Opinion
C089392
07-14-2020
THE PEOPLE, Plaintiff and Respondent, v. ADAM VILLA, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F01261)
Defendant Adam Villa and codefendants Joshua Parrish and Frank Camacho were convicted of attempted murder, attempted robbery, and related firearm crimes. On appeal, defendant argues his conviction for attempted murder must be reversed under Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437). Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant also argues the trial court erred in imposing certain fines, fees, and assessments without holding a hearing to determine his ability to pay them. We disagree with both contentions. Our review of the record revealed that a portion of defendant's sentence was unauthorized. We will modify the judgment to correct the error but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Given defendant's contentions on appeal, we provide only a brief recitation of the facts. In February 2015, defendant, Parrish, and Camacho arrived at the victim's home under the pretext of purchasing marijuana. When the victim opened the door, defendant pointed a gun in his face. The victim, who was unarmed, began fighting with defendant over the gun. Meanwhile, the two other men, who also were armed, pushed their way inside. During the melee, the three intruders each shot at the victim a total of five to 10 times. The victim's friend, who was visiting the victim at the time of the incident, testified at trial that he heard defendant say, "[E]verybody just chill out. We're here just to take [stuff]." Defendant, Parrish, and Camacho also beat up the friend. Eventually, the victim chased the three intruders outside and the men left in a waiting vehicle.
We previously granted defendant's request for judicial notice of our unpublished opinion in codefendant Parrish's appeal, People v. Parrish (Apr. 25, 2019, C087461). To facilitate our review in the instant case, we will incorporate by reference the facts and procedural history from our unpublished opinion in that appeal.
The victim suffered gunshot wounds to his legs, abdomen, and bladder. His bladder had to be sewn up, and he was forced to wear a colostomy bag for a year and a half. He also was shot in his buttocks, and other shots grazed his stomach and back. These injuries required the victim to undergo seven or eight separate surgeries.
In December 2017, a jury found defendant guilty of attempted murder and attempted robbery while entering a structure and acting in concert. (Pen. Code, §§ 664/187, subd. (a), 664/211 & 213, subd. (a)(1)(A).) As to both counts, the jury found defendant personally used a firearm and personally discharged a firearm. (§§ 12022.5, subd. (a)(1), 12022.53, subds. (b)-(c).)
Undesignated statutory references are to the Penal Code.
In April 2019, the trial court sentenced defendant to state prison for an aggregate term of 28 years, as follows: seven years for the attempted murder conviction, plus 20 years consecutive for the firearm enhancement, and one year consecutive for the attempted robbery conviction, plus six years eight months consecutive for the firearm enhancement, stayed under section 654. It also imposed a $5,000 restitution fine (§ 1202.4, subd. (b)), a corresponding $5,000 parole revocation fine (§ 1202.45), an $80 court operations assessment (§ 1465.8, subd. (a)(1)), and a $60 court facilities assessment (Gov. Code, § 70373).
DISCUSSION
I
Defendant argues his conviction for attempted murder based upon a natural and probable consequences theory must be reversed because, under Senate Bill 1437 (2017-2018 Reg Sess.), the Legislature has abrogated the basis for his conviction. His theory is that because his conviction was not final when Senate Bill 1437 became effective, the bill applies retroactively to his conviction based on In re Estrada (1965) 63 Cal.2d 740: "[W]here the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." (Id. at p. 748.) Defendant contends that given the retroactive application of Senate Bill 1437, the jury was misinstructed on the elements of attempted murder and his conviction must be reversed.
The People do not disagree that Senate Bill 1437 applies retroactively, but argue that defendant's sole avenue of relief is the petition procedure outlined in section 1170.95. They also contend that under the plain text of the statute, section 1170.95 does not apply to attempted murder convictions like defendant's.
Senate Bill 1437 restricted the application of the felony-murder rule and the natural and probable consequences doctrine, as applied to murder, by amending sections 188 and 189. (People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 276.) And, pertinent here, Senate Bill 1437 added section 1170.95. "Section 1170.95 permits a person convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the murder conviction and resentence the person on any remaining counts if the following conditions are met: '(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or second degree murder because of [the] changes to [s]ection 188 or 189 made effective January 1, 2019.' (Id., subd. (a).) [¶] If the petitioner makes a prima facie showing of entitlement to relief, the court must issue an order to show cause and, absent a waiver and stipulation by the parties, hold a hearing to determine whether to vacate the murder conviction, recall the sentence, and resentence the petitioner. (§ 1170.95, subds. (c) & (d)(1).)" (Gooden, at pp. 276-277.) At that hearing, the prosecution bears the burden of proving beyond a reasonable doubt the petitioner is ineligible for resentencing. (§ 1170.95, subd. (d)(3).) If the prosecution does not sustain its burden of proof, then the prior conviction, including any allegation and enhancements, must be vacated and the petitioner resentenced on the remaining charges. (Ibid.) "The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens." (Ibid.)
As amended, section 188, subdivision (a)(3) provides: "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." Section 189, subdivision (e), as amended, limits murder liability based on felony murder to a person who: (1) was the actual killer; (2) although not the actual killer, intended to kill and aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of first degree murder; or (3) was a major participant in the underlying felony and acted with reckless indifference to human life. (§ 189, subd. (e).)
In People v. Martinez (2019) 31 Cal.App.5th 719 (Martinez), the Court of Appeal concluded that Senate Bill 1437 applies equally to persons whose sentences are final and those whose sentences are not, and that relief under Senate Bill 1437 in either case is not available by direct appeal; instead, the person seeking relief must file a petition in the sentencing court under section 1170.95. (Martinez, at pp. 722-723, 724-727.)
In reaching its conclusion, the court in Martinez relied upon two California Supreme Court cases it found addressed analogous circumstances. (Martinez, supra, 31 Cal.App.5th at p. 725.) In People v. Conley (2016) 63 Cal.4th 646 (Conley), the defendant had been sentenced under the three strikes law to an indeterminate term of 25 years to life and appealed. While his appeal was pending, voters passed the Three Strikes Reform Act of 2012 (Proposition 36); two days later the appellate court issued its decision. The defendant petitioned for rehearing asking the court to remand to the trial court for resentencing. (Conley, at pp. 654-655.) The defendant argued that since his judgment was not yet final, he was entitled to rely on the Estrada rule to be resentenced without complying with Proposition 36's requirement for a petition and an assessment of his risk to public safety. (Conley, at pp. 655-656.)
The Supreme Court rejected the defendant's argument. It held the postconviction procedure of section 1170.126 was the exclusive means of relief for three reasons. First, unlike the statute at issue in Estrada, Proposition 36 was not silent on the issue of retroactivity; it was directly addressed in section 1170.126. (Conley, supra, 63 Cal.4th at p. 657.) Second, resentencing under Proposition 36 was contingent on the court's evaluation of the defendant's dangerousness and an automatic resentencing would eliminate that requirement. (Id. at pp. 658-659.) Third, Proposition 36 established a set of disqualifying factors that the prosecution had to plead and prove. Proposition 36 "does not address the complexities involved in applying the pleading-and-proof requirements to previously sentenced defendants precisely because the electorate did not contemplate that these provisions would apply. Rather, voters intended for previously sentenced defendants to seek relief under section 1170.126, which contains no comparable pleading-and-proof requirements." (Id. at pp. 660-661.)
In People v. DeHoyos (2018) 4 Cal.5th 594, the Supreme Court reached a similar conclusion as to the retroactive application of Proposition 47 (The Safe Neighborhoods and Schools Act) to nonfinal cases on direct appeal. "Proposition 47 redefined several common theft- and drug-related felonies as either misdemeanors or felonies, depending on the offender's criminal history" and provided a procedure for petitioning for resentencing similar to that of Proposition 36, including a determination of a defendant's risk of dangerousness. (Id. at pp. 597, 598-599.) Proposition 47 also was not silent on the issue of retroactivity, but contained provisions that drew no distinction between those serving final or nonfinal sentences. (Id. at p. 603.) While Proposition 47 did not create new sentencing factors, other indicia of legislative intent suggested that the resentencing scheme was the exclusive remedy. (Ibid.)
The Martinez court found that the "analytical framework animating the decisions in Conley and DeHoyos is equally applicable here. Like Propositions 36 and 47, Senate Bill 1437 is not silent on the question of retroactivity. Rather, it provides retroactivity rules in section 1170.95. . . . That the Legislature specifically created this mechanism, which facially applies to both final and nonfinal convictions, is a significant indication Senate Bill 1437 should not be applied retroactively to nonfinal convictions on direct appeal." (Martinez, supra, 31 Cal.App.5th at p. 727.)
Defendant asserts that Conley and DeHoyos are distinguishable because neither case "involved a defendant seeking the application of newly enacted standards of fairness for deciding murder liability in his pending appeal as part of the appellate court's evaluation of whether he received a fair jury trial." He further contends that the cases are inapposite because the new laws in those cases required the trial court to make a finding as to a defendant's risk to public safety and no such finding is required under Senate Bill 1437. The Martinez court rejected this argument, stating: "While [the] defendant is correct that section 1170.95 does not require a dangerousness inquiry, neither Conley nor DeHoyos holds that inquiry was the indispensable statutory feature on which the result in those cases turned. To the contrary, Conley notes '[o]ur cases do not "dictate to legislative drafters the forms in which laws must be written" to express an intent to modify or limit the retroactive effect of an ameliorative change; rather, they require "that the Legislature demonstrate its intention with sufficient clarity that a reviewing court can discern and effectuate it." ' " (Martinez, supra, 31 Cal.App.5th at p. 728.)
Martinez found the provision of a detailed mechanism for resentencing in section 1170.95 evinced sufficient legislative intent that such mechanism was the exclusive means of seeking relief under Senate Bill 1437. Since Martinez, other Courts of Appeal, including a panel of this court, have followed its reasoning and concluded that a defendant on direct appeal (or seeking habeas relief) must file a section 1170.95 petition with the sentencing court. (See People v. Cervantes (2020) 46 Cal.App.5th 213, 218, 220-226; People v. Garcia (2020) 46 Cal.App.5th 123, 181-182; People v. Anthony (2019) 32 Cal.App.5th 1102, 1147-1158; People v. Carter (2019) 34 Cal.App.5th 831, 835; In re R.G. (2019) 35 Cal.App.5th 141, 145-146; People v. Lopez (2019) 38 Cal.App.5th 1087, 1113-1116, review granted Nov. 13, 2019, S258175 (Lopez); People v. Munoz (2019) 39 Cal.App.5th 738, 749-753, review granted Nov. 26, 2019, S258234 (Munoz); In re Cobbs (2019) 41 Cal.App.5th 1073, 1079-1781; but see People v. Medrano (2019) 42 Cal.App.5th 1001, 1008 , review granted Mar. 11, 2020, S259948 [concluding a defendant convicted of attempted murder is entitled to relief under In re Estrada and Senate Bill 1437].)
We agree with the authorities holding that a petitioning procedure like the one created by section 1170.95 is an indication that the Legislature intended the law to apply prospectively only. "When the Legislature creates a statutory procedure by which defendants may avail themselves of a change in the law, that remedy must be followed and relief is not available on direct appeal." (Munoz, supra, 39 Cal.App.5th at p. 751, review granted Nov. 26, 2019, S258234 [rejecting argument that Senate Bill 1437 applies retroactively to attempted murder conviction on appeal].) We therefore hold that defendant may only seek relief under Senate Bill 1437 by petitioning the sentencing court as outlined in section 1170.95. (Munoz, at pp. 750-751, review granted Nov. 26, 2019, S258234; People v. Anthony, supra, 32 Cal.App.5th at p. 1158; People v. Martinez, supra, 31 Cal.App.5th at p. 727.)
Given our conclusion, we do not reach (and express no opinion on) the issue of whether Senate Bill 1437 applies to attempted murder, an issue currently pending before our Supreme Court. (See Lopez, supra, 38 Cal.App.5th 1087, review granted Nov. 13, 2019, S258175].) The issues to be briefed and argued in Lopez include: "(1) Does Senate Bill No. 1437 (Stats. 2018, ch. 1015) apply to attempted murder liability under the natural and probable consequences doctrine? (2) In order to convict an aider and abettor of attempted willful, deliberate and premeditated murder under the natural and probable consequences doctrine, must a premeditated attempt to murder have been a natural and probable consequence of the target offense? In other words, should People v. Favor (2012) 54 Cal.4th 868 be reconsidered in light of Alleyne v. United States (2013) 570 U.S. 99 and People v. Chiu (2014) 59 Cal.4th 155?" (Order granting review in Lopez, supra, 2019 Cal.LEXIS 8414.)
II
We next address defendant's argument that the trial court violated his right to due process and the federal and state constitutional prohibitions of excessive fines by imposing fines, fees, and assessments without holding a hearing to determine his ability to pay them. This argument relies primarily on Dueñas, which held that "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 requests that we strike the remaining fines, fees, and assessments, or remand the matter for a hearing on his ability to pay.
The People argue defendant forfeited his Dueñas claim by failing to object on due process grounds or even express any concern about inability to pay in the trial court. The People further argue defendant's restitution fines are constitutional.
A. Dueñas was incorrectly decided
Regardless of whether defendant forfeited the issue, we are not persuaded 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 (review granted Nov. 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 operations and court facilities assessments under section 1465.8 and Government Code section 70373.5. (Kopp, supra, at pp. 95-96, review granted Nov. 13, 2019, S257844.)
In the meantime, we join the courts that have concluded that Dueñas was wrongly decided. (See, e.g., People v. Kingston (2019) 41 Cal.App.5th 272; People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946 (Hicks); People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles); People v. Caceres (2019) 39 Cal.App.5th 917, 923-929 (Caceres).) In support of its due process rationale, Dueñas relies on authorities in which courts have held it is unconstitutional to punish an indigent defendant or impede his access to the courts, solely on the basis of his poverty. (Dueñas, supra, 30 Cal.App.5th at pp. 1165-1168, citing In re Antazo (1970) 3 Cal.3d 100, 103 [invalidating practice of requiring convicted defendants to serve jail time if they were unable to pay a fine or assessment], and Griffin v. Illinois (1956) 351 U.S. 12, 16-17, 19-20 [100 L.Ed. 891, 897-898, 899] [striking down a state practice of granting appellate review only to convicted criminal defendants who could afford a trial transcript].) As courts have subsequently noted, the line of cases cited in Dueñas relating to an indigent defendant's right of access to courts are inapplicable because the imposition of the challenged fines and assessments did not affect the ability of the defendant in Dueñas to present a defense at trial or to challenge the trial court's rulings on appeal. (Hicks, supra, at p. 326, review granted Nov. 26, 2019, S258946; Kingston, supra, at pp. 279-280; Aviles, supra, at pp. 1068-1069; Caceres, supra, at p. 927; see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1038-1039 (Gutierrez) (conc. opn. of Benke, J.).)
Similarly, the authorities cited in Dueñas prohibiting incarceration for indigence alone are also inapplicable. (Hicks, supra, 40 Cal.App.5th at p. 326, review granted Nov. 26, 2019, S258946; Caceres, supra, 39 Cal.App.5th at p. 927.) Defendant faces at most a civil judgment should he be unable to pay. We disagree that any resulting negative consequences from a civil judgment constitute punishment rising to the level of a due process violation. (See Caceres, at p. 927 ["Dueñas cites no authority for the proposition that [the negative consequences from a civil judgment] constitute 'punishment' rising to the level of a due process violation"]; see also Gutierrez, supra, 35 Cal.App.5th at p. 1039 (conc. opn. of Benke, J.) [fines and fees imposed in Dueñas did not "satisf[y] the traditional due process definition of a taking of life, liberty or property].)
B. Analysis under the Eighth Amendment
To the extent imposing potentially unpayable fees or fines on indigent defendants raises constitutional concerns, we agree that such challenges are properly analyzed under the Eighth Amendment's excessive fines clause, which limits the government's power to extract cash payments as punishment for an offense. (Aviles, supra, 39 Cal.App.5th at pp. 1071-1072.)
"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." (United States v. Bajakajian (1998) 524 U.S. 321, 334 [141 L.Ed.2d 314, 329].) To determine whether a fine is excessive in violation of the Eighth Amendment, we consider "(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." (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728; Gutierrez, supra, 35 Cal.App.5th at pp. 1040-1041 (conc. opn. of Benke, J.).) Accordingly, although ability to pay may be part of the proportionality analysis, it is not the only factor. (Bajakajian, supra, at pp. 337-338.) We review de novo whether a fine is excessive under the Eighth Amendment. (Id. at p. 336, fn. 10.)
We conclude the $5,000 restitution fine, $80 court operations assessment, and $60 court facilities assessment are not grossly disproportionate to defendant's level of culpability and the harm he caused, based on his convictions of attempted murder and attempted robbery. Under the circumstances, the aggregate amount of fines, fees, and assessments is not excessive under the Eighth Amendment.
III
Finally, although not raised by the parties, we note that the trial court erroneously imposed and stayed pursuant to section 654 (1) a one year sentence (one-third the midterm) for the attempted robbery conviction and (2) a six-year eight-month sentence (one-third the midterm) for the associated firearm enhancement. However, "[t]he one-third-the-midterm rule of section 1170.1, subdivision (a), only applies to a consecutive sentence, not to a sentence stayed under section 654." (People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164.) To effectuate section 654, the trial court must impose a full term and stay execution of that term. (Ibid.; see also People v. Alford (2010) 180 Cal.App.4th 1463, 1469-1472.) We will exercise our inherent authority to correct an unauthorized sentence by modifying the judgment. (People v. Relkin (2016) 6 Cal.App.5th 1188, 1197-1198 [correcting a judgment on the appellate court's own initiative to impose a full midterm sentence, rather than a one-third of the midterm sentence, on a count stayed under § 654].)
DISPOSITION
The judgment is modified to replace the one-third consecutive term with a full three-year term for the attempted robbery conviction and a 20-year term for the associated firearm enhancement, stayed pursuant to section 654. The trial court is directed to prepare an amended abstract of judgment in accordance with this opinion and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
KRAUSE, J. We concur: BLEASE, Acting P. J. DUARTE, J.