Opinion
C085637
06-26-2020
THE PEOPLE, Plaintiff and Respondent, v. SEBASTIAN TORRES, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F01794)
Defendant Sebastian Torres appeals his convictions for second degree murder, two counts of assault with a deadly weapon, and attendant gang enhancements. He contends his murder conviction must be reversed because with the enactment of Senate Bill No. 1437, abrogating the natural and probable consequences theory of murder, there is no basis to conclude his conviction was based on a legally valid theory. In supplemental briefing, defendant also contends: (1) the gang enhancements attached to the two counts of assault with a deadly weapon must be stayed under Penal Code section 654 - undesignated statutory references are to the Penal Code; (2) the trial court erred in failing to award custody credits for defendant's actual time in custody; and (3) based primarily on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the trial court erred by imposing the court operations and criminal conviction assessments, the jail classification fee, and the restitution fines without determining his ability to pay them. We conclude the trial court erred in failing to award defendant actual custody credits. We will order the custody credits and direct the Clerk of the Court to prepare a corrected abstract of judgment. In all other respects, we affirm the judgment.
FACTS AND PROCEEDINGS
As a result of a fight, defendant and four codefendants, Jose Salazar, Jonathan Canil, Victor Hernandez, and Javier Lopez, were charged with murder and two counts of assault with a deadly weapon. Canil, Hernandez, and Lopez all pleaded guilty and agreed to testify against defendant and Salazar.
Defendant was a member of the Howe Park Surenos. After a young codefendant heard a classmate direct derogatory language at him, defendant, Salazar, and three younger codefendants, all fellow gang members, drove to the classmate's home and got into a fight with the classmate and some of his friends and family, including Shannon Gregg, Brandon Moreno, and Michael Caicedo. Defendant and Salazar were fighting with Gregg and Caicedo. During the fight, Gregg, Caicedo, and Moreno were stabbed. After Gregg was stabbed, defendant and his codefendants left, with defendant stating they would return with bullets. Gregg later died from his injuries.
The physical descriptions of defendant and Salazar varied, but at various points each was described as short and overweight or chunky. At the time of the arrests, Salazar was approximately 5'1"-5'2" and 200 pounds, defendant was approximately 5'8" and 200 pounds. Both were quite a bit heavier than the younger codefendants. Caicedo described the man who stabbed him as "short, fat Hispanic." Another witness identified defendant as the person who threw the first punch in the fight, got out of the car with a knife in his hand, stabbed Gregg and Caicedo, and tried to run over people at the scene. As they drove away from the scene, one of the codefendants saw Salazar with a bloody knife and another heard Salazar say he had stabbed someone.
An information charged defendant, and codefendant Salazar, with murder (§ 187, subd. (a)) and two counts of assault with a deadly weapon (§ 245, subd. (a)(1)). The information further alleged all three counts were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). As to count one, the information alleged the offense was a serious and violent felony (§§ 1192.7, subd. (c)(1) & 667.5, subd. (c)(1)) and as to counts two and three that the offense was a serious felony as defendant(s) had personally used a dangerous and deadly weapon (§ 1192.7, subd. (c)(23)).
A jury found defendant and Salazar both not guilty of first degree murder, but guilty of second degree murder and both assault charges. The jury also found true each gang enhancement allegation. The jury was not charged with, and did not make any findings, regarding the personal use of a dangerous and deadly weapon allegation as to either defendant. The trial court sentenced defendant to an aggregate term of 11 years eight months on the assault convictions and a consecutive indeterminate term of 15 years to life for the second degree murder conviction. The trial court did not award any custody credits. The trial court also imposed a $5,000 restitution fine (§ 1202.4), imposed and suspended an identical parole revocation fine (§ 1202.45), a $383.22 main jail booking fee (Gov. Code, § 29550.2), a $61.75 main jail classification fee (Gov. Code, § 29550.2), a $120 court operations assessment (§ 1465.8, subd. (a)(1)), and a $90 court facility fee (Gov. Code, § 70373).
DISCUSSION
I
Senate Bill No. 1437 Relief
Defendant contends his murder conviction must be reversed because one of the legal theories on which his conviction could be based, the natural and probable consequences theory, was abrogated by Senate Bill No. 1437 (Senate Bill 1437) (2017-2018 Reg. Sess.). The People answer that under the new law, as enacted in section 1170.95, defendant must seek relief in the trial court. Several cases have held a defendant seeking relief under Senate Bill 1437 must do so by filing a petition in the court in which the defendant was sentenced. (See People v. Martinez (2019) 31 Cal.App.5th 719, 727-729 (Martinez); accord, People v. Anthony (2019) 32 Cal.App.5th 1102, 1148-1153; In re Taylor (2019) 34 Cal.App.5th 543, 561-562.) Defendant argues these cases are incorrectly decided, but offers no authority holding that he is entitled to relief on direct appeal under Senate Bill 1437.
During the pendency of this appeal, the Governor signed Senate Bill 1437 into law, effective January 1, 2019. (Martinez, supra, 31 Cal.App.5th at p. 722.) "Senate Bill 1437 was enacted to 'amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.' [Citation.] Substantively, Senate Bill 1437 accomplishes this by amending section 188, which defines malice, and section 189, which defines the degrees of murder, and as now amended, addresses felony murder liability." (Martinez, at p. 723.)
"Senate Bill 1437 also adds . . . section 1170.95, which allows those 'convicted of felony murder or murder under a natural and probable consequences theory . . . [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts . . . .' " (Martinez, supra, 31 Cal.App.5th at p. 723.) Section 1170.95 requires that a trial court determine whether the defendant has made a prima facie showing for relief, and conduct a hearing where the parties may "offer new or additional evidence." (§ 1170.95, subds. (c), (d).)
Importantly, contrary to defendant's claims, section 1170.95 does not mechanically apply to every petitioner who makes a prima facie case of eligibility for relief. Rather, the section expressly gives the People and a defendant the right to present new and additional evidence to the trial court while considering the petition. (§ 1170.95, subd. (d).) Only after considering this evidence and hearing from the parties will the trial court determine defendants' eligibility for relief. (Ibid.) Were we to adopt defendant's approach, we would be denying the People this right.
Appellate courts are not the proper venue for holding hearings where new evidence is taken and factual findings are made. (See Crofoot Lumber, Inc. v. Lewis (1962) 210 Cal.App.2d 678, 681 ["The reluctance of appellate courts to take evidence stems in part from the fact that they are not equipped for any appreciable foray into this field"].) Unlike a trial court, we are bound by the record on appeal. (See People v. Anthony, supra, 32 Cal.App.5th at pp. 1152-1153.) Knowing this, the Legislature placed exclusive jurisdiction over petitions for relief under section 1170.95 in the trial courts. The provision of this hearing demonstrates the Legislature intended to afford the People an opportunity to prove that defendants who were convicted of murder under a natural and probable consequences theory would nonetheless be guilty of murder had Senate Bill 1437 been in effect at the time of the conviction.
Based on the statutory language, we agree with the reasoning and conclusions in Anthony and Martinez and conclude the Legislature intended section 1170.95's petitioning procedure to be the exclusive remedy for persons, like defendant, who seek sentencing relief based on Senate Bill 1437. In doing so, we reject defendant's arguments for not following Martinez and its progeny.
II
Section 654Defendant claims that under section 654, the trial court was required to stay the gang enhancements imposed on each of the assault with a deadly weapon convictions as against Caicedo and Moreno. Defendant acknowledges authority to the contrary, but argues they are distinguishable, as his liability rests on aider and abettor liability, and the conduct of aiding and abetting is not divisible.
"Section 654 precludes multiple punishments for a single criminal act by providing that '[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.' (§ 654, subd. (a).)" (People v. Wooten (2013) 214 Cal.App.4th 121, 128-129.)
"Section 654 precludes multiple punishment where an act or course of conduct violates more than one criminal statute but a defendant has only a single intent and objective." (People v. McCoy (2012) 208 Cal.App.4th 1333, 1338, italics omitted.) "[S]ection 654 serves to match a defendant's culpability with punishment." (People v. Vang (2010) 184 Cal.App.4th 912, 915-916.) If the statute applies, the trial court must impose sentence but stay execution on all convictions except the one carrying the longest sentence. (Ibid.) We review explicit or implicit factual resolutions of the trial court for substantial evidence in the trial record, which the court may base on any facts in the record without regard to the verdicts unless the verdicts foreclose the consideration of them in some fashion. (McCoy, at pp. 1338, 1340.)
When applied to multiple enhancements of the same "aspect" of a single offense, section 654 precludes punishment for more than one of them. (People v. Ahmed (2011) 53 Cal.4th 156, 163, 165.) However, "if section 654 does not bar punishment for two crimes, then it cannot bar punishment for the same enhancements attached to those separate substantive offenses. This is true even if the same type of sentence enhancement is applied to the underlying offenses." (People v. Wooten, supra, 214 Cal.App.4th at p. 130, italics omitted.) In addition, " ' "the limitations of section 654 do not apply to crimes of violence against multiple victims." [Citation.] As we have explained: "The purpose of the protection against multiple punishment is to insure that the defendant's punishment will be commensurate with his criminal liability. A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person. . . ." ' " (People v. Bragg (2008) 161 Cal.App.4th 1385, 1403; see also People v. Akins (1997) 56 Cal.App.4th 331, 339-340 [section 654 does not bar punishment of a gang enhancement where underlying offences were acts of violence against separate victims].)
Contrary to defendant's claim, the record does not indicate defendant was convicted on an aiding and abetting theory of liability rather than as the actual perpetrator. The jury was not asked to determine if either he or Salazar personally used a dangerous and deadly weapon. The evidence and identifications of the fight were mixed and inconsistent, but there was evidence that defendant had initiated the fight, had a knife, stabbed Caciedo and Gregg, and tried to run over others at the scene. That is, there was evidence from which the trial court could reasonably infer defendant was the direct perpetrator. And, even under defendant's argument it was appropriate for the trial court to impose separate enhancements under section 654 in this circumstance.
Nor does defendant provide any authority holding that the applicability of section 654 in imposing gang enhancements for separate offenses with separate victims varies depending upon whether one is convicted as the direct perpetrator or as an aider and abettor. We decline to render such a holding here.
An aider and abettor has the same culpability as the direct perpetrator. "[T]he dividing line between the actual perpetrator and the aider and abettor is often blurred. It is often an oversimplification to describe one person as the actual perpetrator and the other as the aider and abettor. When two or more persons commit a crime together, both may act in part as the actual perpetrator and in part as the aider and abettor of the other, who also acts in part as an actual perpetrator." (People v. McCoy (2001) 25 Cal.4th 1111, 1120, italics omitted.) One who is guilty under the aider and abettor doctrine is not less culpable than the direct perpetrator. "The aider and abettor doctrine merely makes aiders and abettors liable for their accomplices' actions as well as their own. It obviates the necessity to decide who was the aider and abettor and who the direct perpetrator or to what extent each played which role." (Ibid.)
Defendant's argument attempts to minimize the fact that he committed, either as a direct perpetrator or an aider and abettor, a murder and two separate assaults with a deadly weapon against three separate victims. But, there is no such distinction to make here. Even if defendant was convicted as an aider and abettor, his culpability for the substantive offenses and the enhancements is the same as if he had been convicted as the direct perpetrator. Sentencing defendant to the term prescribed by law for each offense, as well as each enhancement attached to those offenses comports with the rationale of section 654, that defendant's punishment be commensurate with his culpability. Defendant either personally committed, or intended to help his fellow gang members commit, the murder of Gregg, an assault with a deadly weapon of Caciedo, and a separate assault with a deadly weapon of Moreno. Adding to the seriousness of each of those offenses, he committed each crime on behalf of or in association with a criminal street gang. Punishing defendant separately as to each offense he committed on behalf of or in association with a criminal street gang "appropriately addresses the degree of his culpability for committing three separate offenses made more serious by the method by which they were carried out and by the reason for which they were committed." (People v. Bragg, supra, 161 Cal.App.4th at p. 1403.) Multiple enhancements were therefore appropriate.
III
Custody Credits
Defendant contends the trial court erred in failing to calculate and grant him a total of 1,288 days of custody credit for his actual time in custody under section 2900.5. The People properly concede this point.
"Everyone sentenced to prison for criminal conduct is entitled to credit against his term for all actual days of confinement solely attributable to the same conduct." (People v. Buckhalter (2001) 26 Cal.4th 20, 30.) Defendant was arrested on March 15, 2014, and sentence was executed on September 22, 2017. This is 1,288 days. The trial court did not award defendant any credits. This was error. We will modify the judgment to award defendant 1,288 days of credit for actual time in custody.
IV
Ability to Pay
Defendant claims that pursuant to the holding in Dueñas, supra, 30 Cal.App.5th at pages 1168 and 1172, the portion of the trial court order directing defendant to pay the restitution fines and parole revocation fines, jail classification fees, and the court operations assessments and criminal conviction assessments should be stricken or stayed pending a hearing on his ability to pay.
We disagree because we conclude that Dueñas was wrongly decided.
Dueñas 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.)
The Dueñas opinion relies on a line of authorities beginning with Griffin v. Illinois (1956) 351 U.S. 12 , which itself rested on the "constitutional guaranties of due process and equal protection" and struck down a state practice of granting appellate review only to individuals who could afford a trial transcript. (Id.at pp. 13, 17; see Dueñas, supra, 30 Cal.App.5th at pp. 1166-1169.) As recent appellate court cases have illustrated, the authorities Dueñas cites involving the right of access to courts are inapplicable because the imposition of the fine and assessments at issue in Dueñas and in this proceeding do not deny defendants access to the courts. (People v. Hicks (2019) 40 Cal.App.5th 320, 326, review granted Nov. 26, 2019, S258946 (Hicks); People v. Aviles (2019) 39 Cal.App.5th 1055, 1068-1069; People v. Caceres (2019) 39 Cal.App.5th 917, 927 (Caceres); see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1039 (conc. opn. of Benke, J.).) Griffin also stated broadly, "There can be no equal justice where the kind of trial a man gets depends on the amount of money he has." (Griffin, at p. 19.) Another line of cases relied upon by Dueñas is related by this "principle of 'equal justice' " and prohibits imprisonment based on the failure to pay criminal penalties where the nonpayment was due to indigence. (Bearden v. Georgia (1983) 461 U.S. 660, 661-662, 664 [76 L.Ed.2d 221, 225-227]; accord, In re Antazo (1970) 3 Cal.3d 100, 103-106, 109-110; see Dueñas, at pp. 1166-1168.)
The fine and assessments at issue in Dueñas and this appeal subject an indigent defendant "only to a civil judgment that she [or he] cannot satisfy." (Dueñas, supra, 30 Cal.App.5th at p. 1167; see also id. at p. 1169.) Thus, the authorities prohibiting incarceration for indigence alone are inapplicable. (Hicks, supra, 40 Cal.App.5th at p. 326, review granted; Caceres, supra, 39 Cal.App.5th at p. 927.) Indeed, in In re Antazo, supra, 3 Cal.3d 100, our Supreme Court granted the petition for the writ of habeas corpus only to discharge the petitioner from his imprisonment resulting from his inability to pay the fine and penalty assessment imposed as a condition of probation, but did not relieve him from any obligations in his probation order. (Id. at p. 117.) The court explained, "we do not hold that the imposition upon an indigent offender of a fine and penalty assessment, either as a sentence or as a condition of probation, constitutes of necessity in all instances a violation of the equal protection clause." (Id. at p. 116, italics added.) In other words, "Dueñas does more than go beyond its foundations; it announces a principle inconsistent with them." (Hicks, at p. 327, review granted.)
Further, "the fundamental policy question presented in Dueñas is a nettlesome one—namely, under what circumstance is it appropriate to require criminal defendants, many of whom are people of little or no means, to pay assessments that help defray the costs of operating the court system and restitution fines that pour into a statewide fund that helps crime victims?" (Hicks, supra, 40 Cal.App.5th at p. 328, review granted.) This "is a question to which . . . the federal and California Constitutions do not speak and thus have left to our Legislature." (Id. at p. 329, review granted.)
We join those authorities that have concluded that the principles of due process do not supply a procedure for objecting to the fines and assessments at issue in Dueñas and in this proceeding based on the present ability to pay. (Hicks, supra, 40 Cal.App.5th at p. 329, review granted; People v. Aviles, supra, 39 Cal.App.5th at p. 1069; Caceres, supra, 39 Cal.App.5th at p. 928.) To the extent it announced this broad rule, Dueñas was wrongly decided and defendant's claim pursuant thereto is without merit.
DISPOSITION
The judgment is modified to award defendant 1,288 of actual custody credit. The Clerk of the Court is to correct the abstract of judgment accordingly and forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed, without prejudice to defendant filing a section 1170.95 petition in the trial court. We express no opinion on the merits of such a petition.
/s/_________
HULL, J. We concur: /s/_________
RAYE, P. J. /s/_________
MURRAY, J.