Opinion
C085877
02-10-2020
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND JOSEPH SALAZAR, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. STKCRFECOD20160005113)
Defendant Raymond Joseph Salazar appeals from his murder conviction. Defendant requests we remand the case to permit the trial court to exercise its discretion and strike the firearm use enhancement. The People argue it would be futile to remand the matter because the trial court already indicated it would not have exercised its discretion to lessen defendant's sentence.
In supplemental briefing, defendant claims that pursuant to the holding in People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168, 1172 (Dueñas), we must (1) reverse the court security and conviction assessment fees and (2) stay execution of the restitution fine unless and until the People demonstrate he has the present ability to pay.
We will affirm the judgment and remand the matter for the trial court to consider exercising its discretion to strike the firearm use enhancement.
I. BACKGROUND
In April 2016, defendant shot and killed Brandon. During the June 2017 trial, defendant argued that he had been beaten and robbed, and he acted in self-defense or in the heat of passion. A jury found defendant guilty of first degree murder and found true a firearm enhancement. (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d).) In bifurcated proceedings, the trial court found true that defendant had a prior strike. (§ 667, subds. (b)-(i).)
Undesignated statutory references are to the Penal Code. --------
The August 2017 probation report noted that, at the time of the offense, defendant had no assets or debts. His work history included a recent 18-month stint installing sprinklers and laying sod.
During the October 2017 sentencing hearing, the trial court denied probation. Although defendant had admitted wrongdoing at an early stage of the criminal process, the crime involved great violence, defendant was armed at the time of the crime, defendant engaged in violent conduct, and defendant had an extensive criminal history of increasing seriousness, with a prior prison term and unsatisfactory prior performance on probation or parole. The trial court sentenced defendant to an aggregate term of 75 years to life, as follows: 25 years to life for the murder conviction, doubled to 50 years to life due to the strike (§ 190), plus 25 years to life consecutive for the firearm use enhancement (§ 12022.53, subd. (d)).
The trial court also imposed $4,800 in direct victim restitution (§ 1202.4, subd. (f)), a $10,000 restitution fine (§ 1202.4, subd. (b)), a corresponding $10,000 parole revocation fine, suspended unless parole is revoked (§ 1202.45), a $40 court operations fee (§ 1465.8), and a $30 court facilities fee (Gov. Code, § 70373). Defense counsel objected to the restitution fine, but did not specify a basis for the objection.
II. DISCUSSION
A. Firearm Enhancement
Prior to January 1, 2018, an enhancement under section 12022.53 was mandatory and could not be stricken in the interests of justice. (See former § 12022.53, subd. (h), Stats. 2010, ch. 711, § 5; People v. Felix (2003) 108 Cal.App.4th 994, 999.) Senate Bill No. 620 amended section 12022.53, subdivision (h) to permit the trial court to strike firearm enhancements imposed under section 12022.53. (Stats. 2017, ch. 682, § 2.) Defendant contends we must remand for the trial court to exercise its newly granted discretion. The People argue remand is unnecessary because the trial court indicated during the sentencing hearing that it was not inclined to grant defendant any leniency.
As both parties acknowledge, the amendment to section 12022.53 is retroactive and applies to cases like defendant's which are still on appeal and not yet final. (People v. Woods (2018) 19 Cal.App.5th 1080, 1091; see also In re Estrada (1965) 63 Cal.2d 740, 744.) Absent a clear indication by the trial court that it would not have exercised discretion to strike a firearm enhancement even if it had the discretion to do so at sentencing, the appropriate remedy is to remand for resentencing to allow the trial court to consider whether to exercise its discretion to strike it. (People v. Chavez (2018) 22 Cal.App.5th 663, 713-714; see also People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.)
The People argue remand would be futile in this case because the trial court denied probation and cited multiple aggravating factors, including that the crime involved great violence, defendant was armed at the time of the crime, and defendant had an extensive prior criminal history, with poor prior performance on probation or parole. The People further note the trial court imposed a sentence of 50 years to life for the murder and a consecutive term of 25 years to life for the firearm enhancement. We are not persuaded.
Despite the People's contentions, the trial court's statements fail to establish that remand would be futile. Although the trial court noted multiple aggravating circumstances in denying probation, it also noted that defendant had admitted wrongdoing at an early stage of the criminal process.
In addition, the sentence imposed does not clearly indicate what the trial court would have decided regarding the firearm enhancement. Since this case did not involve any special circumstance under section 190.2, the only possible sentence for defendant's murder conviction was 25 years to life, doubled to 50 years to life due to the strike. (§§ 190, subd. (a), 190.2, 190.4, & 667, subd. (e).) In addition, there is no sentencing triad under section 12022.53, subdivision (d). The appropriate remedy is to remand this case to the trial court. B. Ability to Pay
On appeal, defendant argues the court violated his right to due process by imposing fines and fees without holding a hearing to determine his ability to pay them. This argument relies primarily on Dueñas, supra, 30 Cal.App.5th 1157, which held "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under []section 1465.8 and Government Code section 70373." (Id. at p. 1164.) The Dueñas court also held "that although []section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the 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." (Ibid.) Defendant argues we must strike the court operations fee and the court facilities fee because the record fails to establish that the trial court determined his ability to pay. He also asks that we stay execution of the restitution fine pending a hearing on his ability to pay.
The People argue defendant forfeited his claim by failing to object to the assessments or restitution fine. The arguments defendant advances in support of his assertion that his claim is not forfeited presuppose that Dueñas was correctly decided. We are not persuaded that the analysis used in Dueñas is correct.
Our Supreme Court is now poised to resolve this question, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844, which agreed with the court's conclusion in Dueñas that due process requires the trial court to conduct an ability to pay hearing and ascertain a defendant's ability to pay before it imposes court facilities and court operations assessments under section 1465.8 and Government Code section 70373, but not restitution fines under section 1202.4. (Kopp, supra, at pp. 95-96.)
In the meantime, we join several other courts in concluding that the principles of due process do not require determination of a defendant's present ability to pay before imposing the fines and assessments at issue in Dueñas and in this proceeding. (People v. Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, 329, review granted Nov. 26, 2019, S258946 (Hicks); People v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v. Caceres (2019) 39 Cal.App.5th 917, 928.) Having done so, we reject defendant's Dueñas challenge to the above-referenced fines, fees, and assessments.
III. DISPOSITION
The matter is remanded to permit the trial court to consider exercising its discretion under section 12022.53, subdivision (h) to strike the firearm enhancement. If the firearm enhancement is stricken, the trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
RAYE, P. J. /S/_________
HOCH, J.