Opinion
C087123
06-03-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH HERRERA, Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING [CHANGE IN JUDGMENT] THE COURT: It is ordered that the nonpublished opinion filed herein on June 3, 2020, be modified as follows: 1. The words "the middle term of" are added to the second full sentence on page 2, so that the modified sentence reads:
The court sentenced defendant to 11 years in state prison, consisting of the middle term of two years on the possession charge, doubled to four years for the prior strike, plus the low term of two years on the gang enhancement, and five years for the prior serious felony conviction.2. The second full paragraph on page 2, commencing with "Defendant argues the case should be remanded for the trial court to exercise its discretion to strike or dismiss," is deleted in its entirety. In its place, a footnote is added to the end of the paragraph preceding this deleted paragraph, after the sentence "We agree and modify the judgment to strike the enhancement," which will require a renumbering of all subsequent footnotes. This new footnote No. 2 reads:
Defendant also argues the case should be remanded for the trial court to exercise its discretion to strike or dismiss a prior serious felony conviction. The People concede that Senate Bill No. 1393, which, effective January 1, 2019, amended section 667, subdivision (a) and section 1385, which now afford trial courts this discretion, applies retroactively to this case. However, on petition for rehearing, the parties agree that, in light of our determination to strike the gang enhancement, section 667, subdivision (a)(1), does not apply. Without the gang enhancement under section 186.22, defendant's conviction for possession of a firearm by a felon (§ 29800, subd. (a)(1)) is not a serious felony conviction subject to section 667, subdivision (a)(1). (See §§ 667, subd. (a)(4), 1192.7, subd. (c)(28).) Thus, the five-year sentence imposed under section 667 must also be stricken.3. The last two sentences of what was footnote No. 4 on page 11, but will now be footnote No. 5, are deleted. The modified footnote reads:
Defendant argues, and the People do not contest, that defendant cannot be retried on the gang enhancement under double jeopardy principles. An enhancement exposing a defendant to greater punishment must be treated as an element of the offense, and therefore a finding of insufficient evidence bars a second trial. (People v. Seel (2004) 34 Cal.4th 535, 547-550.)4. The discussion section entitled "Senate Bill No. 1393," commencing on the top of page 11 and ending at the bottom of page 12, is deleted in its entirety. 5. A new discussion section entitled "Remand for Resentencing" is added after the section entitled "Defendant's Inability to Pay Assessments and Fines" and before the disposition heading. This new section reads:
Remand for Resentencing
Defendant urges us to strike the two-year sentence the trial court imposed for the gang enhancement (§ 186.22, subd. (b)(1)), as well as the five-year sentence for the prior serious felony conviction enhancement (§ 667, subd. (a)(1)), and enter judgment accordingly. The Attorney General asks that we remand for the trial court to resentence defendant in light of our opinion.
We agree with the Attorney General that the appropriate disposition is remand for resentencing. We note that defendant did not receive the maximum possible sentence on his conviction under section 29800, subdivision (a)(1), which the trial court doubled for the prior strike under section 667, subdivision (e)(1). The trial court could exercise its discretion to reassess defendant's total sentence on remand. (Cf. People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15 ["Because the resentencing court had imposed the maximum possible sentence, regardless of whether the two-year on-bail enhancement was stricken, there is no need to remand the matter to the trial court to exercise its sentencing discretion anew"]; People v. Lopez (2019) 42 Cal.App.5th 337, 342.)6. At the end of this new "Remand for Resentencing" section, after the last sentence in that section that ends with "People v. Lopez (2019) 42 Cal.App.5th 337, 342" a new footnote is added. That footnote, which will be footnote No. 8, reads:
The court found true that defendant had served a prior prison term subject to a one-year enhancement under section 667.5, subdivision (b), but did not impose an additional one-year sentence as this enhancement stemmed from the same offense subject to the enhancement under section 667, subdivision (a). Notwithstanding the inapplicability of section 667, subdivision (a), as result of our decision, upon resentencing an additional one-year term may not be added to defendant's sentence under section 667.5, subdivision (b). Senate Bill No. 136, effective January 1, 2020, amended section 667.5, subdivision (b), to eliminate the one-year prior prison term enhancement for most prior convictions, with an exception for a qualifying prior conviction on a "sexually violent offense" that is inapplicable here. (Stats. 2019, ch. 590, § 1.) Senate Bill No. 136 became effective before defendant's judgment became final, therefore the amended law applies to him retroactively. (People v. Reneaux (June 17, 2020, C082186) ___ Cal.App.5th ___ [2020 Cal.App. LEXIS 549, *36-*39]; In re Estrada (1965) 63 Cal.2d 740, 744-745.)7. On page 15, the paragraph following the disposition heading is deleted and replaced with the following paragraph:
The gang enhancement under section 186.22, subdivision (b)(1), and the prior serious felony conviction enhancement under section 667, subdivision (a)(1), are stricken. The matter is remanded to the trial court for resentencing. Upon resentencing, the trial court is directed to prepare an amended abstract of judgment and forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.This modification changes the judgment. (Cal. Rules of Court, rule 8.264(c)(2).) The petitions for rehearing are denied. BY THE COURT: /s/_________
RAYE, P. J. /s/_________
HULL, J. /s/_________
RENNER, J. 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. 17FE014338)
Defendant Joseph Herrera was convicted by a jury of being a felon in possession of a firearm (Pen. Code, § 29800). The jury found to be true that defendant possessed the firearm for the benefit of or in association with a gang (§ 186.22, subd. (b)(1)). Based on defendant's admissions as part of a plea bargain, the court found true that he had a prior serious felony conviction (§ 667, subd. (a)) and a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12). The court also found true that defendant had served a prison term within the last the five years (§ 667.5, subd. (b)). The court sentenced defendant to 11 years in state prison, consisting of two years on the possession charge, doubled to four years for the prior strike, plus the low term of two years on the gang enhancement, and five years for the prior serious felony conviction.
All undesignated statutory references are to the Penal Code.
Defendant contends that there was insufficient evidence to support the gang enhancement. We agree and modify the judgment to strike the enhancement.
Defendant argues the case should be remanded for the trial court to exercise its discretion to strike or dismiss a prior serious felony conviction. The People concede that Senate Bill No. 1393, which, effective January 1, 2019, amended section 667, subdivision (a), which afforded trial courts this discretion, applies retroactively to this case. We will remand to the trial court to apply amended section 667, subdivision (a) in sentencing defendant.
Finally, defendant maintains that the trial court found he was unable to pay mandatory statutory fees and fines, which therefore are unconstitutional, citing People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168 (Dueñas). We disagree with Dueñas and find no constitutional violation.
FACTUAL BACKGROUND
On July 29, 2017, a police officer pulled over Mercedes Valles in Elk Grove for a traffic violation. Defendant was in the passenger seat. Defendant told the officer he was on parole. A search of the car found a Target shopping bag under the front passenger seat. The bag contained a loaded gun underneath baby clothes and toys. The parties stipulated that (1) the gun was not registered to defendant or Valles, and (2) defendant had been convicted of a felony and was not allowed to possess a gun.
The People contended, pursuant to section 186.22, subdivision (b)(1), that defendant was in possession of the gun for the benefit of the Varrio Diamonds Norteño criminal street gang. The parties stipulated that the Varrio Diamonds gang has engaged in a pattern of criminal activity as defined in section 186.22. A prosecution gang expert, Detective Albert Franco, testified that the Varrio Diamonds are a subset of the Norteño gang in the Sacramento area. Detective Franco testified that the primary activities of the Varrio Diamonds gang include being a felon in possession of a firearm, carrying a concealed weapon, carrying a loaded firearm in a car, assault with a firearm, shooting into an inhabited dwelling, drug possession, and vehicle theft.
Defendant began associating with Varrio Diamonds in middle school. In 2009 defendant left a voicemail for a police officer about the inability of the Sacramento police to find him, referring to himself as "Herrera, aka Thumper" and using language associated with the Varrio Diamonds, including "Diamond shinin' nigga forever" and "D-Boys don't snitch."
Varrio Diamonds members identify themselves by holding their fingers in the shape of a V and pointing them towards each other to make a diamond. In a 2009 interview with a law enforcement officer, defendant took his shoelaces off and made them into the shape of a diamond on the interview table.
Varrio Diamonds gang members also form their fingers in the shape of an F and K to stand for "Fruitridge Killer," a reference to a dispute with their rival gang, the Fruitridge Vistas. In 2009 an officer saw defendant at a flea market where he claimed to be part of the "Fruitridge Killers."
Defendant has tattoos on his hands and face that represent the number 14 for the 14th letter of the alphabet, N, for Norteños.
In 2010 defendant was convicted of a felony and sentenced to prison. In 2014 a correctional officer searched his cell and found a "kite," also known as a "huela," which is a note in very small handwriting used by Nuestra Familia gang members in custody to communicate. Nuestra Familia is the highest-ranking group of Norteño gang members. The next level is "Northern Structure," who rank above regular Norteño members and are foot soldiers of Nuestra Familia in prison. A Norteño becomes a member of the Northern Structure after a background check of their street history, known as a "third degree." This particular kite was authored by a Nuestra Family member regarding recruitment and one of the recruits listed was "Thumper." The kite told "Thumps" to give his cell phone to another Nuestra Familia member.
In 2016 a correctional officer received a kite from an inmate that he described as defendant's application for "third degree" training in prison to become a Northern Structure member. In the kite, defendant identified himself as a member of "Sacramento VDS," referring to Varrio Diamonds Sacramento.
On June 14, 2016, a correctional officer searched defendant's cell and found two huelas describing, respectively, (1) the 14 bonds, which are the rules and regulations of the Nuestra Familia or the Northern Structure gang, and (2) the "northern format," which are the guidelines to direct gang activity for Northern Hispanic inmates. A person who was not a member of the Northern Structure would never be allowed to possess these items.
On January 2, 2018, after his arrest in this case, a deputy found what he believed to be a rough draft of a huela by defendant to all pods in the jail from the "authority in charge." Later in January 2018 over 100 huelas were found in defendant's cell. An individual without significant standing in the gang would not be trusted to hold so many huelas. Officers typically find at most three or four in a cell.
Detective Franco opined that defendant was a high-ranking member of the Varrio Diamonds. Detective Franco based his opinion on pictures that he had seen on social media, defendant's admission of membership, defendant's tattoos and clothing, and the huelas connected to defendant.
Detective Franco testified that Mercedes Valles was a lower ranking member of the Varrio Diamonds, based on reports he reviewed about: (1) a notebook found in her backpack with multiple gang references; (2) her association with another Varrio Diamonds gang member; (3) an incident where she was involved in helping Varrio Diamonds gang members in jail lower a rope to obtain a cell phone; (4) her presence in a car with a Varrio Diamonds gang member where there was a loaded firearm; (5) her presence in a car with multiple Varrio Diamonds gang members; and (6) her presence at a gang funeral.
A detective in the Sacramento County Sheriff's gang suppression unit testified regarding his belief that the Varrio Diamonds were in an active gang war with the Fruitridge Vistas. The animosity dates back to October 2015 when a Varrio Diamonds member, Isaiah Diaz, was shot and killed by Fruitridge Vista gang members. In May 2017 a search of the cell phone of an alleged Varrio Diamonds member found three videos related to a shooting on March 12, 2017, between a Varrio Diamonds member and a Fruitridge Vista member. Both individuals were transported to UC Davis Medical Center. One video showed the cell phone owner bragging that her friend is going to be okay but the other individual is in the intensive care unit. The video showed Varrio Diamonds members forming the "Fruitridge Killer" hand sign. Other videos showed Mercedes Valles and other Varrio Diamonds members forming the "Fruitridge Killer" sign, shouting "FRK," and referring to the member of Varrio Diamonds gang member who was shot getting out of the hospital while the Fruitridge Vista member was not. Detective Franco testified that between the time the Varrio Diamonds gang member was shot in 2015 to defendant's arrest in 2017, there were two or three shootings between these gangs, which were sporadic and retaliatory.
Detective Franco testified that gang members share guns because guns are hard to come by. They can share guns in a car. Varrio Diamonds carry guns in the event of a confrontation with the Fruitridge Vista or another rival gang member, otherwise they would look weak. By carrying a gun, a Varrio Diamonds gang member benefits by making the gang look stronger in case they have to use the gun to confront another gang member. By not having a gun, a gang member brings discredit to the gang. If multiple gang members are in a car where there is a loaded firearm, all members will know about it. If a gang member is on parole or probation, having a gun is a violation and other members will try to distract law enforcement in the event of a stop. If confronted by another gang member, gang members need to know a gun is immediately accessible.
After a hypothetical by the prosecutor summarizing the facts of defendant's arrest and his status in the gang, Detective Franco opined that the gun found in the car with defendant was possessed for the benefit of the gang, because defendant: (1) was a Varrio Diamonds gang member, wearing gang colors, and having gang tattoos; (2) was traveling through gang territories that day; (3) needed to have a means to defend himself or he would look like a weak link; (4) was a Northern Structure member and could bring discredit to other structure members if he did not have a means to defend himself; (5) defendant and everybody in the car would know about a gun that could readily be used to shoot at a rival gang member; and (6) was "a higher-ranking authority type in charge of that custody facility within the Norteño street gang and the other Norteños in that facility," based on the number of kites found in defendant's cell.
Defendant was on parole and wearing a GPS monitor. Detective Franco testified to his understanding that defendant traveled through gang territory that day, though he was arrested in Elk Grove and Detective Franco did not know of any disagreements between the Varrio Diamonds and gangs in Elk Grove.
On cross-examination, Detective Franco admitted there was no evidence: (1) when the gun was put in the car; (2) who else had possession of the gun prior to the traffic stop on July 29, 2017; (3) the gun came from other gang members; (4) who brought the gun in the car; (5) whether the gun was ever used; (6) whether the gun was ever used by gang members; (7) defendant brought the gun in the car; (8) defendant ever touched the gun; (9) defendant knew the gun was in the car; (10) defendant or Valles were brandishing the gun that day; (11) defendant or Valles were throwing gang signs that day; or (12) defendant or Valles committed or were going to commit gang-related activity, or were going to use the gun, that day.
Detective Franco acknowledged that he assumed that if defendant possessed the gun it was for the benefit of the gang. Detective Franco's assumption was based on the concept of respect. A person will use a gun offensively or defensively so that they are not disrespected. But someone else has to know about the gun. The gun has to be used or displayed for someone else to know about the gun. Detective Franco admitted there was no evidence that defendant or Valles had used or displayed the gun. Detective Franco also admitted there was no evidence that: (1) anyone disrespected defendant or Valles that day; (2) anyone challenged their status as gang members; (3) defendant or Valles would have come into contact with anyone who disrespected them; or (4) anyone had a current dispute with defendant.
Defendant did not testify.
DISCUSSION
Sufficiency of Evidence of Gang Enhancement
Defendant contends that substantial evidence did not support the gang enhancement under section 186.22, subdivision (b)(1). We agree.
"In determining whether the evidence is sufficient to support a conviction or an enhancement, 'the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citations.]" (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.) "[T]he reviewing court 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]" (Ibid.) "This standard applies to a claim of insufficiency of the evidence to support a gang enhancement. [Citation.]" (Ibid.)
"There are two prongs to the [gang] enhancement. [Citation.] First, the prosecution is required to prove that the underlying [crime was] 'committed for the benefit of, at the direction of, or in association with any criminal street gang.' [Citation.] Second, there must be evidence that the [crime was] committed 'with the specific intent to promote, further, or assist in any criminal conduct by gang members.' " (People v. Rios (2013) 222 Cal.App.4th 542, 561 (Rios).)
In this instance, the prosecution was required to show that defendant possessed the firearm "for the benefit" of the gang and "with the specific intent" to promote criminal conduct by gang members. (§ 186.22, subd. (b)(1).) Assuming there was substantial evidence that defendant possessed the firearm found in the car "for the benefit" of the Varrio Diamonds, we cannot conclude there was sufficient evidence for a jury to conclude beyond a reasonable doubt that defendant did so with "specific intent" to promote criminal conduct by the Varrio Diamonds.
The only evidence supporting the enhancement that defendant possessed the firearm with the scienter required by the statute was that defendant: (1) was a higher-level gang member; (2) was with a lower-level female gang member; (3) had driven through other gangs' territory that day (but was arrested in Elk Grove where there was no known dispute between the Varrio Diamonds and any other gang); and (4) was in a car where police officers found a loaded gun.
To be sure, Detective Franco testified that gang members carry guns in order to promote respect for the gang and for a gang member to be involved in a confrontation with a rival gang member without a gun would discredit the member and the gang. However, he agreed that a person who is prohibited by law from possessing a gun might still carry a gun simply to protect themselves. Detective Franco also agreed there was no evidence that the gun came from other gang members or that defendant or Valles were brandishing the gun that day. He agreed that for possession of the gun to promote respect for that gang, rival gangs would have to know that defendant had a gun and that knowledge would require that defendant or Valles used or brandished the gun. He testified that there was no evidence defendant or Valles did so, or that they even came into contact with a rival gang that day.
Regarding the prosecution's reliance on an "active gang war" between the Varrio Diamonds and the Fruitridge Vista gang since a shooting in 2015, Detective Franco testified that since then "[t]here's been two or three [shootings], and they're sporadic and retaliation in nature." He agreed that there was no evidence that defendant himself was currently in a dispute with anyone.
Defendant engages in extensive discussion of the facts of various cases supporting his claim of insufficient evidence and distinguishing one case that did not, People v. Gonzalez (2015) 232 Cal.App.4th 1449, 1466-1467 (Gonzalez). Unsurprisingly, the People argue that Gonzalez is most similar to the facts of this case.
(See, e.g, In re Frank S. (2006) 141 Cal.App.4th 1192, 1199 [insufficient evidence for gang enhancement for possession of dirk or dagger]; People v. Ramon (2009) 175 Cal.App.4th 843, 851 [insufficient evidence for gang enhancement for receiving stolen vehicle and firearm offenses]; People v. Ochoa (2009) 179 Cal.App.4th 650, 662 [insufficient evidence for gang enhancement for carjacking and possession of a firearm]; People v. Perez (2017) 18 Cal.App.5th 598, 610 [insufficient evidence for gang enhancement for multiple counts of attempted murder and assault with a firearm]; Rios, supra, 222 Cal.App.4th at p. 574 [insufficient evidence for gang enhancement for vehicle theft and carrying a loaded firearm in a vehicle].)
Neither party discusses People v. Garcia (2007) 153 Cal.App.4th 1499 (Garcia), a case, as here, that involved a gang enhancement for a single count of illegal firearm possession. In Garcia, the defendant was stopped for a traffic violation and officers found an unregistered, loaded handgun in the fuse box on the driver's side of his truck. (Id. at pp. 1502-1503.) There was evidence that, not only was the defendant an active gang member who had knowledge of the inner workings of the gang, but he had been in the gang for many years and had committed enough street crimes to have gained respect within the gang. (Id. at p. 1504.) The evidence suggested the defendant obtained his handgun from his fellow gang members. (Id. at pp. 1505-1506.) An expert testified that guns were " 'huge' " within the gang, that if a gang member possessed a gun, all of the other gang members would know about it, and that the gang's status would benefit from a gang member's reputation for carrying a firearm. (Id. at p. 1503.) The expert believed that, based on these facts and others, including the defendant's gang-related criminal history, the defendant's possession of an unregistered and loaded handgun in his truck was for the benefit of his gang. (Id. at pp. 1504-1506.) The court in Garcia found sufficient evidence to support the jury's true finding that the defendant possessed the firearm for the benefit of the gang. (Id. at p. 1512.)
However, Garcia's analysis and conclusion dealt only with the first prong of the gang enhancement the prosecution had to prove—whether the underlying crime was committed for the benefit of the gang. (Garcia, supra, 153 Cal.App.4th at p. 1512; see also Rios, supra, 222 Cal.App.4th at pp. 560-561.) Significantly, to the extent Garcia bears on the specific intent requirement, there is a key distinguishing fact. The defendant in Garcia obtained his firearm from other gang members, which indicated he intended to use the weapon for his gang. There was no such evidence here.
In sum, there was no evidence to support the enhancement other than the fact that defendant was a gang member in a car with another gang member and a loaded firearm. It is speculative as to why defendant was in possession of the firearm. In terms of the potential for disrespect that was the basis of the prosecution expert's opinion that defendant had the gun for the benefit of the gang, there no evidence that any rival gang member knew of his possession. Indeed, we question whether the evidence was sufficient to support a finding that defendant possessed the firearm "for the benefit" of the gang. But the evidence was certainly insufficient for a finding that defendant possessed the weapon with the "specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." (§ 186.22, subd. (b)(1).)
Defendant argues, and the People do not contest, that defendant cannot be retried on the gang enhancement under double jeopardy principles. An enhancement exposing a defendant to greater punishment must be treated as an element of the offense, and therefore a finding of insufficient evidence bars a second trial. (People v. Seel (2004) 34 Cal.4th 535, 547-550.) Defendant further contends, and again the People do not dispute, the gang enhancement elevated a felony to a serious felony (§§ 667, subd. (a)(4), 1192.7, subd. (c)(28)), as well as a strike offense (§ 667), adding five years to the sentence and doubling the base term. (§§ 667, subds. (a)(1), (e)(1).) Therefore, in striking the two-year gang enhancement, defendant's sentence is reduced by an additional seven years.
Senate Bill No. 1393
Defendant argues that this case should be remanded to allow the trial court to exercise its sentencing discretion as to whether to strike the section 667, subdivision (a), five-year serious felony enhancement.
On September 30, 2018, the Governor signed Senate Bill No. 1393 which, effective January 1, 2019, amended sections 667, subdivision (a), and 1385, subdivision (b), to permit a court to exercise discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (People v. Garcia (2018) 28 Cal.App.5th 961, 971; Stats. 2018, ch. 1013, §§ 1-2.) The prior versions of these statutes required the court to impose a five-year consecutive term for any person convicted of a serious felony and the court had no discretion to strike any prior conviction. (People v. Garcia, supra, 28 Cal.App.5th at p. 971.)
Under the "Estrada rule" (In re Estrada (1965) 63 Cal.2d 740), Senate Bill No. 1393 applies "to all cases to which it could constitutionally be applied, that is, to all cases not yet final when Senate Bill 1393 [became] effective on January 1, 2019." (People v. Garcia, supra, 28 Cal.App.5th at p. 973.)
The People agree that Senate Bill No. 1393 applies retroactively to defendant's case. Accordingly, remand is required unless "the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] enhancement," even if it had the discretion. (People v. McDaniels (2018) 22 Cal.App.5th 420, 425 (McDaniels); see also People v. Franks (2019) 35 Cal.App.5th 883, 892; People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) The People further agree that the record does not show that the trial court would not have exercised its discretion to lessen the sentence. (People v. Johnson (2019) 32 Cal.App.5th 26, 68-69.)
In fact, the record suggests the trial court would have struck the enhancement if it had the ability to do so. The court did not find that any of the aggravating factors in California Rules of Court, rule 4.421(a) applied to defendant or the crime (e.g., violence, vulnerable victim, threatening witnesses, sophistication or great planning, great monetary value or position of trust). The court specifically observed that possession of the firearm as an aggravating factor was redundant and duplicitous, since possession was the crime for which defendant was convicted. The court referred to defendant as a "very bright young man" and praised the way he "comported [himself] in court" where he showed "great respect, humility . . . ." The court noted that defendant had a daughter that he cared for. The court concluded that defendant had an "opportunity to change" and "be a presence in your daughter's life, and you can be the sort of person she can be proud of." Moreover, the court imposed the midterm on the firearm charge and the low-term on the gang enhancement.
We conclude this matter should be remanded for the court to exercise its discretion under amended section 667, subdivision (a).
Defendant's Inability to Pay Assessments and Fines
Defendant contends that the mandatory restitution fine, assessment, and fee imposed, which the trial court expressly found that defendant lacked ability to pay, violate due process and should be stricken.
At the sentencing hearing, the court found that defendant "lacks the ability to pay a fine." The court then imposed a mandatory restitution fine of $4,500 (§ 1202.4), a mandatory court facility assessment of $30 (Gov. Code, § 70373), and a mandatory operations fee of $40 (§ 1465.8).
Defendant's argument is based on the recent Dueñas decision. In Dueñas, supra, 30 Cal.App.5th 1157, an indigent and homeless mother of young children was trapped in a cycle where she could not pay the fees to reinstate a suspended driver's license and incurred additional fees and fines associated with misdemeanor convictions for driving with a suspended license that she could not afford to pay. (Id. at p. 1161.) After pleading no contest to another misdemeanor charge of driving with a suspended license, Dueñas requested the trial court conduct an ability to pay hearing, at which the court determined that she lacked the ability to pay attorney fees for representation by a public defender (§ 987.8, subd. (b)) and waived these fees. (Dueñas, supra, 30 Cal.App.5th at p. 1163.) Nonetheless, the court imposed assessments and a minimum restitution fine. (Ibid.)
The appellate court held "the assessment provisions of Government Code section 70373 and Penal Code section 1465.8, if imposed without a determination that the defendant is able to pay, are . . . fundamentally unfair; imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution." (Dueñas, supra, 30 Cal.App.5th at p. 1168.)
The court acknowledged "case law in this area historically has drawn on both due process and equal protection principles." (Dueñas, supra, 30 Cal.App.5th at p. 1168, fn. 4.)
As for the restitution fine under section 1202.4, the statute prohibits a trial court from considering a defendant's ability to pay unless the fine exceeds the statutory minimum amount. (§ 1202.4, subds. (b)(1), (c).) The court in Dueñas held that the statute violates due process. (Dueñas, supra, 30 Cal.App.5th at p. 1171.)
The court also acknowledged that in this context due process and the constitutional ban on excessive fines are similar in application. (Dueñas, supra, 30 Cal.App.5th at p. 1171, fn. 8.)
We also lament the plight of indigent defendants who, like Dueñas, find themselves trapped in a set of unfortunate circumstances created by the imposition of fines and fees they cannot afford to pay. Though the seeds of their predicament were sowed by their own misconduct, it may nonetheless seem unfair that those with money can avail themselves of opportunities and avoid consequences that the poor cannot. But the constitutionality of a fine or fee does not rest on whether it seems unfair. As pointed out in People v. Hicks (2019) 40 Cal.App.5th 320, review granted November 26, 2019, S258946, the Constitution has been held to bar the imposition of financial exactions on the impecunious only in limited circumstances when to do so "would otherwise preclude criminal and civil litigants from prosecuting or defending lawsuits or from having an appellate court review the propriety of any judgment," or when the failure to pay would result in the incarceration of persons lacking the ability to pay. (Hicks, at p. 325.)
We agree with Hicks' explication of the constitutional principles on which Dueñas relies and therefore disagree with the holding in Dueñas. The imposition of fees and fines in this case does not compromise defendant's constitutional right of access to the courts nor will it result in any additional incarceration, and thus no liberty interest protected by due process is implicated. Indigency is not a defense to criminal sanctions, and does not warrant the relief sought here.
DISPOSITION
The gang enhancement under section 186.22, subdivision (a), is stricken. The sentence is vacated. The matter is remanded for the limited purpose of allowing the court to exercise its discretion under section 667, subdivision (a). In all other respects, the judgment is affirmed.
/s/_________
RAYE, P. J. We concur: /s/_________
HULL, J. /s/_________
RENNER, J.