Opinion
A156414
03-20-2020
THE PEOPLE, Plaintiff and Respondent, v. WILLIE ALLEN HUMPHREY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-181006-8)
Willie Allen Humphrey (defendant) appeals from a judgment entered after a jury convicted him of residential robbery (Pen. Code, § 211, count 1), residential burglary with a person other than an accomplice present (§ 459, count 2), misdemeanor theft from an elder person (§ 368, subd. (d), count 3), and residential burglary (§ 459, count 4). The jury also found true multiple prior conviction allegations and the trial court sentenced defendant to a total term of 30 years in state prison.
All further, undesignated statutory references are to the Penal Code.
The trial court stated that the aggregate term it was imposing was 36 years but the record shows the sentence the court actually imposed totaled 30 years.
Defendant contends: (1) the trial court violated section 654's prohibition against multiple punishments by imposing punishment for both count 1 (residential robbery) and count 2 (residential burglary with person other than an accomplice present); (2) the sentence on count 3 (misdemeanor theft from an elder person) was unauthorized; (3) the restitution fine must be recalculated; (4) the matter must be remanded for resentencing in light of Senate Bill No. 1393; and (5) the court erred in issuing assessments and fines without finding he had the ability to pay. Defendant has also filed a supplemental brief in which he contends that all of the prior prison term enhancements imposed under section 667.5 subdivision (b) must be stricken in light of Senate Bill No. 136. We agree with defendant's first four contentions and with the contention raised in his supplemental brief. We therefore modify the judgment and remand the matter for further proceedings as set forth in this opinion. We reject defendant's remaining contention and affirm the judgment in all other respects.
Defendant also argued that the trial court erred in calculating custody credits. As appellate counsel has informed us that the court corrected its calculation error, we do not address this issue.
FACTUAL AND PROCEDURAL BACKGROUND
On August 1, 2018, an amended information was filed charging defendant with residential robbery (§ 211, count 1), residential burglary with someone other than an accomplice present (§ 459, count 2), misdemeanor theft from an elder person (§ 368, subd. (d), count 3), and residential burglary (§ 459, count 4). The information also alleged three prior strikes (§§ 667, subds. (d)-(i), 1170.12, subd. (b)), two serious felony convictions (§ 667, subd. (a)(1)), one prior prison term for a violent felony (§ 667.5, subd. (a)), and five prior prison terms (§ 667.5, subd. (b)).
Counts 1, 2, and 3 were based on an incident that occurred at about midnight on December 15, 2016. 74-year-old L.B., who lived in a ground-floor apartment with her 76-year-old sister, Y.F., was watching television in her living room when she heard a noise outside. L.B. had seen "a huge possum" the day before, so she got a flashlight and went outside to see if her cat "was okay."
Suddenly, a man "jumped out" and "chased [L.B.] down." L.B. ran back to her apartment and tried to close the front door but the man "smashed [the door] open" and L.B. fell down "very hard" inside her apartment. The man walked over to L.B. with both hands "clenched into fists" as he repeatedly yelled, " 'Give me the money.' " The man stood over L.B., who was "frozen in terror" and in fear of her life; she thought "it was [her] last day on Earth."
L.B. saw her sister run out the back door carrying a phone. The man looked around, knocked some things over, grabbed Y.F.'s purses, and rifled through them. At that point, someone outside shouted, causing the man to run out the door carrying two of the purses. L.B. was unable to sit down for a week after the incident because of the pain she felt from the fall.
The next day, L.B. discovered a plastic bag that had been left inside her apartment and called the police to have it retrieved. Inside the bag was a two-liter orange soda bottle, which was later tested and found to have DNA that matched defendant's DNA profile. L.B. was shown a photo array and chose defendant's photograph, stating, "this looks the most like him."
Y.F. testified she was awakened around midnight by a crash and her sister calling from the living room. She grabbed a phone and ran into the living room, where she saw L.B. on her back and a man "leaning over her." The man "started throwing things all over the living room, knocking things off surfaces." Y.F. used that opportunity to "slip[]" out the back door and call 911. Y.F. then saw the man run away carrying her purses. A recording of Y.F.'s 911 call was played for the jury.
Count 4 was based on an incident that occurred on January 15, 2017. That day, V.W., who lived in a four-unit building, discovered the garage door was open and her "brand new" bicycle was missing from the garage. That night, a police officer saw defendant riding V.W.'s bicycle.
A jury found defendant guilty as charged and found true the alleged priors. The trial court granted defendant's motion to strike his three prior strikes (People v. Superior Court (Romero) 13 Cal.4th 497) and sentenced defendant to the following term: an aggravated term of nine years on count 1; a consecutive one-year, four-month term (one-third of the mid-term of four years) on count 2; a consecutive four-month term (one-third of the mid-term of one year) on count 3; a consecutive one-year, four-month term (one-third of the mid-term of four years) on count 4; two, five-year enhancements under section 667, subdivision (a)(1); a three-year enhancement under section 667.5, subdivision (a); and five, one-year enhancements under section 667.5, subdivision (b). The court imposed various fines and fees including a "restitution fine [of] $300 multiplied by 36 years" (§ 1202.4, subd. (b)), a $160 court operation assessment (§ 1465.8), and a $120 criminal conviction assessment (Govt. Code, § 70373).
DISCUSSION
1. Section 654
The trial court violated section 654 by imposing punishment for both counts 1 (residential robbery) and 2 (residential burglary with person other than an accomplice present).
Section 654 bars multiple punishment for convictions arising from " 'the same act or course of conduct.' " (People v. Correa (2012) 54 Cal.4th 331, 336-337; § 654, subd. (a).) Although a single act or course of conduct may result in multiple convictions (§ 954), "the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited" by section 654. (People v. Correa, supra, 54 Cal.4th at p. 337.) "Whether the provision 'applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.' " (People v. Vang (2010) 184 Cal.App.4th 912, 915-916.)
The Attorney General concedes, and we agree, that a single course of conduct underlies counts 1 and 2—the robbery and burglary he committed against L.B. and Y.F. on December 15, 2016. Thus, the trial court erred in imposing a consecutive term on count 2.
2. Sentence on Count 3
The Attorney General concedes, and we agree, that the court imposed an unauthorized sentence on count 3. As defendant correctly points out, the jury found him guilty of theft against an elder, as a misdemeanor. Thus, the punishment for this conviction was "a fine not exceeding one thousand dollars ($1,000) [or] imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment." (§ 368, subd. (d)(2).) Despite this, the trial court sentenced defendant to one year in prison and, thus, this was an unauthorized sentence.
In addition, as the Attorney General correctly points out, count 3 arose from the same course of conduct as counts 1 and 2 and should have been stayed under section 654. Thus, the sentence on count 3 shall be stricken. On remand, the court shall resentence defendant on count 3 as authorized by section 368 subdivision (d)(2) and stay that sentence under section 654.
3. Restitution Fine
The restitution fine imposed under section 1202.4 subdivision (b)—"$300 multiplied by 36 years"—must be recalculated because it was based on both a calculation error (that the total term was 36 years when it was actually 30 years) and an error in basing the fine on sentences that should have been stayed under section 654.
A restitution fine imposed under section 1202.4 is a "punishment" and a "criminal penalty" and therefore subject to section 654. (People v. Le (2006) 136 Cal.App.4th 925, 933, 934 [trial court erred in considering a felony conviction that should have been stayed under section 654 when calculating the defendant's restitution fine under section 1202.4].) The Attorney General concedes, and we agree, the matter shall be remanded for the trial court to reconsider its restitution fine.
4. Five-Year Enhancements
The Attorney General concedes, and we agree, that the matter must be remanded for resentencing in light of Senate Bill No. 1393.
Defendant's sentence included two five-year terms under section 667 subdivision (a)(1) for his two prior serious felonies. At the time of sentencing, the trial court did not have discretion to strike one or both of the five-year enhancements. Senate Bill No. 1393 changed that by amending section 1385 subdivision (b) to remove a prohibition on striking sentence enhancements for prior serious felony convictions under section 667. (Sen. Bill No. 1393 (2017-2018 Reg. Sess.) § 2.) Thus, as of January 1, 2019, a trial court may exercise its discretion to "dismiss or strike a prior serious felony conviction for sentencing purposes." (People v. Garcia (2018) 28 Cal.App.5th 961, 971.)
The statutory amendments made by Senate Bill No. 1393 apply to defendant retroactively. (E.g., People v. Garcia, supra, 28 Cal.App.5th at pp. 972-973 [Senate Bill No. 1393 applies retroactively to judgments not yet final as of its effective date].) Moreover, the record does not "show[] that the trial court clearly indicated when it originally sentenced [defendant] that it would not in any event have stricken [the section 667, subdivision (a)(1)] enhancement." (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) Accordingly, the matter shall be remanded for the trial court to exercise its discretion whether to strike one or both of the five-year enhancements under section 667, subdivision (a)(1).
5. Ability to Pay
The trial court imposed various fines and fees including a "restitution fine [of] $300 multiplied by 36 years" (§ 1202.4, subd. (b)), a $160 court operation assessment (§ 1465.8), and a $120 criminal conviction assessment (Govt. Code, § 70373).
Defendant contends the court erred in issuing these assessments and fines without finding he had the ability to pay. He relies primarily on People v. Dueñas (2019) 30 Cal.App.5th 1157, 1160-1163 (Dueñas), where the defendant, "an indigent and homeless mother of young children" who suffered from cerebral palsy, was unable to work, received public assistance, had limited education, and had been unable to pay prior citations and fees, was convicted of driving with a suspended license. At sentencing, she argued she did not have the ability to pay fees and fines, produced evidence of her inability to pay, and requested a hearing on the issue. (Id. at pp. 1162-1163.) The trial court struck some fees but imposed a $30 court facilities assessment under Government Code section 70373, a $40 court operations assessment under section 1465.8, and a $150 restitution fine under section 1202.4. (Id. at pp. 1162, 1163.)
The Court of Appeal concluded 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 [section 1465.8] and Government Code section 70373" and that while 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." (Id. at p. 1164.)
Here, defendant did not object to the imposition of the fines and fees, did not request a hearing, and did not raise a due process argument before the trial court. Thus, even assuming Dueñas was decided correctly, we conclude he has forfeited his claim. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 [Dueñas challenge forfeited by failure to object to fines and assessments at sentencing]; People v. Avila (2009) 46 Cal.4th 680, 729 [rejected argument that, because the defendant did not have the ability to pay, imposition of restitution fine under section 1202.4 was an unauthorized sentence not subject to the forfeiture rule]; People v. Trujillo (2015) 60 Cal.4th 850, 859 [the constitutional nature of the defendant's claim regarding his ability to pay did not justify a deviation from the forfeiture rule].)
The substantive holding in Dueñas has been strongly criticized. (People v. Hicks (2019) 40 Cal.App.5th 320, 325-326, review granted November 26, 2019, S258946.) Because we conclude defendant has forfeited any challenge based on Dueñas, we need not determine whether that decision is correct. --------
Nevertheless, we note this matter is being remanded for, among other things, resentencing and reconsideration of the restitution fine. Thus, as the Attorney General points out, defendant will have an opportunity to, and "should," "request a hearing on his ability to pay any restitution fine and assessments" at that time if he wishes to do so.
6. Prior Prison Term Enhancements
The trial court imposed five one-year prior prison term enhancements under section 667.5, subdivision (b). Defendant has filed a supplemental brief in which he contends that all five of those prior prison term enhancements must be stricken in light of Senate Bill No. 136. The Attorney General properly concedes that the enhancements must be stricken.
At the time defendant was sentenced, trial courts had the discretion to impose an additional one-year term for each separate prior prison term served by the defendant, when the defendant had not remained free of prison custody for at least five years before committing the current offense. (§ 667.5, subd. (b); People v. Bradley (1998) 64 Cal.App.4th 386, 392.) Thereafter, the Legislature passed, and the Governor signed into law, Senate Bill No. 136, which amended section 667 subdivision (b). The new law, which became effective January 1, 2020, provides for a one-year enhancement for each prior prison term served for a sexually violent felony and eliminates this enhancement for prison terms served for all other felonies. (People v. Lopez (2019) 42 Cal.App.5th 337, 341.) Here, it is undisputed that the five prior prison terms for which defendant received the one-year enhancements were not for sexually violent offenses. Because Senate Bill No. 136 is an ameliorative change in the law that provides for a reduced sentence, defendant is entitled to the benefit of the change in law. (Ibid.) Accordingly, the five prior prison term enhancements imposed under section 667.5 subdivision (b) shall be stricken.
DISPOSITION
The sentence on count 2 shall be stayed under section 654. The sentence on count 3 is stricken and the matter is remanded for the trial court to resentence defendant on count 3 and stay that sentence under section 654. The five one-year prior prison term enhancements imposed under section 667.5 subdivision (b) are stricken. On remand, the trial court shall reconsider its restitution fine consistent with this opinion and exercise its discretion whether to strike one or both of the five-year enhancements under section 667 subdivision (a)(1). The judgment is affirmed in all other respects.
/s/_________
Petrou, J.
WE CONCUR:
/s/_________
Fujisaki, Acting P.J.
/s/_________
Jackson, J.