Opinion
B289577
06-24-2020
THE PEOPLE, Plaintiff and Respondent, v. ARMANDO CONTRERAS LOPEZ, Defendant and Appellant.
David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters and Gerald A. Engler, Chief Assistant Attorneys General, Susan Sullivan Pithey, Zee Rodriguez and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. Nos. LA084142 and LA084433-02) APPEAL from an order of the Superior Court of Los Angeles County, Eric P. Harmon, Judge. Remanded with directions. David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters and Gerald A. Engler, Chief Assistant Attorneys General, Susan Sullivan Pithey, Zee Rodriguez and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
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Armando Contreras Lopez appealed the trial court's order terminating probation and ordering execution of his suspended eight-year county jail term for one count of driving or taking a vehicle without consent after a prior conviction and one count of receiving a stolen motor vehicle after a prior conviction. Lopez argued the trial court had erred in relying on a probation report without formally admitting the report into evidence. Lopez also argued the court had erred by imposing fines and fees without considering his ability to pay. In a nonpublished opinion filed September 16, 2019, we affirmed the revocation of probation and imposition of the suspended sentence and remanded the matter for the trial court to give Lopez the opportunity to request a hearing to present evidence demonstrating his inability to pay the applicable fines, fees and assessments.
Lopez's eight-year sentence included three one-year enhancements for prior prison or jail terms he had served, imposed pursuant to Penal Code section 667.5, subdivision (b). Before our decision became final, the Governor signed into law Senate Bill No. 136 (2019-2020 Reg. Sess.) (SB 136), which, effective January 1, 2020, amended section 667.5, subdivision (b), to apply only where the prior prison terms had been served for a sexually violent offense. Lopez petitioned for review in the Supreme Court to preserve his right to seek a reduction in his sentence after the effective date of SB 136.
Statutory references are to this code unless otherwise stated.
The Supreme Court granted Lopez's petition for review on January 2, 2020, but deferred further action pending its decision in People v. McKenzie, S251333, which presented the question when is a judgment in a criminal case final for purposes of applying a later change in the law if the defendant was granted probation and imposition of sentence was suspended. The Court decided People v. McKenzie on February 27, 2020 (People v. McKenzie (2020) 9 Cal.5th 40 (McKenzie)), and on May 27, 2020 transferred Lopez's case to us with directions to vacate our prior decision, which we do now, and to reconsider the cause in light of McKenzie and SB 136's amendment to section 667.5, subdivision (b).
In supplemental briefing Lopez argues SB 136 applies to any case in which the judgment was not final on January 1, 2020, and, under McKenzie, supra, 9 Cal.5th 940, the judgment in his case was not final before the previously suspended jail sentence was imposed and the appeal from revocation of his probation was resolved. The Attorney General agrees and additionally agrees that, because the previously suspended sentence was the maximum possible county jail term the trial court could have imposed, this court may strike the enhancements without remanding for a new sentencing hearing. Accordingly, we restate our prior opinion affirming the revocation of Lopez's probation, strike the three one-year prior prison or jail term enhancements imposed by the trial court, and again order the matter remanded to give Lopez the opportunity to request a hearing to present evidence demonstrating his inability to pay the applicable fines, fees and assessments.
FACTUAL AND PROCEDURAL BACKGROUND
1. Lopez's Pleas and Sentence
On August 24, 2016 Lopez was charged in a felony complaint in Los Angeles Superior Court Case No. LA084142 with driving or taking a vehicle without consent after a prior conviction for the same offense. (Veh. Code, § 10851; Pen. Code, § 666.5.) The complaint specially alleged Lopez had served five prior separate prison or jail terms for felonies within the meaning of section Penal Code 667.5, subdivision (b).
On October 5, 2016 Lopez was charged in a felony complaint in Case No. LA084433 with receiving a stolen motor vehicle after a prior conviction for violating Vehicle Code section 10851, subdivision (a). (Pen. Code, §§ 496d, subd. (a), 666.5.) The complaint specially alleged Lopez had served four prior separate prison or jail terms for felonies within the meaning of Penal Code section 667.5, subdivision (b).
Pursuant to a negotiated agreement, on November 28, 2016 Lopez pleaded no contest to the charges in both cases and admitted three of the prior prison or jail terms specially alleged in Case No. LA084142 and one of the prior prison or jail terms specially alleged in Case No. LA084433.
On December 12, 2016 the trial court sentenced Lopez to an aggregate term of eight years in county jail: the upper term of four years for driving or taking a vehicle without consent after a prior conviction and one year (one-third the middle term) for receiving a stolen motor vehicle after a prior conviction, plus one year for each of the three prior prison or jail terms admitted in Case No. LA084142. The court suspended execution of the sentence and placed Lopez on formal probation for a period of five years.
Among the conditions of probation imposed by the court, Lopez was ordered to complete a one-year residential drug treatment program and to obey all laws and orders of the court and all rules and regulations of the probation department. Lopez was conditionally released to a representative of the drug treatment program.
2. The Revocations and Reinstatements of Lopez's Probation
On July 10, 2017 Lopez appeared in court and admitted to being terminated from his residential treatment program and thus violating a condition of his probation. The court reinstated probation on the same terms and ordered Lopez to continue residential treatment at a different facility.
On August 1, 2017 Lopez's probation was preliminarily revoked based on a recent arrest. At an August 31, 2017 probation revocation hearing Lopez admitted violating the conditions of his probation. The court revoked and reinstated probation on the same terms, but with the additional conditions in Case No. LA084433 that Lopez serve 32 days in county jail and complete 52 domestic violence counseling classes. In both cases Lopez was ordered to complete 180 days in a residential drug treatment program.
The record on appeal does not contain any information regarding the offense(s) for which Lopez was arrested.
3. The Revocation of Probation and Execution of Sentence
On January 2, 2018 the trial court held a progress report hearing in Case No. LA084433. The court read and considered a letter from the drug treatment facility stating Lopez had been terminated from the residential program. The court ordered Lopez to enroll at a new treatment facility by January 5, 2018 or to appear in court on that date if not yet enrolled. Lopez did not enroll in a new program by January 5 and failed to appear in court as ordered. The court preliminarily revoked Lopez's probation and issued a bench warrant for his arrest but held the execution of the warrant until January 11, 2018 due to potential confusion regarding the timing of the ordered appearance. Lopez again failed to appear on January 11, 2018, and the court ordered execution of the bench warrant. On March 20, 2018 Lopez was arrested following a domestic violence incident and taken into custody.
The record on appeal does not contain the reporter's transcript from the January 2, 2018 hearing or the letter from the treatment center. While it is unclear when or for what reason Lopez was terminated from the residential program, the court's statements during the probation revocation hearing indicate Lopez left the program without authorization.
A probation violation hearing was held on April 17, 2018. Lopez's wife and the arresting police officer testified regarding the March 20 domestic violence incident, after which the trial court found Lopez was not in violation of probation based on his arrest. The court then turned to the other alleged probation violations described in the probation report prepared for the hearing: Lopez had failed to appear at the January 5 and January 11, 2018 hearings, failed to re-enroll in a residential drug treatment program and failed to enroll in a domestic violence treatment program. During a colloquy with the court, Lopez explained he had left the drug treatment program to care for his son and admitted he had not completed the domestic violence treatment program.
At the hearing the court repeatedly referred to the probation report. While it was not formally marked as an exhibit and admitted into evidence, the court informed the parties multiple times that it had read and considered the report. The court also stated it would give Lopez an opportunity to present any evidence in his defense, including "disputing anything in the probation report." Lopez did not present any evidence, but his counsel stated Lopez regretted leaving the drug treatment program and was willing to re-enroll. The court responded, "That's not really competent evidence that I can consider. . . . Even if it were, it wouldn't eliminate [Lopez's] responsibility to appear in court; it wouldn't eliminate his responsibility to get enrolled and complete the [domestic violence counseling] and the drug program. So I'm not hearing any evidence to suggest to the contrary, so I would find that he's in violation of probation in both matters, probation revoked on those bases." The court ordered execution of Lopez's previously suspended eight-year county jail sentence. The court also imposed the previously suspended fines, fees and assessments: a $40 court operations assessment (Pen. Code, § 1465.8); a $30 court facilities assessment (Gov. Code, § 70373); a $10 crime prevention fine plus penalty assessment (Pen. Code, § 1202.5); a $300 restitution fine (the statutory minimum) (Pen. Code, § 1202.4, subd. (b)); and a $300 probation revocation fine (Pen. Code, § 1202.44).
Each fine, fee and assessment was imposed in each case.
Lopez filed timely notices of appeal in both cases. We consolidated the two appeals.
DISCUSSION
1. Governing Law and Standard of Review Regarding Revocation of Probation
The court may "revoke and terminate" probation "if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation . . . officer or otherwise that the person has violated any of the conditions of" probation. (§ 1203.2, subd. (a); see People v. Leiva (2013) 56 Cal.4th 498, 504-505; see also § 1203.2, subd. (b)(1) ["[a]fter the receipt of a written report from the probation or parole officer, the court shall read and consider the report . . . and may modify, revoke, or terminate the supervision of the supervised person . . . if the interests of justice so require"]; People v. Urke (2011) 197 Cal.App.4th 766, 773, 772 ["'[p]robation is not a matter of right but an act of clemency'"; "'"[w]hen the evidence shows that a defendant has not complied with the terms of probation, the order of probation may be revoked at any time during the probationary period"'"].) "In the context of section 1203.2," "[a]n admonition to a court to act in accordance with 'the interests of justice'" serves merely "to invoke the sound discretion of the trial court." (People v. Angus (1980) 114 Cal.App.3d 973, 986.)
If the trial court revokes and terminates probation in a case where judgment was pronounced and its execution suspended, "the court may revoke the suspension and order that the judgment shall be in full force and effect." (§ 1203.2, subd. (c).) We review a trial court's decision to revoke and terminate probation for abuse of discretion. (See People v. Rodriguez (1990) 51 Cal.3d 437, 443 [trial courts have "very broad discretion in determining whether a probationer violated probation"]; People v. Michael W. (1995) 32 Cal.App.4th 1111, 1119.)
"The minimum due process requirements at a formal probation revocation hearing include written notice of the claimed violations, disclosure of evidence against the defendant, an opportunity for the defendant to be heard and to present evidence, and 'the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).' [Citations.] The defendant's right of confrontation at the formal revocation hearing does not arise from the confrontation clause, but from due process [citation]; it is 'not absolute. . . .' [Citation.] . . . Due process does not prohibit the 'use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence.'" (People v. Gomez (2010) 181 Cal.App.4th 1028, 1033-1034; accord, People v. Abrams (2007) 158 Cal.App.4th 396, 400 ["probation violation hearings . . . are not governed by the procedural safeguards of a criminal trial"]; cf. People v. Minor (2010) 189 Cal.App.4th 1, 20 ["strict adherence to rules of evidence, and cross-examination, is not compelled in a probation extension proceeding"].)
2. Lopez Has Forfeited His Contention the Court Erred in Relying on the Probation Report
Lopez contends the court erred in relying on the probation report despite its not being admitted into evidence. He argues, "Appellant could not be expected [to] challenge a document not properly admitted into evidence and authenticated by the prosecution. He had no opportunity to rebut the prosecution's case because the prosecution never made its case."
Lopez failed to raise any objection to the court's reliance on the report during the probation revocation hearing, and thus he has forfeited any claim of error. (People v. Clark (2016) 63 Cal.4th 522, 603 [failure to make timely and specific objection forfeits claim of evidentiary error on appeal]; People v. Polk (2010) 190 Cal.App.4th 1183, 1194 [failure to object on ground asserted on appeal results in forfeiture]; see People v. Stowell (2003) 31 Cal.4th 1107, 1114 ["an appellate court will not consider claims of error that could have been—but were not—raised in the trial court"]; cf. People v. Thomas (1967) 65 Cal.2d 698, 708 [When a witness is arguably not properly sworn, "if defendant was unsatisfied with the adequacy of the oath-taking, he should have called the matter to the attention of the court. Any shortcomings in the procedure were waived . . . by failure to object"]; People v. Carreon (1984) 151 Cal.App.3d 559, 579 ["if a witness is permitted to testify without having taken the appropriate oath, the defect must be timely noted and failure to do so constitutes a waiver"]; People v. Haeberlin (1969) 272 Cal.App.2d 711, 716 ["objection [to oath-taking procedures] must be raised in the proceeding where the witness is testifying and at a time when the defect can be easily remedied"].)
Lopez's argument he could not have objected to the report because it was not admitted into evidence is without merit. The court referred repeatedly to the report during the hearing and, on at least three occasions, stated it was relying on the information in the report. The court also expressly gave Lopez an opportunity to present evidence rebutting the report, which he failed to do.
Finally, even if the court erred in relying on the probation report, any error was harmless under either the state law Watson standard or the federal Chapman standard for constitutional error. Lopez admitted to the court he had left the residential drug treatment program early and had failed to enroll in a domestic violence treatment program. In addition, the court did not need to rely on the probation report to know Lopez had failed to appear for a hearing in January 2018 because that failure to appear was documented in the court's minute orders and bench warrant. Accordingly the court could have based its finding of a probation violation on the court records alone.
3. Lopez Has Failed To Show the Court's Finding of a Probation Violation Was Not Supported by Substantial Evidence
In support of his argument the court's finding of a probation violation was not supported by substantial evidence, Lopez argues only that the court could not properly rely on the probation report. In light of our conclusion the report was properly considered, and, in any event, because the finding was fully supported by the court's records regarding Lopez's failure to appear as ordered, Lopez's argument fails.
4. Lopez's Sentence Must Be Modified by Striking the Prior Prison Term Enhancements
SB 136 amended Penal Code section 667.5, subdivision (b), to apply only when a prior prison term was served "for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." (§ 667.5, subd. (b); see Sen. Bill No. 136 (2019-2020 Reg. Sess.) § 1.) The change applies to nonfinal judgments on appeal (People v. Matthews (2020) 47 Cal.App.5th 857, 865; People v. Winn (2020) 44 Cal.App.5th 859, 872-873; see generally People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 306-308), including those in which the now-prohibited sentencing enhancement was included as part of a negotiated plea agreement. (Matthews, at pp. 864-865.)
In McKenzie, supra, 9 Cal.5th 40, the Supreme Court held the defendant's failure to file an appeal from an order granting probation did not preclude him from taking advantage of ameliorative amendments to Health & Safety Code section 11370.2 that took effect while he was appealing from a subsequent revocation of his probation and imposition of sentence. Noting that the relevant cutoff point under In re Estrada (1965) 63 Cal.2d 740, 744, for applying ameliorative amendments is the date the "judgment of conviction becomes final," the Court explained, "In criminal actions, the terms 'judgment' and '"sentence"' are generally considered 'synonymous' [citation], and there is no 'judgment of conviction' without a sentence." (McKenzie, at p. 46.) As the Attorney General acknowledges, under McKenzie Lopez's convictions are not yet final; and, because none of his prior prison terms was served for a sexually violent offense, SB 136's amendment to section 667.5, subdivision (b), applies to the enhancement portion of Lopez's sentence. Accordingly, those enhancements must be stricken.
5. A Limited Remand Is Necessary To Afford Lopez the Opportunity To Request a Hearing Concerning His Ability To Pay Fines, Fees and Assessments
In People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) this court held it violated due process under both the United States and California Constitutions to impose a court operations assessment as required by Penal Code section 1465.8 or the court facilities assessment mandated by Government Code section 70373, neither of which is intended to be punitive in nature, without first determining the convicted defendant's ability to pay. (Dueñas, at p. 1168.) A restitution fine under Penal Code section 1202.4, subdivision (b), in contrast, is intended to be, and is recognized as, additional punishment for a crime. Section 1202.4, subdivision (c), provides a defendant's inability to pay may not be considered a compelling and extraordinary reason not to impose the restitution fine; inability to pay may be considered only when increasing the amount of the restitution fine above the minimum required by statute. To avoid the serious constitutional questions raised by these provisions, we held, although the trial court is required to impose a restitution fine, the court must stay execution of the fine until it is determined the defendant has the ability to pay the fine. (Dueñas, at p. 1172.)
Several courts of appeal have applied this court's analysis in Dueñas (e.g., People v. Santos (2019) 38 Cal.App.5th 923, 929-934; People v. Kopp (2019) 38 Cal.App.5th 47, 95-96, review granted Nov. 13, 2019, S257844 [applying due process analysis to court assessments]; People v. Jones (2019) 36 Cal.App.5th 1028, 1030-1035). Others have rejected the due process analysis (e.g., People v. Kingston (2019) 41 Cal.App.5th 272, 279-281; People v. Hicks (2019) 40 Cal.App.5th 320, 326, review granted Nov. 26, 2019, S258946), or concluded the imposition of fines and fees should be analyzed under the excessive fines clause of the Eighth Amendment (e.g., People v. Aviles (2019) 39 Cal.App.5th 1055, 1061; Kopp, at pp. 96-97 [applying excessive fines analysis to restitution fines]). The Supreme Court granted review of the decision in Kopp to decide the following issues: "Must a court consider a defendant's ability to pay before imposing or executing fines, fees, and assessments? If so, which party bears the burden of proof regarding defendant's inability to pay?"
In supplemental briefing filed with the permission of this court, Lopez contended under Dueñas the assessments and fees imposed by the trial court should be reversed and the execution of the restitution fine stayed. The People argued Lopez forfeited this issue on appeal because he failed to raise it in the trial court. However, we have generally declined to find forfeiture based on a defendant's failure to object to fines and fees prior to our opinion in Dueñas. As we explained in People v. Castellano (2019) 33 Cal.App.5th 485, 489 (Castellano), "[N]o California court prior to Dueñas had held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant's ability to pay. Moreover, none of the statutes authorizing the imposition of the fines, fees or assessments at issue authorized the court's consideration of a defendant's ability to pay. . . . When, as here, the defendant's challenge on direct appeal is based on a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial, reviewing courts have declined to find forfeiture." (Accord, People v. Belloso (2019) 42 Cal.App.5th 647, 662; People v. Johnson (2019) 35 Cal.App.5th 134, 138; contra, People v. Ramirez (2019) 40 Cal.App.5th 305, 312 [defendant forfeited challenge by not objecting to the assessments and restitution fine at sentencing]; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 [same]; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154 [same].)
Lopez argued not only that he was entitled to the benefit of our decision in Dueñas but also that the court facilities and operations assessments and the crime prevention fines should be reversed, and execution of the restitution fines stayed, unless and until the People prove he has the present ability to pay the fine. As we explained in Castellano, Dueñas does not support that conclusion in the absence of evidence in the record of a defendant's inability to pay. "[A] defendant must in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court." (Castellano, supra, 33 Cal.App.5th at p. 490; see Dueñas, supra, 30 Cal.App.5th at pp. 1168-1169.)
We remand the matter to the trial court so that Lopez may request a hearing and present evidence demonstrating his inability to pay the fines, fees and assessments imposed by the trial court.
If, as Lopez's counsel suggests, our modification of his sentence means he is entitled to be released from custody, that release should not be delayed pending the hearing on his ability to pay fees and fines.
DISPOSITION
The order revoking probation and imposing the suspended sentence is affirmed. The sentence is modified by striking the three one-year prior prison term enhancements imposed. The matter is remanded to give Lopez the opportunity to request a hearing on his ability to pay the fines, fees and assessments imposed by the trial court. The trial court is directed to prepare an amended abstract of judgment and forward it to the Los Angeles County Sheriff's Department or other appropriate authorities.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.