Opinion
A156211
06-12-2020
THE PEOPLE, Plaintiff and Respondent, v. ADRIAN REYNARD SMITH, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. SCN229524)
Defendant Adrian Smith was found guilty of burglary at a residential building complex and battery on a resident of the complex. His sentence included three one-year enhancements for prior prison terms pursuant to Penal Code section 667.5, subdivision (b), as well as the imposition of Penal Code section 1465.8 and Government Code section 70373 assessments and Penal Code section 1202.4 restitution fines. On appeal, defendant asserts the following three arguments: (1) the trial court erred in excluding evidence that he previously trespassed at another residential complex without committing a theft, which evidence he contended would show he lacked the intent to commit a theft during the charged burglary; (2) as held in People v. Dueñas (2019) 30 Cal.App.5th 1157, he is entitled an ability-to-pay hearing on the assessments and fines; and (3) the three prior prison term enhancements must be stricken in light of an amendment to Penal Code section 667.5, subdivision (b).
We conclude defendant's first argument lacks merit. His second and third arguments are well taken, however, and we therefore remand to afford defendant the opportunity to request an ability-to-pay hearing and for the court to strike the prior prison term enhancements and resentence defendant within its sentencing discretion. In all other regards, we affirm.
BACKGROUND
Evidence at Trial
On July 3, 2018, Marie LeDonne was living in a condominium at the Baycrest Towers in San Francisco. After a night out, she arrived back at the building complex around 3:00 a.m. that morning, driving her car up to the gate to the building's parking garage. She waited for the gate to open and then drove in and parked in her designated parking spot. Although LeDonne did not know it at the time, defendant ran into the garage behind her car and walked in the direction of where she had parked.
Once parked, LeDonne "got a really creepy feeling in [her] gut," so she sat in her car for a few minutes. She decided not to go to the elevator because it would take about 30 seconds to walk there and she would then have to wait for the elevator to arrive. Instead, she decided to leave most of her belongings in the car and walk to the building's racquetball court 20 feet away.
After locking her car door, LeDonne walked briskly towards the racquetball court. When she was about 10 feet from the door, she heard something that "freaked [her] out," so she started running. She reached the door and was trying to put the key in the lock when defendant aggressively grabbed her elbow and said, " 'Yo.' " The force on her elbow caused her to turn around and come face to face with defendant, who was standing about a foot away from her.
LeDonne managed to free herself from defendant's grasp, open the racquetball court door, and run inside. She tried to shut the door behind her, but there was "a little battle" as defendant tried to push it open. Using "all [her] might," she was finally able to shut the door.
LeDonne remained in the racquetball court for almost 20 minutes, during which time she tried to reach the building's security guard. She finally got in touch with her roommate, Cornelius Von Morze, and asked him to come downstairs with a weapon because she was trapped in the racquetball court. He arrived with a bat and escorted her to their car to get her belongings and then to the security desk in the lobby of the building to find the security guard. The guard was not at the desk, so LeDonne called 911. She and Von Morze waited for at least 30 minutes, but neither the police nor the security guard ever appeared. They eventually got tired of waiting and went up to their condominium. While there, they received a phone call from someone they thought was the security guard, so they went back down to the security desk, only to find that the guard was still not there.
LeDonne and Von Morze were still standing in the lobby when they heard an elevator ding. Von Morze, who had a view of the elevators, looked over and saw defendant walk out. He whispered to LeDonne to call the police because the man was in the building. While LeDonne was again on the phone with 911, Von Morze announced that the man had gone back into the elevator. They decided it would be safer in their unit, so they went back upstairs.
Security guard Khusen Rahmonav was working at the Baycrest Towers that morning. Around 3:50 a.m., he was watching the monitors at the security desk in the lobby when he spotted defendant checking the handles of various doors on the fourth floor. Rahmonav went to the fourth floor to investigate, but defendant was gone by the time he got there. Rahmonav returned to the security desk, and this time the security feed showed defendant going into a unit on the third floor. Rahmonav went to that unit and found defendant inside, hiding behind the door. When defendant saw Rahmonav, he came out and said, " 'Oh, I gotta go, I gotta go.' " Rahmonav asked defendant his name, and defendant responded that it was "Andrew[]—or something." Rahmonav asked defendant for identification, and defendant responded by claiming it was his unit and displaying a set of keys. Rahmonav asked for the keys, but defendant fled to an elevator. Rahmonav prevented the elevator doors from closing while pretending to call 911. Unable to leave via the elevator, defendant ran to the emergency stairwell, down the stairs, and out of the building.
The prosecutor presented testimony from Gwynn Villegas, who in August and September 2016 was the general manager at one location of the Fitness SF health club. One morning in August 2016, he learned from a staff member that an iPad was missing from the front desk. He reviewed security footage from the previous night and saw an individual—subsequently identified as defendant—walking in the facility after hours, looking down at a shelving area where the iPad was stored overnight, and then running up a set of stairs with the iPad in his hands. The front door of the facility showed signs of forced entry.
About a week later, after the front door had been repaired, Villegas received another report of a break-in at the facility. He discovered property missing from his office, including cash and lost and found items. He again reviewed the security footage, which showed defendant walking around the facility, checking door handles, looking in cabinets, and going into various rooms, including Villegas's office, where he could be seen taking the lost and found items and cash and then leaving the facility. Surveillance video of both Fitness SF break-ins was shown to the jury.
Defendant's mother briefly testified in defendant's defense to establish that he was homeless and had been for about two years. She said he could not live with her due of the terms of her lease, and he sometimes slept in her car, a hotel room, or a shelter.
Procedural Background
Defendant was charged by information, twice amended, with one count each of felony first degree residential burglary (Pen. Code, § 459) and misdemeanor battery (id., § 242). As to the burglary charge, it was alleged that a nonaccomplice was present within the meaning of Penal Code section 667.5, subdivision (c)(21). Additionally, it was alleged that defendant had served five prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).
Defendant was tried before a jury, which found him guilty as charged and found true that a nonaccomplice was present as alleged in count one. The trial court subsequently found the five prior prison terms to be true.
On December 18, 2018, the court sentenced defendant to seven years in state prison (comprised of the four-year midterm on the burglary count and one year each on three of the prior prison terms), and suspended execution of the prison sentence, ordering defendant placed on probation for three years with 165 days in county jail with credit for time served and one year of residential substance abuse treatment. On the battery charge, the court imposed 80 days in county jail, with credit for time served. It also imposed $590 in fines and assessments (comprised of a $300 restitution fine for the felony and a $150 restitution fine for the misdemeanor (Pen. Code, § 1202.4, subd. (b)), a $40 court operations assessment per count (id., § 1465.8), and a $30 immediate critical needs assessment per count (Gov. Code, § 70373, subd. (a)), plus a $300 probation revocation restitution fine, stayed pending successful completion of probation (Pen. Code, § 1202.45).
This timely appeal followed.
DISCUSSION
The Trial Court Did Not Abuse Its Discretion in Denying Defendant's Motion to Introduce Uncharged Acts of Trespassing
Background
On October 15, 2018, the prosecutor filed a motion pursuant to Evidence Code section 1101, subdivision (b), which allows evidence of uncharged conduct to establish a fact other than the defendant's propensity to commit a crime. Specifically, the prosecutor sought to introduce evidence of the following prior acts committed by defendant to show his intent to commit a burglary at the Baycrest Towers: (1) the August and September 2016 Fitness SF burglaries; (2) a car break-in at a residential parking garage on Eddy Street in September 2016; and (3) a break-in at an occupied apartment in the middle of the night in August 2017.
All undesignated statutory references are to the Evidence Code.
The following day, the court held a section 402 hearing on the prosecutor's motion. Security guard Charles McDaniel testified that he worked at a group of residential buildings on Eddy Street and had seen defendant "roaming around" the premises as many as 12 times, about six of them in the garage. Defendant had always left when McDaniel told him to. One time, McDaniel found drug paraphernalia and papers bearing defendant's name in a car that was parked in the garage and covered by a car cover. Another time, defendant broke into the building and kicked in the door to a unit. And another time, he broke into the building and was later found in the laundry room, where he claimed he was charging his phone. After hearing McDaniel's testimony, the prosecutor withdrew his motion as to the Eddy Street incidents, conceding "there is probably not the level of specificity or similarity to the charged crime for it to come in under 1101."
The prosecutor then focused on the Fitness SF burglaries. He represented that on two occasions defendant was captured on surveillance video entering the fitness facility after hours, wandering around and taking items belonging to the facility, and leaving the facility with the items. This, said the prosecutor, was relevant to his intent during the charged offense, as the conduct was very similar—"the entry after hours in sort of a low-key, unpopulated location. [¶] And the behavior is very similar—checking doors, finding an open door, going inside, looking for the same types of equipment."
Defense counsel opposed introduction of the evidence. Additionally, she argued that if the prosecutor was allowed to introduce evidence of defendant's prior acts to show intent to steal, she wanted to introduce evidence of defendant's prior acts to negate intent: "For example, I would want to request to bring in his character based on reputation in the community for trespassing and finding shelter and not stealing, not doing anything, going into a laundry room. . . . [¶] . . . [¶] . . . . If these 1101 incidents are coming in to prove intent, I do believe that other prior acts can come in to prove lack of intent that are actually more similar to our case at hand."
The court granted the prosecutor's motion as to the two Fitness SF incidents, finding them sufficiently similar to the Baycrest Towers incident. Defense counsel then made an oral motion to introduce testimony by security guard McDaniel and another security guard from the same building complex to show defendant's history of trespassing, which counsel contended demonstrated a lack of intent to commit a burglary at the Baycrest Towers.
The prosecution objected that this should be the subject of a written motion because "[t]his is not the classic use of 1101. What it sounds really more like is sort of propensity to sleep because there's no intent issue here. There's no negative 1101." Defense counsel disagreed, pointing out that the language of section 1101 is "neutral" and "says it can be used by any party when intent is in dispute."
The court was unpersuaded by defense counsel's argument: "Looking at the plain language of section 1101, I don't really see how offering evidence of other incidents where he didn't steal something is something that's possible or appropriate. I think that if you can explain it to me, it might be better to do it with a written application." Accordingly, the court denied defense counsel's motion but reiterated it would consider a written motion.
The next day, defendant filed a "Motion to Allow Defendant to Present a Defense." Citing only section 351 and making no reference to section 1101, defendant sought to introduce testimony from security guard McDaniel and his fellow security guard, Bowden, regarding his "actions when trespassing on previous occasions inside the residential building where they worked." He described McDaniel's section 402 testimony from the previous day, and represented that Bowden would likewise testify that he had prior contacts with defendant in the same building complex and had observed defendant sleeping in a particular stall in the garage. According to defendant, pursuant to his constitutional right to present a complete defense, he should be permitted to introduce evidence of past incidents when he was caught trespassing but had not stolen anything.
Section 351 states: "Except as otherwise provided by statute, all relevant evidence is admissible." --------
Defendant's motion—which the court described as being "in the nature of a motion for reconsideration"—came on for hearing later that same day. Defense counsel reiterated the position set forth in the motion—that the proffered evidence was relevant to defendant's intent because it showed he had entered residential buildings in the past without stealing anything, that he "entered the residential building and intended to stay in the laundry room. Just sit down in an empty room; an unlocked room. Intended to sleep in a parking stall."
The prosecution argued that the evidence defendant was seeking to introduce was different from the section 1101 evidence the prosecution sought to introduce because "the defense is trying to prove a negative and that becomes a problem. They're trying to prove a lack of intent, which could be relevant or not relevant, but could be applied to essentially any potential criminal intent there is. [¶] He went in and sat in the laundry room. Well, he didn't have any intent to rape someone. He didn't have any intent to set it on fire. He didn't have the intent to murder someone. So it's this lack of specificity there. 1101 is used to prove an intent, and it's used to allow the jury to infer intent from previous circumstances in which the same intent occurred."
The court remained unpersuaded by defendant's theory, denying the reconsideration motion:
"So with respect to the request to admit testimony about the times that the defendant slept, or was found and hadn't stolen anything—the two incidents referred to in her papers—I don't believe that that's relevant to any issues in this case. Yesterday, [defense counsel] was arguing that it was admissible under 1101. In the papers, she's citing Evidence Code 351.
"I still think it's too broad. To me, it's very close to trying to use specific acts to prove character traits, which is not allowed generally. And, in fact, 1101(b) is an exception for the use of specific acts to prove a specific point. So it's a doorway that you can take those specific acts through, but you have to meet the requirements of 1101(b). And I think that I summarized my reasoning yesterday. I don't think anything new that's changing that on that issue."
Defendant's trial followed, after which he filed a motion for new trial, arguing the trial court improperly denied his motion to introduce evidence of his prior acts of trespassing. The court denied the motion.
Analysis
We begin with the standard of review. As defendant acknowledges, a trial court's evidentiary rulings are generally reviewed for abuse of discretion. (People v. Caro (2019) 7 Cal.5th 463, 503; People v. Sanchez (2019) 7 Cal.5th 14, 39; People v. Smith (2017) 10 Cal.App.5th 297, 303.) He nevertheless urges us to review de novo the trial court's denial of his motion to admit evidence of his prior acts of trespassing, reasoning that "excluding evidence vital to his defense denied [his] federal constitutional rights to fair trial and due process," and "[c]onstitutional issues . . . are reviewed independently." Defendant is incorrect that the de novo standard of review applies here.
Courts have consistently recognized that the application of the ordinary rules of evidence does not impermissibly infringe on a defendant's right to present a defense. (People v. Mincey (1992) 2 Cal.4th 408, 440.) In People v. Paniagua (2012) 209 Cal.App.4th 499, 524, we confronted—and rejected—a similar attempt to invoke an elevated standard of review: "Although defendant attempts to frame the issue as one of federal constitutional dimension, this is not correct. 'As a general matter, the "[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense." [Citations.] Although completely excluding evidence of an accused's defense could theoretically rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense. [Citation.] If the trial court misstepped, "[t]he trial court's ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense." ' " (Accord, People v. Thornton (2007) 41 Cal.4th 391, 443 ["[o]rdinarily a criminal defendant's attempt 'to inflate garden-variety evidentiary questions into constitutional ones [will prove] unpersuasive' "]; People v. Boyette (2002) 29 Cal.4th 381, 428; People v. Fudge (1994) 7 Cal.4th 1075, 1103.)
Here, defendant was not deprived of the right to present a defense. He presented testimony from his mother that he was homeless, could not live with her due to the terms of her lease, and sometimes slept in her car, a hotel room, or a shelter. During closing argument, defense counsel argued that defendant entered the Baycrest Towers to find a place to sleep, not to commit a burglary, telling the jury that he would perform a "risk analysis" and decide whether to "find a vacant apartment—a safe place he could be even for just a few hours," even if doing so incurred a risk of being "charged with a crime." Accordingly, defendant's claim is not one of constitutional dimension, and as such the question for us is whether the trial court abused its discretion in denying his motion. We answer this question in the negative.
Defendant's oral motion relied exclusively on section 1101, subdivision (b). His written motion omitted reference to that provision, citing instead his constitutional right to present a complete defense and section 351. On appeal, he asserts that the trial court violated his constitutional right to present a complete defense by excluding evidence that was relevant and admissible pursuant to sections 210, 1101, and, for the first time, 1102. As defendant did not previously assert section 1102 as a basis for admissibility of the disputed evidence, it is improper to do so here. (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3 ["It is axiomatic that arguments not asserted below are waived and will not be considered for the first time on appeal"]; Eisenberg, et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2018) ¶ 8:229, p. 8-156 ["theories not raised in the trial court cannot be asserted for the first time on appeal"].) In any case, the result here is the same regardless of what ground defendant asserts because only relevant evidence is admissible (§ 351), and the proffered evidence did not meet that threshold.
" 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (§ 210.) According to defendant, testimony by security guards McDaniel and Bowden, who had previously encountered defendant trespassing in a residential building complex, was relevant to his intent when he entered the Baycrest Towers because it showed he had a history of trespassing to find a place to sleep, which would negate the intent to steal element of the burglary charge. As he puts it, the prior incidents were consistent with his defense that "he was a trespasser, not a burglar." The flaws with this theory are at least twofold. First, just because McDaniel and Bowden did not witness defendant commit a theft during those encounters does not mean that he lacked an intent to commit a theft or that he did not in fact commit a theft that went undetected. Second, and more problematically, defendant attempts to use the evidence to prove a negative: that he lacked intent to steal at the Baycrest Towers because he purportedly lacked intent to steal on other occasions. We fail to see how the fact that defendant did not commit a particular act on one occasion had "any tendency in reason to prove" (§ 210) he did not intend to commit the same act on another occasion. By this reasoning, evidence that a defendant entered an establishment a dozen times in the past without committing a murder would be relevant to show that the defendant did not intend to commit a murder at a different establishment on another occasion. The trial court was not unreasonable in rejecting this theory, and it did not abuse its discretion in excluding the testimony.
Defendant Is Entitled to an Ability-to-Pay Hearing on the Imposed Fines and Assessments
At sentencing, the trial court imposed the following fines and assessments: a $300 restitution fine on the burglary count and $150 on the battery count (Pen. Code, § 1202.4, subd. (b)), a $300 probation revocation fine, stayed pending successful completion of probation (id., § 1202.44), a $40 court security assessment per count (id., § 1465.8), and a $30 criminal conviction assessment per count (Govt. Code, § 70373). Defendant did not object to these fines and assessments on any ground. Citing People v. Dueñas, supra, 30 Cal.App.5th 1157 (Dueñas), he now argues that the assessments should be vacated and the restitution fine stayed until the trial court determines whether he has the ability to pay them.
We first address the People's claim that defendant forfeited this claim by failing to raise it below. The Courts of Appeal have reached differing conclusions as to whether a defendant sentenced prior to Dueñas who did not raise an ability to pay objection in the trial court has forfeited the issue on appeal, at least with respect to nonpunitive court-related assessments and a restitution fine that does not exceed the statutory minimum. The cases declining to apply the forfeiture rule view Dueñas as having announced a new constitutional principle that a reasonable attorney could not be expected to have foreseen. (See, e.g., People v. Castellano (2019) 33 Cal.App.5th 485, 489 (review den. July 17, 2019) [applying the exception to forfeiture for "a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial"]; People v. Santos (2019) 38 Cal.App.5th 923; People v. Johnson (2019) 35 Cal.App.5th 134, 138.) By contrast, People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154-1155 applied the forfeiture rule, rejecting the view that Dueñas was an unpredictable change in the law because it "applied law that was old, not new." We agree with the Castellano, Johnson, and Santos courts. Given the longstanding and routine imposition by courts of statutory fines, fees, and assessments prior to Dueñas, we do not think it reasonable to say the constitutional rule announced in that case should have been anticipated by all competent counsel. Accordingly, we decline to find the issue forfeited and turn to the merits of defendant's argument.
Penal Code section 1465.8 and Government Code section 70373 require the imposition of court operations and criminal conviction assessments on every criminal conviction. These provisions "were enacted as part of legislation to raise funds for California courts, not to impose punishment on the defendant." (People v. Belloso (2019) 42 Cal.App.5th 647, 655 (Belloso), review granted Mar. 11, 2020, S259755; Dueñas, supra, 30 Cal.App.5th at pp. 1164-1165.) The Penal Code section 1202.4, subdivision (b) restitution fine is intended to be punitive. (Belloso, at p. 655; Dueñas, at p. 1269.) The court is authorized to waive this fine for "compelling and extraordinary reasons," but "[a] defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine." (Pen. Code, § 1202.4, subd. (c).) Dueñas held that due process forbids a trial court from imposing these assessments or an executed restitution fine without first determining the defendant's ability to pay. (Dueñas, supra, 30 Cal.App.5th at p. 1164.)
Dueñas involved a defendant with severe financial difficulties: Indigent and unable to work due to health issues, Dueñas had repeatedly incurred convictions, fines, and jail sentences for driving with a suspended license after having had her license suspended due to her inability to pay the assessments imposed on citations she had received as a teenager. The Dueñas court described the record as illustrating the "cascading consequences of imposing fines and assessments that a defendant cannot pay," and the "potentially devastating consequences" of criminal justice debt that are "suffered only by indigent persons" and "in effect transform a funding mechanism for the courts into additional punishment for a criminal conviction for those unable to pay." (Dueñas, supra, 30 Cal.App.5th at pp. 1163, 1168.) Dueñas held that imposition of the Penal Code section 1465.8 and Government Code section 70373 assessments without an ability to pay determination is fundamentally unfair and violative of due process. (Dueñas, at p. 1168.) It further held that "to avoid the serious constitutional question raised by imposition of the restitution fines 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.' " (Belloso, supra, 42 Cal.App.5th at p. 655, quoting Dueñas, at p. 1172.)
Dueñas has been followed, at least in part, by several courts. (E.g., People v. Santos, supra, 38 Cal.App.5th at pp. 929-934 [following Dueñas as to court assessments]; People v. Kopp (2019) 38 Cal.App.5th 47, 95-96 (Kopp), review granted Nov. 13, 2019, S257844 [same]; People v. Jones (2019) 36 Cal.App.5th 1028, 1030-1035 [following Dueñas but concluding error was harmless because defendant would be able to satisfy amount ordered from prison wages].) Other courts, on the other hand, have rejected its due process analysis. (E.g., People v. Hicks (2019) 40 Cal.App.5th 320, 326, review granted Nov. 26, 2019, S258946 [finding Dueñas analysis inconsistent with authorities relied upon and purposes and operation of probation]); People v. Kingston (2019) 41 Cal.App.5th 272, 279-281 [following Hicks]); People v. Aviles (2019) 39 Cal.App.5th 1055, 1069 (Aviles) [improper reliance on due process authorities].) Some courts have concluded an ability to pay challenge should be based on the excessive fines clause of the Eighth Amendment (e.g., Aviles, at p. 1061; Kopp, at pp. 96-97), while others have distinguished Dueñas due to its particular and extreme facts (e.g., People v. Lowery (2020) 43 Cal.App.5th 1046, 1055; People v. Caceres (2019) 39 Cal.App.5th 917, 928-929; Kopp, supra, 38 Cal.App.5th at p. 95; People v. Johnson, supra, 35 Cal.App.5th at p. 139 [evidence in record showed amount imposed "did not saddle [defendant] with a financial burden anything like the inescapable, government-imposed debt trap Velia Dueñas faced"]). In Belloso, the same division of the court that decided Dueñas examined the reasoning of cases rejecting the Dueñas analysis and reaffirmed its view that due process requires an ability to pay hearing, upon request, before imposition of assessments and fines. (Belloso, supra, 42 Cal.App.5th at pp. 649, 662.) The issue is currently before the California Supreme Court in Kopp.
To the extent Dueñas stands for the broad proposition that due process necessarily requires an ability-to-pay hearing before the imposition of Penal Code section 1465.8 and Government Code section 70373 assessments and the Penal Code section 1202.4 restitution fine, we decline to take a position. Given the record in this case, however, we do agree with Dueñas as to the two assessments. As noted, these assessments are not punitive in nature (Belloso, supra, 42 Cal.App.5th at p. 655), and we agree that "[i]mposing unpayable fines on indigent defendants is not only unfair, it serves no rational purpose, fails to further the legislative intent, and may be counterproductive." (Dueñas, supra, 30 Cal.App.5th at p. 1167.) The evidence in this case indicated defendant was indigent and likely lacking the resources to pay the $590 in assessments and fines. The People agree remand for an ability-to-pay hearing is appropriate, acknowledging that they do "not seek to uphold the imposition of these assessments on those who have no ability to pay."
Turning to the Penal Code section 1202.4 restitution fine, as Dueñas recognized, that fine is intended as punishment. (Dueñas, supra, 30 Cal.App.5th at p. 1169.) Despite that Penal Code section 1202.4, subdivision (c) precludes a trial court from considering a defendant's ability to pay when imposing the minimum, as was the case here, Dueñas nonetheless held that due process requires the trial court to stay execution of the fine until the People demonstrate the defendant has the ability to pay. (Dueñas, supra, 30 Cal.App.5th at p. 1172.) We disagree with the Dueñas analysis on this issue and believe the approach taken in Kopp, supra, 38 Cal.App.5th 47 is correct. The Kopp court explained this distinction: "[W]e do not follow the court's approach to restitution fines in Dueñas. There, the court acknowledged that the restitution fine under section 1202.4 is 'additional punishment for a crime.' (Dueñas, supra, 30 Cal.App.5th at p. 1169.) Yet, the court still focused solely on a defendant's ability to pay in determining whether such a punitive fine is constitutional. To this end, the court held: '[A]lthough Penal Code 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.' (Dueñas, supra, 30 Cal.App.5th at p. 1164.) We disagree that this approach should apply to all punitive fines in the first instance. Instead, because these fines are intended to punish defendants, we agree with the People that a defendant should challenge such fines under the excessive fines clause of the Eighth Amendment of the federal Constitution and article I, section 17 of the California Constitution. Put differently, there is no due process requirement that the court hold an ability to pay hearing before imposing a punitive fine and only impose the fine if it determines the defendant can afford to pay it." (Kopp, supra, 38 Cal.App.5th at pp. 96-97.)
The Kopp court went on to discuss the Eighth Amendment's prohibition of excessive fines, concluding with the following four considerations, identified by the United States Supreme Court and adopted by the California Supreme Court, for analyzing whether a fine is constitutionally disproportionate: "(1) the defendant's culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant's ability to pay." (Kopp, supra, 38 Cal.App.5th at p. 97; see United States v. Bajakajian (1998) 524 U.S. 321, 337-338; People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728.) On remand, defendant may challenge the Penal Code section 1202.4 restitution fine as excessive under the Eighth Amendment, in which case the trial court should apply these four factors to analyze his claim. (See Kopp, supra, 38 Cal.App.5th at p. 97.)
The Matter Must Be Remanded for Resentencing in Light of Senate Bill No. 136
Effective January 1, 2020, Senate Bill No. 136 (Stats. 2019, ch. 590, § 1) amended Penal Code section 667.5, subdivision (b) to limit one-year prior prison term enhancements to convictions for sexually violent offenses, as defined in Welfare and Institutions Code section 6600, subdivision (b). (People v. Jennings (2019) 42 Cal.App.5th 664, 681; People v. Lopez (2019) 42 Cal.App.5th 337, 339.) Defendant's prior prison terms were not for sexually violent offenses. Accordingly, under Penal Code section 667.5, subdivision (b) as amended, defendant would not qualify for the imposition of the one-year enhancement for his prior prison term.
Courts have recognized that Senate Bill No. 136's amendment to Penal Code section 667.5, subdivision (b) applies retroactively to all cases not yet final as of its January 1, 2020 effective date. (See, e.g., People v. Jennings, supra, 42 Cal.App.5th at p. 682; see also In re Estrada (1965) 63 Cal.2d 740, 744-748.) Because defendant's case is not yet final, he is entitled to the ameliorative benefit of the amendment. We therefore reverse the trial court's imposition of the three one-year prior prison term enhancements and remand with instructions to the trial court to strike the enhancements and exercise its sentencing discretion in light of the changed circumstances. (People v. Navarro (2007) 40 Cal.4th 668, 681; People v. Jennings, supra, 42 Cal.App.5th at p. 682.)
DISPOSITION
The conviction is affirmed. The matter is remanded to afford defendant an opportunity to request an ability-to-pay hearing on the fines and assessments imposed by the trial court. If he lacks the inability to pay, the trial court must strike the court facilities assessment (Gov. Code, § 70373) and the court operations assessment (Pen. Code, § 1465.8) and stay the execution of the restitution fine (Pen. Code, § 1202.4, subd. (b). If the court finds defendant is able to pay these amounts, the assessments and fine may be enforced. Also on remand, the trial court shall strike the Penal Code section 667.5, subdivision (b) enhancements and exercise its sentencing discretion in light of the changed circumstances.
/s/_________
Richman, J.
We concur:
/s/_________
Kline, P.J.
/s/_________
Miller, J.