Opinion
D076578
08-07-2020
THE PEOPLE, Plaintiff and Respondent, v. BRANDON LOUIS ROUXWARD, Defendant and Appellant.
Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Christopher Beesley and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD280651) APPEAL from a judgment of the Superior Court of San Diego County, Kenneth K. So, Judge. Remanded with directions to amend abstract of judgment, and in all other respects affirmed. Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Christopher Beesley and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Brandon Louis Rouxward guilty of arson of an inhabited structure (Pen. Code, § 451, subd. (b)), along with finding that he used a device designed to accelerate the fire (§ 451.1). The trial court found that Rouxward incurred two prior strikes (§§ 667, subds. (b)-(i), 1170.12, 668), two serious felony priors, (§ 667, subd. (a)(1)), four probation denial priors (§ 1203, subd. (e)(4)), and one prison prior (§ 667.5, subd. (b)). Rouxward was sentenced to an indeterminate prison term of 25 years to life, and a consecutive determinate prison term of nine years.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Rouxward contends (1) based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), and other subsequent case law, this matter should be remanded for a hearing on whether he is unable to pay certain fines and fees that the trial court imposed; and (2) due to a change in the law after Rouxward was sentenced, he is no longer eligible for a one-year enhancement based on his prior prison term (§ 667.5, subd. (b)).
With respect to the first issue, we conclude that Rouxward has forfeited the challenge to his ability to pay the fines and fees, as Dueñas was decided more than eight months before Rouxward's sentencing hearing. Further, Rouxward has not established that defense counsel was ineffective for failing to raise the issue. With respect to the second issue, the parties agree that because section 667.5, subdivision (b) has been amended, Rouxward is not eligible for a one-year enhancement based on his prior prison term. Accordingly, we direct the trial court to amend the abstract of judgment to strike the one-year enhancement imposed and stayed pursuant to section 667.5, subdivision (b). In all other respects, the judgment is affirmed.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The facts giving rise to Rouxward's conviction are not relevant to the issues before us, and we accordingly only briefly describe them. Rouxward set fire to two beds in a home that he shared with his mother and uncle, using gasoline as an accelerant. Rouxward was found guilty of arson of an inhabited structure (§ 451, subd. (b)), along with a finding that he used a device designed to accelerate the fire (§ 451.1). The trial court found that Rouxward incurred two prior strikes (§§ 667, subds. (b)-(i), 1170.12, 668), two serious felony priors, (§ 667, subd. (a)(1)), four probation denial priors (§ 1203, subd. (e)(4)), and one prison prior (§ 667.5, subd. (b)).
On September 25, 2019, the trial court denied Rouxward's request to strike one of his prior strikes, and it imposed an indeterminate prison term of 25 years to life, and a consecutive determinate prison term of nine years, along with certain fines and fees. As the trial court stated during the sentencing hearing, the determinate sentence was based on a mid-term sentence of four years on the section 451.1 allegation and a five-year term for one of Rouxward's serious felony priors (§ 667, subd. (a)(1)). The minute order for the sentencing hearing and the abstract of judgment reflect that a one-year enhancement for Rouxward's prior prison term was imposed and stayed. (§ 667.5, subd. (b).)
Although the information alleged, and the trial court found, that Rouxward incurred a prior prison term that would make him eligible for a one-year enhancement pursuant to section 667.5, subdivision (b), the trial court failed to mention the prior prison term in the sentencing hearing. The probation officer's report recommended that the one-year enhancement for the prior prison term be imposed but stayed because it was based on the same underlying conviction as a serious felony prior. (People v. Jones (1993) 5 Cal.4th 1142, 1152-1153.)
II.
DISCUSSION
A. Rouxward Is Not Entitled to a Remand for a Determination of His Ability to Pay the Fines and Fees Imposed at Sentencing
At sentencing, the trial court imposed a restitution fine in the amount of $300 (§ 1202.4, subd. (b)); a suspended parole revocation restitution fine of $300 (§ 1202.45); a court security fee in the amount of $40 (§ 1465.8); a criminal conviction assessment fee in the amount of $30 (Gov. Code, § 70373); and a criminal justice administration fee in the amount of $154 (id., § 29550).
Rouxward contends that based on his constitutional right to due process, right to equal protection and right to be free from excessive fines, he should have been given an opportunity to challenge his ability to pay the fines and fees before the trial court imposed them. Rouxward requests that we remand this matter so that the trial court may consider his ability to pay.
In support of the relief he seeks, Rouxward relies on Dueñas, supra, 30 Cal.App.5th 1157, and subsequent cases that apply it. Dueñas held that due process precludes a trial court from "impos[ing]" certain assessments and fines when sentencing a criminal defendant, in the absence of a determination that the defendant has the "present ability to pay" those assessments and fines. (Dueñas, at p. 1168.) Specifically, Dueñas held that "due process of law requires [a] trial court to . . . ascertain a defendant's present ability to pay before it imposes" (1) "court facilities and court operations assessments" (under § 1465.8 and Gov. Code, § 70373, respectively), or (2) a restitution fine (under § 1202.4). (Dueñas, at pp. 1164, 1167, 1172.) Numerous subsequent cases have addressed the issue presented in Dueñas, and the issue is currently pending before our Supreme Court. (People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.)
Because we conclude Rouxward forfeited the challenge to his ability to pay, we need not, and do not, express any view as to the issues that are raised in Dueñas and pending before our Supreme Court.
Dueñas was filed January 8, 2019. (Dueñas, supra, 30 Cal.App.5th 1157.) Rouxward's sentencing hearing occurred more than eight months later on September 25, 2019. By the time of Rouxward's sentencing hearing, a significant number of published opinions from throughout California had acknowledged and discussed Dueñas. (See, e.g., People v. Frandsen (April 4, 2019) 33 Cal.App.5th 1126, 1153 (Frandsen); People v. Johnson (May 10, 2019) 35 Cal.App.5th 134, 137 (Johnson); People v. Gutierrez (June 4, 2019) 35 Cal.App.5th 1027, 1030; People v. Jones (June 28, 2019) 36 Cal.App.5th 1028, 1031; People v. Kopp (July 31, 2019) 38 Cal.App.5th 47, 94, review granted; People v. Santos (August 15, 2019) 38 Cal.App.5th 923, 929; People v. Evans (September 6, 2019) 39 Cal.App.5th 771, 777; People v. Torres (September 10, 2019) 39 Cal.App.5th 849, 860; People v. Caceres (September 12, 2019) 39 Cal.App.5th 917, 922; People v. Aviles (September 13, 2019) 39 Cal.App.5th 1055, 1060; People v. Jenkins (September 18, 2019) 40 Cal.App.5th 30, 39, rev. granted and cause remanded; People v. Hicks (September 24, 2019) 40 Cal.App.5th 320, 325, review granted Nov. 26, 2019, S258946.)
The People contend that Rouxward has forfeited his ability to seek a hearing on his ability to pay because he failed to raise it in the trial court during sentencing. " ' " '[A] constitutional right,' or a right of any other sort, 'may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.' " ' " (People v. McCullough (2013) 56 Cal.4th 589, 593.) "The concept of forfeiture for failure to raise ability to pay fines, fees or assessments is well established in our caselaw." (People v. Keene (2019) 43 Cal.App.5th 861, 864.) After Dueñas was decided, some courts concluded that despite the general forfeiture rule, the defendant had not forfeited the ability to ask the appellate court for relief under Dueñas because Dueñas was not foreseeable based on existing law at the time of the sentencing hearing. (See, e.g., People v. Castellano (2019) 33 Cal.App.5th 485, 489; Johnson, supra, 35 Cal.App.5th at pp. 137-138; but see, e.g., Frandsen, supra, 33 Cal.App.5th at pp. 1153-1154 [concluding forfeiture applied].)
In this case, however, there is no basis for Rouxward to avoid the forfeiture rule that applies when a defendant fails to raise a challenge at sentencing to the ability to pay fines and fees. Whether or not the holding of Dueñas was foreseeable, by the time of Rouxward's sentencing hearing, Dueñas was a well-known and often-cited opinion. Accordingly, because Rouxward did not raise a challenge to his ability to pay the fines and fees in the trial court, even though authority supporting such a challenge already existed, Rouxward forfeited his ability to argue on appeal that we should remand to the trial court to hold a hearing on his ability to pay.
Rouxward argues that in the event we conclude he has forfeited any right he may have to a hearing on his ability to pay the fines and fees, we should nevertheless grant him relief because he received ineffective assistance of counsel. To demonstrate that counsel provided ineffective assistance, Rouxward must show that counsel's representation was deficient and resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 694.) Counsel's representation was deficient if "there could be no rational tactical purpose for [their] omissions." (People v. Lucas (1995) 12 Cal.4th 415, 442.) Rouxward was prejudiced if there is a reasonable probability he would have received a more favorable result had counsel provided adequate representation. (Strickland, at p. 694.)
Rouxward has not demonstrated that defense counsel lacked a rational tactical purpose for failing to object to the restitution fine, as it is not clear from the appellate record whether Rouxward lacked the financial resources to pay the fines and fees. We cannot determine on direct appeal whether counsel may have had information about Rouxward's financial resources that foreclosed a challenge to Rouxward's ability to pay.
Further, on the issue of prejudice, because the record contains no information about Rouxward's financial resources, we are unable to assess whether Rouxward would have been able to show an inability to pay the fine and fees. We therefore cannot conclude, on this record, that any prejudice resulted from defense counsel's failure to raise the issue of Rouxward's inability to pay. B. The One-Year Enhancement for Rouxward's Prior Prison Term Must Be Stricken From the Abstract of Judgment
We next address Rouxward's contention that he is no longer eligible for a one-year sentencing enhancement based on his prior prison term pursuant to section 667.5, subdivision (b).
When Rouxward was sentenced in September 2019, the law provided for a one-year enhancement for each separate prior prison term served by the defendant. (Former § 667.5, subd. (b).) The sentencing minute order and the abstract of judgment state that a consecutive one-year term for Rouxward's prior prison term conviction was imposed and stayed.
As we have noted, at the sentencing hearing the trial court neglected to refer to the one-year enhancement for the prior prison term. The minute order from the sentencing hearing and the abstract of judgment nevertheless state that the trial court imposed and stayed a one-year enhancement pursuant to section 667.5, subdivision (b) based on the prior prison term. "If the minute order or abstract of judgment is different from the oral pronouncement of judgment, the oral pronouncement controls." (People v. Mullins (2018) 19 Cal.App.5th 594, 612.) "The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment." (People v. Zackery (2007) 147 Cal.App.4th 380, 387-388.)
In this case, because the parties agree that Rouxward is no longer eligible for the one-year enhancement because of the amendment to section 667.5, subdivision (b) and agree the one-year term must be stricken, we need not take action to address the inconsistency between the oral pronouncement of judgment and the abstract of judgment. Were we to address the inconsistency, the same remedy would be appropriate as the remedy we apply due to the amendment to section 667.5, subdivision (b), namely, an order striking the one-year enhancement. (People v. Hartsell (1973) 34 Cal.App.3d 8, 14, fn. 1 [when a trial court fails to pronounce sentence on an enhancement that it has the discretion to strike, but the trial court improperly includes such a sentence in the abstract of judgment, the proper remedy for us on appeal is to order that sentence be stricken from the abstract of judgment].)
Effective January 1, 2020, Senate Bill 136 amended section 667.5, subdivision (b). (Stats. 2019, ch. 590, § 1.) That section now limits one-year prior prison term enhancements to cases where the prior prison term was based on a sexually violent offense, as defined in Welfare and Institutions Code section 6600, subdivision (b). It is undisputed that Rouxward's prior prison term was not for a sexually violent offense. Accordingly, Rouxward is no longer within the class of offenders who are eligible for the additional one-year prior prison term enhancement under section 667.5, subdivision (b). As the People acknowledge, because Rouxward's judgment is not yet final, he is entitled to the benefit of the change in the law. (People v. Jennings (2019) 42 Cal.App.5th 664, 682; see also In re Estrada (1965) 63 Cal.2d 740.) Accordingly, the abstract of judgment should be amended to strike the one-year enhancement for the prior prison term.
In many cases, when part of a sentence is stricken on review a remand for full resentencing is appropriate so that " 'the trial court can exercise its sentencing discretion in light of the changed circumstances.' " (People v. Buycks (2018) 5 Cal.5th 857, 893, italics added.) In this case, however, there are no "changed circumstances" with respect to Rouxward's sentence that would justify a remand for full resentencing. The one-year enhancement that we order to be stricken in this case was already a stayed one-year term. Therefore, as before, Rouxward's determinate sentence is a for a term of nine years. In light of the fact that Rouxward's sentence has not changed, we will not remand for full resentencing.
DISPOSITION
This matter is remanded to the trial court with directions to amend the abstract of judgment by striking the imposition and stay of the one-year term for Rouxward's prior prison term pursuant to section 667.5, subdivision (b). The trial court shall forward an amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
IRION, J. WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.