Opinion
E070722
01-30-2020
THE PEOPLE, Plaintiff and Respondent, v. JAMES PACO TAFOYA et al., Defendants and Appellants.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant James Paco Tafoya. Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and Appellant Marcus Martinez Mungarro, Jr. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Seth M. Friedman and Michael Pulos, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB1503856) OPINION APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson, Jr., Judge. Affirmed in part and remanded with directions. Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant James Paco Tafoya. Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and Appellant Marcus Martinez Mungarro, Jr. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Seth M. Friedman and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendants and appellants James Paco Tafoya and Marcus Martinez Mungarro, Jr., of carjacking (Pen. Code, § 215, subd. (a)), second degree robbery (Pen. Code, § 211), and assault with a firearm (Pen. Code, § 245, subd. (a)(2)), and found that each had personally used a firearm (Pen. Code, § 12022.5, subds. (a)-(d)) and committed the offenses for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(C)). Tafoya was additionally convicted of possession of heroin for sale (Health & Saf. Code, § 11351), with a true finding on the attached gang enhancement (Pen. Code, § § 186.22, subd. (b)(1)(C)). The trial court also found that Tafoya had five prison priors.
Further statutory references are to the Penal Code unless otherwise specified.
The trial court sentenced Tafoya to a total term of 31 years to life, and found he lacked the ability to pay appointed counsel fees or investigation costs, but imposed a court security fee of $350 and a restitution fine of $5,000. The trial court sentenced Mungarro to a total term of 45 years to life, and found he lacked the ability to pay appointed counsel fees or investigation costs, but imposed a court security fee of $350 and a restitution fine of $5,000.
The parties agree that the trial court (1) miscalculated the court security fees imposed; (2) must amend the April 8, 2016 minute order to reflect the court's finding Tafoya suffered five prison priors; (3) erred in imposing five one-year sentence enhancements for Tafoya's prison priors; (4) must strike Tafoya's two one-year prior prison term enhancements based on a recent amendment of section 667.5, subdivision (b); and (5) must exercise its sentencing discretion regarding Mungarro's prior serious felony enhancement under section 667, subdivision (a)(1).
The parties disagree on whether the trial court violated defendants' constitutional rights to due process by imposing various fines, fees, and assessments without first affording them a separate ability to pay hearing, as required by People v. Dueñas (2019) 30 Cal.App.5th 1157, 1160 (Dueñas). The People argue defendants forfeited that claim.
As to both defendants, the matter is remanded for resentencing consistent with this opinion. We direct the trial court to correct the April 8, 2016 minute order to reflect its finding that Tafoya suffered only five prison priors, to vacate its true finding on three of his prison prior allegations, and to strike the one-year enhancements on the remaining two prison priors. We further direct the court to strike the $350 court security fees as to both defendants and, instead, substitute a fee of $280 as to Tafoya and $210 as to Mungarro, and amend the abstracts of judgment accordingly. Otherwise, we affirm.
I. PROCEDURAL BACKGROUND AND FACTS
Only an abbreviated version of the facts is required to consider defendants' claims. On November 9, 2015, around 3:00 in the morning, defendants (members of the West Side Verdugo Little Counts gang) violently carjacked, robbed, and assaulted a man at gunpoint in San Bernardino.
II. DISCUSSION
A. The Trial Court Miscalculated Defendants' Court Security Fees.
The parties concur the trial court's use of a "court security fee" was shorthand for the $70 fee for each conviction, which results from a combination of a $40 court operations fee (Pen. Code, § 1465.8) and a $30 facilities fee (Gov. Code, § 70373). The $350 fee imposed on each defendant was based on the mistaken belief they had each suffered five convictions; however, Tafoya was convicted of four offenses and Mungarro was convicted of three. Consequently, the court should have imposed total court security fees of $280 ($70 x 4) as to Tafoya and $210 ($70 x 3) as to Mungarro.
B. The Minute Order Must be Amended to Reflect the Trial Court's Finding That Tafoya Suffered Five Prison Priors.
The parties agree the April 8, 2016 minute order must be amended to reflect the trial court's finding that Tafoya had five prison priors.
On April 8, 2016, the trial court found that Tafoya had five prison priors. Initially, he was charged with a sixth prison prior (case No. JCF25361), and one of his convictions was alleged to be a serious felony (case No. FVA801540). (§ 667, subd. (a)(1).) However, the People abandoned the sixth prison prior, and the prior serious felony was stricken by agreement because it did not qualify as a strike. Accordingly, the April 8, 2016 minute order, which appears to reflect six prison priors and a prior serious felony, must be corrected to reflect the court's finding Tafoya suffered only five prison priors.
As conceded in the next section, the finding of five prison priors is an error.
C. Tafoya May Stand Convicted of Two Prison Priors Only.
The parties also agree the trial court improperly found true five one-year enhancement allegations for serving prior prison terms when the evidence only showed two separate prison terms.
"Section 667.5, subdivision (b), provides for a one year sentence enhancement 'for each prior separate prison term' served by the defendant. A 'prior separate prison term' is 'a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes . . . .' (§ 667.5, subd. (g).) Under this provision, 'a defendant who has served concurrent or consecutive prison sentences on various commitments is deemed to have served only one prior prison term for the purpose of the enhancement provisions of Penal Code section 667.5.'" (People v. Grimes (2016) 1 Cal.5th 698, 738-739.)
Here, the evidence shows Tafoya served only two separate prison terms for his five convictions: The first prison prior was based on case No. FVA801540, for which he was sentenced to two years in prison for his conviction of assault with a firearm (§ 245, subd. (a)(2)), with concurrent sentences for crimes in case No. FSB059508 (receiving stolen property [Pen. Code, § 496, subd. (a)] and unlawful driving or taking of a vehicle [Veh. Code, § 10851, subd. (a)]). The second prison prior was based on case No. FSB1202975, for which Tafoya was sentenced to four years (including a one-year Pen. Code, § 667.5, subd. (b), enhancement) in prison for his conviction of evading a peace officer (Veh. Code, § 2800.2, subd. (a)), with a concurrent sentence for his forgery conviction in case No. FVA1200253 (Pen. Code, § 475, subd. (a)). Accordingly, he did not serve five "separate" prison terms for his five offenses, within the meaning of section 667.5, subdivision (b). Therefore, the trial court's true findings on three of the section 667.5, subdivision (b) allegations (namely, the offenses in case Nos. FSB059508 [receiving stolen property (§ 496, subd. (a)) and unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a))] and FVA1200253 [forgery (§ 475, subd. (a))]), must be vacated, and the judgment modified to reflect this change.
All of the cases discussed are from the Superior Court of Riverside County, except case No. JCF25361, which is from the Superior Court of Imperial County.
D. Tafoya's Prior Prison Term Enhancements Should Be Stricken and the Matter is Remanded for Resentencing.
The parties further agree that newly enacted Senate Bill No. 136 (2019-2020 Reg. Sess.), which amended section 667.5, subdivision (b), to limit its prior prison term enhancement to only prison terms for sexually violent offenses, should be applied to Tafoya's case and therefore his two one-year prior prison term enhancements under section 667.5, subdivision (b), stemming from case Nos. FVA801540 and FSB1202975, should be stricken. (In re Estrada (1965) 63 Cal.2d 740, 742, 744-745 [a statute that reduces the punishment for an offense will generally apply retroactively to any case in which the judgment is not yet final before the effective date of the statute]; In re Pine (1977) 66 Cal.App.3d 593, 594 [a judgment is not final so long as courts may provide a remedy on direct review].) Because Tafoya's prior convictions were not for sexually violent offenses and his judgment is not yet final, we agree.
Since we are striking Tafoya's section 667.5, subdivision (b), prior prison term enhancements, we remand the matter for resentencing to allow the trial court to exercise its sentencing discretion in light of the changed circumstances. (Cf. People v. Buycks (2018) 5 Cal.5th 857, 893 ["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.'"].) We take no position on how the trial court should exercise its discretion on remand.
E. Remand For Resentencing of Mungarro.
After Mungarro admitted having sustained a prior conviction for a serious felony, the trial court imposed the corresponding five-year enhancement for a prior serious felony conviction under section 667, subdivision (a)(1).
Under the law in effect at the time of Mungarro's sentencing, trial courts had no authority to strike a prior serious felony conviction for purposes of the five-year enhancement under section 667, subdivision (a)(1). (§ 1385; People v. Valencia (1989) 207 Cal.App.3d 1042, 1045-1047.) However, Senate Bill No. 1393 (2017-2018 Reg. Sess.), effective January 1, 2019, amended section 1385 to permit trial courts to strike serious felony prior convictions in the interest of justice. In People v. Garcia (2018) 28 Cal.App.5th 961, 971-974, we held that Senate Bill No. 1393 is retroactive to cases not final on appeal as of the effective date of the bill. Both parties to this appeal agree with the decision in Garcia and urge us to remand the case for resentencing. "'[W]hen the record shows that the trial court proceeded with sentencing on the . . . assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing.'" (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) We agree that remand is warranted to permit the trial court to exercise its discretion whether to strike Mungarro's prior serious felony enhancement.
F. Dueñas Error.
Relying on Dueñas, supra, 30 Cal.App.5th 1157, defendants contend the trial court violated their constitutional rights to due process by imposing the restitution fines (Pen. Code, § 1202.4, subd. (b)) and the court security fees (Pen. Code, § 1465.8; Gov. Code, § 70373) without undertaking an inquiry into their ability to pay. The People challenge the holding in Dueñas and contend defendants forfeited this claim by failing to raise it below. We conclude defendants have forfeited any ability to pay argument regarding their restitution fines by failing to object, and there is sufficient evidence of their ability to pay the court security fees.
This court has addressed the claim of Dueñas error and concluded a defendant who has not objected to the imposition of a restitution fine and court security fee has not forfeited the issue on appeal. (People v. Jones (2019) 36 Cal.App.5th 1028, 1031-1034 (Jones) [no forfeiture for failing to object to imposition of minimum restitution fine ($300) and court security fee ($70)].) We also concluded a Dueñas error may be harmless if the record shows a defendant will be able to earn the total amount imposed during imprisonment. (Jones, at pp. 1034-1035 [a defendant who was sentenced to state prison for a term of six years—with a presentence custody and conduct credit of 332 days—would earn sufficient prison wages to pay his fines and assessments of $370].)
Here, the trial court specifically found that neither defendant had the ability to pay appointed counsel fees of $750 (§ 987.8) or the presentence investigation and report cost of $665 (§ 1203.1b), but imposed the mandatory court security fees and restitution fines. As to the restitution fines, the court imposed $5,000 each; however, neither defendant objected on the ground of inability to pay, despite their right to do so. (§ 1202.4, subd. (c); People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.) Defendants "had the statutory right to request that the court consider [their] ability to pay in setting the restitution fine, but [they] did not do so. [Their] silence is a classic example of the application of the forfeiture doctrine relied upon by the California Supreme Court in numerous criminal sentencing cases decided well before Dueñas. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864 . . . [applying the forfeiture rule to challenges to probation-related costs and an order for reimbursement of fees paid to appointed trial counsel]; People v. Trujillo (2015) 60 Cal.4th 850, 853-854 . . . [applying the forfeiture rule to an unpreserved claim regarding probation-related fees and defendant's inability to pay them]; People v. Nelson (2011) 51 Cal.4th 198, 227 . . . [defendant's claim that the trial court erred by failing to consider ability to pay a restitution fine is forfeited by the failure to object].)" (Gutierrez, at p. 1033.) Thus, under the facts of this case, defendants have forfeited any ability to pay argument regarding their restitution fines by failing to object.
Although we found no forfeiture for a defendant's failure to object to the imposition of a restitution fine in Jones, that case is factually distinguishable from the instant case. In Jones, the trial court imposed the minimum restitution fine of $300. (Jones, supra, 36 Cal.App.5th at p. 1030.) We observed that a due process objection would have been futile because "only the minimum amount was imposed, [and] the statute strongly supported the conclusion that the trial court had no discretion to take [defendant's] ability to pay into account." (Id. at p. 1032.) Here, in contrast, the trial court imposed $5,000 in restitution fines for each defendant. Thus, the defendants' "[i]nability to pay may be considered" (§ 1202.4, subd. (c)) by the trial court such that a due process objection would not have been futile.
As to the court security fees, the record contains sufficient evidence to support defendants' ability to pay the amounts imposed: $280 for Tafoya and $210 for Mungarro. Tafoya was sentenced to a term of 31 years to life. The trial court is presumed to know the law (People v. Thomas (2011) 52 Cal.4th 336, 361), which includes the requirement that "every able-bodied prisoner imprisoned in any state prison" must perform labor for compensation. (§ 2700.) The record reflects that at the time of sentencing, Tafoya was 27 years old, six foot two inches tall, and weighed 170 pounds. Mungarro was 20 years old, five foot seven inches tall, and weighed 165 pounds. Mungarro has a general education diploma (GED), special training in cardiopulmonary resuscitation (CPR), food handling, and welding. His health is described as "very good," he is not married, and he does not have any children.
In the absence of some indication that defendants have a disability precluding them from performing any type of labor in prison, it must be presumed that they are capable of earning prison wages. (See People v. Gentry (1994) 28 Cal.App.4th 1374, 1377, fn. 6.) The trial court could properly consider these wages and find, albeit implicitly, that defendants can afford to pay the ordered fees through their prison wages. (See People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [court may consider ability to earn prison wages in determining ability to pay]; Jones, supra, 36 Cal.App.5th at p. 1035 ["Wages in California prisons currently range from $12 to $56 a month. [Citations.] And half of any wages earned (along with half of any deposits made into [a prisoner's] trust account) are deducted to pay any outstanding restitution fine."].) Also, there is no evidence either defendant have other financial obligations, which would interfere with their ability to pay. Thus, the record does not support the theory defendants cannot afford to pay the court security fees imposed.
III. DISPOSITION
We remand for resentencing consistent with this opinion. Upon resentencing of Mungarro, the trial court shall consider whether to strike his prior serious felony enhancement. (§ 667, subd. (a)(1).)
Upon resentencing of Tafoya, the trial court is directed to:
(1) Correct the April 8, 2016 minute order to reflect its finding that Tafoya suffered only five prison priors (§ 667.5, subd. (b)).
(2) Vacate its true finding on three of the prison prior allegations; specifically, in case No. FSB059508, receiving stolen property (§ 496, subd. (a)) and unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)), and in case No. FVA1200253, forgery (§ 475, subd. (a));
(3) Strike the two one-year prior prison term enhancements under section 667.5, subdivision (b), stemming from case Nos. FVA801540 and FSB1202975; and
(4) Exercise its sentencing discretion in light of the changed circumstances.
The trial court is further directed to strike the court security fees of $350 as to each defendant and, instead, substitute the amounts of $280 as to Tafoya and $210 as to Mungarro.
Additionally, the trial court is directed to amend the abstracts of judgment and to forward certified copies of the amended abstracts and minute orders to the Department of Corrections and Rehabilitation. In all other respects, the judgments are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.