLE, Plaintiff and Respondent, v. SANTOS LEONEL GARCIA, Defendant and Appellant.
Alan E. Spears, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr. and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA073271) APPEAL from a judgment of the Superior Court of Los Angeles County. Robert G. Chu, Judge. Affirmed. Alan E. Spears, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr. and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant Santos Garcia was convicted of two counts of assault with a deadly weapon with various enhancements and sentenced to 19 years in prison. He raises two sentencing errors: (1) the court misunderstood its discretion to strike a prior serious felony enhancement under Penal Code section 667, subdivision (a); and (2) the court imposed a restitution fine and various penalty assessments without first determining his ability to pay. We reject the first contention as unsupported by the record and the second as forfeited, and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Crimes
Because defendant raises only sentencing issues, we provide only a brief overview of the facts. Defendant lived in a trailer park with his mother and brother. On the evening of February 16, 2018, defendant got into an argument with his mother inside the trailer; defendant's brother was outside. The mother called for help. Three men - Joe Sanchez, his son Bryan, and their friend Mario Sanchez - were nearby and responded to her calls. The first to make it to the scene, Mario, told defendant to calm down. Defendant responded by throwing punches at him, then stabbed him with a knife, eight times. By this time, the second man, Joe, arrived, and tried to help Mario get to safety. As he was helping Mario walk off, defendant stabbed him in the back, seven times. Bryan, Joe's son, saw defendant stab Joe. He tried to push defendant off his father; defendant stabbed him once in the back. The three men returned to Joe's trailer. Defendant's brother entered his family's trailer and saw defendant calmly washing blood off his knife. Defendant's brother took the three victims to the hospital, where they were treated. Mario's wounds required staples and stitches; Joe needed surgery.
2. The Charges
Defendant was charged by amended information with the attempted murder of all three men (the attempted murders of Joe and Mario were alleged to be premeditated) and assault with a deadly weapon on all three. A great bodily injury enhancement was alleged with respect to each count (Pen. Code, § 12022.7). In addition, defendant was alleged to have suffered one prior serious felony conviction (Pen. Code, § 667, subd. (a)), one prior "strike" conviction (Pen. Code, § 667, subds. (b)-(i)), and three prior prison terms (Pen. Code, § 667.5, subd. (b)). Defendant pleaded not guilty and proceeded to trial. 3. The Plea Offer and Trial
We describe the plea offer briefly, and the sentencing hearing in more detail, because both proceedings give context to defendant's argument on appeal that we should remand to allow the trial court to exercise its discretion to strike a five-year enhancement under Penal Code section 667, subdivision (a).
Before trial, the prosecution offered defendant a deal. Defendant could plead guilty to one count of assault with a deadly weapon, and admit the strike and the prior serious felony, for a total sentence of 13 years (calculated as the high term of 4 years, doubled for the strike, plus 5 years for the prior serious felony). The trial court placed on the record that it had "a brief conversation with Mr. Garcia off the record advising him of the maximum time he's facing in the case. He appears to understand that." Defendant rejected the offer, stating he would accept 8 years, and possibly 11. The case proceeded to trial.
Two days later, the trial court repeated that the offer was 13 years and the prosecutor said it was 14 years. There is no explanation for the one-year difference.
Defendant was found not guilty of the attempted murders and the assault on Bryan. He was found guilty of assault with a deadly weapon on Mario and Joe; the great bodily injury enhancements were found true. Defendant waived jury on the prior conviction and prior prison term allegations and admitted them all.
4. Sentencing
The probation report reflected a lengthy juvenile and adult history of criminal activity, including, but by no means restricted to, crimes of violence - beginning with the sustaining of a juvenile petition for assault with a deadly weapon at age 13, and including adult convictions for assault with a deadly weapon and domestic violence.
The probation report also indicates that, during the course of this case, defense counsel declared a doubt as to defendant's competence. Defendant was examined by a psychiatrist and the court found defendant competent. According to the consolidated criminal history reporting system, "defendant has a special handling code of mentally disturbed."
The prosecution submitted a sentencing memorandum arguing for a sentence of 19 years, calculated as follows: a 16-year principal term on the first assault with a deadly weapon (the high term of 4 years, doubled for the strike, plus 3 years for the great bodily injury and 5 years for the prior serious felony); and a 3-year subordinate term on the other (1/3 the mid-term of 3 years, doubled for the strike, plus one-third the 3-year term for the great bodily injury enhancement).
The sentencing hearing was held on February 7, 2019. At the hearing, the court indicated a tentative sentence of 18 years. The prosecution submitted. Defense counsel stated, "I believe that he's entitled to midterm on the case versus high term which would be 17 years, I think. [¶] Also, I would make a Romero motion[] to strike the prior conviction as too old and remote. [¶] And then I submit."
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 allows motions to dismiss prior strikes.
The court responded, "I do want to state that during the trial Mr. Garcia was very professional. He didn't cause any problems, which I appreciated, and I remember having a talk with you before the trial began where I urged you to strongly consider the offer in the case because I told you that if you were convicted the court's hands would be tied in regards to the sentence that it could give you because of the types of charges that you were being charged with."
The court then indicated all of the information it had reviewed and all of the sentencing objectives it had considered in determining the sentence. It particularly noted defendant's lengthy criminal history, stating, "It appears he is prone to violent behavior making him a threat to the safety and well-being of others."
The court denied the Romero motion. The court sentenced defendant to 18 years as follows: on the first (principal) count, 16 years (the high term doubled, plus 3 years for the great bodily injury enhancement and 5 years for the prior serious felony); and on the second (subordinate) count, 2 years (one-third the mid-term doubled, with no other enhancements). The court expressly struck the great bodily injury enhancement on the latter count. The court imposed no sentence on the prior prison term enhancements.
Defendant was also ordered to pay a total restitution fine of $1200 (Pen. Code, § 1202.4) a court operations assessment of $80 (Pen. Code, § 1465.8) and a conviction assessment of $60 (Gov. Code, § 70373).
A parole revocation fee of $1200 was imposed and suspended under Penal Code section 1202.45.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant raises two challenges to his sentence. First, he contends the court did not know it had discretion to strike his prior serious felony enhancement. Second, he challenges the imposition of the restitution fine and penalty assessments without a determination of his ability to pay.
1. The Prior Serious Felony Enhancement
Penal Code section 667, subdivision (a) provides an enhancement of additional five years, when a defendant convicted of a serious felony has been convicted of a prior serious felony. Trial courts were previously prevented from striking such enhancements, but by statute effective January 1, 2019, trial courts were granted discretion to strike them in the interests of justice. (Stats 2018, ch. 1013 (S.B. 1393).)
Defendant was sentenced on February 7, 2019, after the effective date of the statute. The record is silent as to whether the trial court was aware of its discretion to strike the prior serious felony enhancement; defendant did not ask the court to strike the prior, and the court did not express that it was exercising discretion not to strike the prior. Defendant argues that remand is necessary to allow the court to properly exercise its discretion.
On appeal, defendant states, "In that trial counsel was also apparently unaware of the option to strike the prior conviction, trial counsel was ineffective in failing to request the court's consideration." Defendant makes no further argument and cites no authority. We consider the ineffective assistance of counsel argument abandoned.
"Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion. [Citation.]" (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) However, remand is unnecessary on a silent record. "Error may not be presumed from a silent record. [Citation.] ' "[A] trial court is presumed to have been aware of and followed the applicable law." [Citations.]' [Citation.]" (Id. at p. 1229.)
Defendant's position is that this record is not silent but, in fact, affirmatively reflects that the trial court misunderstood its discretion. Defendant relies on the trial court's statement at sentencing, reminding the defendant that, before trial, the court had suggested defendant strongly consider the prosecution's offer, stating, "I told you that if you were convicted the court's hands would be tied in regards to the sentence that it could give you because of the types of charges that you were being charged with." Defendant focuses on the phrase "the court's hands would be tied in regards to the sentence" and infers that this is a reference to the court's mistaken belief that it lacked discretion to strike a prior serious felony enhancement. We decline to make such a leap. First, the statement was made as the court was reminding defendant of a prior conversation; the court did not state that the sentence it was imposing was a matter on which it had no discretion. In fact, the record reflects the court was well aware that it was exercising sentencing discretion in its choices to impose the high term and deny defendant's Romero motion. Second, the earlier conversation did not specifically state that the court's options were limited concerning enhancement. Rather the court said its "hands were tied" because of the "types of charges that you were being charged with." That the court's statement was directed to the charged offenses and not the enhancement is supported by the context of the plea bargain conditions. At the time of the plea offer, defendant was facing two counts of attempted premeditated murder; if he were to be convicted of those crimes, he would necessarily receive a life sentence with the possibility of parole. (Pen. Code, § 664.) Third, the trial court stating that its "hands would be tied in regards to sentence . . . because of the types of charges" may simply have been an indication that the 8- or 11-year term which defendant wanted was simply not realistic due to the severity of the charges defendant faced. In sum, we cannot infer that the trial court's statement reflected a belief that it lacked discretion to strike the prior serious felony enhancement. As such, the record is silent, and we do not presume error.
The weakness of defendant's argument is underscored by the title to the point in Appellant's Opening Brief: "The Trial Court Prejudicially Erred in Failing to Realize it had Discretion to Strike Section 667, subdivision (a)(1) Prior Conviction." This formulation spells its doom. The court stated nothing about its discretion to strike the enhancement. Neither defense counsel nor this court is entitled to ponder or speculate about the trial court's unexpressed understanding about its authority.
We also reject defendant's argument that remand would be necessary because there is no clear indication the court would not exercise its discretion in his favor if given the opportunity. (See People v. McDaniels (2018) 22 Cal.App.5th 420, 425 [no remand necessary when remand would be an idle act because the record discloses a clear indication that the court would not reduce the defendant's sentence].) Defendant suggests that, given that the trial court did not impose the maximum punishment, and was apparently at one time willing to accept a plea to a 14-year sentence, "it is not unreasonable to conclude that the court might have fashioned a sentence closer to the pretrial offer if, for example, it realized it could opt to strike the five-year prior under section 667 and impose the additional three-year term under section 12022.7 to arrive at a sentence of 16 years." This is fanciful thinking. The court was aware that it could have arrived at a sentence of 16 years by imposing the exact same sentence it did, but imposing the middle term on the principal offense; it declined the defendant's invitation to do so. The court was also aware that it could have imposed a 13-year sentence by granting defendant's Romero motion; it denied defendant's request to do that as well. In short, the record is clear that the court rejected the opportunity to strike two or five years from defendant's sentence; it certainly would have rejected the opportunity to strike five years if presented in a different manner.
It would also be an illegal sentence. The court could not impose a full three-year great bodily injury enhancement on a subordinate count; a consecutive subordinate term in this setting consists of one-third the middle term "and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses." (Pen. Code, § 1170.1, subd. (a).) --------
More importantly, sentencing is not simply a numbers game. The trial court imposed the high term rather than the middle term because the aggravating factors outweighed the mitigating factors. The trial court apparently denied the Romero motion because, although defendant's prior conviction was in 2003, his lengthy violent criminal history made it still relevant. For the same reasons, the decision to impose the five-year prior was well-informed.
2. Ability to Pay
On January 8, 2019, Division Seven of the Second Appellate District decided People v. Dueñas (2019) 30 Cal.App.5th 1157, holding, "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.) It also held that the execution of a restitution fine 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.)
Here, defendant contends that he is indigent, as he was represented by the public defender, and, as there was no ability to pay hearing, argues that, under Dueñas, his restitution fine must be stayed and the assessments vacated. But defendant did not request an ability to pay hearing before the trial court, and defendant largely overlooks the fact that his February 7 sentencing hearing postdated the Dueñas opinion by a month.
Defendant argues that his failure to object should not be considered a forfeiture because it would have been futile to object at the time. We observe that there is a split in authority on whether the holding in Dueñas could have been reasonably anticipated and whether the failure to object prior to the Dueñas decision constitutes forfeiture. (Compare People v. Castellano (2019) 33 Cal.App.5th 485, 489 [Dueñas could not have been anticipated] with People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154 [Dueñas could have been anticipated].) But no case holds that Dueñas could not have been anticipated 30 days after Dueñas was filed.
Even if we were to excuse forfeiture because Dueñas was filed shortly before sentencing, there are other grounds on which we affirm. First, defendant suggests the trial court's error was a legal one; that the restitution fine and penalty assessments simply could not have been imposed without an ability to pay hearing. We disagree. As the Dueñas court made clear in its subsequent opinion in People v. Castellano, supra, 33 Cal.App.5th at pages 489-490, Dueñas does not apply in the absence of a record of the defendant's inability to pay. "Consistent with Dueñas, a defendant must in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court." (Id. at p. 490.) Here, no such record was made. Second, the trial court here imposed a restitution fine in the amount of $1,200, which was significantly higher than the statutory minimum of $300. In that situation, the court is required by statute to consider a number of factors, including the defendant's inability to pay. (Pen. Code, § 1202.4, subd. (d).) "A defendant shall bear the burden of demonstrating his or her inability to pay." (Ibid.) Here, defendant made no effort to contest the additional $900 of his restitution fine, an implicit concession of his ability to the entire $1200 fine. We conclude on this record defendant's failure to object when he had the opportunity to challenge the restitution fine forfeits his challenges to the court assessments. Finally, defendant's lengthy prison sentence means he will likely be able to pay any fines and assessment through prison wages. (People v. Johnson (2019) 35 Cal.App.5th 134, 139; Cal. Code Regs., tit. 15, § 3041.2.)
DISPOSITION
The judgment is affirmed.
RUBIN, P. J. WE CONCUR:
BAKER, J.
KIM, J.