Opinion
B293996
10-05-2020
THE PEOPLE, Plaintiff and Respondent, v. JOHN C. PATRICK et al., Defendants and Appellants.
Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and Appellant John C. Patrick. Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant Ronald W. Collins. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen and Theresa A. Patterson, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. BA450794) APPEAL from a judgment of the Superior Court of Los Angeles County, Kathleen Kennedy, Judge. Affirmed. Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and Appellant John C. Patrick. Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant Ronald W. Collins. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
Appellants John C. Patrick and Ronald W. Collins were tried together with codefendants James Hill and Bernard Kajuan Smith for the drive-by shooting murder of Demond Jones. A fifth person, Kenyetta Loyd, was charged as an accessory after the fact and entered into a plea bargain prior to trial that included a condition that she testify truthfully at the trial.
The jury convicted Patrick of first degree murder (Pen. Code, § 187, subd. (a)) and of being a felon in possession of a firearm (§ 29800, subd. (a)(1)). The jury found true allegations that Patrick personally used and intentionally discharged a firearm causing death. (§ 12022.53, subds. (b)-(d).) Patrick admitted allegations that he had served three prior prison terms. (§ 667.5, subd. (b).)
Unless otherwise indicated, subsequent statutory references are to the Penal Code.
The jury convicted Collins of second degree murder. (§ 187, subd. (a)). In a bifurcated trial, the court found that Collins had been previously convicted of two prior serious felonies that qualify as strikes under the "Three Strikes" law. (§ 667, subds. (a)-(j).)
The jury could not reach findings as to gang enhancement allegations as to Patrick and Collins and the court declared a mistrial on these allegations.
The jury could not reach verdicts as to Hill and Smith, and the court declared a mistrial as to them.
The court sentenced Patrick to 50 years to life in prison, comprised of 25 years to life on the murder count plus a consecutive term of 25 years to life on the firearm enhancement. The court imposed and stayed a two-year sentence on the count of being a felon in possession of a firearm and struck the prison prior enhancements.
The court sentenced Collins to 55 years to life in prison, based upon a base term of 15 years to life for murder, which the court tripled pursuant to the Three Strikes law (§ 667, subds. (b)-(j)), plus five years for each of Collins's two prior serious felony convictions (§ 667, subd. (a)(1)).
Patrick and Collins appealed. Each challenge the admission of statements made by codefendants on the grounds that the admission of the evidence violated their Sixth Amendment right to confrontation and constituted inadmissible hearsay. Collins further argues that the trial court erred in denying his motion to sever his trial from that of his codefendants and that there was insufficient evidence to support his murder conviction because the inculpatory evidence from his accomplices lacked corroboration.
Patrick argues that the trial court should have exercised its discretion to strike his firearm enhancement or impose a lesser enhancement under section 12022.53, subdivision (h).
Collins asserts that the matter should be remanded for resentencing in light of Senate Bill No. 1393 (2017-2018 Reg. Sess.), which gives the trial court discretion to modify or strike prior serious felony enhancements.
Both appellants request that we remand the matter for a hearing to determine whether they have the ability to pay the restitution fines and court assessments imposed against them.
We reject the appellants' arguments and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
A. The Shooting of Demond Jones
Patrick and Collins are brothers. Patrick is a member of 51 Trouble Gangster Crips. Collins, Hill, and Smith are members of Six Deuce Harvard Park Brims, a Bloods gang. Their gangs shared a common enemy, the Rollin' 30's Neighborhood Crips (Neighborhood Crips).
On Tuesday, October 4, 2016, at around 8:00 p.m. or 9:00 p.m., Patrick, Collins, Smith, and Hill were drinking at Loyd's house. Around 10:00 p.m. or 11:00 p.m., Loyd allowed Patrick to drive a recently-rented burgundy sports utility vehicle (SUV) to the store to buy alcohol. Loyd did not hear any discussion about gangs, or enemies, or going on a mission, nor did she see any of the men with a gun. She did, however, observe Patrick and Hill throwing up gang hand signs during the evening.
Around 2:00 a.m. on October 5, Patrick, Collins, Smith, and Hill decided to leave Loyd's house. Patrick agreed to meet Loyd the next morning to help her return the rental car. Meanwhile, Loyd told Patrick he could use the rental car to drive the other men home. Loyd gave Patrick the keys to the SUV, but she did not see the men get into the car.
At 2:22 a.m. a person called 911 and reported that someone had pulled a gun on him and viciously attacked him in the vicinity of Normandie Avenue and Martin Luther King Jr. (MLK) Boulevard. The area is within territory claimed by the Neighborhood Crips gang.
Officer Robert Smith and another officer responded to the call. As they approached the intersection of Normandie Avenue and MLK Boulevard, Officer Smith heard four to seven gunshots. He saw a burgundy SUV driving very slowly as it made a right turn onto MLK Boulevard, directly in front of his patrol car. After the SUV made the turn, Officer Smith saw a man lying on the ground outside a restaurant. The man, Demond Jones, had been shot four times and died at the scene.
Officer Smith and his partner pursued the SUV at normal-to-slow speeds until approximately 42nd Street, when the SUV accelerated, went through a stop sign, and turned left. The officers activated their lights and siren, automatically activating the dash video recorder in their patrol car. The SUV eventually crashed on 47th Street. Officer Smith heard, but did not see, the crash, then witnessed people running from the vehicle. He had a view of the driver's side of the car but not the passenger side.
Officer Smith reported that he saw "three subjects" flee the vehicle. He saw codefendant Smith run from the driver's side and Hill run from the front of the vehicle. Officer Smith pursued Hill and Smith as they ran eastbound on 47th Street. A third person fled from the vehicle in the opposite direction. Police established a perimeter and Hill and Smith were soon apprehended. Patrick was taken into custody later that day. Officer Smith did not see Collins exit the SUV after the crash.
Officer Smith testified at the preliminary hearing that he saw codefendant Smith run from the driver's side of the vehicle, not the driver's seat. During trial, he stated that Smith had run from the driver's seat, but admitted that was an assumption and he did not note that fact in his report.
Police helicopters used in the pursuit of the defendants were equipped with technology that allowed them to detect heat from persons hiding under or inside objects. The helicopters did not detect a fourth suspect.
Officer Smith found a .38 caliber revolver on the ground outside the passenger side of the SUV. The revolver had five discharged cartridge casings inside it. During trial, a criminalist opined that the revolver fired the bullets that were recovered from the victim's body.
Patrick's fingerprints were found on the outside front driver's side door and on the revolver. Hill's thumbprint was found on the outside rear passenger door handle of the SUV. Collins's fingerprint was found on the gas tank door/cover.
A video surveillance recording of the incident showed an arm reaching out from the front passenger window of the SUV and firing one shot. The shooter wore a white tank top. Photographs taken near the time of Patrick's arrest show him wearing a white tank top.
B. The Jailhouse Telephone Calls and Conversations
In an October 5, 2016 telephone call from jail, Patrick told his mother, "Ronald [Collins], fucken was with me, man. He left. . . . I don't know why the fuck he didn't call you." In another jailhouse telephone call later that day with his girlfriend "Shay" (capitalization omitted), Shay asked Patrick "why [he did that]" and what he was thinking at the time of the murder. Patrick responded, "I wasn't." Patrick asked Shay, "You still love me, or you don't love me no more?" Shay told Patrick, "I do but why did you do that? What was you thinking?" Patrick again replied, "I wasn't thinking."
On October 6, 2019, during a jailhouse call with someone identified as "Tweet," Tweet asked Patrick what he was thinking on the night of the crime. Patrick responded, "I wasn't thinking shit, and I wasn't even doing shit. It was some spur of the moment shit. I didn't even know this shit was going on." When Tweet said that an "innocent person" was dead, Patrick responded, "He wasn't no innocent dude."
On October 5, 2016, Hill spoke with his mother and someone identified as "Link," by telephone from jail. Link told Hill that "[t]hey gonna try to say you're an accessory even though you didn't pull the trigger," to which Hill responded, "Yeah." Link asked if Hill "was with [Collins], too" at the time of the murder, and Hill responded, "Yeah." Hill's mother and Link then told Hill that the news had reported that there were only three occupants of the SUV and "they got everybody." Hill said, "So that mean . . . he got away then and shit." When Link asked, "Who? The other dude?" Hill responded, "Yeah. The name . . . [¶] . . . [¶] . . . you just said. [¶] . . . [¶] . . . Must've because there's only three of us here." Link responded, "Damn. Yeah, the news said . . . that they only caught three people. I don't even think they know. They don't even think it was a fourth person."
On October 6, 2016, Loyd visited Smith in jail. Smith initially told Loyd he was asleep during the incident, but when Loyd pressed him, he told her "they" shot someone. Smith later told Loyd that "Little" shot someone, which Loyd understood to be a reference to Patrick. Smith said Patrick was in the front passenger seat, Collins was driving, and he and Hill were in the back seat of the SUV. Smith told Loyd there was a big bang and they hopped out of the car and started running.
Smith encouraged Loyd to report the rented SUV as stolen as a way to disassociate herself from the murder. Loyd did so, filing a false police report and stating she still had the keys to the car. In a subsequent interview by law enforcement, when questioned about the stolen vehicle report, Loyd confirmed the SUV was stolen. Loyd would later testify at trial that she told a number of lies during that interview.
Testifying at trial about another interview by law enforcement four days later, Loyd claimed "some of it was a lie and some . . . truthful." She claimed that after being told that lying to law enforcement was a crime, she decided to tell the truth. Among other things, Loyd eventually told the interviewing officer that she had assumed Patrick was the driver of the SUV on the night of the shooting, but Smith had told her Collins was driving and Patrick was in the front passenger seat during the shooting. At the conclusion of her second interview, Loyd was arrested and charged with being an accessory after the fact. She eventually entered into a plea bargain and agreed to testify at the trial of the four codefendants.
DISCUSSION
A. The Trial Court Did Not Err by Admitting the Jailhouse Conversations
Patrick and Collins argue that the admission of incriminating statements made by codefendants during jailhouse calls and Loyd's visit with Smith violated their Sixth Amendment right of confrontation. In particular, they challenge Hill's statements to Link and Smith's statements to Loyd that Patrick was sitting in the front passenger seat of the SUV and was the shooter, that Collins was the driver, and that Smith and Hill were in the backseat. Collins also challenges the statements Patrick made to his mother that Collins was with him and "got away." Patrick and Collins further argue that the challenged statements are inadmissible hearsay and that their admission was prejudicial. We reject these arguments.
1. Sixth Amendment right to confrontation
"The Sixth Amendment's Confrontation Clause provides that, '[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.' " (Crawford v. Washington (2004) 541 U.S. 36, 42.) The Confrontation Clause's "express reference to 'witnesses' reflects its focus on those who ' "bear testimony," ' which typically is ' "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." ' [Citation.] 'An accuser who makes a formal statement to government officers,' . . . 'bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.' [Citation.]" (People v. Cage (2007) 40 Cal.4th 965, 977-978 (Cage).) Thus, in order to qualify as testimonial and, therefore, be subject to the Confrontation Clause, "the statement must have been given and taken primarily for the purpose ascribed to testimony—to establish or prove some past fact for possible use in a criminal trial." (Id. at p. 984, italics omitted.)
"[T]he primary purpose for which a statement was given and taken is to be determined 'objectively,' considering all the circumstances that might reasonably bear on the intent of the participants in the conversation." (Cage, supra, 40 Cal.4th at p. 984.) "[T]he question is whether, in light of all the circumstances, viewed objectively, the 'primary purpose' of the conversation was to 'creat[e] an out-of-court substitute for trial testimony.' " (Ohio v. Clark (2015) 576 U.S. 237, 245.) Relevant factors include: whether the person to whom the statement is made is a law enforcement officer or other person "principally charged with uncovering and prosecuting criminal behavior" (id. at p. 249); whether the statement is made with "the formality and solemnity characteristic of testimony" (Cage, supra, 40 Cal.4th at p. 984); and whether the statement was made for the purpose of dealing with a contemporaneous emergency or public threat (Michigan v. Bryant (2011) 562 U.S. 344, 373; Davis v. Washington (2006) 547 U.S. 813, 827).
Here, the circumstances under which the challenged statements were made, viewed objectively, do not indicate that the statements were made for the purpose of creating out-of-court substitutes for trial testimony. Patrick made the statement to his mother that Collins was with him and "got away," and Hill made his similar statements to his mother and Link. Smith made his statements during a jailhouse visit with Loyd, a friend or acquaintance. None of the challenged statements was made to someone charged with uncovering and prosecuting criminal behavior and the nature of the conversations were informal and lacking the solemnity of testimony. There is, in short, nothing about the calls or Loyd's jailhouse visit to suggest that the primary purpose of any of the statements was "to establish or prove some past fact for possible use in a criminal trial." (Cage, supra, 40 Cal.4th at p. 984.) The statements, therefore, were not testimonial and their use at trial did not violate the confrontation clause.
Appellants point out that Hill and Patrick were informed that their jailhouse telephone calls were being recorded and jail inmates have no expectation of privacy. Moreover, they argue, the recording of jailhouse calls is a means by which law enforcement obtains evidence for use at trial. These facts, however, do not alter our conclusion. Although recorded jailhouse calls can be used as evidence and the participants in the calls may have been aware of that, in light of all the circumstances, these facts do not establish that the primary purpose of the jailhouse conversations was to create out-of-court substitutes for trial testimony. (See U.S. v. Jones (4th Cir. 2013) 716 F.3d 851, 856 [statements made by two coconspirators during recorded jailhouse phone calls with the defendant were nontestimonial because declarants did not demonstrate an intent to "bear witness" against defendant]; U.S. v. Castro-Davis (1st Cir. 2010) 612 F.3d 53, 65 [statements made by codefendant in recorded jailhouse call to codefendant's mother were not testimonial, despite warnings that telephone conversations were recorded].)
2. Hearsay
Collins contends that Patrick's statement to Patrick's mother that Collins "was with me" and Hill's similar statement to Link constitute inadmissible hearsay, the admission of which was prejudicial. Patrick and Collins argue that Smith's statements to Loyd that Collins was the driver of the SUV, Patrick was the shooter, and he and Hill were in the backseat are also inadmissible and prejudicial hearsay. We disagree.
The trial court ruled that the challenged statements were admissible as statements against penal interest under Evidence Code section 1230. We review the ruling for an abuse of discretion. (People v. Grimes (2016) 1 Cal.5th 698, 711-712 (Grimes); People v. Lawley (2002) 27 Cal.4th 102, 153.)
Evidence Code section 1230 provides in relevant part: "Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, . . . so far subjected him to the risk of . . . criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true."
"To demonstrate that an out-of-court declaration is admissible as a declaration against interest, '[t]he proponent of such evidence must show that the declarant is unavailable, that the declaration was against the declarant's penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.' [Citation.] 'In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant.' " (Grimes, supra, 1 Cal.5th at p. 711.) When the exception applies, the court may allow not only the declarant's statements that are "disserving of the declarant's penal interests," but also those that are " 'inextricably tied to and part of a specific statement against penal interest' " and "not merely 'self-serving.' " (Grimes, supra, 1 Cal.5th at p. 715.)
Here, the court could reasonably conclude that the statements by Patrick, Hill, and Smith that they were in the SUV during the shooting were against their penal interest by exposing them to potential liability as aiders and abettors, and that their statements about Collins and Patrick being in the SUV and acting as the driver and shooter, respectively, were admissible as statements inextricably tied to their admissions.
Among the factors to be considered for purposes of aiding and abetting liability are presence at the scene of the crime, companionship, and conduct before and after the offense. (People v. Campbell (1994) 25 Cal.App.4th 402, 409.) Here, there was evidence that the occupants of the SUV were members of gangs that were rivals of the Neighborhood Crips. Cellular phone video taken at Loyd's house while the four codefendants were together shortly before the murder showed Patrick making a hand sign that was disrespectful to Neighborhood Crips. That night, the four codefendants left Loyd's house together and drove into Neighborhood Crips territory with at least one of them armed with a firearm. These circumstances suggest that the SUV occupants were not mere innocent passengers, but coconspirators or aiders and abettors sharing a criminal intent. (See People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) The declarants' flight from the SUV and Smith's encouragement to Loyd to report falsely that the SUV had been stolen also suggests consciousness of guilt. Based on these circumstances, the court could reasonably conclude that statements placing the declarants and their cohorts in the SUV at the time of the murder were contrary to the declarants' penal interest and would not have been made by reasonable persons unless the declarants believed them to be true. Although the statements that Collins was with the declarants in the SUV and Smith's statements as to who was driving, shooting, and sitting in the back seat might not "independently disserv[e]" the declarants' respective penal interests, the court could reasonably conclude that such statements were " 'inextricably tied to and part of . . . specific statement[s] against penal interest.' " (Grimes, supra, 1 Cal.5th at p. 715.)
Appellants rely on People v. Gallardo (2017) 18 Cal.App.5th 51 (Gallardo), for the argument that Smith's statement to Loyd that Smith and Hill were in the back seat of the SUV at the time Patrick started shooting was unreliable because Smith "shifted the major responsibility for the crime onto Patrick." In Gallardo, the prosecution introduced evidence of a jailhouse conversation between Angel Gallardo (Angel) and two paid informants who were posing as inmates. (Id. at p. 55.) During the conversation, Angel told the informants that Michael Gallardo (Michael) drove a third defendant, Garcia, to shoot the victims while Angel waited around the corner in a "getaway" vehicle. (Ibid.) The Court of Appeal reversed Michael's and Garcia's convictions, explaining that Angel's statements "were too ' "self-serving and unreliable" ' [citation] to qualify as declarations against his penal interest." (Id. at p. 74.) The court pointed to Angel's numerous statements during the conversation expressing frustration that "someone had been 'snitching,' and was 'trying to say I'm the shooter.' " (Id. at p. 73.)
Here, there is no suggestion that Smith made his statements as to where the occupants were sitting in the SUV because someone had been trying to say that he was the shooter or to otherwise shift blame away from him. Thus, the indicia that led the Gallardo court to conclude Angel's statements served "primarily to 'minimize [his] role and place the blame . . . on [his] accomplice[s]' " (Gallardo, supra, 18 Cal.App.5th at p. 74) are not present here.
Appellants further argue that Smith's statement to Lloyd that Collins was the driver is unreliable because Officer Smith had initially reported that codefendant Smith exited the SUV from the driver's seat. Officer Smith testified at the preliminary hearing and during trial, however, that he saw Smith outside the driver's side door, but did not see him in the driver's seat and had merely assumed that codefendant Smith was the driver. The court could reasonably conclude that Officer Smith's testimony and codefendant Smith's testimony did not conflict and that codefendant Smith's statements to Loyd was reliable. The court's rejection of other challenges to codefendant Smith's reliability—such as that he had changed his story to Loyd and had conspired with Loyd to file a false report regarding the SUV—were within the court's discretion.
Appellants also challenge Loyd's credibility on the ground that she was purportedly "pressured" by officers to name Collins as the driver. Loyd, however, testified at trial and was subject to cross-examination; her credibility was for the jury to evaluate.
B. The Court Did Not Err in denying Collins's Motion to Sever and Corroboration of the Codefendants' Hearsay Statements Was Not Required
Collins makes two arguments that depend upon his prevailing on the evidentiary arguments discussed above. First, he asserts the trial court erred in denying his motion to sever his trial from that of his codefendants because consolidation resulted in admission of the challenged statements by Patrick, Hill, and Smith against him. Such statements, he contends, are testimonial hearsay that could not have been introduced against him in a separate trial. Because we concluded in the preceding part that the court did not err in allowing the challenged statements into evidence against Collins, Collins's basis for severance fails. The court, therefore, did not err in denying his motion to sever.
Second, Collins contends that the evidence is insufficient to support the convictions because it is based largely upon the statements of accomplices—that is, the statements made by Patrick and Hill during their jailhouse calls and by Smith during his visit with Loyd. Even if we assume that other evidence would be insufficient to support the conviction, the rule that accomplice testimony must be corroborated by other evidence connecting the defendant to the crime (§ 1111) does not apply when the accomplice testimony consists of statements against the accomplice's penal interest. (People v. Brown (2003) 31 Cal.4th 518, 555-556.) Because the challenged statements by Collins's accomplices were admissible as statements against penal interest, no corroboration was required.
C. Patrick Is Not Entitled to Remand for Resentencing on the Firearm Enhancement
The jury found Patrick guilty of both counts charged against him, to wit, murder and being a felon in possession of a weapon. As to the murder charge, the jury returned true findings on firearm allegations based on subdivisions (b), (c) and (d) of section 12022.53. These subdivisions set forth sentence enhancements based upon the nature and effect of the use of a firearm in the commission of certain crimes, including murder. Subdivision (b) adds a 10-year term for the personal use of a firearm; subdivision (c) adds a 20-year term for personal and intentional discharge of a firearm; and subdivision (d) adds 25 years for the personal and intentional discharge of a firearm that proximately caused great bodily injury or death to any person other than an accomplice. If more than one such enhancement is alleged and proved, the court may impose only one per crime. (§ 12022.53, subd. (f).)
When Patrick was sentenced on November 15, 2018, the court imposed the 25-year enhancement under section 12022.53, subdivision (d), without objection or request from Patrick to strike the enhancements or impose a lesser enhancement.
Patrick argues that we should remand the case so that the court may exercise its discretion to strike or modify the enhancement. He relies on section 12022.53, subdivision (h), which provides that the "court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section." The Legislature enacted this provision in 2017 as part of Senate Bill No. 620 (Stats. 2017, ch. 682, § 2, p. 5105), which took effect on January 1, 2018—11 months before Patrick's sentencing.
Initially, we agree with the Attorney General that Patrick has forfeited the argument by failing to raise it below. (See People v. Scott (1994) 9 Cal.4th 331, 352 [sentencing issues are waived if not raised when sentence is imposed].)
The argument also fails on the merits. Patrick assumes that the absence of any mention in the record that the court considered whether to strike the 25-year enhancement implies that the court was unaware of such discretion. To the contrary, reviewing courts presume "on a silent record that the trial court is aware of the applicable law, including statutory discretion at sentencing, [and] we cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of that discretion." (People v. Gutierrez (2009) 174 Cal.App.4th 515, 527; see People v. Lee (2017) 16 Cal.App.5th 861, 867 [where record is silent on discretionary sentencing issue, "the defendant has failed to sustain his burden of proving error, and we affirm"].) Here, there is nothing in our record to rebut the presumption that the court was aware of its discretion to strike Patrick's firearm enhancement or that it misunderstood the scope of that discretion.
Patrick's reliance on People v. McDaniels (2018) 22 Cal.App.5th 420, and People v. Billingsley (2018) 22 Cal.App.5th 1076 is misplaced because in these cases the courts sentenced the defendant prior to the enactment of Senate Bill No. 620. Because the new law applied retroactively to defendants whose judgments were not yet final, the defendants in those cases were entitled to remand so that the court could decide whether and how to exercise its discretion. (People v. McDaniels, supra, 22 Cal.App.5th at pp. 424-425; People v. Billingsley, supra, 22 Cal.App.5th at pp. 1079-1080.) Here, there is no issue of retroactivity and no corresponding need for remand because the law was in effect when Patrick was sentenced.
Patrick also relies on People v. Morrison (2019) 34 Cal.App.5th 217. In that case, the prosecution had alleged and the jury found true the 25-year enhancement under section 12022.53, subdivision (d) only; the prosecution had not alleged a lesser enhancement. At sentencing, the court declined to strike the enhancement. The Court of Appeal remanded for resentencing because the court was unaware of a new rule, announced in Morrison, that a court may impose a lesser firearm enhancement in lieu of a greater enhancement even though the lesser enhancement had not been alleged or proved. (People v. Morrison, supra, at pp. 222-224.) Because the court was unaware of the scope of its discretion under this rule, remand was proper so that the court could consider such discretion. (Id. at p. 224.) Here, by contrast, the rule announced in Morrison does not apply because the prosecution in this case alleged, and the jury found, the lesser firearm enhancements, and there is no reason to believe that the court was unaware that it could strike the section 12022.53, subdivision (d) enhancement and leave in place the jury's finding on a lesser enhancement. Morrison, therefore, does not help Patrick.
D. The Trial Court Did Not Err in Declining to Strike the Serious Felony Enhancements to Collins's Sentence
Collins requests that we remand this case for resentencing based upon a recent amendment of section 1385. (See Sen. Bill No. 1393 (2017-2018 Reg. Sess.); Stats. 2018, ch. 1013, § 2.) We decline the request.
Collins's sentence includes two 5-year enhancements for prior serious felony convictions pursuant to section 667, subdivision (a)(1). At the time the court sentenced Collins in November 2018, trial courts had no authority to strike enhancements imposed under section 667, subdivision (a)(1). (People v. Valencia (1989) 207 Cal.App.3d 1042, 1045-1047.) Senate Bill No. 1393, which had been enacted at the time of Collins's sentencing but did not become effective until January 1, 2019, removed the prohibition on striking such enhancements. (Sen. Bill No. 1393 (2017-2018 Reg. Sess.); Stats. 2018, ch. 1013, § 2.) The new law applies to Collins retroactively. (See People v. Zamora (2019) 35 Cal.App.5th 200, 208.)
Notwithstanding the trial court's subsequently-acquired discretion to strike enhancements proven under section 667, subdivision (a)(1), we reject Collins's request to remand the matter for further consideration because the record indicates that remand for that purpose would be futile.
During the sentencing hearing, Collins's counsel, apparently anticipating the impending change in the law, asked the court to "exercise its discretion to strike the [section] 667 five-year prior," noting that Collins was not the shooter and was unarmed, that the victim had thrown out gang signs, and that aside from his two most recent convictions, Collins's other prior convictions were for relatively minor offenses.
The trial court declined to dismiss the prior serious felony enhancements and engaged in a substantive colloquy regarding the "senseless" nature of the shooting and Collins's "pattern of violent conduct": "And it seems to me that the four defendants were looking for somebody. Now I don't know if they were looking for somebody because of this prior shooting . . . involving [Collins's gang] that occurred . . . a couple days before . . . or they were just bored, or they just had been in a party and what does one do after a party but go out and shoot a rival? I don't know. But if it's any of those things, it's all senseless and there is no justification. . . . And there was nothing between this victim and the defendants that to me amounts to some kind of provocation or—and I don't think throwing a gang sign . . . does not give . . . the defendants the right to shoot and kill him."
Although the trial court had no discretion to dismiss the prior serious felony enhancements at the time of sentencing, we agree with the Attorney General that the court's comments signaled an unwillingness to exercise such discretion even if it had the power to do so. (See People v. Jones (2019) 32 Cal.App.5th 267, 273 [appellant court "review[s] the trial court's statements and sentencing decisions to infer what its intent would have been"].) Based on this record, we conclude the trial court would not have stricken the serious felony priors. Accordingly, we will not remand the matter for resentencing on the enhancement imposed under section 667, subdivision (a)(1).
E. The Trial Court Did Not Err in Imposing Fees and Fines
Appellants argue that, under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the trial court violated their federal constitutional rights by imposing a $30 court facilities assessment (Gov. Code, § 70373) as to each offense, a $40 court operations assessment (§ 1465.8) as to each offense, and a $10,000 restitution fine (§ 1202.4, subd. (b)) as to each appellant, without first determining whether the appellants have the ability to pay them. Appellants request that we remand the matter to the trial court for an ability to pay hearing. We decline to do so.
1. The Dueñas decision
In Dueñas, Division 7 of this court concluded that the trial court erred when it imposed fees and a restitution fine on Dueñas—a homeless, unemployed mother of three with cerebral palsy—despite the record reflecting her inability to pay those fines and fees. (Dueñas, supra, 30 Cal.App.5th at p. 1162.) Dueñas was convicted of driving with a suspended license. (Id. at pp. 1161-1162.) She had four previous misdemeanor convictions for driving without a valid license, in connection with which she had been assessed other fines and fees she was likewise unable to pay, "caus[ing] her financial obligations to 'snowball.' " (Id. at p. 1164.) The record in Dueñas established Dueñas's persistent state of poverty and inability to pay, barriers to employment and family circumstances that made continued poverty likely, and a cycle of convictions and unpaid fines associated with her indigence. (Id. at p. 1163.) The trial court concluded that the fees and fine were mandatory, and that the evidence of Dueñas's inability to pay did not permit the court to stay or waive them. (Id. at pp. 1162-1163.)
The Court of Appeal reversed. The bedrock of its holding was that imposing fines on defendants who lack the ability to pay them has "cascading" and "potentially devastating consequences"—some of which were "illustrate[d]" by the evidence before it regarding Dueñas's situation—and that these consequences constitute "additional punishment for a criminal conviction for those unable to pay." (Dueñas, supra, 30 Cal.App.5th at pp. 1163, 1168.) Specifically, the court discussed both practical and legal consequences that defendants unable to pay face when fines are imposed, but that nonindigent, otherwise-similarly-situated defendants do not. (Id. at pp. 1170-1171.) Dueñas concluded that, because such consequences flow directly from a defendant's inability to pay—as opposed to from any criminal misconduct—they violate the constitutional prohibition on punishment based solely on a criminal defendant's poverty. (See id. at pp. 1166-1167, citing In re Antazo (1970) 3 Cal.3d 100, 108, 115 and Bearden v. Georgia (1983) 461 U.S. 660, 667-668.)
Whether trial courts must determine a criminal defendant's ability to pay fines and assessments before imposing them is currently being considered by our state Supreme Court. (People v. Kopp (2019) 38 Cal.App.5th 47, review granted on specified issues Nov. 13, 2019, S257844; Supreme Ct. Minutes, Nov. 13, 2019, p. 1622.)
2. Dueñas does not apply here
We reviewed the holding of Dueñas in People v. Caceres (2019) 39 Cal.App.5th 917 (Caceres). We held that it applied to limited factual situations, such as those present in Dueñas. (Id. at p. 928.) We "decline[d] to apply its broad holding requiring trial courts in all cases to determine a defendant's ability to pay before imposing court assessments or restitution fines." (Ibid.)
The facts of appellants' case are distinguishable from Dueñas. The Court of Appeal noted that Dueñas's situation stemmed "from a series of criminal proceedings driven by, and contributing to, Dueñas's poverty," rather than " 'from one case for which she's not capable of paying the fines and fees." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) As punishment for driving without a license Dueñas could not afford to obtain, the court ordered her to pay fines and fees she could not afford to pay. Here, by contrast, the fees and fines were part of appellants' sentence for conduct wholly unrelated to their financial situation: namely, murder. Nothing suggests that ordering appellants to pay the challenged fees or fines will perpetuate a cycle of poverty like that at play in Dueñas. Nor is there any basis for concluding such financial obligations—whether or not appellants have the present ability to satisfy them—will make it more likely appellants will commit another crime. (See id. at p. 1168 [discussing "recidivism" as an indirect effect of imposing fines a defendant cannot pay].)
Nothing similar to the unique set of facts that led the Dueñas court to find a constitutional violation is present here. Accordingly, we affirm the fees and fines imposed by the trial court.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P.J. We concur:
BENDIX, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.