Opinion
A155003
01-30-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ROYCE PARKER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUK-CRCR-18-93778)
A jury convicted defendant Michael Royce Parker of possession of methamphetamine in jail. He raises three issues. First, he maintains the trial court erred in denying his Romero motion. Second, he asserts the imposition of various fines and fees at sentencing without a judicial determination of his ability to pay violated his due process rights as recently explicated in People v. Dueñas (2019) 30 Cal.App.5th 1157. Lastly, he contends, and the Attorney General concedes, the matter must be remanded for the trial court to strike the one-year prior prison term enhancements under a new amendment to Penal Code section 667, subdivision (b). We agree the case must be remanded for resentencing, but in all other respects affirm the judgment.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
I. BACKGROUND
Officer Perez of the Ukiah Police Department arrested defendant and asked him whether he possessed any contraband. The officer further informed defendant that it was a felony to bring contraband into the jail. Defendant responded he understood and all he had were some needles in his pocket. After Perez transported defendant to the jail, defendant was taken inside a room where he was searched by a correctional officer. While Perez was in the room, the correctional officer removed a silver "cylinder device," tucked inside the waistband of defendant's underwear. The cylinder was turned over to Perez. Inside the cylinder, Perez found a clear plastic bag containing a white crystalline substance, later determined by a criminalist to be 0.569 grams of methamphetamine, a usable amount.
The Mendocino County District Attorney filed an information charging defendant with possession of methamphetamine in jail. (Pen. Code, § 4573.6.) The information further alleged defendant had a 1997 prior strike (§§ 667, 1170.12) and five prison priors (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
A jury found defendant guilty of the charged offense. The trial court found true the strike allegation and four of the prior prison allegations.
The court sentenced defendant to prison for an aggregate term of 10 years.
II. DISCUSSION
A. Romero Motion
Defendant contends the trial court abused its discretion in denying his Romero motion to dismiss his prior strike conviction. We disagree.
As noted above, after the jury found defendant guilty of the charged offense, in a bifurcated trial, the court found true the allegation defendant had suffered a 1997 prior strike. That conviction was for first degree burglary. (§§ 459, 460, subd. (a).)
Defendant subsequently made a Romero motion to dismiss this strike, arguing it was remote in time, his prior felony convictions, while numerous, involved theft and drugs and had "gone down" in seriousness, and he was not a danger to anyone, rather he was "only a danger to himself with his drug use which drives every one of his crimes."
Finding no justification to dismiss the prior strike conviction, the court denied defendant's Romero motion.
A trial court may, in the " 'furtherance of justice,' " dismiss a prior strike conviction pursuant to section 1385, subdivision (a). A decision by the trial court to dismiss a prior strike is reviewed for abuse of discretion. (Romero, supra, 13 Cal.4th at pp. 530-531.)
In ruling on a Romero motion whether to strike a prior serious and/or violent felony conviction under the "Three strikes" law, the trial court must consider "whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
Defendant, on appeal, argues the trial court failed to give adequate consideration of the circumstances of the prior offense and its remoteness. Nor did it adequately consider his background. Further, it acted contrary to the spirit of the law and substantial aims of justice.
More specifically, defendant stresses that at the time he committed the 1997 prior strike conviction for residential burglary, he was 19 years old, during the following 21 years there were no other strikes and no violent offenses, and in the 13 years preceding this instant offense he suffered only two felony convictions for receiving stolen property while the other offenses were misdemeanors. Referring to his background, defendant complains the court only addressed his addiction in the context of his being presumptively ineligible for probation. Defendant also believes the court acted outside the spirt of the Three Strikes scheme because his nonstrike prior offenses were neither violent nor the type of offenses contemplated by the Three Strikes law. Additionally, there were 21 years between defendant's strike conviction in 1997 and his current offense, rendering, according to defendant, his prior conviction remote.
Here, the judge explained his reasons for not striking the prior. He stated: "The purpose of the strike statutes are [sic] to try to prevent recidivism so that people know they've got doubling their sentence ever[y] time they commit new offenses. Has had absolutely no effect or impact on deterring [defendant] from committing new offenses. I can find no justification to strike that strike. Even if there was a formal motion I would be in the same position. There's nothing that justifies dismissing that strike." And contrary to defendant's claim, the court considered defendant's history of addiction: "It breaks my heart that all the opportunities that you did have with the intelligence you have hasn't changed your behavior in any way. And I understand addiction. I've seen it in you and I've seen it in a lot of other people. [¶] I've always tried as a Judge and before I became a judge to try to make a difference for those people who were willing and able to accept those opportunities and change their behavior. And here it hasn't happened, unfortunately." In addition, the court examined defendant's substantial and continuing criminal history, observing this was defendant's 41st criminal conviction, he had numerous probation violations, and his numerous prior convictions have had "absolutely no effect or impact on deterring [him] from committing new offenses."
The trial court did not abuse its discretion in denying the Romero motion. First, in examining defendant's past criminal record, we find essentially an unabated history of drug- and theft-related offenses committed over the course of in excess of 20 years, despite five prior prison terms, along with admitted long-term chronic drug use. In other words, defendant has engaged in the continuous commission of offenses over a lengthy period with a history of repeatedly violating his parole and probation. Despite the lack of physical violence associated with defendant's past crimes, we do not share his assessment that because his crimes have "gone down" in seriousness, he was entitled to have his Romero motion granted. To the contrary, he is just the kind of recidivist offender the Three Strikes law was designed to reach. Nor is the remoteness factor, under the circumstances of this case, determinative, given defendant has not led a blameless life during the years between his 1997 prior strike conviction and his latest felony conviction. (See People v. Philpot (2004) 122 Cal.App.4th 893, 906 [trial court "could not overlook the fact defendant consistently committed criminal offenses for the past 20 years"]; People v. Humphrey (1997) 58 Cal.App.4th 809, 813 [dismissing prior strike conviction on sole ground it happened 20 years earlier was an abuse of discretion where defendant had "led a continuous life of crime after the prior"].)
Next, the trial court did not ignore the particulars of defendant's background. As reflected in the record of the Romero motion hearing, the trial judge was acutely aware of defendant's history of drug addiction and expressed frustration that defendant had not been able to change his behavior, commenting it broke his heart that defendant had not taken advantage of all the opportunities provided to him.
Finally, the court did not act contrary to the spirit of the law and the substantial aims of justice. The determination whether a sentence is consistent with the Three Strikes law requires consideration of the nature and circumstances of the current felony and prior offenses, as well as the defendant's personal background, character, and prospects. (People v. Williams, supra, 17 Cal.4th at p. 161.) Among the factors that have been found to indicate a defendant falls within the spirit of the Three Strikes law are a crime's potential for great bodily injury, the number and seriousness of a defendant's prior convictions, poor previous performance on probation, additional crimes intervening between the strike offenses and current offense, and multiple convictions for similar behavior. (See, e.g., People v. McGlothin (1998) 67 Cal.App.4th 468, 475-476; People v. Strong (2001) 87 Cal.App.4th 328, 344; People v. Philpot, supra, 122 Cal.App.4th at p. 907; Williams, at p. 163.)
Several of these relevant factors support the trial court's ruling in this case. As described previously, defendant has numerous prior convictions, including five felonies resulting in state prison sentences, in addition to multiple misdemeanor convictions. He has performed poorly on parole and probation. And, significantly, he has not led a blameless life over a 20-year period between his strike conviction and his present offense.
In sum, defendant's long criminal history and his conduct, as a whole, were "a strong indication of unwillingness or inability to comply with the law." (People v. Philpot, supra, 122 Cal.App.4th at p. 906.) Prior rehabilitative efforts have also been unsuccessful, and defendant's prospects for the future look no better than the past. We thus cannot say this is an extraordinary case in which no reasonable person could find defendant falls within the spirit of the Three Strikes law. (People v. Carmony (2004) 33 Cal.4th 367, 377-379.) The trial court acted within its discretion in denying defendant's Romero motion. B. Fee and Fines
In addition to the 10-year prison term, the court imposed a total of $70 in court assessment fees (§ 1465.8; Gov. Code, § 70373), a $3,600 restitution fine (§ 1202.4) and a suspended $3,600 restitution fine (§ 1202.45). Defendant argues the case must be remanded because the court violated his due process rights by failing to determine whether he had the ability to pay these fines and fees, as it was required to do under People v. Dueñas, supra, 30 Cal.App.5th 1157 (Dueñas). We disagree because on the merits, defendant is not entitled to relief under Dueñas.
1. The Dueñas Case
In Dueñas, the defendant, a homeless probationer who suffered from cerebral palsy and was unable to work, was convicted of her fourth offense of driving with a suspended license. Because she was unable to work, Dueñas lost her driver's license when she could not pay assessments for juvenile citations she received as a teenager. Over the ensuing years, Dueñas was convicted of several misdemeanors because she continued to drive without a license and spent weeks in jail in lieu of paying additional fees and fines, but she remained unable to pay off her debt. In the most recent case, she was placed on summary probation and ordered to pay a criminal conviction assessment, a court operations assessment, and a restitution fine within three years. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1163.) Dueñas objected and asked for an ability to pay hearing. At the hearing, she produced undisputed evidence establishing her inability to pay. (Id. at pp. 1162-1163.) Although the court assured Dueñas she would not be " 'punished' " if she was unable to pay, it also stated, " 'Those [sums] will go to collections without any further order from this court.' " (Id. at p. 1163.) The trial court rejected the defendant'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. (Ibid.)
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." (Id. at p. 1168.) The appellate court reversed the order imposing the assessments and directed the trial court to stay the execution of the restitution fine "unless and until the People prove that [the defendant] has the present ability to pay it." (Id. at pp. 1172-1173.)
2. Dueñas Does Not Warrant a Remand
Division Two of the Second District Court of Appeal, in People v. Hicks (2019) 40 Cal.App.5th 320 (Hicks) recently explained, "To reach its holding, Dueñas wove together two distinct strands of due process precedent. [¶] The first strand secures a due process-based right of access to the courts . . . requir[ing] courts to waive court costs and fees that would otherwise preclude criminal and civil litigants from prosecuting or defending lawsuits or from having an appellate court review the propriety of any judgment. [Citations.] [¶] The second strand erects a due process-based bar to incarceration based on the failure to pay criminal penalties when that failure is due to a criminal defendant's indigence rather than contumaciousness." (Id. at p. 325.)
We agree with Hicks that the first strand "does not dictate Dueñas's bar on imposing fees because the imposition of assessments, fines and fees does not deny a criminal defendant access to the courts." (Hicks, supra, 40 Cal.App.5th at p. 326.) Here, the imposition of the fees and fines disputed by defendant "in no way interfered with defendant's right to present a defense at trial or to challenge the trial court's rulings on appeal." (Ibid.) Indeed, the charges were not imposed until after the trial was over, and except for the fact of their imposition, are not otherwise challenged.
Likewise, the second strand does not dictate Dueñas's bar on imposing fees because their imposition, without more, does not result in incarceration for nonpayment due to indigence. The cases prohibiting incarceration for indigence alone rest on the notion that " '[f]reedom from imprisonment . . . lies at the heart of the liberty that [the due process] [c]lause protects.' " (Hicks, supra, 40 Cal.App.5th at p. 326, italics added by Hicks; accord People v. Kingston (2019) 41 Cal.App.5th 272, 280.) Thus, at the time of sentencing, imposing a fee or fine upon a criminal defendant does not require immediate incarceration and as a result, does not infringe on defendant's liberty interest. (Hicks, at p. 326; Kingston, at p. 280.) Although Dueñas determined that by imposing the court assessments, indigent defendants were subject to " 'additional punishment' " because their failure to pay could give rise to civil judgments with significant negative consequences, it "cites no authority for the proposition that those consequences constitute 'punishment' rising to the level of a due process violation." (People v. Caceres (2019) 39 Cal.App.5th 917, 927.)
Because it is wholly speculative that "additional punishment" discussed in Dueñas will come to pass, we find it unnecessary to decide whether there was any infringement here on defendant's due process or other constitutional rights. In Dueñas, the defendant had already suffered "cascading consequences" because of "a series of criminal proceedings driven by, and contributing to, [her] poverty," and she had already been ordered to pay the charges at issue by the end of her probation period. (Dueñas, supra, 30 Cal.App.5th at pp. 1163-1164.) In contrast, here, nothing about the circumstances suggests defendant's crime was driven by poverty and that his criminal proceedings had contributed to his homelessness. (See People v. Caceres, supra, 39 Cal.App.5th at p. 928 [likelihood of committing criminal threats not affected by one's financial circumstances].) Thus, even assuming Dueñas was correctly decided on its facts, the hardship in the instant matter is not akin to the one imposed in that case. Defendant has a long history of drug addiction which he has failed to seriously confront or treat.
Moreover, the situation in which defendant has put himself—a lengthy sentence in state prison—does not implicate the same due process concerns at issue in the factually unique Dueñas case. Defendant, unlike Dueñas, does not face incarceration because of an inability to pay assessments and fines. Defendant is in prison because he brought a usable amount of methamphetamine into a jail and has a long criminal history including one prior strike and five state prison priors.
Lastly, Dueñas does not support a remand to the trial court to consider whether the restitution fine imposed on defendant should be stayed. Because of section 1202.4's "prohibition on considering the defendant's ability to pay the minimum fine," Dueñas concluded "the criminal justice system punishes indigent defendants in a way that it does not punish wealthy defendants." (Dueñas, supra, 30 Cal.App.5th at p. 1170.) As the court explained, "In most cases, a defendant who has successfully fulfilled the conditions of probation for the entire period of probation has an absolute statutory right to have the charges against him or her dismissed" and be relieved of their resulting penalties and disabilities. (Ibid.) If, however, "a probationer cannot afford the mandatory restitution fine, through no fault of his or her own he or she is categorically barred from earning the right to have his or her charges dropped and to relief from the penalties and disabilities of the offense for which he or she has been on probation, no matter how completely he or she complies with every other condition of his or her probation," and must instead "appeal to the discretion of the trial court and . . . persuade [it] that dismissal of the charges and relief from the penalties of the offense is in the interest of justice." (Id. at pp. 1170-1171.) Unlike Dueñas, defendant has not been placed on probation, and no issue of his entitlement to expungement exists. Nor, assuming he is presently unable to pay the restitution fine, does he explain how its imposition has or may result in his being treated differently than wealthy defendants "solely and exclusively [because of his] poverty." (Id. at p. 1171.) We therefore conclude defendant is not entitled to a remand under Dueñas. C. Striking the One-year Prior Prison Enhancements Under Amended Section 667 .5 , Subdivision (b)
Moreover, also unlike Dueñas, the trial court in this case imposed a restitution fine above the statutory minimum. Section 1202.4, subdivision (c) expressly allows the court to consider a defendant's ability to pay in such circumstances, and subdivision (d) provides the court "shall consider any relevant factors, including, but not limited to, the defendant's ability to pay" in setting the amount of the fine in excess of the statutory minimum. Thus, under the facts of this case, defendant "had every incentive to object" to the restitution fine and forfeited his ability to pay argument by failing to do so in the trial court. (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033, review den. Sept. 18, 2019, S256881; People v. Aviles (2019) 39 Cal.App.5th 1055, 1073, review den. Dec. 11, 2019, S258563.)
The trial court imposed four one-year enhancements pursuant to section 667.5, subdivision (b).
Under the law that applied at the time of defendant's sentencing, section 667.5, subdivision (b) provided for a one-year enhancement for a felony conviction for each prior separate prison term served for any felony with an exception not applicable here.
In supplemental briefing, the parties addressed the recent amendment to section 667.5, subdivision (b) pursuant to Senate Bill No. 136 (2018-2019 Reg. Sess.) (Stats. 2019, ch. 590, § 1) (Senate Bill 136).
On October 8, 2019, the Governor signed Senate Bill 136 into law. Effective January 1, 2020, this bill removes the one-year enhancement for prior prison terms, except when the offense underlying the prior prison term was a sexually violent offense. The instant case was not final by January 1, 2020.
The parties agree, as do we, that Senate Bill 136 applies retroactively to all cases not yet final as of its effective date because the amended statute leads to a reduced sentence. (See In re Estrada (1965) 63 Cal.2d 740, 748 [for a nonfinal conviction, "where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed"]; see also People v. Garcia (2018) 28 Cal.App.5th 961, 972-973.) Because this case was not final by January 1, 2020, we strike the sentence imposed for the section 667.5, subdivision (b) enhancements. (See Garcia, at p. 973 [remanding case for resentencing after the effective date of newly enacted legislation given the improbability that the case would be final before that date].)
III. DISPOSITION
Accordingly, the matter is remanded to the trial court to strike the sentences on the section 667.5, subdivision (b) enhancements. Following resentencing, the trial court is directed to prepare a new abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
Margulies, Acting P. J. We concur: /s/_________
Banke, J. /s/_________
Sanchez, J.