Opinion
B295706
07-31-2020
THE PEOPLE, Plaintiff and Respondent, v. JANICE HARVEY Defendant and Appellant.
Eric E. Reynolds, 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 Blake Armstrong, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. TA141252) APPEAL from the judgment of the Superior Court of Los Angeles County. Michael D. Abzug, Judge. Affirmed as modified; remanded with directions. Eric E. Reynolds, 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 Blake Armstrong, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
In People v. Harvey (Sept. 13, 2018, B282358) [nonpub. opn.] (Harvey I), we affirmed appellant Janice Harvey's conviction for assault with a deadly weapon, reversed one prior serious felony enhancement, and remanded for retrial another prior serious felony enhancement; we also remanded for resentencing.
Prior to the remand hearing, Senate Bill No. 1393 (2017-2018 Reg. Sess.) (hereinafter Senate Bill 1393) became effective on January 1, 2019, allowing a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.) Harvey subsequently filed a request to dismiss the three remaining prior serious felony convictions allegations.
On January 31, 2019, the trial court dismissed the prior conviction enhancement that had been remanded for retrial per Harvey I, and declined to exercise its discretion to strike the two remaining serious felony enhancements. The trial court also imposed fines, fees, and assessments, including a $400 restitution fine.
Harvey appeals again and contends: 1) the trial court erred in declining to strike the prior serious felony enhancements; 2) the abstract of judgment must be modified to accurately reflect the sentence imposed by the trial court; and 3) the trial court's imposition of fines and fees without an ability-to-pay hearing violated her due process rights.
We agree with Harvey that the abstract of judgment should be corrected to reflect the sentence imposed—13 (not 16) years in prison. We affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
We incorporate by reference our prior unpublished opinion in Harvey I. We recap the facts and procedural background only as necessary to our discussion here.
1. Factual Background
Harvey, who is wheelchair bound, engaged in a verbal confrontation with two other women on a train platform. One of these women activated an electroshock stun gun and pointed it at Harvey from about three feet away. She did not fire it. Harvey drew a knife from her purse and stated, "You guys have a stun gun. Let me show you what I've got."
Then, a bystander stood between Harvey and the two women. The bystander told Harvey, "Ma'am violence is not the answer." Harvey replied, "Oh, you are on their side, huh?" and stabbed the bystander in the leg. Harvey immediately left the platform; she moved with the flow of debarking passengers and quickly wheeled herself away. Harvey had the knife on her when apprehended by police.
2. Conviction and Sentencing
In 2017, Harvey was charged with assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1). It was alleged under section 667, subdivision (a)(1) she had suffered four prior serious felony convictions. Harvey pleaded not guilty and denied the special allegations.
All further statutory references are to the Penal Code, unless otherwise stated. --------
The jury found Harvey guilty as charged. After a bench trial, the court found true all four prior serious felony conviction allegations.
The trial court denied probation "because of the seriousness of her . . . prior . . . conduct, the fact that she's shown no . . . credible remorse, in the court's view." The court sentenced Harvey to the aggregate term of 23 years in prison— the middle term of three years for the assault with a deadly weapon conviction, plus four consecutive five-year terms for each of the prior serious felony enhancements.
The court imposed a $40 court operations assessment per section 1465.8, a $30 criminal conviction assessment per Government Code section 70373, and a $400 restitution fine per section 1202.4, subdivision (b). 3. Harvey I and the Remand Hearing
On September 13, 2018, in Harvey's initial appeal, we affirmed her conviction for assault with a deadly weapon. We found the record affirmatively showed one of Harvey's four prior convictions was not a serious felony; we reversed and directed the trial court to enter a "not true" finding as to that allegation. We similarly found there was insufficient evidence in support of a second prior serious felony enhancement, and remanded that allegation for retrial. Based on our ruling, we also remanded for resentencing.
While the remand hearing was pending, Senate Bill 1393 came into effect, which amended section 667, subdivision (a) and section 1385, subdivision (b), to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction allegation for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.) Harvey filed a motion requesting the court to dismiss the prior conviction allegations in the interest of justice per section 1385.
On January 31, 2019, the People notified the court they were "unable to proceed" to retry the prior serious felony enhancement that we had remanded for retrial. The trial court dismissed the allegation and vacated the five-year sentence previously imposed.
Next, the trial court denied Harvey's request to strike the remaining two serious felony conviction enhancements, explaining: "[T]he court expressly acknowledges that it has the discretion now to . . . dismiss all the five-year priors. As with most cases, there are mitigating facts and aggravating facts pointing to different directions. [¶] [In] the court's view, there is mitigation. But . . . there's aggravation too. The defendant has a record of violent behavior. And she attacked someone with a deadly weapon without provocation from him. The defendant was provoked at the time but not by the good samaritan. [¶] And fortunately for him and fortunately for her, the victim of [t]his assault didn't die. She could have hit a femoral artery, and he could have bled out in a minute or two, and it wouldn't be assault with a deadly weapon; it would be a murder case. [¶] I think based on the entire record that 13 years is an appropriate sentence. It's sad in a sense; that Miss Harvey has my sympathy, as everybody has my sympathy. We all deserve sympathy as humans. But I think 13 years is appropriate."
Harvey timely appealed.
DISCUSSION
I. The Trial Court Did Not Abuse its Discretion When it Declined to Strike the Serious Felony Enhancements.
Harvey argues the trial court abused its discretion when it declined to strike the two remaining serious felony sentencing enhancements. She contends "the interests of justice warranted striking the enhancements" and that the sentence was "irrational and unjust."
Section 1385 was amended by Senate Bill 1393, granting trial courts discretion to dismiss or strike five-year prior serious felony enhancements alleged under section 667, subdivision (a), in the interest of justice. (Stats. 2018, ch. 1013, §§ 1-2.) When conducting a resentencing hearing, the trial court applies the same factors—sentencing objectives and circumstances in aggravation and mitigation—that it would have considered if the legislation had been in place at the original sentencing hearing. (People v. Pearson (2019) 38 Cal.App.5th 112, 117 (Pearson).)
We review a trial court's decision not to strike or dismiss a section 667, subdivision (a) prior serious felony enhancement under section 1385 for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 371, 374 [review of trial court's decision under the "deferential abuse of discretion standard"].) The party challenging the sentence has the burden of showing the court's decision was " ' "irrational or arbitrary." ' " (Id. at p. 376.) " ' "In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' " (Id. at pp. 376-377.) A reviewing court is not authorized to substitute its own judgment for the judgment of the trial judge. (Id. at p. 377.)
Harvey offers two arguments challenging the trial court's decision not to strike the two five-year enhancements as an abuse of discretion. We find her arguments unavailing.
First, Harvey contends she had not set out on the day of the incident intending to stab someone, and that the offense "is mitigated because [she] reacted based on a subjectively reasonable fear for her safety." She explains that although the victim was an innocent bystander trying to diffuse the situation, Harvey was "caught up in the heat of the moment and reacted."
Nothing in the record demonstrates the trial court did not consider the particulars of Harvey's circumstances on the day of the crime before rendering its decision. A review of the record shows the trial court did consider the fact that Harvey "was provoked at the time but not by the good samaritan." The trial court commented it was fortunate for both Harvey and the victim that the assault did not accidentally hit a femoral artery.
Second, Harvey argues the 13-year sentence imposed is "unjust" given her background, character, and prospects. Harvey argues the trial court "did not give appropriate weight to the role [her] mental illness played in her prior crimes and the instant offense." Instead, she contends the trial court focused on her criminal history.
Harvey's motion requesting that the court strike or dismiss the prior serious felony enhancements included the relevant information about her background, character, and mental health that she repeats on appeal now. Her request includes information about Harvey's upbringing and early childhood, her homelessness, the accident with a Metrolink train resulting in the amputation of her left leg, and her diagnoses of schizoaffective disorder, post-traumatic stress disorder, and other psychotic disorder(s). Harvey's request also included, as attachments, a psychiatric evaluation conducted in 2012 by Dr. Jack Rothberg and a competency evaluation conducted in 2016 by Dr. Risa Grand. There is no evidence in the record to suggest the trial court did not properly consider this information when it declined to strike Harvey's prior serious convictions; indeed, the record provides the trial court affirmatively confirmed it had read the request filed by Harvey after her attorney stated, "I trust the court has read th[e] motion and memorandum that I filed."
We do not disagree with Harvey that mitigating factors were present; however, other factors in aggravation as stated by the trial court support its decision not to strike the enhancements. There is nothing in the record to suggest the trial court's decision was " 'so irrational or arbitrary that no reasonable person could agree with it.' " (Pearson, supra, 38 Cal.App.5th at p. 116.) We conclude it was not an abuse of discretion for the trial court to decline to strike the prior serious felony enhancements.
II. The Abstract of Judgment Must be Corrected to Reflect the Sentence Imposed by the Trial Court.
Harvey contends—and the People agree—that the abstract of judgment filed February 4, 2019 must be corrected to reflect the sentence actually imposed by the trial court. We agree as well.
During the January 31, 2019 remand hearing, the trial court orally pronounced a sentence of 13 years total—three years for the assault with a deadly weapon conviction and two consecutive five-year terms for the prior serious felony enhancements. The minute order also specifies the total sentence imposed as 13 years.
That being said, we see two errors on the face of the abstract of judgment filed February 4, 2019. First, the time imposed for the two prior serious felony enhancements must be corrected to reflect 10 (not 13) years total. Second, the total prison time imposed must be corrected to state 13 (not 16) years. We therefore remand and order the abstract of judgment corrected to reflect the trial court's orally pronounced sentence. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [when oral pronouncement and abstract of judgment conflict, the court's pronouncement controls].) III. Harvey Forfeited Her Challenge to the Trial Court's Imposition of Fines and Fees.
Harvey argues the trial court violated her federal and state right to due process by imposing an $40 court operations assessment, a $30 criminal conviction assessment, and a $400 restitution fine without determining whether she had the present ability to pay. Harvey requests we strike the fees and assessments and stay the imposition of the restitution fine under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
Harvey concedes she did not object to or raise any due process argument against the fees and assessments at sentencing. She argues, however, that her failure to object at the trial level is excusable because Dueñas was not yet decided and represents a "novel and unforeseeable" change in the law.
We are unpersuaded. "[N]othing in the record of the sentencing hearing indicates that [appellant] was foreclosed from making the same request that the defendant in Dueñas made in the face of those same mandatory assessments." (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154.) Appellant plainly could have made a record had her ability to pay the assessments and fine actually been an issue. (Id. at pp. 1153-1155.]) As a result, we find appellant has forfeited this challenge. (Id. at p. 1155; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464.)
Further, we note the following with respect to the imposition of the $400 restitution fine per section 1202.4, subdivision (b). A reading of the language in subdivision (c) of that statute indicates that a defendant's inability to pay "may be considered only in increasing the amount of the restitution fine in excess of the minimum fine [of $300]." (§ 1202.4, subd. (c), italics added.) Here, the trial court imposed $400—more than the minimum amount allowed. (§ 1202.4, subd. (b)(1) [if convicted of a felony, the fine shall not be less than $300 and shall not be more than $10,000].) Thus, this statute expressly allowed Harvey to object to imposition of a restitution fine exceeding the statutory minimum based on her inability to pay. She failed to do so. Accordingly, she has forfeited this claim on appeal.
DISPOSITION
The cause is remanded with directions to the trial court to modify and/or correct the abstract of judgment as explained in this opinion. The trial court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J. We concur:
GRIMES, Acting P. J.
WILEY, J.