Opinion
C087064
03-16-2020
THE PEOPLE, Plaintiff and Respondent, v. SETH MICHAEL THOMPSON, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17F5033)
Defendant and two accomplices robbed a victim in his home at gunpoint. After pleading no contest to first degree residential robbery in concert and admitting to personally using a firearm during the offense, he was sentenced to a stipulated 13-year prison term, which included 10 years for the firearm enhancement.
In his initial briefing, appointed counsel for defendant Seth Michael Thompson filed an opening brief that set forth the facts of the case and asked this court to review the record to determine whether there were any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant filed a supplemental brief asking us to strike the 10- year personal use of a firearm enhancement imposed under section 12022.53, subdivision (b) based on Senate Bill No. 620 (SB 620). We affirmed the judgment after rejecting defendant's SB 620 argument and finding no other arguable error that would result in a disposition more favorable to him.
In a petition for rehearing, counsel contended that the matter should be remanded for a hearing on defendant's ability to pay the fines, fees, and assessments imposed by the trial court, or else this court should strike the court facilities assessment and conviction assessment and stay the restitution fine absent a finding that defendant has the present ability to pay those fines. (People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).) We granted rehearing, vacated our earlier opinion, and obtained further briefing from the parties. We now conclude remand is not required for an ability to pay hearing, and that the restitution fine imposed was not unconstitutionally excessive. We again reject defendant's SB 620 argument and affirm the judgment.
I. BACKGROUND
During the early morning hours on September 11, 2017, defendant and another man forced open the front door of N.O's home in Olinda, California. N.O. was home at the time. Defendant entered the residence first while holding a black handgun. He ordered N.O. to the ground, yelling, " 'Where is your money at?' " N.O. gave defendant his wallet. Defendant took N.O.'s cellphone from his pants pocket.
At that point, a third man entered the house, and defendant and his cohorts took turns rummaging through N.O.'s house. Before leaving, they took various items of N.O's personal property, including a laptop, power tools, $400, eight knives, a bag of watches, and the recorder box of the home surveillance system. Defendant told N.O. that if he called the police, defendant would kill him and his family.
Defendant was charged with first degree burglary (Pen. Code, § 459—count 1), first degree residential robbery (§ 211—count 2), grand theft of personal property (§ 487, subd. (a)—count 3), assault with a semi-automatic firearm (§ 245, subd. (b)—count 4), and two counts of dissuading a witness from reporting a crime (§ 136, subd. (b)(1)—counts 5 and 6). For counts 1, 2, 3, 5, and 6, it was alleged that defendant was armed with a firearm (§ 12022, subd. (a)(1)), and personally used a deadly or dangerous weapon (§ 12022, subd. (b)). For all counts, it was alleged he personally used a firearm (§ 12022.5, subd. (a)). And, for count 2, it was alleged that defendant personally used a firearm (§ 12022.53, subd. (b)) and acted in concert with two or more persons in a home invasion (§ 213, subd. (a)(1)(A)). The information further alleged that defendant had served two prior prison terms. (§ 667.5, subd. (b).)
Further undesignated statutory references are to the Penal Code.
In March 2018, defendant pleaded no contest to first degree residential robbery (count 2), and admitted that he acted in concert during a home invasion (§ 213, subd. (a)(1)(A)) and that he personally used a firearm during the offense (§ 12022.53, subd. (b)) in exchange for a stipulated 13-year state prison term and dismissal of the remaining charges, allegations, and several other pending cases. The court sentenced him to the stipulated 13-year term, consisting of the low term of three years for the home invasion robbery plus 10 years for the firearm enhancement.
The court awarded defendant 175 days of actual credit and 26 days of conduct credit (§ 2933.1) for a total of 201 days of credit. The court imposed a $300 restitution fine (§ 1202.4, subd. (b)), a $300 parole revocation restitution fine, suspended unless parole was revoked (§ 1202.45), a $40 court operations assessment (§ 1465.8), a $30 criminal conviction assessment (Gov. Code, § 70373), and $3,575 in victim restitution. Defendant timely appealed. The court denied his request for a certificate of probable cause.
II. DISCUSSION
A. Ability to Pay
At sentencing, the trial court ordered defendant to pay a $300 restitution fine under section 1202.4, a $40 court operations assessment under section 1465.8, and a $30 court facilities assessment under Government Code section 70373. Defendant did not object, and he did not alert the court to any issues relating to his ability to pay. On appeal, defendant argues the court violated his right to due process equal protection and the federal and state constitutional prohibitions on excessive fines by imposing these fines and fees without holding a hearing to determine his ability to pay them. This argument relies primarily on Dueñas, 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." (Dueñas, supra, 30 Cal.App.5th 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 seeks remand for a hearing regarding his present ability to pay.
The People argue defendant forfeited his claim by failing to object on any constitutional grounds or even express any concern about inability to pay in the trial court. 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 (Kopp), 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 those authorities that have concluded 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; 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.
Likewise, so far as defendant argues that imposing the minimum $300 restitution fine without considering his ability to pay violated the excessive fines clauses of the federal and state Constitutions (U.S. Const., Amend. VIII; Cal. Const., art. I, § 17), we disagree. (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 731 [after examining the relevant considerations, a reviewing court can decide for itself whether a fine or penalty is unconstitutionally excessive].)
"The Eighth Amendment prohibits the imposition of excessive fines. The word 'fine,' as used in that provision, has been interpreted to be ' "a payment to a sovereign as punishment for some offense." ' " (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1040 (conc. opn. of Benke, J.).) The determination of whether a fine is excessive for purposes of the Eighth Amendment is based on the factors set forth in United States v. Bajakajian (1998) 524 U.S. 321, (Bajakajian). (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at pp. 728-729 [applying Eighth Amendment analysis to both defendant's federal and state excessive fines claims].)
" 'The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. [Citations.] . . . [A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense.' (Bajakajian, supra, 524 U.S. at p. 334.)
"The California Supreme Court has summarized the factors in Bajakajian to determine if a fine is excessive in violation of the Eighth Amendment: '(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. [Citations.]' (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at p. 728; see Gutierrez, supra, 35 Cal.App.5th at p. 1040 (conc. opn. of Benke, J.).) While ability to pay may be part of the proportionality analysis, it is not the only factor. (Bajakajian, supra, 524 U.S. at pp. 337-338.)" (People v. Aviles, supra, 39 Cal.App.5th at p. 1070.) We review the excessiveness of a fine challenged under the Eighth Amendment de novo. (Ibid.)
Here, we find that the $300 restitution fine imposed for the armed residential robbery is not grossly disproportional to the level of harm and defendant's culpability in this matter. It was not grossly disproportionate to impose the statutory minimum restitution fine in light of defendant's violent conduct. Indeed, defendant himself concedes that the first three Bajakajian factors (a defendant's culpability, the relationship between the harm and penalty, and penalties imposed in similar statutes) all weigh in favor of the restitution fine imposed by the court. Accordingly, the minimum $300 restitution fines imposed here is not excessive under the Eighth Amendment or the equivalent provision of the California Constitution. B. Firearm Enhancement
Defendant filed a supplemental brief asking us to strike the 10-year personal use of a firearm enhancement imposed under section 12022.53, subdivision (b). To support his request, he cites SB 620 (2017-2018 Reg. Sess.), which went into effect January 1, 2018. (Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a); People v. Camba (1996) 50 Cal.App.4th 857, 865 [" ' "Under the California Constitution, a statute enacted at a regular session of the Legislature generally becomes effective on January 1 of the year following its enactment except where the statute is passed as an urgency measure and becomes effective sooner" ' "]; People v. Hurlic (2018) 25 Cal.App.5th 50, 54.)
SB 620 amended sections 12022.5 and 12022.53 to grant trial courts the discretion to strike firearm enhancements imposed under those statutes. (§§ 12022.5, subd. (c) & 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, §§ 1-2.) Prior to SB 620, trial courts had no discretion to strike a firearm enhancement. (People v. Thomas (1992) 4 Cal.4th 206, 208, 212.) While SB 620 does apply retroactively to all nonfinal judgments (People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091), that does not mean remand for resentencing is warranted here.
As previously noted, defendant entered into the plea agreement in March 2018—nearly three months after SB 620 took effect. Thus, the new law was part of the legal landscape when defendant agreed to the stipulated 13-year prison term, including the 10-year firearm enhancement under section 12022.53, subdivision (b).
This is not a case, then, where a change in the law that ameliorates punishment was passed after a defendant had negotiated and executed a plea bargain. Under those circumstances, such a beneficial change arguably would apply to a case still pending on appeal unless the parties' plea agreement included a provision expressly stating that the agreement would not be subject to future changes in the law. (Harris v. Superior Court (2016) 1 Cal.5th 984, 991 [courts will not amend a plea agreement to add " 'an implied promise [that] the defendant will be unaffected by a change in the statutory consequences attending his or her conviction' "]; Doe v. Harris (2013) 57 Cal.4th 64, 66 [unless a plea agreement contains a term requiring the parties to apply only the law in existence at the time the agreement is made, the general rule in California is that a plea agreement will be deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and for public policy reasons].)
Here, we presume the parties, including the court, were aware of SB 620 and its newly granted discretion to strike firearm enhancements when defendant agreed to plead no contest in exchange for the stipulated sentence that included the 10-year firearm enhancement under section 12022.53. (Swenson v. File (1970) 3 Cal.3d 389, 393 [parties are presumed to know and to have had in mind all applicable laws when an agreement is made]; People v. Hurlic, supra, 25 Cal.App.5th at p. 57 ["plea agreements are, at bottom, 'a form of contract,' and their terms, like the terms of any contract, are to be enforced"].) Because the new law was "on the books" at the time the plea agreement was negotiated and executed, and defendant agreed to a specific sentence that did not account for the discretion to strike the firearm enhancement under SB 620, but rather included 10 years for the firearm enhancement as part of the deal, his appeal is rightly characterized as challenging nothing more than a stipulated sentence that was an integral part of the plea bargain. (People v. Panizzon (1996) 13 Cal.4th 68, 78 ["by contesting the constitutionality of the very sentence he negotiated as part of the plea bargain, defendant is, in substance, attacking the validity of the plea"].) The absence of a certificate of probable cause, however, bars such an appeal. (§ 1237.5 [a defendant who seeks to appeal following a guilty or no contest plea must first file with the trial court a sworn, written statement showing reasonable constitutional, jurisdictional or other grounds going to the legality of the proceedings and obtain a certificate of probable cause from the trial court]; Panizzon, supra, at p. 78 [because "the sentence [the] defendant received was part and parcel of the plea agreement he negotiated with the People . . . the statutory certificate [of probable cause] requirement applies"].)
In this case, the trial court denied defendant's request for a certificate of probable cause. Therefore, he cannot challenge the validity of the plea, including the 10-year term expressly agreed to for the firearm enhancement.
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
RAYE, P. J. /S/_________
HOCH, J.