Opinion
F075300
02-14-2020
THE PEOPLE, Plaintiff and Respondent, v. RICARDO ROSAS, Defendant and Appellant.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Janet E. Neeley and R. Todd Marshall, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F16906166)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Jonathan M. Skiles, Judge. Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Janet E. Neeley and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
A jury convicted appellant Ricardo Rosas of numerous crimes after he held his former girlfriend captive in her apartment over a three-day period. He was convicted of willful infliction of corporal injury (Pen. Code, § 273.5, subd. (f)(1); count 2); two counts of false imprisonment (§ 236; counts 1 and 5); making criminal threats (§ 422; count 3); and seven counts of intimidating a witness (§ 136.1, subd. (c)(1); count 4/ § 136.1 subd. (b)(2); counts 6-11).
All future statutory references are to the Penal Code unless otherwise noted.
The trial court sentenced appellant to an aggregate term of 22 years in state prison. As part of this sentence, appellant received two one-year prior prison term enhancements under section 667.5, subdivision (b). The court imposed a $330 criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)); a $440 court operations assessment (§ 1465.8, subd. (a)(1)); a minimum restitution fine of $300 (§ 1202.4, subd. (b)(1)); and a $300 parole revocation fine (§ 1202.45, subd. (a), which was stayed pending successful completion of parole). The court did not ascertain appellant's ability to pay these fees, fines and assessments prior to imposing them.
A restitution fine (§ 1202.4, subd. (b)(1)) represents punishment. (People v. Hanson (2000) 23 Cal.4th 355, 361-363.) In contrast, a court operations assessment (§ 1465.8, subd. (a)(1)) and a criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)) are not considered punishment. (People v. Alford (2007) 42 Cal.4th 749, 757 [§ 1465.8]; People v. Knightbent (2010) 186 Cal.App.4th 1105, 1112 [Gov. Code, § 70373].)
Appellant argues that substantial evidence does not support his conviction in count 4 (intimidating a witness). He also asserts that instructional error occurred in this count. We agree with both of his assertions. We reverse that conviction and retrial is barred.
Via supplemental briefing, appellant contends that imposition of the assessments under section 1465.8 and Government Code section 70373, and the restitution fine under section 1202.4, violated his rights to due process and equal protection. He relies primarily on People v. Dueñas (2019) 30 Cal.App.5th 1157, 1164 (Dueñas). We find appellant's reliance on Dueñas unavailing. It is distinguishable from the present matter. In any event, even if Dueñas applies, appellant's constitutional rights were not violated and any presumed error was harmless.
Via further supplemental briefing, we agree with the parties that Senate Bill No. 136 (2019-2020 Reg. Sess.; Senate Bill 136) retroactively applies to appellant, who benefits from this change in law. As a result, the prior prison term enhancements imposed in this matter under section 667.5, subdivision (b), must be struck. We will remand this matter for resentencing.
Finally, our independent review of the record has revealed a clerical mistake in the first amended abstract of judgment. Appellant was convicted in count 6 of intimidating a witness under section 136.1, subdivision (b)(2). The abstract, however, shows this conviction under subdivision (c)(2). Following resentencing, the court shall correct this clerical error in the new abstract of judgment.
We reverse the conviction in count 4 for insufficient evidence. We remand this matter for resentencing and direct the court to strike the prior prison term enhancements. We otherwise affirm the judgment.
BACKGROUND
We summarize the material trial facts. We provide additional facts later in this opinion when relevant to specific issues raised on appeal.
I. The Prosecution's Case-In-Chief.
Although a warrant was issued for her, the victim in this matter, S.Q., did not testify at either the preliminary hearing or at trial. The prosecution established appellant's guilt primarily through S.Q.'s statements to law enforcement. The jury also heard recordings from six of appellant's jail calls. These recordings were the basis of his convictions for intimidating a witness (§ 136.1, subd. (b)(2)) in counts 6 through 11.
A. Appellant abducts S.Q. and keeps her trapped in her apartment.
Prior to these events, appellant and S.Q. had been involved in a romantic relationship. On July 4, 2016, S.Q. ended their relationship. The following day, S.Q. was outside on a bicycle in the vicinity of her apartment. Appellant suddenly appeared. He grabbed her and forced her back to her apartment. From that day and until July 7, 2016, he held her inside her apartment against her will. At various times during those three days, he beat her, he threatened he would kill her, he brandished a knife at her, and he tried to tie her up with an extension cord.
On July 6, 2016, the second day of S.Q.'s captivity, some specific events occurred which are relevant to the issues raised on appeal. A friend knocked on S.Q.'s door. S.Q. was too scared to do anything. She later told a police officer that, if she had said something, appellant would have hit her, so she just stayed quiet. That friend eventually left. That same day, S.Q. saw the "shadow" of a person walk past a window and that person went to her front door. That person knocked but eventually left. Appellant threatened S.Q., telling her "she needed to keep her mouth shut and not say anything." Later that same day, some of S.Q.'s family members came to her apartment, along with a manager of the complex. S.Q. did not attempt to open her door, and she did not communicate with anyone outside. S.Q. later told a police officer that, when the individuals left the front door of her apartment, appellant had told her he would kill her if she were to report his actions.
On July 7, 2016, the last day of her captivity, appellant left the apartment and he forced S.Q. to go with him. He went to several locations in an apparent attempt to purchase drugs. He took some of her cash. When they were walking back towards her apartment, S.Q. complained that she felt ill, and she wanted to go. Appellant accused her of wanting to report him to police. At some point, he handed S.Q. items he had taken from her, such as her wallet and keys. He then walked away from her. Once she was alone, she ran to a relative's residence, and she called police. She wanted to press charges and she wanted appellant arrested.
On July 7, 2016, a police officer contacted S.Q. She had bruises on her face, head and left arm. She complained of pain around her left ear and pain in her left shoulder. The officer took photographs of S.Q.'s injuries, which were moved into evidence at trial. On July 8, 2016, another police officer contacted S.Q. at her residence. She gave the officer appellant's folding knife, which she had found inside her apartment when she returned. S.Q. told the officer that appellant had recently called her asking if she had reported the incident to police. The officer advised S.Q. to not answer any of appellant's phone calls. The following day, police located and arrested appellant.
On July 13, 2016, an officer spoke with S.Q. She disclosed that appellant had been calling her from jail and leaving her messages. In those messages, appellant told her he cared for her and he told her not to testify. S.Q. told the officer that she was not answering appellant's calls.
B. Appellant's recorded jail calls.
While in jail, appellant had six telephone conversations with S.Q. These conversations were recorded and played for the jury. During these various calls, appellant encouraged S.Q. not to appear in court against him. Appellant cautioned that, if she testified, he was facing 16 years in prison. On one occasion, he advised her to tell police that the bruises were caused by a fight she had with another female.
The record establishes that these six jail calls formed the basis for appellant's convictions in counts 6 through 11 for intimidating a witness (§ 136.1, subd. (b)(2)).
C. Appellant's prior convictions for domestic violence.
At trial, the jury learned that, when speaking with the officer on July 7, 2016, S.Q. said she had felt "a great deal of fear" when appellant had been hitting her. She knew appellant had abused a prior girlfriend, who had reported that prior abuse. After reporting it, some of appellant's associates had beaten the prior girlfriend for making a report against appellant. At trial, this officer confirmed that this prior girlfriend had made a report of domestic violence against appellant.
At trial, the parties stipulated that appellant had prior domestic violence convictions from 2008, 2009 and 2012.
II. The Defense Evidence.
Appellant testified at trial. He generally denied threatening S.Q. during the days in question or causing any of her injuries. He admitted he had contacted her during this time period, but he claimed he had been trying to get his stuff back from her following their breakup. According to appellant, S.Q. received her injuries from another woman after the two women got into a fight over him. He admitted calling S.Q. while he was in jail, but he claimed it was to determine her state of mind because she was "already jealous" and he wanted to see what she was trying to do or say. He admitted that he told S.Q. to "dodge the system," but he said that was also her plan.
DISCUSSION
I. We Reverse Count 4 Based On Insufficient Evidence.
In count 4, the jury convicted appellant of intimidating a witness in violation of section 136.1. The jury found true that appellant used or threatened to use force or violence when committing this crime. In counts 6 through 11, appellant was convicted of six additional charges of intimidating a witness (§ 136.1, subd. (b)(2)). Respondent acknowledges that those six convictions were based on appellant's six recorded jail calls.
During closing argument, the prosecutor stated that the incident supporting the charge in count 4 occurred when the neighbor knocked on S.Q.'s door on the second day of her captivity. Once that person left, appellant told S.Q. not to say anything or he would beat her. According to the prosecutor, appellant discouraged or tried to prevent S.Q. from reporting his crimes during this incident, making him guilty in count 4.
In two separate but related claims, appellant argues that the prosecution presented insufficient evidence to support this conviction. He also contends that instructional error occurred. We agree with both of appellant's assertions and we reverse the conviction in count 4. The jury was never informed or instructed that appellant must have prevented or dissuaded S.Q. from reporting her victimization to a "peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge." (§ 136.1, subd. (b)(1).) As we explain below, the jury was not given a unanimity instruction in count 4, and we are bound by the prosecutor's election regarding the incident supporting this charge. Contrary to respondent's assertions, it is impossible to determine what other evidence, if any, the jury may have unanimously relied upon in reaching its conviction in count 4.
A. The standard of review.
When considering a challenge to the sufficiency of the evidence to support a conviction, we review the record in the light most favorable to the judgment and decide whether it contains substantial evidence from which a reasonable finder of fact could make the necessary finding beyond a reasonable doubt. The evidence must be reasonable, credible and of solid value. We presume every inference in support of the judgment that the finder of fact could reasonably have made. We do not reweigh the evidence or reevaluate witness credibility. We cannot reverse the judgment merely because the evidence could be reconciled with a contrary finding. (People v. D'Arcy (2010) 48 Cal.4th 257, 293.)
B. Analysis.
Section 136.1 makes it a crime to intimidate a witness or victim. There are several ways criminal liability may occur, and we summarize those which are relevant here. We highlight the legal elements which are at issue in this claim.
First, a person may not knowingly and maliciously prevent or dissuade (or attempt to do so) any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law. (§ 136.1, subd. (a)(1), (2).)
Second, a person may not attempt to prevent or dissuade a victim of a crime from "[m]aking any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge." (§ 136.1, subd. (b)(1), italics added.)
Third, a person may not attempt to prevent or dissuade a victim of a crime from "[c]ausing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof." (§ 136.1, subd. (b)(2).)
Finally, any person doing any of the acts described above is guilty of a felony punishable in state prison for two, three or four years if the act is accompanied by force or by an express or implied threat of force or violence upon a witness or victim. (§ 136.1, subd. (c)(1).)
In this matter, the court properly instructed the jury on most of these required elements. The court, however, omitted the requirement from section 136.1, subdivision (b)(1), that appellant was required to prevent or discourage S.Q. from making a report to "any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge." Instead, the jury was merely told that appellant was guilty if he maliciously tried to prevent or discourage S.Q. from making a report that she was a victim of a crime of domestic violence. In short, the jury was never informed that S.Q.'s report was required to go to a particular official.
CALCRIM No. 2622 contains a blank for a trial court to fill in regarding the specific type of official to whom the victim wanted to report her victimization under section 136.1, subdivision (b)(1).
During closing argument, the prosecutor stated that appellant was guilty in count 4 when the neighbor knocked on S.Q.'s door on July 6, 2016 (the second day of S.Q.'s captivity), and, once that person left, appellant told S.Q. not to say anything or he would beat her. The prosecutor asserted that this showed appellant was "specifically discouraging or trying to prevent her from making a report of what had just taken place the day and a half prior." The prosecutor argued that appellant used force, or a threat of force or violence, when he discouraged her.
The jury instruction given in this matter was flawed because it omitted a required element that appellant had to prevent S.Q. from reporting her victimization to someone in law enforcement. The prosecutor's argument exacerbated that error. According to the prosecutor, appellant was guilty because he prevented S.Q. from reporting her victimization to the people outside her door. No evidence, however, established or even reasonably suggested that the neighbor, or anyone else who knocked on the door that day, were members of law enforcement. As a result, a required element was not established regarding appellant's guilt in count 4. In short, substantial evidence does not support this conviction.
Because we reverse count 4 for insufficient evidence, we do not discuss in depth appellant's alternative claim of instructional error. We agree, however, that instructional error occurred when the trial court omitted the requirement that appellant had to prevent S.Q. from reporting her victimization to a particular official. (See CALCRIM No. 2622.)
Substantial evidence supports a conviction of section 136.1, subdivision (b)(1), when the jury could reasonably infer a defendant knew the victim was attempting to contact the police for assistance. (People v. McElroy (2005) 126 Cal.App.4th 874, 881-882 [finding substantial evidence when defendant prevented victim from calling police].)
Respondent correctly notes that the information charged appellant in count 4 with a violation of section 136.1 under either subdivision (a) or (b). The information further alleged that appellant used force, or a threat of force or violence, in violation of section 136.1, subdivision (c)(1). Respondent argues that substantial evidence supports the verdict in count 4 because appellant violated other provisions of section 136.1. According to respondent, the jury was not limited to deciding guilt based on the prosecutor's argument. Respondent also contends that appellant "vicariously" prevented S.Q. from reporting her victimization to law enforcement. According to respondent, the various people who knocked on S.Q.'s door on July 6, 2016, could have contacted police on her behalf. Respondent's various arguments fail.
First, respondent relies on speculation to establish substantial evidence. Although it is possible the people who knocked on S.Q.'s door would have reported appellant's actions to police, we may not rely on speculation, conjecture, surmise and guesswork to find substantial evidence. (People v. Perez (2017) 18 Cal.App.5th 598, 607.) It is also not permissible to base an inference on mere suspicion or imagination. (People v. Davis (2013) 57 Cal.4th 353, 360.) The evidence from this record does not establish that, when the various people knocked on her door, appellant knew that S.Q. was attempting to contact police for assistance. This record does not demonstrate or even reasonably imply that, had S.Q. spoken with someone outside her door, law enforcement would have been contacted. As such, we reject respondent's position that we may surmise what might have happened had S.Q. been able to speak with those various individuals.
Moreover, in a criminal case, a jury verdict must be unanimous and the jury must agree the defendant is guilty of a specific crime. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Thus, when the evidence suggests more than one discrete crime, either the prosecution must elect the specific act relied upon to prove the charge, or the jury must receive a unanimity instruction. (Ibid.) The requirement of unanimity as to the criminal act is designed to eliminate the danger that a defendant will be convicted even though the jurors cannot agree which single act supports the charge. (Ibid.)
In lieu of an instruction regarding unanimity, a prosecutor may link each specific count to a specific criminal act. (People v. Brown (2017) 11 Cal.App.5th 332, 341.) When this occurs, there is "an implicit presumption that the jury will rely on the prosecution's election and, indeed, is bound by it." (Ibid.) This presumption does not violate the rule that the attorney's comments are not evidence. (See CALCRIM No. 222.) To the contrary, the evidence comes solely from the witnesses. (People v. Brown, supra, at p. 341.) This presumption also does not violate the rule that the jury must follow the law as given in the jury instructions and must disregard the attorney's remarks if they conflict. (See CALCRIM No. 200.) There is no conflict because the prosecutor is merely urging the jury "to apply the law to the facts in a specific way so as to come to a specific verdict." (People v. Brown, supra, at p. 341.)
When a prosecutor ties each charge to specific criminal acts, and when a unanimity instruction would otherwise have been required, an appellate court is likewise bound by the prosecutor's election. (People v. Brown, supra, 11 Cal.App.5th at p. 341.) "Thus, if the defendant raises a substantial evidence challenge, our review is limited to whether there is sufficient evidence to support a conviction based exclusively on the act elected by the prosecution." (Id. at pp. 341-342.)
In this matter, a unanimity instruction was not provided to the jury in count 4. Instead, the prosecutor argued that one specific act established appellant's guilt in that count, i.e., when the person knocked on S.Q.'s door and appellant told her to remain quiet or he would beat her. Thus, we reject respondent's assertion that we may find substantial evidence based on other possible violations of section 136.1. Under respondent's approach, it is impossible to know which other act, if any, the jury would have unanimously agreed established guilt in count 4. It is likewise impossible to determine how the jury would have found true the allegation of force or a threat of force or violence associated with that act. Instead, we must presume the jury relied on the prosecutor's election. (See People v. Brown, supra, 11 Cal.App.5th at p. 341.) Indeed, given the jury's true finding in count 4, it is abundantly apparent the jury relied on the prosecutor's argument to find guilt. That act, however, was insufficient as a matter of law to establish appellant's guilt for intimidation of a witness under section 136.1. Accordingly, we reverse the conviction in count 4. Because count 4 is reversed for insufficient evidence, double jeopardy bars its retrial. (Lockhart v. Nelson (1988) 488 U.S. 33, 39.) II. Dueñas Is Distinguishable From The Present Matter; The Trial Court Did Not Violate Appellant's Constitutional Rights; Any Presumed Error Is Harmless.
For instance, respondent argues that appellant may have violated section 136.1, subdivision (b)(3). Under this subdivision, a person may not attempt to prevent or dissuade a victim of a crime from "[a]rresting or causing or seeking the arrest of any person in connection with that victimization." The jury, however, was not instructed on guilt under this theory.
Appellant asks this court to vacate the assessments under section 1465.8, subdivision (a)(1) and Government Code section 70373, subdivision (a)(1), and the restitution fine pursuant to section 1202.4, subdivision (b)(1). He seeks a remand so the lower court can conduct a hearing regarding his ability to pay. He argues that, based on his "lack of income or assets," the court would have likely found he was unable to pay these fees and fines. His claims originate primarily from Dueñas, supra, 30 Cal.App.5th 1157.
According to the probation report, appellant was born in 1989. He is single and apparently childless. He receives $195 in food stamps on an apparent monthly basis. He resides with his mother and brothers. He completed 11th grade at "Boot Camp[.]" He has no college or vocational training. His listed occupation is "Irrigation" but he told the probation officer that he did not know his employer. Appellant reported no physical or mental health issues.
In Dueñas, the defendant was an indigent, homeless mother of two, who subsisted on public aid while suffering from cerebral palsy. She had dropped out of high school because of her illness, and she was unemployed. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) As a teenager, the defendant's driver's license was suspended when she could not pay some citations. (Id. at p. 1161.) She then was convicted of a series of misdemeanor offenses for driving with a suspended license, and in each case, she was given the choice to pay mandatory fees and fines, which she lacked the means to do, or go to jail. (Ibid.) She served jail time in the first three of these cases, but still faced outstanding debt, which increased with each conviction. (Ibid.)
After her fourth conviction of driving with a suspended license, the defendant was placed on probation and again ordered to pay mandatory fees and fines. The court imposed a $30 criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)); a $40 court operations assessment (§ 1465.8, subd. (a)(1)); and a minimum $150 restitution fine (§ 1202.4, subd. (b)(1)). The court also imposed and stayed a probation revocation restitution fine (§ 1202.44). (Dueñas, supra, 30 Cal.App.5th at pp. 1161-1162.) The defendant challenged the fees and fines imposed under sections 1202.4 and 1465.8, and Government Code section 70373. (Dueñas, at p. 1164.) The trial court rejected her constitutional arguments that due process and equal protection required the court to consider her ability to pay these fines and assessments. (Id. at p. 1163.) On appeal, however, the Dueñas court determined that the defendant's due process rights had been infringed. According to Dueñas, an ability to pay hearing was required so the defendant's "present ability to pay" could be determined before assessments were levied for a court operations assessment (§ 1465.8, subd. (a)(1)) and a criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)). (Dueñas, at p. 1164.) The Dueñas court also concluded that the minimum restitution fine of $150 (§ 1202.4, subd. (b)(1)) had to be stayed. The appellate court reached that conclusion despite section 1202.4 barring consideration of a defendant's ability to pay unless the judge is considering a fine over the statutory minimum. (§ 1202.4, subd. (c).) Dueñas held that "execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Dueñas, at p. 1164.)
The minimum restitution fine for a misdemeanor is $150. The minimum restitution fine for a felony is $300. (§ 1202.4, subd. (b)(1).)
Nothing in these statutes authorizes a trial court to consider a defendant's ability to pay.
We find appellant's reliance on Dueñas unavailing. It is distinguishable from the present matter. In any event, even if Dueñas applies, appellant's constitutional rights were not violated. Finally, any presumed error is harmless.
Respondent contends that appellant has forfeited his constitutional challenges. We decline to find forfeiture in this situation. By statute, a defendant's inability to pay may not be considered when a trial court imposes a minimum restitution fine. (§ 1202.4, subd. (c).) A minimum felony restitution fine was imposed against appellant. Thus, at the time of appellant's sentencing, a due process challenge to this fine would have been effectively foreclosed. (People v. Jones (2019) 36 Cal.App.5th 1028, 1031.) "Similarly, the relevant statutes all but foreclosed any due process objections to the court facilities or court operations assessments." (Id. at p. 1032.) As such, we will review the merits of appellant's claims, which we find unpersuasive.
A. Dueñas is distinguishable from the present matter.
According to the Dueñas court, the defendant lost her driver's license because she was too poor to pay her juvenile citations. She continued to offend because the aggregating criminal conviction assessments and fines prevented her from recovering her license. The Dueñas court described this as "cascading consequences" stemming from "a series of criminal proceedings driven by, and contributing to, [the defendant's] poverty." (Dueñas, supra, 30 Cal.App.5th at pp. 1163-1164.)
In contrast to Dueñas, appellant's incarceration was not a consequence of prior criminal assessments and fines. Appellant was not caught in an unfair cycle of incarceration, and he could have avoided the present conviction regardless of his financial circumstances. Dueñas is distinguishable and it has no application in this matter. (See People v. Caceres (2019) 39 Cal.App.5th 917, 928-929 [declining to apply Dueñas's "broad holding" beyond its unique facts]; People v. Johnson (2019) 35 Cal.App.5th 134, 138 ["Dueñas is distinguishable."].)
B. The court did not violate appellant's constitutional rights.
Even if Dueñas is applicable here, we reject any argument that the trial court violated appellant's constitutional rights. The Dueñas defendant presented compelling evidence that the imposed assessments resulted in ongoing unintended punitive consequences. The Dueñas court determined that these unintended consequences were "fundamentally unfair" for an indigent defendant under principles of due process. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The Dueñas court noted that the imposed financial obligations were also potentially unconstitutional under the excessive fines clause of the Eighth Amendment. However, Dueñas stated that "[t]he due process and excessive fines analyses are sufficiently similar that the California Supreme Court has observed that '[i]t makes no difference whether we examine the issue as an excessive fine or a violation of due process.' [Citation.]" (Dueñas, supra, at p. 1171, fn. 8.)
Dueñas's conclusion in this regard has been criticized. It has been noted that "Dueñas did not involve the right to access the courts, the defendant's liberty interests, or any other fundamental right." (People v. Santos (2019) 38 Cal.App.5th 923, 938 (dis. opn. of Elia, J.).) It has also been stated that the imposition of fees, fines and assessments does not satisfy "the traditional due process definition of a taking of life, liberty or property." (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1039 (conc. opn. of Benke, Acting P.J.).)
Both People v. Hicks (2019) 40 Cal.App.5th 320, review granted November 26, 2019, S258946 (Hicks) and this court's opinion in People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles) have strongly criticized Dueñas's analysis. (Hicks, supra, 40 Cal.App.5th at p. 322, review granted; Aviles, supra, 39 Cal.App.5th at pp. 1059-1060.) We agree with those criticisms. (See also People v. Kingston (2019) 41 Cal.App.5th 272, 279 [finding Hicks to be "better reasoned" than Dueñas]; People v. Caceres, supra, 39 Cal.App.5th at p. 928 ["In light of our concerns with the due process analysis in Dueñas, we decline 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."].)
This court in Aviles held that, in contrast to a due process challenge, the " 'excessive fines' " clause in the Eighth Amendment to the United States Constitution was a more appropriate avenue for an indigent defendant to challenge the imposition of fees, fines and assessments. (Aviles, supra, 39 Cal.App.5th at p. 1069.) Under its facts, Aviles found no constitutional violation for the imposition of assessments and fines imposed on a felon who, after fleeing from officers, shot and wounded two of them. (Id. at pp. 1059-1060.) Aviles also concluded that any presumed error was harmless because the felon had the ability to earn money while in prison. (Id. at pp. 1075-1077.)
The Hicks court held that, in contrast to Dueñas's application of due process, a due process violation must be based on a fundamental right, such as denying a defendant access to the courts or incarcerating an indigent defendant for nonpayment. Hicks concluded that Dueñas's analysis was flawed because it expanded due process in a manner that grants criminal defendants a right not conferred by precedent; that is, an ability to pay hearing before assessments are imposed. (Hicks, supra, 40 Cal.App.5th at pp. 325-326, review granted.) Under its facts, Hicks rejected a due process challenge to the imposition of fines and assessments on a felon who, while under the influence of a stimulant, resisted arrest. (Id. at pp. 323, 329-330.)
1. Appellant's due process rights were not violated.
In this matter, the fees, fines and assessments imposed against appellant do not implicate the traditional concerns of fundamental fairness. Appellant was not denied access to the courts or prohibited from presenting a defense. (See Griffin v. Illinois (1956) 351 U.S. 12, 18-20 [due process and equal protection require a state to provide criminal defendants with a free transcript for use on appeal]; People v. Kingston, supra, 41 Cal.App.5th at p. 281; Hicks, supra, 40 Cal.App.5th at p. 326, review granted.) Appellant was not incarcerated because he was unable to pay prior fees, fines or assessments. (See Bearden v. Georgia (1983) 461 U.S. 660, 672-673 (Bearden) [fundamental fairness is violated if a state does not consider alternatives to imprisonment if a probationer in good faith cannot pay a fine or restitution]; People v. Kingston, supra, 41 Cal.App.5th at p. 281; Hicks, supra, 40 Cal.App.5th at p. 326, review granted.)
The unique concerns addressed in Dueñas are lacking here. Nothing establishes or even reasonably suggests appellant faces ongoing unintended punitive consequences. Appellant does not establish how he suffered a violation of a fundamental liberty interest. Because unintended consequences are not present, it was not fundamentally unfair for the court to impose the fees, fines and assessments in this matter without first determining appellant's ability to pay. As such, the trial court did not violate appellant's due process rights, and this claim fails. (See People v. Kingston, supra, 41 Cal.App.5th at p. 282; Hicks, supra, 40 Cal.App.5th at p. 329, review granted.)
We note that the court was permitted to impose fines upon appellant following his conviction. (See, e.g., Bearden, supra, 461 U.S. at p. 669 [a state has a fundamental interest in "appropriately punishing persons—rich and poor—who violate its criminal laws" and poverty does not immunize a defendant from punishment].)
Respondent concedes that due process is violated when an indigent defendant is imprisoned for failure to pay a punitive fine "because the fundamental right to liberty is implicated." Respondent urges us to resolve this due process challenge using a rational basis (as opposed to strict scrutiny) analysis. We need not fully respond to respondent's position in this regard or articulate the appropriate standard of review for a due process challenge in this situation. To the contrary, appellant's due process claims are based primarily on Dueñas, which neither articulated what fundamental liberty interest was at stake nor set forth a standard of review.
2. Appellant's rights to equal protection were not violated.
Appellant contends that these fees, fines and assessments violated his rights to equal protection. We find appellant's equal protection claim unpersuasive. Four opinions are instructive.
First, in Williams v. Illinois (1970) 399 U.S. 235 (Williams), the United States Supreme Court invalidated on equal protection grounds a facially neutral statute that authorized imprisonment for an indigent's failure to pay fines. (Id. at pp. 241-242.)
Second, in Tate v. Short (1971) 401 U.S. 395 (Tate), the United States Supreme Court expanded upon Williams. The Tate court held that equal protection was violated when an indigent defendant was committed to a "municipal prison farm" because he could not pay accumulated fines of $425 based on nine convictions for traffic offenses. (Tate, supra, at pp. 396-397.) The high court noted that the defendant "was subjected to imprisonment solely because of his indigency." (Id. at p. 398.) Important to the issue before us, the Tate court commented that a state has a "valid interest in enforcing payment of fines." (Id. at p. 399.) According to Tate, a state "is not powerless to enforce judgments against those financially unable to pay a fine; indeed, a different result would amount to inverse discrimination since it would enable an indigent to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other conviction." (Ibid.) The high court stated that " 'numerous alternatives' " existed for a state to avoid "imprisoning an indigent beyond the statutory maximum for involuntary nonpayment of a fine or court costs." (Ibid.) However, those alternatives were left for the states to explore. (Id. at p. 400.)
Third, in In re Antazo (1970) 3 Cal.3d 100, the California Supreme Court held that an indigent defendant could not be imprisoned for failure to pay a fine. Otherwise a violation of equal protection would occur based on wealth. (Id. at pp. 103-104.) Importantly, our high court noted that imposing a fine and penalty assessment on an indigent offender did not by itself necessarily constitute a violation of equal protection. Apart from imprisonment, alternatives exist that could permit an indigent offender to be fined. (Id. at p. 116.)
Finally, in Bearden, supra, 461 U.S. 660, the United States Supreme Court held that a court may not revoke probation for an indigent defendant's inability to pay a fine and restitution, absent evidence and findings that the defendant was responsible for the failure or that alternative forms of punishment were inadequate. Otherwise, the "deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment." (Id. at pp. 672-673.) The high court, however, reiterated that a state is not powerless to enforce judgments against those financially unable to pay a fine. (Id. at pp. 671-672.) Bearden also noted that, when a defendant's indigency is involved, due process provides a better analytic framework than equal protection because "a defendant's level of financial resources is a point on a spectrum rather than a classification." (Id. at p. 666, fn. 8.) In the same footnote, Bearden stated that "[t]he more appropriate question is whether consideration of a defendant's financial background in setting or resetting a sentence is so arbitrary or unfair as to be a denial of due process." (Ibid.)
In both Williams and Tate, the United States Supreme Court strongly suggested that the imposition of a fine on an indigent defendant did not by itself violate equal protection. In In re Antazo, our high court made it clear that a court may impose a fine or penalty on an indigent offender so long as the state offers alternatives to imprisonment for purposes of repayment. (In re Antazo, supra, 3 Cal.3d at p. 116.) The Bearden court cautioned that a due process approach, and not equal protection, is more appropriate when "confronting the intertwined question of the role that a defendant's financial background can play in determining an appropriate sentence." (Bearden, supra, 461 U.S. at p. 666, fn. 8.)
The United States Supreme Court has commented that Williams and Tate did not "touch on the question whether equal protection is denied to persons with relatively less money on whom designated fines impose heavier burdens. The Court has not held that fines must be structured to reflect each person's ability to pay in order to avoid disproportionate burdens. Sentencing judges may, and often do, consider the defendant's ability to pay, but in such circumstances they are guided by sound judicial discretion rather than by constitutional mandate." (San Antonio Independent School District v. Rodriguez (1973) 411 U.S. 1, 22.)
In light of Williams, Tate, In re Antazo and Bearden, it is clear that equal protection was not violated when the court imposed the fees, fines and assessments against appellant. He was not incarcerated because of his alleged poverty. He does not articulate how a fundamental liberty interest was implicated. Thus, the trial court was permitted to impose a fine or penalty on him so long as alternatives to imprisonment are offered for purposes of repayment. (In re Antazo, supra, 3 Cal.3d at p. 116.) Accordingly, appellant's claims are without merit. However, as we discuss below, we can also declare that any presumed error is harmless.
In his supplemental opening brief, appellant's heading includes an alleged violation of his Eighth Amendment rights. In his supplemental reply brief, however, appellant argues that this matter involves a due process challenge and not one under the excessive fines clause. He contends an Eighth Amendment analysis requires consideration of his ability to pay, which first requires a factual hearing. Nowhere else in his briefing does appellant raise argument under the Eighth Amendment. As such, we do not address the excessive fines clause in this opinion because appellant has not raised a challenge under the Eighth Amendment.
C. Any presumed constitutional violation is harmless.
Appellant argues that, following Dueñas, the prosecution bears the burden to prove a defendant's ability to pay. He claims the record lacks any showing he has the ability to pay the fees, fines and assessments imposed against him. He contends it is mere speculation to assume he might obtain a prison job or find work after he is released from prison. We conclude that any presumed error is harmless beyond a reasonable doubt.
When sentenced in this matter, appellant was approximately 27 years old. Nothing in this record establishes that he suffers from any physical or mental health issues. We have already concluded that Dueñas is inapplicable in this matter and we will not apply it here.
Moreover, unlike the Dueñas defendant who was placed on probation and subjected to a recurring cycle of debt, appellant was sentenced to a relatively lengthy determinate prison term following his numerous convictions. Nothing in this record suggests appellant might be unable to work, or that he might be ineligible for a prison work assignment. As such, we can infer that appellant will have the opportunity to earn prison wages and he can start paying these financial obligations. (Aviles, supra, 39 Cal.App.5th at p. 1076; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [ability to pay includes a defendant's prison wages].)
"Prison wages range from $12 to $56 per month, depending on the prisoner's skill level." (Aviles, supra, 39 Cal.App.5th, at p. 1076, citing Cal. Code Regs., tit. 15, § 3041.2; Cal. Dept. of Corrections & Rehabilitation, Adult Institutions Operations Manual (2019), art. 12 (Inmate Pay), §§ 51120.1, 51120.6, pp. 354-356.) "The state may garnish between 20 and 50 percent of those wages to pay the section 1202.4, subdivision (b) restitution fine." (Aviles, supra, at p. 1076, citing § 2085.5, subds. (a), (c); People v. Ellis (2019) 31 Cal.App.5th 1090, 1094.) It is illogical to conclude that appellant will not have an ability to begin paying at least some of the imposed fees, fines and assessments while he is incarcerated.
Based on this record, appellant's circumstances are vastly different from the probationer in Dueñas. While it may take appellant considerable time to pay the amounts imposed against him, it is clear he can make payments from either prison wages or monetary gifts from family and friends during his lengthy prison sentence. (Aviles, supra, 39 Cal.App.5th at p. 1077.) Thus, even assuming a constitutional violation occurred, any alleged error is harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Johnson, supra, 35 Cal.App.5th at pp. 139-140.) Therefore, we reject appellant's arguments, and we decline to strike or stay the disputed fees, fines and assessments imposed in this matter.
III. Appellant's Prior Prison Term Enhancements Must Be Stricken.
The parties agree, as do we, that appellant benefits from Senate Bill 136. On October 8, 2019, the Governor signed Senate Bill 136 into law. This amends section 667.5, subdivision (b). Under the amendment, a one-year prior prison term enhancement now only applies if a defendant served a prison term for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (Stats. 2019, ch. 590, § 1.)
Appellant was sentenced to two prior prison term enhancements pursuant to section 667.5, subdivision (b). It is undisputed that his prior prison terms were not for sexually violent offenses under Welfare and Institutions Code section 6600, subdivision (b).
Senate Bill 136 became effective on January 1, 2020. Except when passed as an urgency measure, a statute enacted at a regular session of the Legislature generally becomes effective on January 1 of the year following its enactment. (Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a).) Respondent concedes this change in law will apply to appellant retroactively. (See In re Estrada (1965) 63 Cal.2d 740, 742.) We appreciate respondent's concessions and agree with them. Thus, we remand this matter for the trial court to strike the enhancements under section 667.5, subdivision (b), and to resentence appellant.
Our Supreme Court has noted that, "when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.' [Citations.]" (People v. Buycks (2018) 5 Cal.5th 857, 893.)
IV. The First Amended Abstract Of Judgment Contains A Clerical Error.
In count 6, the jury convicted appellant of intimidating a witness in violation of section 136.1, subdivision (b)(2). At sentencing, the trial court noted that this conviction was based on that subdivision. However, the first amended abstract of judgment lists this conviction as a violation of section 136.1, subdivision (c)(2). This appears to be a clerical mistake. On our own motion, we order the trial court to correct the abstract of judgment to reflect appellant's conviction in count 6 under section 136.1, subdivision (b)(2). (People v. Mitchell (2001) 26 Cal.4th 181, 186-187.)
DISPOSITION
The conviction in count 4 is reversed for insufficient evidence. This matter is remanded to the trial court for resentencing. At resentencing, the court shall strike the two prior prison term enhancements imposed pursuant to section 667.5, subdivision (b). Following resentencing, the court shall forward a new abstract of judgment to the appropriate authorities. The court shall ensure that the new abstract of judgment reflects appellant's conviction in count 6 under section 136.1, subdivision (b)(2). In all other respects, appellant's judgment is affirmed.
/s/_________
LEVY, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
POOCHIGIAN, J.