Opinion
E071964
06-24-2020
THE PEOPLE, Plaintiff and Respondent, v. PHILLIP JESUS MARTINEZ, Defendant and Appellant.
Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Allison V. Acosta and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB17001907) OPINION APPEAL from the Superior Court of San Bernardino County. William Jefferson Powell, IV, Judge. Affirmed in part, reversed and remanded with directions in part. Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Allison V. Acosta and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
In October 2018, a jury convicted defendant and appellant Phillip Jesus Martinez of assault with a deadly weapon (a knife) (Pen. Code, § 245, subd. (a)(1); count 1) upon L.G., felon in possession of a firearm (§ 29800, subd. (a)(1); count 4), possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 5), and possession of methamphetamine while armed with an operable firearm (Health & Saf. Code, § 11370.1, subd. (a); count 6). The jury also found true that defendant had previously been convicted of two prior serious felony convictions (§ 667, subd. (a)(1)) and two prior serious or violent felony strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Defendant was sentenced to a total term of 36 years four months to life in state prison with 944 days of credit for time served. Defendant was also ordered to pay various fines and fees.
All future statutory references are to the Penal Code unless otherwise stated.
A mistrial was declared as to count 2, street terrorism (§ 186.22, subd. (a)), and count 3, assault with a deadly weapon (a knife) (§ 245, subd. (a)(1)) upon C.H.
After defendant appealed, his appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. In an order dated October 24, 2019, this court ordered the parties to address the issue of whether the trial court's imposition of a restitution fine in the amount of $10,000 and fees in the amount of $280without determining defendant's ability to pay violated his due process rights.
Defendant's appellate counsel subsequently filed a supplemental brief. In his supplemental brief, defendant argues the fines, fees, and assessments must be reversed and/or stayed because the trial court failed to make a finding he had the ability to pay them in violation of his due process and equal protection rights, and prohibitions against cruel and/or unusual punishment. The People disagree with defendant's ability-to-pay contention, and also assert that the matter should be remanded to allow the trial court to properly sentence defendant on counts 4, 5, and 6 because the court imposed an unauthorized sentence on those counts. We agree that the matter should be remanded for a new sentencing hearing. Upon remand, defendant may assert whether he has the ability to pay the imposed fines and fees.
II
FACTUAL AND PROCEDURAL BACKGROUND
A brief recitation of the factual background is taken from the probation officer's report.
A. Factual Background Relating to the Convicted Offenses
On May 5, 2017, following a dispute regarding the victim's presence in "'North Side Redlands'" gang territory, defendant and his companion stabbed the victim in the abdomen. The victim was extremely uncooperative and refused to give any information about the possible suspects. The victim's mother stated that the victim would not identify the suspects because he did not want to be labeled as a "'rat.'" However, through investigation and witness statements, officers identified the first suspect as defendant, a validated gang member of North Side Redlands, and began surveillance of defendant.
On September 20, 2017, defendant spotted the officers as he was walking down a street and took off running. Following a foot chase through backyards of neighboring homes, defendant was taken into custody and arrested. Defendant was carrying a loaded handgun, a hypodermic needle, and 15.9 grams of methamphetamine.
B. Facts Relating to Defendant
Defendant was 39 years old at the time he committed his offenses, and 41 years old at the time he was sentenced. The probation officer noted that defendant was in "[g]ood" health and that he had completed the ninth grade. Defendant was on parole at the time he committed his offenses and had been out of prison for exactly one year to the day he was arrested.
Defendant had a history of abusing controlled substances but was not under the influence of any controlled substance at the time of the offenses. In addition, he had completed a residential substance abuse treatment program in 2016 and was placed in a sober living home upon completion. However, he was kicked out two months later for testing positive for drugs. Defendant was unable to maintain sobriety. The longest period of time defendant had been sober was one to two years.
Defendant was last employed in February or March 2017 when he worked for a temporary agency at a warehouse in Redlands. He worked at that assignment for about four to six months earning $10.50 an hour. Defendant had no assets, no children, and was single. There is no evidence that any physical or mental impairment would prevent defendant from working.
C. Sentencing
Following defendant's conviction, on January 4, 2019, the trial court denied defendant's motion to strike his prior strike convictions and sentenced defendant as follows: "For a violation of Penal Code section 245(a)(1), assault with a deadly weapon, not a firearm, as a felony, and two strike offenses pursuant to Penal Code section 1170.12 (a) through (d), a sentence of 25 years to life in prison. [¶] Pursuant to Penal Code section 667(a)(1), an additional five years. [¶] And finally, pursuant to Penal Code section 667(a)(1), an additional five-year period. This is a total of 35 years to life in prison. [¶] In [c]ount 6, the Court will impose one-third the middle term of one year. That is doubled pursuant to the strike for two additional years. [¶] In [c]ounts 5 and 6, the Court will impose the middle term of two years in each of those counts. That is stayed pursuant to Penal Code section 654." The trial court awarded defendant 944 days of credit for time served.
In denying defendant's motion to strike his priors, the trial court stated: "I will decline to exercise that discretion at this point. I will recognize that I do have the discretion to alter, impose one, not both, or strike both the nickel priors and the strike priors. I will decline to exercise my discretion in any way in this case with regard to the priors."
Recognizing, but declining to exercise its discretion, the trial court ordered defendant to pay a $10,000 restitution fine pursuant to section 1202.4 and stayed a parole revocation fine of $10,000 under section 1202.45. The court also imposed "the $70 CCO fee." The court found "defendant is not able to reimburse for appointed counsel or investigation costs." Defendant did not object to the imposition of the fines and fees.
The court did not specifically state "$70" per conviction. However, the court's minute order of the January 4, 2019 sentencing hearing notes "Const./court operations fee of $70 per conviction." The probation officer recommended that the court order defendant to pay "a total CCO fee of $70 (per conviction) consisting of a $30.00 Court Construction Fee pursuant to Government Code Section 70373(a)(1) and a $40.00 Court Operations Fee pursuant to Penal Code Section 1465.8(a)(1), both to be collected through Central Collections." Neither the January 10, 2019 abstract of judgment nor the May 7, 2019 amended abstract of judgment indicate the amount of fees imposed by the trial court. Since defendant was convicted of four counts, defendant is required to pay $120 in court construction fees (Gov. Code, § 70373, subd. (a)(1)) and $160 in court operations fees (§ 1465.8, subd. (a)(1)).
On April 8, 2019, the California Department of Corrections and Rehabilitation (CDCR) sent a letter to the trial court, which contained, in part, the following information: "The Abstract of Judgment and the Minute Order reflect Count 4, Penal Code section 29800(a)(1) Felon/Addict/etc. Possess Firearm with one-third the middle term of 2 years imposed. The sentencing triad for this offense is 16 months, 2 years, or 3 years; therefore, pursuant to PC 1170.1(a), one-third the middle term for this offense is 8 months. May the court please be advised this count is sentenced consecutively to the indeterminate term imposed under Count 1; the determinate term shall be computed without reference to the indeterminate term pursuant to Rule of Court 4.451(a) and served at the full term."
The letter from CDCR also stated: "Please review your file to determine if a correction is required. When notified by the Department of Corrections and Rehabilitation that an illegal sentence exists, the trial court is entitled to reconsider all sentencing choices, People v. Hill [(1986)] 185 Cal.App.3d 831."
On May 2, 2019, during an unreported hearing, at which the parties did not appear, the trial court indicated it had "read and considered the letter from [the] Department of Corrections received 4/15/19," and ordered corrected the "minute order [dated] 1/4/19 and abstract of judgment . . . for Count 4." The amended abstract of judgment dated May 7, 2019 shows a single alteration—the term imposed for count 4 was changed from two years to one year four months.
III
DISCUSSION
A. Ability to Pay
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, defendant argues the fines, fees, and assessments must be reversed and/or stayed because the trial court failed to make a finding defendant had the ability to pay them in violation of his due process and equal protection rights and prohibitions against cruel and/or unusual punishment. He also asserts that his trial counsel was ineffective for failing to object to the imposition of these fines and fees.
The People assert that (1) defendant forfeited his challenge to the restitution fine; (2) if defendant's claim is preserved, defendant's restitution fine should be reviewed under the excessive fines clause; (3) under the excessive fine clause, ability to pay is a factor, but not a prerequisite; (4) defendant's restitution fine is not grossly disproportional; (5) due process and a showing of an ability to pay does apply to the court operations and construction fees; (6) any due process violation was harmless beyond a reasonable doubt; and (7) defense counsel was not ineffective when counsel failed to object to the restitution fine and fees.
Dueñas involved the plight of a married mother with cerebral palsy, whose family—which included two young children—was demonstrably unable to afford even basic necessities due to poverty and the inability to work. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) Dueñas's inability to pay several juvenile citations had resulted in suspension of her driver's license, which then led to a series of misdemeanor convictions over the years for driving with a suspended license and additional court fees she was also unable to pay. (Id. at p. 1161.) Dueñas routinely served time in jail in lieu of paying the fines she owed, but nevertheless was sent to collections on other fees related to her court appearances. (Ibid.)
After pleading no contest to yet another misdemeanor charge of driving with a suspended license, the trial court imposed on Dueñas certain assessments and a $150 restitution fine—the minimum amount required under section 1202.4, subdivision (b). The trial court rejected Dueñas's argument that the imposition of the assessments and the fine without consideration of her ability to pay them violated her constitutional rights to due process and equal protection. (Dueñas, supra, 30 Cal.App.5th at pp. 1161, 1163.)
The Court of Appeal reversed, holding that "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[, and] 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 imposition of a minimum restitution fine without consideration of Dueñas's ability to pay also violated due process. (Id. at pp. 1169-1172.) In addition, "to avoid serious constitutional questions" raised by the statutory restitution scheme, the court must stay execution of the mandatory restitution fine unless the court determines that the defendant has the ability to pay it. (Id. at p. 1172.) The same court that decided Dueñas has since clarified that, at the ability to pay hearing, the defendant bears the burden of showing his or her inability to pay, and the court "must consider all relevant factors," including "potential prison pay during the period of incarceration to be served by the defendant." (People v. Castellano (2019) 33 Cal.App.5th 485, 490.)
The California Supreme Court has granted review of the issues presented by Dueñas in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844. The Supreme Court will decide whether a trial court must "consider a defendant's ability to pay before imposing or executing fines, fees, and assessments," and if so, "which party bears the burden of proof regarding defendant's inability to pay." (People v. Kopp, S257844, Supreme Ct. Mins., Nov. 13, 2019 .)
Here, the People contend that defendant forfeited any challenge to the restitution fine. Defendant argues, however, that the forfeiture rule should not apply because he can raise a claim asserting the deprivation of a constitutional right for the first time on appeal and his sentencing occurred prior to Dueñas, and therefore any objection would have been futile.
We do find the restitution fine was forfeited. The restitution fine imposed was greater than the statutory minimum amount of $300. (§ 1202.4, subd. (b)(1).) For that fine, the law at the time of sentencing would have permitted the trial court to consider defendant's inability to pay more than the minimum restitution fine. (§ 1202.4, subd. (c).) Consequently, defendant forfeited his objection that the trial court failed to consider his ability to pay the restitution fine. (People v. Nelson (2011) 51 Cal.4th 198, 227 [defendant forfeited challenge to $10,000 restitution fine imposed under § 1202.4 by failing to object at his sentencing hearing]; People v. Taylor (2019) 43 Cal.App.5th 390, 400-401 (Taylor) [defendant forfeited objection to $10,000 restitution fine]; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 [argument about restitution fine above the minimum forfeited].)
However, we do not find forfeiture with respect to the $120 in court construction fees (Gov. Code, § 70373, subd. (a)(1)) and $160 in court operations fees (Pen. Code, § 1465.8, subd. (a)(1)). (People v. Jones (2019) 36 Cal.App.5th 1028, 1033 (Jones).) Defendant's was sentenced before Dueñas was decided. "[A] due process objection would have been 'futile or wholly unsupported by substantive law then in existence.'" (Jones, at p. 1033.) And because "Dueñas was unforeseeable," we decline to find forfeiture as to the court construction and operations fees. (Jones, at p. 1033; see Taylor, supra, 43 Cal.App.5th at pp. 400-401 [failure of a defendant to object to imposition of a restitution fine above the statutory minimum does not result in forfeiture of a challenge to the court assessments because a defendant's ability to pay the restitution fine is only one of the factors the court should consider in setting the restitution fine above the statutory minimum]; see also § 1202.4, subd. (d); contra, People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 [defendant's failure to object to $10,000 restitution fine resulted in forfeiture of challenge to $120 in assessments based on inability to pay].)
We therefore must remand for an ability to pay hearing unless the error was harmless. (Jones, supra, 36 Cal.App.5th at pp. 1034-1035.) Dueñas determined that the error was of constitutional magnitude, so we inquire whether the failure to conduct an ability to pay hearing was harmless beyond a reasonable doubt. (Jones, at p. 1035.) We will find Dueñas error harmless if the record demonstrates, beyond a reasonable doubt, that the defendant cannot establish his or her inability to pay. (Jones, at p. 1035; Chapman v. California (1967) 386 U.S. 18, 24.)
Because a remand is warranted in this case, we will not determine whether defendant can or cannot make such a showing. Upon remand, defendant can raise the issue of whether he has the ability to pay the restitution fine and fees.
For this same reason, we will not address the parties' remaining contentions or whether trial counsel was ineffective for failing to object to the imposition of the fines and fees.
B. Sentencing Issues
The People argue, and defendant correctly acknowledges, that this court should remand the matter so that the court may resentence defendant on counts 4, 5, and 6. We agree.
Here, the CDCR realized that the trial court had erroneously identified the indeterminate term for count 1 as the "principal term" and treated count 4 as a "subordinate term," applying the one-third the midterm formula to that count. (See People v. Neely (2009) 176 Cal.App.4th 787, 796-800 (Neely).) As such, the CDCR sent a letter to the trial court to correct the error. On May 2, 2019, the trial court indicated it had "read and considered the letter from [the] Department of Corrections received 4/15/19," and ordered corrected the "minute order [dated] 1/4/19 and abstract of judgment . . . for Count 4." The modified abstract of judgment indicated a single alteration—the term imposed on count 4 was changed from two years to one year four months. It is unclear whether the trial court made the same mistake again (by taking one-third the midterm of two years (eight months) and doubling that term), or whether the trial court treated count 4 as the principal count and selected the low term of 16 months. As the People note, either way, however, the trial court imposed an unauthorized sentence.
Here, the trial court erred in imposing a consecutive term on count 4 of one-third the middle term instead of the full base term because the indeterminate and determinate terms must be calculated separately. (People v. Sanchez (2016) 245 Cal.App.4th 1409, 1412; Neely, supra, 176 Cal.App.4th at p. 798.) As the court in Neely explained, "Once the court determines what sentence is to be imposed for the indeterminate term offenses and the determinate term offenses, it combines the two to reach an aggregate total sentence." (Neely, at p. 798.) The court observed, "Such sentencing has been conceptualized as sentencing in separate boxes. [Citation.] Applying this 'box' analogy to the instant case, the indeterminate term crime of first degree murder is placed in one box. . . . [¶] A second box is created to include the three determinate sentence crimes. Applying section 1170.1, the court would select a base term for each of the crimes, set the crime with the greatest base term as the principal term, [and] impose the full base term as the sentence for the principal term crime . . . ." (Id. at pp. 798-799.)
Where a third strike offender's current offenses are neither serious nor violent, the defendant is sentenced on those counts as if he were a second strike offender. (People v. Johnson (2015) 61 Cal.4th 674, 690.) In that instance the aggregate determinate sentence is doubled, including both the principal and the subordinate terms. (People v. Nguyen (1999) 21 Cal.4th 197, 202-207 (Nguyen).)
The trial court here also erred in identifying count 4 as the principal term for purposes of computing the aggregate determinate sentence. Count 4 cannot serve as the principal term in this case because it does not carry the greatest base term. While counts 4 and 5 are punishable by a term of 16 months, two years, or three years (Pen. Code, §§ 18, subd. (a) & 29800, subd. (a)(1); Health & Saf. Code, § 11378), count 6 is punishable by a term of two years, three years, or four years (Health & Saf. Code, § 11370.1, subd. (a)). Defendant concedes that count 6 "carries the greatest possible base term and thus, should have been selected as the principal term for the consecutive determinate sentence."
Based on the foregoing, a remand is necessary. On remand, the trial court must impose the full base term on count 6 (after selecting the lower, middle, or upper term), but has the discretion whether to impose the term as a consecutive or concurrent term. In addition, if the trial court again declines to strike defendant's prior serious or violent felony strike convictions, the court shall double the term on count 6. (Nguyen, supra, 21 Cal.4th at p. 202.) Furthermore, the trial court is entitled to reconsider all lawful sentencing options on remand. (See People v. Serrato (1973) 9 Cal.3d 753, 764-765, overruled on another ground in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.)
Because the offenses alleged in counts 4, 5, and 6 were committed on the same occasion or arose from the same operative facts, the trial court has the discretion to run them consecutively or concurrently to each other. (People v. Koback (2019) 36 Cal.App.5th 912, 927.) --------
IV
DISPOSITION
The sentence is reversed. The matter is remanded for a new sentencing hearing in accordance with this opinion. Following the new sentencing hearing, the clerk of the superior court is directed to prepare a minute order of the new sentencing hearing and an amended indeterminate and determinate abstract of judgment reflecting the modified sentence, including any fines and fees imposed, and to forward a certified copy to the CDCR. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: FIELDS
J. RAPHAEL
J.