Opinion
H047436
11-17-2020
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO VARGAS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. 18CR009867)
I. INTRODUCTION
Defendant Antonio Vargas pleaded no contest to robbery (Pen. Code, § 211). He also admitted that he had one prior strike conviction (§1170.12, subd. (c)(1)), and that he had served one prior prison term (§ 667.5, former subd. (b)). The trial court sentenced defendant to five years in prison. The court also ordered defendant to pay various amounts, including a $40 court operations assessment (§ 1465.8, subd. (a)(1)), a $30 court facilities assessment (Gov. Code, § 70373), and a $500 restitution fine (§ 1202.4 subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant argues that his prior prison term enhancement should be stricken because the enhancement no longer applies to him based on legislation that went into effect after he was sentenced. (See § 667.5, subd. (b).) Second, defendant contends that, based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), his trial counsel provided ineffective assistance by failing to object to the imposition of certain amounts and by failing to request an ability-to-pay hearing.
For reasons that we will explain, we will reverse the judgment and remand with directions to strike the prior prison term enhancement and resentence defendant. On remand, defendant may raise the issue of his purported inability to pay a restitution fine (§ 1202.4, subds. (b)-(d)).
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Offense
On October 14, 2018, around 9:47 p.m., Salinas police responded to a report of an armed robbery at a Little Caesar's store. The store manager stated that a Hispanic male, who was wearing a black hooded sweatshirt and a white or gray bandana covering his face, entered the store and placed a gray cloth bag on the countertop. The male placed one hand in his sweatshirt pocket and the other in his pants pocket. He told the store manager, "Give me the money." The manager, who believed the male had a firearm, removed approximately $50 to $70 from the cash register and placed it in the bag. The male then left the store.
Later that same evening, at approximately 10:30 p.m., Salinas police officers responded to a report of an armed robbery at another Little Caesar's store approximately ten minutes away. The manager of this store stated that a Hispanic male wearing a black hooded sweatshirt and a black bandana entered the store with a cream-colored bag. The male twice demanded all the money. The manager reported that the male had both hands inside his sweatshirt as if he was carrying a firearm. The manager gave the male the money from the register. After the money was placed in the bag, the male exited the store.
Salinas police subsequently located two males hanging around the rear of a vehicle about 800 feet from the second Little Caesars that had been robbed. One male, who was later identified as defendant, was wearing jeans and a white T-shirt. He walked to the passenger side of the vehicle, opened a door, kneeled near the floorboard area, and appeared to be shoving items. He then stood up and closed the door. The police detained defendant and, after learning he was on parole, searched the vehicle. Underneath the passenger seat was a black hooded sweatshirt, a black bandana, a gray cloth bag, and $176. The store manager from the second Little Caesars identified the bag as the one the robber had used. Video surveillance from a nearby business around the time of the second robbery showed defendant walking towards the second Little Caesars store and, moments later, running away from the store.
B. The Charges , Plea , and Sentencing
Defendant was charged by information on February 22, 2019, with two counts of second degree robbery. (§ 211.) The information also alleged that defendant had one prior strike conviction (§ 1170.12, subd. (c)(1)), and that he had served one prior prison term (§ 667.5, former subd. (b)).
Defendant pleaded no contest to one count of robbery (count one), and he admitted that he had one prior strike and that he had served one prior prison term. Defendant entered his plea and admissions with the understanding that he would be sentenced to four to seven years in prison, and that the remaining count would be submitted for dismissal at the time of sentencing.
On August 20, 2019, the trial court sentenced defendant to five years in prison. The sentence consists of four years (the lower term, doubled) for robbery (§ 211) and a consecutive term of one year for the prison prior (§ 667.5, former subd. (b)). Additionally, the court ordered defendant to pay various amounts, including a $40 court operations assessment (§ 1465.8, subd. (a)(1)), a $30 court facilities assessment (Gov. Code, § 70373), a $500 restitution fine (§ 1202.4 subd. (b)), and a $10 crime prevention fine (§ 1202.5) plus penalty assessments. The court also ordered victim restitution in an amount to be determined. The court dismissed the remaining count.
III. DISCUSSION
A. Prior Prison Term Enhancement
Defendant contends that his prior prison term enhancement should be stricken based on an amendment to section 667.5, subdivision (b), effective January 1, 2020, and that the matter should be remanded for resentencing.
The Attorney General concedes that the amendment applies retroactively to defendant, and that the case should be remanded with directions to the trial court to strike the prior prison term enhancement and to resentence defendant. We find the Attorney General's concession appropriate.
Defendant was sentenced on August 20, 2019. Pursuant to section 667.5, former subdivision (b), the trial court imposed a consecutive one-year term for defendant's prior prison term. Defendant served the prior prison term for his conviction for criminal threats under section 422.
On October 8, 2019, the Governor signed Senate Bill No. 136, which amended section 667.5, subdivision (b). (People v. Lopez (2019) 42 Cal.App.5th 337, 340 (Lopez).) Under the amendment, the one-year enhancement under section 667.5, subdivision (b) applies only if the defendant's prior prison term was "for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." (§ 667.5, subd. (b).)
The amendment to section 667.5, subdivision (b) became effective on January 1, 2020. (Lopez, supra, 42 Cal.App.5th at p. 341.) The amendment applies retroactively to all defendants whose judgments are not yet final as of that date. (Id. at pp. 341-342.) " '[F]or the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed. [Citations.]' [Citation.]" (People v. Vieira (2005) 35 Cal.4th 264, 306.)
Defendant's case was not yet final on the effective date of the amendment to section 667.5, subdivision (b). The parties agree that the prior prison term enhancement should be stricken and that defendant should be resentenced. We will direct the trial court accordingly.
B. Assessments and Fine
Defendant contends that, based on Dueñas, supra, 30 Cal.App.5th 1157, his trial counsel provided ineffective assistance by failing to object to the imposition of certain amounts and by failing to request an ability-to-pay hearing. Defendant argues that he was indigent at the time of sentencing, has mental health issues, and will not be able to earn wages inside or outside of prison.
The Attorney General argues that because this case should be remanded for resentencing, this court should also remand the matter of fines and fees to the trial court so that defendant may request a hearing and present his inability to pay. The Attorney General contends that because defendant will have an opportunity to ask the trial court for a hearing on his ability to pay, this court need not consider his ineffective assistance of counsel claim.
1. Ineffective assistance of counsel
To prevail on an ineffective assistance of counsel claim, a defendant must establish that trial counsel's performance was deficient and that defendant suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687.) The deficient performance component of an ineffective assistance claim requires a showing that "counsel's representation fell below an objective standard of reasonableness" under prevailing professional norms. (Id. at p. 688.) Regarding prejudice, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.)
In this case, defendant contends that trial counsel rendered ineffective assistance by failing to object to the imposition of three amounts without requesting an ability to pay hearing: a $40 court operations assessment (§ 1465.8, subd. (a)(1)), a $30 court facilities assessment (Gov. Code, § 70373), and a $500 restitution fine (§ 1202.4 subd. (b)). We separately consider the assessments and the fine.
Although defendant's opening brief on appeal recites the fact that the trial court imposed a $10 crime prevention fine (§ 1202.5) plus penalty assessments, defendant does not expressly argue that his trial counsel rendered ineffective assistance by failing to object to this fine, nor does defendant expressly ask this court for relief regarding this fine. --------
2. Court operations assessment and court facilities assessment
The court operations assessment and the court facilities assessment are mandated by statute. (§ 1465.8, subd. (a)(1) [court operations assessment of $40 "shall be imposed on every conviction"]; Gov. Code, § 70373, subd. (a)(1) [court facilities assessment of $30 "shall be imposed on every conviction"].) Those statutes require imposition of the assessments without regard to a defendant's ability to pay. (People v. Kim (2011) 193 Cal.App.4th 836, 842; see People v. Woods (2010) 191 Cal.App.4th 269, 272.)
In Dueñas, however, the appellate court concluded that imposition of the court operations assessment (§ 1465.8) and court facilities assessment (Gov. Code, § 70373) without a determination of the defendant's ability to pay was "fundamentally unfair" and violated due process under the federal and California Constitutions. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The Dueñas court also concluded that the execution of a restitution fine under section 1202.4 "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, at p. 1164.)
The Courts of Appeal, including panels of our own court, have reached conflicting conclusions on whether Dueñas was correctly decided. (See, e.g., People v. Santos (2019) 38 Cal.App.5th 923, 926-927 [applying "the principles articulated [in Dueñas]"]; id. at pp. 935-939 (dis. opn. of Elia, J.); People v. Adams (2020) 44 Cal.App.5th 828, 832 [concluding that "Dueñas was wrongly decided"]; id. at pp. 832-833 (dis. opn. of Premo, J.); People v. Petri (2020) 45 Cal.App.5th 82, 90 [finding that Dueñas was not "persuasive"]; id. at p. 95 (dis. opn. of Premo, J.).) The issue of whether an ability to pay determination must be made is currently pending before the California Supreme Court. (See, e.g., People v. Kopp (2019) 38 Cal.App.5th 47, 95 (Kopp) [agreeing with Dueñas that due process requires an ability to pay determination before imposition of court operations or court facilities assessment], review granted Nov. 13, 2019, S257844). Pending the California Supreme Court's decision in Kopp, we continue to adhere to the position that Dueñas was incorrectly decided. Therefore, as defendant's ineffective assistance of counsel claim regarding the court operations assessment (§ 1465.8) and court facilities assessment (Gov. Code, § 70373) is based on Dueñas, we determine that defendant fails to establish a reasonable probability of a more favorable outcome had trial counsel objected and requested an ability to pay hearing regarding these two assessments.
3. Restitution fine
The trial court also ordered defendant to pay a $500 restitution fine. Where, as here, the court considers "increasing the amount of the restitution fine in excess of the [$300] minimum fine," a defendant's "[i]nability to pay may be considered." (§ 1202.4, subd. (c).) "Consideration of a defendant's inability to pay may include his or her future earning capacity. A defendant shall bear the burden of demonstrating his or her inability to pay." (Id., subd. (d).)
In contending that his trial counsel rendered ineffective assistance by failing to object to the restitution fine or request an ability-to-pay hearing, defendant argues that he is unable to pay the restitution fine. According to defendant, the record reflects that he suffered from mental illness, was on disability, and that he had never worked. Defendant further argues that, in view of these circumstances, it is unlikely he will be able to earn wages while inside or outside of prison.
Because we must remand for resentencing, we need not decide whether it is reasonably probable that the trial court would have imposed a smaller restitution fine had trial counsel objected on ability-to-pay grounds to the $500 restitution fine. Defendant will have the opportunity to raise the objection on remand. We express no opinion regarding defendant's ability to pay the restitution fine.
IV. DISPOSITION
The judgment is reversed, and the matter is remanded with directions to strike the prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) and resentence defendant. Defendant may raise the issue of his purported inability to pay a restitution fine (id., § 1202.4, subds. (b)-(d)) on remand.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
DANNER, J.