Opinion
C088171
06-22-2020
THE PEOPLE, Plaintiff and Respondent, v. DAMIEN DWAYNE JONES, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17CF05584)
Following a bench trial, the trial court convicted defendant Damien Dwayne Jones on seven counts, including felony misuse of personal identifying information (identity theft), felony false personation, and felony forgery related to identity theft. The trial court also found true allegations that defendant previously served two terms in prison under Penal Code section 667.5, subdivision (b). Defendant was sentenced to an aggregate term of six years eight months in state prison, which included sentences for convictions in other cases.
Undesignated statutory references are to the Penal Code.
Defendant raises three issues on appeal. First, he contends his convictions for identity theft, false personation, and forgery should be reduced to a single misdemeanor count of shoplifting under Proposition 47. The recent California Supreme Court decision in People v. Jimenez (2020) 9 Cal.5th 53 (Jimenez) forecloses that argument.
Second, relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant contends he is entitled to an ability to pay hearing on the fines and fees imposed by the trial court at sentencing. We disagree.
Third, defendant contends he is entitled under Senate Bill No. 136 (2019-2020 Reg. Sess.) to have two one-year enhancements imposed pursuant to section 667.5, subdivision (b) stricken. The People concede the issue. We accept the People's concession and will remand to allow the trial court to strike the enhancements and to resentence defendant in accordance with this opinion.
BACKGROUND
We include only the facts and procedural history relevant to the issues on appeal.
In August 2018, the People charged defendant with seven crimes: identity theft (§ 530.5, subd. (a); count 1), false personation (§ 529, subd. (a)(3); count 2), forgery related to identity theft (§ 470, subd. (a); count 3), giving false information to a police officer (§ 148.9, subd. (a); count 4), identifying information theft (§ 530.3, subd. (c)(1); count 5), false registration (Veh. Code, § 4462, subd. (b); count 6), and possession of opium paraphernalia (Health & Saf. Code, § 11364, subd. (a); count 7). The People further alleged defendant previously served two prison terms under section 667.5, subdivision (b).
The parties argued about whether counts 1 through 3 should be reclassified as misdemeanor shoplifting under Proposition 47, then subsequently agreed to submit the matter to a court trial based on police reports. The only issues to be determined at trial, the parties agreed, were the validity of the alleged prison priors and whether, under Proposition 47, counts 1 through 3 should be reclassified as misdemeanor shoplifting.
After reviewing the record and hearing the parties' arguments, the court explained that the question of reducing counts 1 through 3 to misdemeanors under Proposition 47 was "unsettled." The court noted the California Supreme Court was already considering a split on that issue in the Courts of Appeal. The trial court went on to find defendant guilty as charged, refusing to reclassify counts 1 through 3 as misdemeanor shoplifting. The court also found true the two prior prison term allegations.
Sentencing occurred on October 3, 2018. At that time, defendant was already serving a prison sentence for convictions on multiple cases in Tehama County. The court resentenced defendant to four years in state prison in the Tehama County cases, and added another two years eight months for defendant's conviction in the current matter as follows: eight months (one-third the midterm) on defendant's forgery conviction in count 3, and one year each for the two prison priors (§ 667.5, subd. (b)). The court imposed another three years each for counts 1 and 2, but stayed those sentences pursuant to section 654. On the misdemeanor charges in counts 4, 5, and 7, the court imposed another two years in prison to be served concurrently with defendant's felony sentence. The court was silent regarding defendant's conviction on count 6, a Vehicle Code infraction.
The trial court confirmed the fines and fees previously imposed in the Tehama County cases. The court also imposed numerous fines and fees in this matter, including a $300 restitution fund fine (§ 1202.4, subd. (b)), a $300 parole revocation fine—suspended pending the successful completion of parole (§ 1202.45), a $40 court operations assessment on counts 1 through 5 and 7 (§ 1465.8), and a $30 conviction assessment on counts 1 through 5 and 7 (Gov. Code, § 70373). The court stayed the court operations and conviction assessments on counts 1, 2, 4, 5, and 7. The court also ordered defendant to pay victim restitution in an amount to be determined later.
DISCUSSION
A. Proposition 47
Defendant contends his convictions for identity theft, false personation, and forgery related to identity theft must be "reversed, and recharged and [re]sentenced" as a single count of misdemeanor shoplifting. Defendant's argument relies entirely on the premise that identity theft is a "theft" crime subject to reclassification as a misdemeanor under Proposition 47. Defendant's argument recently was foreclosed by our Supreme Court's decision in Jimenez, supra, 9 Cal.5th 53.
In Jimenez, the Supreme Court ruled that a conviction for identity theft is not a theft crime and "is not subject to reclassification as misdemeanor shoplifting" under Proposition 47. (Jimenez, supra, 9 Cal.5th at p. 59.) We are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
B. Fines, Fees, and Assessments
1. Dueñas
The trial court imposed various fines, fees, and assessments, including a $300 restitution fine (§ 1202.4, subd. (b)), a $300 parole revocation fine (§ 1202.45)—which the court suspended pending the successful completion of parole, a $240 court operations assessment (§ 1465.8), and a $180 conviction assessment (Gov. Code, § 70373). In supplemental briefing, defendant relies on Dueñas to argue imposition of these fines, fees, and assessments without an ability to pay hearing was a violation of his right to due process.
Defendant challenges the court operations and criminal conviction assessments, arguing they must be remanded pending an ability to pay hearing. He also seeks remand to the trial court with directions to stay the restitution fines until the People establish he has the ability to pay those fines.
In Dueñas, the Court of Appeal held that due process prohibits a trial court from imposing court assessments under section 1465.8 and Government Code section 70373, and requires the trial court to stay execution of any restitution fines unless it conducts an ability to pay hearing and ascertains the defendant's ability to pay those assessments and fines. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) To support this conclusion, Dueñas relied on two lines of due process precedent. First, it cited authorities addressing access to courts and waiving court costs for indigent civil litigants. Second, it relied on due process and equal protection authorities that prohibit incarceration based on a defendant's indigence and inability to pay a fine or fee. (Id. at pp. 1165-1166, 1168.) The court also concluded that imposing costs on indigent defendants "blamelessly" unable to pay them transformed a "funding mechanism for the courts into additional punishment." (Id. at p. 1168.)
People v. Hicks (2019) 40 Cal.App.5th 320, review granted November 26, 2019, S258946, rejected the reasoning of Dueñas under both lines of due process authority. Hicks observed that imposition of fees after a determination of guilt does not deny a criminal defendant's access to the courts and does not interfere with a defendant's right to present a defense or challenge a trial court's rulings on appeal. (Id. at p. 326.) Further, imposition of fees, without more, does not result in incarceration for nonpayment of fines and fees due to indigence; thus, it does not infringe on a fundamental liberty interest. (Ibid.)
We agree with the reasoning in Hicks. Accordingly, we conclude the imposition of fines, fees, and assessments on an indigent defendant without consideration of ability to pay does not violate due process and there is no requirement the trial court conduct an ability to pay hearing prior to imposing these fines, fees, and assessments.
2. Sentencing errors
During our review of this matter, we discovered two sentencing errors that warrant correction.
First, the trial court failed to impose both a court operations assessment and a conviction assessment on defendant's conviction for false registration on count 6. Section 1465.8, subdivision (a)(1) provides: "To assist in funding court operations, an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal offense, including a traffic offense, except [for certain] parking offenses . . . ." (§ 1465.8, subd. (a)(1), italics added.) Similarly, Government Code section 70373 provides: "To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense, including a traffic offense, except [certain] parking offenses . . . . The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony and in the amount of thirty-five dollars ($35) for each infraction." (Gov. Code, § 70373, subd. (a)(1), italics added.) On count 6, defendant was convicted of false registration, an infraction. (Veh. Code, § 4462, subd. (b).) Accordingly, the trial court should have imposed both a $40 court operations assessment under section 1465.8 and a $35 conviction assessment under Government Code section 70373. The court failed to do so. The trial court should correct this error on remand.
Second, the court stayed imposition of the court operations and conviction assessments on each conviction except for defendant's conviction for identity theft (count 3). This too was error. A stay ordered pursuant to section 654, subdivision (a) does not extend either to a court operations assessment or to a conviction assessment; thus, the trial court was required to impose the unstayed fees as to each count. (See People v. Sencion (2012) 211 Cal.App.4th 480, 483-484.) We direct the trial court to correct these errors on remand.
C. Senate Bill No. 136
In further supplemental briefing, defendant contends, and the People concede, that recently enacted Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136), which limits the prior offenses that qualify for a prior prison term enhancement under section 667.5, subdivision (b), applies retroactively to his case. We agree.
On October 8, 2019, the Legislature enacted Senate Bill 136 (Stats. 2019, ch. 590, § 1). Senate Bill 136 became effective on January 1, 2020. (Cal. Const., art. IV, § 8, subd. (c)(1); Gov. Code, § 9600, subd. (a); People v. Camba (1996) 50 Cal.App.4th 857, 865.) Prior to January 1, 2020, section 667.5, subdivision (b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant served a separate prior prison term and had not remained free of custody for at least five years.
Senate Bill 136 amends section 667.5, subdivision (b) to limit its prior prison term enhancement to people who have served a sentence for a sexually violent offense, as defined. The amended provision states: "Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code, provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody or the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or any felony sentence that is not suspended." (§ 667.5, subd. (b).)
We agree with the parties that Senate Bill 136's changes should be applied retroactively in this case. Whether a particular statute is intended to apply retroactively is a matter of statutory interpretation. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307 (Lara).)
New criminal legislation is generally presumed to apply prospectively unless the statute expressly declares a contrary intent. (§ 3.) Where the Legislature has reduced punishment for criminal conduct, an inference arises under In re Estrada (1965) 63 Cal.2d 740 that, " 'in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.' " (Lara, supra, 4 Cal.5th at p. 308.) Conversely, the Estrada rule " 'is not implicated where the Legislature clearly signals its intent to make the amendment prospective, by the inclusion of an express savings clause or its equivalent.' " (People v. Floyd (2003) 31 Cal.4th 179, 185, italics omitted.)
Senate Bill 136 narrowed the class of persons eligible for a section 667.5, subdivision (b) prior prison term enhancement. There is nothing in the bill or its legislative history that indicates an intent that the court not apply this amendment to all individuals whose sentences are not yet final. Under these circumstances, we find that Estrada's inference of retroactive application applies. (Accord, People v. Lopez (2019) 42 Cal.App.5th 337, 340-342 [Senate Bill 136 applies retroactively to cases not yet final on appeal]; People v. Jennings (2019) 42 Cal.App.5th 664, 680-682 [same].) Accordingly, we will direct the trial court to strike defendant's prior prison term enhancements and "remand the matter for resentencing to allow the court to exercise its discretion in light of the changed circumstances." (Jennings, supra, at p. 682.)
DISPOSITION
The trial court is directed to strike defendant's section 667.5, subdivision (b) prior prison term enhancements and to impose an unstayed $40 court operations assessment as to each of the seven counts on which defendant was convicted, a $30 conviction assessment as to counts 1 through 5, and count 7, and a $35 conviction assessment as to count 6. The judgment is otherwise affirmed. The matter is remanded for resentencing not inconsistent with this opinion. Following resentencing, the superior court is directed to prepare an amended abstract of judgment and forward a certified copy thereof to the California Department of Corrections and Rehabilitation.
KRAUSE, J. We concur: BLEASE, Acting P. J. DUARTE, J.