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People v. Light

California Court of Appeals, Fifth District
Aug 10, 2023
No. F085165 (Cal. Ct. App. Aug. 10, 2023)

Opinion

F085165

08-10-2023

THE PEOPLE, Plaintiff and Respondent, v. KEVIN JAY LIGHT, Defendant and Appellant.

Siena Kautz, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Tulare County No. PCF368264A. Anthony Fultz, Judge.

Siena Kautz, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THE COURT[*]

INTRODUCTION

This matter returns to us following remand and resentencing. In our prior opinion, (People v. Light (Apr. 19, 2022, F080432) [nonpub. opn.]), we reversed Kevin Jay Light's (appellant) criminal threats conviction (Pen. Code, § 422) for insufficient evidence and remanded the matter for resentencing, but otherwise affirmed the judgment. On remand, the trial court resentenced appellant to nine years in state prison.

All further statutory references are to the Penal Code unless otherwise indicated.

This appeal is taken from resentencing. Appellant claims the trial court abused its discretion by relying on an insufficient supplemental probation report. He also claims the trial court violated his constitutional rights by imposing a restitution fine (§ 1202.4, subd. (b)) without determining his ability to pay. We conclude no error occurred. However, we agree, as do the People, that the fine imposed pursuant to section 294, subdivision (b), must be stricken, and that the abstract of judgment must be amended to reflect appellant's postsentence custody credits. We affirm.

BACKGROUND

In 2019, a jury convicted appellant of forcible rape of a child victim 14 years of age or older (§§ 261, subd. (a)(2)/264, subd. (c)(2); count 1); rape by threat (§ 261, subd. (a)(6); count 2); lewd act upon a child by a person at least 10 years older than the child (§ 288, subd. (c)(1); count 3); forcible rape in concert (§ 264.1; count 4); and criminal threats (§ 422; count 5). At his initial sentencing, the trial court sentenced appellant to the aggravated term of 11 years in state prison on count 1 and stayed sentence on the remaining counts pursuant to section 654.

We need not discuss the facts underlying appellant's convictions because they are not relevant to the issues raised on appeal. In short, appellant forcibly raped his girlfriend's 14-year-old daughter. (People v. Light, supra, F080432.) Prior to the rape, appellant told his girlfriend he would "snap" her daughter's neck if she did not allow him to have sex with the daughter. (Ibid.)

In appellant's initial appeal, we reversed the criminal threats conviction (count 5) for insufficient evidence and remanded the matter for a full resentencing in accordance with People v. Buycks (2018) 5 Cal.5th 857, 893. (People v. Light, supra, F080432.) We otherwise affirmed the judgment. (Ibid.)

Following remand, the matter was set for resentencing. Defense counsel filed a brief advising the trial court of two legislative enactments that became effective after appellant's initial sentencing in 2019: Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 441, § 1), and Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3). Assembly Bill No. 518 amended former section 654 to give trial courts discretion not to impose the provision providing for the longest term of imprisonment. (§ 654, subd. (a).) Defense counsel requested the trial court exercise its discretion to impose punishment for one of the convictions other than count 1, which provided for the longest term of imprisonment. Senate Bill No. 567 amended section 1170 such that the trial court may only impose the upper term where circumstances in aggravation have been found true beyond a reasonable doubt at trial or stipulated to by the defendant. (§ 1170, subd. (b)(1) &(2).) Defense counsel noted that no aggravating factors had been found true by the jury, and therefore the court could only impose the lower or middle term.

Prior to resentencing, the probation department submitted a supplemental probation report. The resentencing hearing was held by the honorable Anthony Fultz. The original trial and sentencing judge, the honorable Michael Sheltzer, was unavailable.

At the resentencing hearing, the trial court described appellant's offenses as "serious," "heinous," and "horrific." It stated that based on its review of the case and the probation report, it believed the original sentence, the upper term on count 1, which was the maximum possible sentence, was appropriate. However, the trial court observed that due to Senate Bill No. 567, it was prohibited from imposing the upper term because no aggravating circumstances had been presented to the jury. It also observed that due to Assembly Bill No. 518's amendment to section 654, subdivision (a), it now had discretion to impose sentence on any of the four remaining counts. The court still imposed sentence on count 1 but selected the middle term of nine years in state prison. Sentence on the remaining counts was imposed and stayed pursuant to section 654, subdivision (a).

Prior to the completion of the hearing, defense counsel noted the probation report recommended the trial court impose a $10,000 restitution fine pursuant to section 1202.4, subdivision (b). Defense counsel requested the trial court reduce the fine to the statutory minimum of $300. (See § 1202.4, subd. (b)(1).) Appellant noted that his prison wages were set at $0.08 per hour, with a maximum of $11 per month.

The trial court nonetheless imposed the $10,000 fine. Appellant objected, arguing the fine constituted cruel and unusual punishment and violated his right to due process. Citing People v. Duenas (2019) 30 Cal.App.5th 1157 (Duenas), appellant argued the court must first find he has the ability pay the fine. The trial court responded, "[s]o noted."

DISCUSSION

I. Appellant Forfeited his Claims that the Supplemental Probation Report was Inaccurate and Incomplete. Defense Counsel was not Ineffective for Failing to Object.

Appellant claims the supplemental probation report was deficient because it did not include information about his postconviction conduct and efforts at rehabilitation, contained factual errors, and omitted information relevant to newly enacted legislation pertinent to his resentencing. We agree with respondent that these claims are forfeited on appeal, and we reject appellant's assertion that defense counsel was ineffective for failing to raise them below.

A. The claims are forfeited.

As a threshold matter, respondent contends appellant forfeited his claims that the supplemental probation report was inaccurate or incomplete by failing to object at resentencing. We agree. "It is settled that failure to object and make an offer of proof at the sentencing hearing concerning alleged errors or omissions in the probation report waives the claim on appeal." (People v. Welch (1993) 5 Cal.4th 228, 234; see also In re Sheena K (2007) 40 Cal.4th 875, 880-881.) Because appellant did not object below, his claims are forfeited.

Appellant argues forfeiture is inapplicable because he was entitled to a supplemental probation report, and that he did not waive it pursuant to California Rules of Court, rule 4.411(b). Respondent does not dispute that appellant was entitled to a supplemental probation report. (See Cal. Rules of Court, rule 4.411(a)(2); People v. Dobbins (2005) 127 Cal.App.4th 176, 180-181.) However, a supplemental probation report was completed, and thus there is no issue as to whether appellant waived his right to one. Appellant also claims that the supplemental probation report was so inadequate that it did not serve its "intended function." But appellant provides no authority that the presence of errors or omissions obviates his obligation to object to preserve the issues for appeal. Finally, we reject appellant's contention that policy and fairness considerations do not support application of the forfeiture doctrine here. As our high court has explained, the objection requirement is necessary to give the court and the People the opportunity to correct the errors and to avoid costly appeals. (People v. Welch, supra, 5 Cal.4th. at p. 235; People v. Partida (2005) 37 Cal.4th 428, 434.) A contrary rule would"' "permit the defendant to gamble" '" on possible reversal. (People v. Partida, supra, 37 Cal.4th at p. 434.)

B. Appellant does not establish ineffective assistance of counsel.

Appellant contends that even if his claims are forfeited, defense counsel's failure to object constituted ineffective assistance of counsel. We disagree. We conclude appellant fails to show defense counsel was ineffective, or that appellant was prejudiced by the alleged deficiencies. We address each of appellant's individual claims in turn.

1. Standard of review .

Under the federal and state constitutions, a criminal defendant is entitled to the effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of counsel, a defendant must establish two criteria: (1) that counsel's performance fell below an objective standard of reasonable competence and (2) that he was thereby prejudiced. (Strickland v. Washington (1984) 466 U.S. 668, 687.) The defendant has the burden of showing both deficient performance and resulting prejudice. (People v. Lucas (1995) 12 Cal.4th 415, 436.)

To establish prejudice, the defendant must demonstrate a" 'reasonable probability'" that, absent defense counsel's alleged errors, the result would have been different. (People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (People v. Majors (1998) 18 Cal.4th 385, 403.) It is not sufficient to show that the alleged errors may have had" 'some conceivable effect on the outcome of the proceeding.'" (People v. Ledesma, supra, 43 Cal.3d at p. 217.)

In conducting this review, the appellate court considers whether the record contains any explanation for counsel's actions; if the record sheds no light on counsel's actions, the claim is not cognizable unless counsel was asked for an explanation and failed to provide one, or unless there could be no satisfactory explanation for the actions taken. (People v. Kelly (1992) 1 Cal.4th 495, 520.)

2. Failure to object to omission of postsentencing conduct.

Appellant claims his counsel was ineffective for failing to note that the supplemental probation report did not address his postsentencing conduct or efforts at rehabilitation since his initial sentencing. However, he identifies no relevant conduct or other evidence that should have been included. Regardless, appellant has not established prejudice. He has made no showing that a recitation of his postconviction conduct would have benefitted him at resentencing, let alone changed the outcome, particularly given the trial court's clear indication it believed the maximum possible sentence was appropriate.

3. Failure to object to factual errors.

Appellant's next claim of ineffective assistance is based on apparent factual errors in the supplemental probation report. First, under the section titled "Probation Factors," the report states appellant willfully inflicted great bodily injury in the perpetration of the offenses within the meaning of section 1203, subdivision (e)(3), and personally used a firearm within the meaning of section 12022.53, subdivision (g). There was no evidence at trial that appellant inflicted great bodily injury or used a firearm. (People v. Light, supra, F080432.) Second, under the list of aggravating factors relating to appellant, the report states appellant "has served a prior prison term." This is not reflected in appellant's criminal history, which is listed in detail elsewhere in the report.

Based on this record, we conclude appellant has failed to show he was prejudiced by counsel's failure to object to the erroneous portions of the supplemental probation report. (See Strickland v. Washington, supra, 466 U.S. at p. 697 ["[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies."].) The factual errors at issue were obvious mistakes that were contradicted by the remainder of the supplemental probation report, the original probation report, the information, and the original abstract of judgment. During the resentencing hearing, the trial court made no reference to the use of a firearm or infliction of great bodily injury. The trial court only indirectly referred to one of the factual errors cited by appellant when it stated that it had considered "the aggravating and mitigating factors that have been cited by Probation," which included the erroneous statement that appellant had served a prior prison term. However, the supplemental probation report listed many other aggravating factors, including that the crime involved great violence, cruelty, and viciousness (Cal. Rules of Court, rule 4.421(a)(1)), and that the victim was particularly vulnerable (Cal. Rules of Court, rule 4.421(a)(3)). The trial court's comments that the maximum possible sentence was appropriate because his offenses were "serious," "heinous," and "horrific" demonstrate its sentencing determination was based on the nature of appellant's crimes, not his criminal history. Thus, there is no basis in the record to conclude the trial court relied on the factual errors in the supplemental probation report. Therefore, appellant fails to show that had defense counsel objected to the factual errors, there is a reasonable probability it would have impacted his sentence.

4. Failure to object to the omission of references to newly enacted legislation.

Finally, appellant claims defense counsel was ineffective for failing to object to the supplemental probation report's failure to reference recent changes in sentencing law. However, as we explained above, defense counsel extensively briefed the applicability of Assembly Bill No. 518 and Senate Bill No. 567, which the trial court applied at sentencing.

Appellant nonetheless contends probation should have addressed the potential applicability of Assembly Bill No. 124, which, as is pertinent here, made the lower term presumptive where the defendant experienced "psychological, physical, or childhood trauma" that contributed to the offense. (§ 1170, subd. (b)(6)(A).) But there is nothing in the record indicating appellant suffered from such trauma. Accordingly, the record does not suggest defense counsel was ineffective for failing to raise the issue, or that there is any basis to conclude the outcome would have been different if he had. We therefore conclude that appellant's ineffective assistance of counsel claims lack merit.

II. The Trial Court's Imposition of a Restitution Fine did not Violate Appellant's Constitutional Rights.

Appellant contends the trial court's imposition of a $10,000 restitution fine violated his constitutional rights. Based on People v. Duenas, supra, 30 Cal.App.5th 1157, he contends imposition of the fine without consideration of his ability to pay violated his right to due process. He also argues the fine was excessive under the Eighth Amendment, and that it violated his right to equal protection. We reject appellant's arguments. We hold Duenas is distinguishable from appellant's case, and that his constitutional rights were not violated.

A. Appellant's due process rights were not violated.

Section 1202.4, subdivision (b)(1), requires the trial court impose a restitution fine of not less than $300 and not more than $10,000 in every case where a person is convicted of a felony unless the court finds "compelling and extraordinary" reasons for not doing so. (§ 1202.4, subd. (b).) A defendant's inability to pay "may be considered only in increasing the amount of the restitution fine in excess of the minimum fine," but is not a "compelling and extraordinary reason" not to impose the fine. (§ 1202.4, subd. (c).) The defendant bears the burden of demonstrating his or her inability to pay. (§ 1202.4, subd. (d).)

Because appellant's due process claim is based on Duenas, we begin our analysis by discussing the factual circumstances at issue in that case. There, the defendant was an indigent mother of two who suffered from cerebral palsy and subsisted on government aid. (Duenas, supra, 30 Cal.App.5th at pp. 1160-1161.) Her driver's license was suspended because she was unable to pay juvenile citations. (Id. at p. 1161.) Over the next few years, she was convicted of several misdemeanor offenses for driving with a suspended license. (Ibid.) She continued to offend because she could not recover her license due to the outstanding criminal assessments and fines, which increased with each conviction. (Ibid.) In each case, she was given the option to pay mandatory fines and fees, which she was unable to do, or go to jail. (Ibid.) She served jail time in each case, but still faced outstanding debt for other fines and fees, which accumulated with each conviction. (Ibid.) Duenas characterized this as "the cascading consequences of imposing fines and assessments that [the] defendant [could not] pay," based on a "series of criminal proceedings driven by, and contributing to, [the defendant's] poverty." (Id. at pp. 1163-1164.)

Duenas concluded the repeated imposition of fines and assessments caused ongoing unintended punitive consequences which, under principles of due process, were "fundamentally unfair" for an indigent defendant. (Duenas, supra, 30 Cal.App.5th at p. 1168.) The court reasoned due process requires the trial court conduct an ability to pay hearing before it imposes certain fines and assessments, including a restitution fine pursuant to section 1202.4, subdivision (b). (Duenas, supra, 30 Cal.App.5th at p. 1164.) It reached this conclusion even though section 1202.4, subdivision (c) bars consideration of a defendant's ability to pay unless the court is considering imposing the fine over the statutory minimum. (Duenas, supra, 30 Cal.App.5th at p. 1164 .)

We decline to extend Duenas's holding beyond its unique facts. In People v. Lowery, the defendants were convicted of multiple counts of armed robbery, and the court imposed various fines, fees, and assessments. (People v. Lowery (2020) 43 Cal.App.5th 1046, 1048-1049 (Lowery.) On appeal, the Lowery court rejected a due process challenge based on Duenas, noting the "unique concerns addressed in Duenas" were inapplicable. (Lowery, supra, 43 Cal.App.5th at p. 1056.) The court explained that the defendants in Lowery were not facing "ongoing unintended punitive consequences" from the imposition of fines, fees, or assessments, and therefore did not establish how they suffered a violation of a fundamental liberty interest. (Ibid.) They had been incarcerated because they were convicted of intentional criminal acts, not because of their alleged indigency. (Ibid.) Because they were not subjected to unintended punitive consequences, Lowery held it was not fundamentally unfair to impose fines, fees, or assessments without determining their ability to pay. (Id. at pp. 1056-1057.)

Here, as in Lowery, the unique concerns addressed in Duenas were not present. Appellant has not established a violation of a fundamental liberty interest. His incarceration was the result of his intentional criminal acts, not due to "cascading consequences" stemming from prior criminal fines and assessments. (Duenas, supra, 30 Cal.App.5th at p. 1163.) Appellant could have avoided his present conviction regardless of his financial circumstances. Thus, it was not fundamentally unfair for the trial court to impose the restitution fine without determining appellant's ability to pay, and therefore his due process claim lacks merit.

B. The restitution fine was not grossly disproportionate under the Eighth Amendment.

Appellant claims the imposition of the restitution fine violated the excessive fines clause of the Eighth Amendment. We are unpersuaded. "The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish." (United States v. Bajakajian (1998) 524 U.S. 321, 334 (Bajakajian).) "The California Supreme Court has summarized the factors in Bajakajian to determine if a fine is excessive in violation of the Eighth Amendment: '(1) the defendant's culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant's ability to pay.'" (People v. Aviles (2019) 39 Cal.App.5th 1055, 1070, quoting People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728.) Ability to pay is part the proportionality analysis, but it is not the only factor. (Bajakajian, supra, 524 U.S. at pp. 337-338.)

Bajakajian states two considerations are particularly significant in deriving a constitutional excessiveness standard. First, "judgments about the appropriate punishment for an offense belong in the first instance to the legislature." (Bajakajian, supra, 524 U.S. at p. 336.) Second, "any judicial determination regarding the gravity of a particular criminal offense will be inherently imprecise. Both of these principles counsel against requiring strict proportionality between the amount of a punitive forfeiture and the gravity of a criminal offense, and we therefore adopt the standard of gross disproportionality articulated in our Cruel and Unusual Punishments Clause precedents." (Ibid.)

Here, appellant forcibly raped his girlfriend's 14-year-old daughter. In accordance with Bajakajian, we defer to the Legislature's determination of the appropriate punishment. (Bajakajian, supra, 524 U.S. at p. 336.) When the relevant factors are examined, it is abundantly clear that the restitution fine was not "grossly disproportional" under these circumstances. (Id. at p. 334; see also People v. Aviles, supra, 39 Cal.App.5th at p. 1072.) We therefore reject appellant's assertion that the excessive fines clause of the Eighth Amendment was violated.

C. Appellant's right to equal protection under the law was not violated.

Appellant does not articulate the basis for his equal protection claim but appears to rely on Duenas. We have already concluded Duenas is distinguishable from the present matter and we will not apply it here. In any event, Duenas based its holding on due process grounds, and not on equal protection. (Duenas, supra, 30 Cal.App.5th at p. 1168, fn. 4.) We therefore reject appellant's equal protection claim, and we conclude appellant's constitutional rights were not violated by the imposition of the restitution fine.

III. The Fine Imposed Pursuant to Section 294, Subdivision (b), is Unauthorized Because the Victim was not Under the age of 14.

At sentencing, the trial court imposed a $1,000 fine pursuant to section 294, subdivision (b). Appellant contends the trial court erred in imposing this fine because the victim was not under the age of 14. Respondent concedes, and we agree. Section 294, subdivision (b), provides that upon conviction of certain sexual offenses, including any violation of section 261, where the victim is under the age of 14, the court may impose an additional restitution fine of up to $5,000. Here, the victim was 14 years old. (People v. Light, supra, F080432.) Thus, section 294, subdivision (b), was inapplicable. The fine imposed pursuant to this section was unauthorized, and we order it stricken.

IV. The Amended Abstract of Judgment does not Reflect Appellant's Postsentencing Custody Credits.

At the resentencing hearing, the trial court stated appellant had credit for 571 days spent in custody awaiting sentence, plus 85 days of "conduct credit pursuant to [section] 2933.1," for a total of 656 days. The trial court then noted appellant had credit for 983 days spent in state prison, "with conduct credits to be determined by the California Department of Corrections and Rehabilitation." The amended abstract of judgment reflects the 656 days of presentence credits, but not the 983 days of postsentence credits.

Appellant contends the amended abstract of judgment prepared after his resentencing must be amended to include his actual postsentence custody credits, accrued while he was in state prison after his original sentencing. Respondent concedes, and we agree. Following resentencing, an abstract of judgment must reflect credits for actual time spent in a state institution after the imposition of the original sentence. (See § 2900.1; People v. Buckhalter, supra, 26 Cal.4th at pp. 23, 31.) Accordingly, we direct the trial court to prepare a second amended abstract of judgment that includes the 983 days of postsentence credits.

However, an abstract of judgment should not include postsentence worktime and good behavior credits, which are determined by the California Department of Corrections and Rehabilitation. (People v. Buckhalter (2001) 26 Cal.4th 20, 23, 31.)

DISPOSITION

The fine imposed pursuant to section 294, subdivision (b), is ordered stricken. The trial court is directed to prepare a second amended abstract of judgment reflecting appellant's 983 days of postsentencing custody credits, and to forward a copy to the appropriate entities. In all other respects, the judgment is affirmed.

[*] Before Levy, Acting P. J., Poochigian, J. and Snauffer, J.


Summaries of

People v. Light

California Court of Appeals, Fifth District
Aug 10, 2023
No. F085165 (Cal. Ct. App. Aug. 10, 2023)
Case details for

People v. Light

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. KEVIN JAY LIGHT, Defendant and…

Court:California Court of Appeals, Fifth District

Date published: Aug 10, 2023

Citations

No. F085165 (Cal. Ct. App. Aug. 10, 2023)