Opinion
B304717
05-18-2021
THE PEOPLE, Plaintiff and Respondent, v. RICHARD ALLEN SETTLE, Defendant and Appellant.
Melissa J. Kim, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Michael R. Johnsen, Supervising Deputy Attorney General, and Peggy Z. Huang, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MA072291) APPEAL from a judgment of the Superior Court of Los Angeles County, Daviann L. Mitchell, Judge. Affirmed as modified. Melissa J. Kim, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Michael R. Johnsen, Supervising Deputy Attorney General, and Peggy Z. Huang, Deputy Attorney General for Plaintiff and Respondent.
On appeal following his resentencing hearing, Richard Allen Settle contends the trial court erred in awarding the same number of custody credits it had calculated at his original sentencing hearing and imposing, following an ability-to-pay hearing, more than $5,000 in fines and fees. We modify the sentence to reflect the appropriate number of custody credits and affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted Settle of the second degree murder of his grandmother (Pen. Code, § 189) and arson of a structure (§ 451, subd. (b)) and found true in a bifurcated proceeding special allegations he had suffered one prior serious felony conviction within the meaning of both section 667, subdivision (a)(1), and the three strikes law (§§ 667, subds. (b)-(i), 1170.12) and had served a separate prior prison term for a felony (667.5, subd. (b)). The trial court sentenced Settle to an aggregate state prison term of 48 years to life. In addition, the court imposed a $10,000 restitution fine (§ 1202.4) and imposed and stayed a parole revocation fine (§ 1202.45) for the same amount, as well as other fines, fees and assessments. (See People v. Settle (Aug. 20, 2019, B288503) [nonpub. opn.].)
Statutory references are to this code unless otherwise stated.
The court imposed an indeterminate term of 30 years to life for second degree murder (15 years to life, doubled under the three strikes law), plus five years for the prior serious felony conviction, plus one year for the prior separate prison term for a felony, and a consecutive 12-year determinate term (six years, doubled under the three strikes law) for arson. The court did not impose a prior serious felony conviction enhancement on the determinate aspect of the sentence.
We affirmed Settle's convictions on appeal but found the court had imposed an unauthorized sentence by failing to impose the then-mandatory section 667, subdivision (a)(1), five-year prior serious felony conviction enhancement on both the indeterminate and determinate aspects of his sentences. (See People v. Misa (2006) 140 Cal.App.4th 837, 846-847.) We also observed that the then-recent amendments to sections 667, subdivision (a), and 1385, which had become effective after Settle's initial sentencing hearing (see Stats. 2018, ch. 1013, §§ 1 & 2), authorized the trial court to exercise its discretion to impose or strike the five-year enhancement. (See People v. Settle, supra, B288503.) Accordingly, we remanded for the trial court to consider its sentencing discretion under the then-recent amendments. In addition, rather than addressing Settle's contention that imposition of fines and fees violated due process as interpreted in our opinions in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) and People v. Castellano (2019) 33 Cal.App.5th 485, 489 (Castellano), we directed the trial court on remand to hold a hearing, if Settle requested one, to consider Settle's inability to pay the fines, fees and assessments.
Although we observed Settle could have challenged at his initial sentencing hearing his ability to pay the $10,000 restitution fine, which exceeded the statutory minimum (see § 1202.4, subd. (c)), we noted that, at that time, neither the trial court nor Settle had the benefit of our opinions in Dueñas and Castellano, both of which were decided while his case was pending on appeal. Because remand was required for the trial court to address the unauthorized sentence in any event, we found it appropriate to give Settle the opportunity at resentencing to make a record as to his ability to pay all applicable fines, fees and assessments. (See People v. Settle, supra, B288503.)
At resentencing Settle moved to dismiss the five-year section 667, subdivision (a)(1), enhancement and the section 667.5, subdivision (b), one-year separate prior prison term enhancement. He also presented evidence from a financial evaluator who, after conducting a limited review of assets and credit report history, determined Settle lacked any assets or income to pay the fines, fees and assessments.
Senate Bill No. 136 (Stats. 2019, ch. 590, § 1), effective January 1, 2020, and applicable to all cases not yet final, limited the applicability of section 667.5, subdivision (b)'s one-year sentence enhancement for prior prison terms to defendants who had previously served a prison term for sexually violent offenses as defined in Welfare and Institutions Code section 6600, subdivision (b).
The trial court dismissed the section 667.5, subdivision (b), prior prison term enhancement, denied Settle's request to dismiss the section 667, subdivision (a)(1), enhancement, and imposed an aggregate state prison term of 52 years to life. After considering Settle's evidence from the financial evaluator, the court reduced the $10,000 restitution fine to $5,000 and imposed and stayed a parole revocation fine in the same amount. In addition, the court imposed the same court facilities fee of $30 (Gov. Code, § 70373, subd. (a)) and court operations fee of $40 (Pen. Code, § 1465.8, subd. (a)(1)) on each count of conviction as it had ordered at the initial sentencing hearing, as well as the same number of custody credits (854 actual custody days plus 128 days in conduct credit).
For the murder count the court imposed an indeterminate term of 15 years to life, doubled under the three strikes law, plus five years for the prior serious felony enhancement. For the arson count the court imposed the high term of six years, doubled under the three strikes law, plus five years for the prior serious felony enhancement.
The court stated, "Regarding the restitution fine, I have read and considered the financial evaluation presented by the financial evaluator indicating the defendant does not have any means to pay. However, the court is acutely aware that he's going to be in custody for the rest of his life. The court can consider the fact that he is in custody and has the ability to earn money while in custody. I will reduce the original order of $10,000 down to $5,000 pursuant to [section] 1202.4 based on his ability to pay. The parole revocation restitution fine will be reduced accordingly to $5,000, and the remaining fines and fees will remain the same."
DISCUSSION
1. The Court Miscalculated Actual Custody Credits
Section 2900.5, subdivision (a), provides in part, "In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody . . . all days of custody of the defendant . . . shall be credited upon his or her term of imprisonment." (See People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48 ["A defendant is entitled to actual custody credit for 'all days of custody' in county jail and residential treatment facilities, including partial days. [Citations.] Calculation of custody credit begins on the day of arrest and continues through the day of sentencing"].) Section 2900.5, subdivision (d), assigns the task of calculating custody credits to the trial court. Section 2900.1, a related provision concerning custody credits, states, "Where a defendant has served any portion of his sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts." (People v. Buckhalter (2001) 26 Cal.4th 20, 23.)
Under these statutory provisions it is the responsibility of the trial court to recalculate custody credits following a remand for resentencing, but, as to an inmate serving time in prison, only with respect to the actual days served: "When, as here, an appellate remand results in modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the 'subsequent sentence.' [Citation.] On the other hand, a convicted felon once sentenced, committed, and delivered to prison is not restored to presentence status, for purposes of the sentence-credit statutes, by virtue of a limited appellate remand for correction of sentencing errors. Instead, he remains 'imprisoned' [citation] in the custody of the Director 'until duly released according to law' [citation], even while temporarily confined away from prison to permit his appearance in the remand proceedings. Thus, he cannot earn good behavior credits under the formula specifically applicable to persons detained in a local facility, or under equivalent circumstances elsewhere, 'prior to the imposition of sentence' for a felony. [Citations.] Instead, any credits beyond actual custody time may be earned, if at all, only under the so-called worktime system separately applicable to convicted felons serving their sentences in prison." (People v. Buckhalter, supra, 26 Cal.4th at p. 23.)
Settle contends, the People concede, and we agree, the trial court erred in limiting actual custody credits to those accrued between the date of his arrest and the original sentencing hearing. (See People v. Buckhalter, supra, 26 Cal.4th at p. 37 ["the trial court, having modified defendant's sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody, whether in jail or prison, up to that time"].) As there is no dispute that Settle is entitled to a total of 1,510 custody days of custody credit (actual custody days calculated from the time of his arrest to the time of his resentencing hearing), we modify the judgment to provide for 1,510 days of actual custody credit.
2. Settle Did Not Carry His Burden To Demonstrate an Inability To Pay Fines, Fees and Assessments
In Dueñas this court concluded, "[T]he assessment provisions of Government Code section 70373 and Penal Code section 1465.8, if imposed without a determination that the defendant is able to pay, are . . . fundamentally unfair; imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution." (Dueñas, supra, 30 Cal.App.5th at p. 1168; accord, People v. Belloso (2019) 42 Cal.App.5th 647, 654-655, review granted Mar. 11, 2020, S259755.) A restitution fine under section 1202.4, subdivision (b), however, "is intended to be, and is recognized as, additional punishment for a crime." (Dueñas, at p. 1169; accord, Belloso, at p. 655.) And section 1202.4, subdivision (c), expressly provides a defendant's inability to pay a restitution fine may not be considered a "compelling and extraordinary reason" not to impose the statutory minimum fine. Accordingly, we held in Dueñas to avoid a serious constitutional question, if a restitution fine were to be imposed on an indigent defendant, "the court must stay the execution of the fine until and unless the People demonstrate that the defendant has the ability to pay the fine." (Dueñas, at p. 1172; accord, Belloso, at p. 655.)
In Castellano, supra, 33 Cal.App.5th 485, decided two months after Dueñas, we clarified the parties' respective burdens: The People are not required to establish the defendant has the means to pay before the court imposes the fines, fees and assessments required by statute. "[A] defendant must in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court." (Castellano, at p. 490; accord, People v. Santos (2019) 38 Cal.App.5th 923, 934 ["it is the defendant's burden to demonstrate an inability to pay, not the prosecution's burden to show the defendant can pay"]; see Dueñas, supra, 30 Cal.App.5th at pp. 1168-1169.) If the trial court determines, after considering the relevant factors, a defendant is unable to pay, then the fees and assessments cannot be imposed; and execution of any restitution fine imposed must be stayed until such time as the People can show that the defendant's ability to pay has been restored. (Castellano, at p. 490; Dueñas, at pp. 1168-1169, 1172.)
The following issues are presently pending before the Supreme Court in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844: "Must a court consider a defendant's ability to pay before imposing or executing fines, fees, and assessments? If so, which party bears the burden of proof regarding defendant's inability to pay?"
Settle contends the court erred in imposing a $5,000 restitution fine (and imposing and staying a $5,000 parole revocation fine) despite evidence from a financial evaluator that he has no assets and no income. Although recognizing that we, along with a number of other courts, have held that a court may consider prison employment in evaluating a defendant's alleged inability to pay fines, fees and assessments (see Castellano, supra, 33 Cal.App.5th at p. 490; see also People v. Aviles (2019) 39 Cal.App.5th 1055, 1076; People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844), Settle argues there was no evidence that he qualified for prison employment, let alone that he had the ability through such employment to earn enough funds to pay a $5,000 fine. He asserts, for the first time on appeal, his arson conviction disqualifies him from a number of prison jobs and his mental health condition, referred to in the probation report, could also potentially inhibit his ability to obtain prison employment.
Because Settle had the opportunity during the resentencing hearing to demonstrate his ineligibility for prison work and did not do so, he has forfeited that issue on appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 881 ["the forfeiture rule applies in the context of sentencing as in other areas of criminal law"]; People v. Scott (1994) 9 Cal.4th 331, 353.) In addition, having failed to present any evidence of ineligibility to earn wages in prison, he cannot show the court erred as a matter of law in finding he failed to carry his burden of proof on the question of his inability to pay in light of the availability of prison work. (See Juen v. Alain Pinel Realtors, Inc. (2019) 32 Cal.App.5th 972, 978-979 ["'where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law,'" that is, whether the appellant's evidence was "'"uncontradicted and unimpeached" and . . . "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding"'"]; see also In re R.V. (2015) 61 Cal.4th 181, 201 [where a party fails to carry its burden on an issue in the trial court, "the inquiry on appeal is whether the weight and character of the evidence . . . was such that the [trial] court could not reasonable reject it"]; Glovis America, Inc. v. County of Ventura (2018) 28 Cal.App.5th 62, 71 [same].)
As for the amount of wages that can be earned in prison, the law is clear: "Prison wages range from $12 to $56 per month, depending on the prisoner's skill level." (People v. Aviles, supra, 39 Cal.App.5th at p. 1076, review granted; see Cal. Code Regs., tit. 15, § 3041.2, subd. (a)(1).) The state may garnish a portion of those wages to satisfy the restitution fine. (§ 2085.5, subds. (a), (e); Cal. Code Regs., tit. 15, § 3097, subd. (f) ["[T]he department shall deduct 50 percent or the balance owing, whichever is less from the inmate's wages and trust account deposits regardless of the source of such income subject to the exemptions enumerated in subsection (j). In addition, an administrative fee of 10 percent of the deduction shall be deducted to reimburse the department for its administrative costs, for a maximum deduction of 55 percent"].)
Finally, describing court fines, fees and assessments as a "state revenue machine" that has increased exponentially following the 2008 national recession, Settle spends a significant portion of his brief arguing that, whatever continued merit there may be to such revenue generation, it cannot fall on the backs of indigent defendants without violating their due process rights. We agree and have interpreted statutory authorization for fines, fees and assessments to contain inherent due process protections. (See Castellano, supra, 33 Cal.App.5th at p. 490; Dueñas, supra, 30 Cal.App.5th at pp. 1168-1169, 1172.) Settle was afforded those protections at a hearing at which he bore the burden to demonstrate his inability to pay. As discussed, he failed to carry that burden.
DISPOSITION
The judgment is modified to award Settle 1,510 days of actual custody credit. As modified, the judgment is affirmed. The trial court is directed to prepare a new abstract of judgment that reflects 1,510 days of actual custody credits and forward it to the Department of Corrections and Rehabilitation.
PERLUSS, P. J
We concur:
SEGAL, J.
FEUER, J.