Opinion
E071153
03-18-2020
THE PEOPLE, Plaintiff and Respondent, v. ANDREW ROJAS WILSON, Defendant and Appellant.
Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Teresa Torreblanca and Joy Utomi, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FWV17004336) OPINION APPEAL from the Superior Court of San Bernardino County. Michael A. Knish, Judge. Affirmed with directions. Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Teresa Torreblanca and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Andrew Rojas Wilson engaged in a sophisticated crime spree involving taking Nicorette gum from Target stores throughout the Inland Empire. He stole over 80 boxes of Nicorette gum worth almost $5,000 during a three-month period. San Bernardino County Sheriff's Deputy Daniel Lopez went to defendant's house, along with defendant's parole officer, to investigate the thefts, which had been captured on surveillance video. Boxes of Nicorette gum were found piled high on the dresser in his room and defendant admitted he had stolen the gum to sell it.
On appeal, defendant claims (1) the trial court erred by admitting his statements made to Deputy Lopez prior to his arrest as they were made in violation of his federal constitutional rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); (2) the imposition of a court operation fee (Pen. Code, § 1465.8), a court facilities fee (Govt. Code, § 70373), and restitution fine (Pen. Code, § 1202.4, subd. (b)) without a determination of his ability to pay violated his federal constitutional rights to due process pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas); and (3) the abstract of judgment needs to be corrected to delete reference to a 15 percent surcharge to be imposed on the direct victim restitution fine. In supplemental briefing, defendant contends, and the People agree, that pursuant to Senate Bill No. 136 (Stats. 2019, ch. 590, § 1) (Senate Bill 136) signed on October 8, 2019, and effective January 1, 2020, he is entitled to have the prison priors found true in this case pursuant to Penal Code section 667.5, subdivision (b) stricken.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
Defendant was charged with one count of grand theft of property exceeding $950 occurring between August 2, 2017, and October 25, 2017, from Target stores (Pen. Code, § 487, subd. (a)). It was further alleged that defendant had suffered one prior serious or violent felony conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and served two prior prison terms (Pen. Code, § 667.5, subd. (b)). Defendant was found guilty of grand theft. In a bifurcated court trial, the trial court found the prior conviction allegations true. Defendant was sentenced to six years to be served in state prison.
The trial court also imposed additional fees and fines, which will be detailed, post.
B. FACTUAL HISTORY
1. PEOPLE'S CASE-IN-CHIEF
a. Ontario Target
On August 12, 2017, David Herrera was working as an asset protection specialist at the Target in Ontario. Herrera and his security team maintained an inventory of high-theft items in the store each day. Nicorette gum was monitored because it was a high-theft item. Herrera explained that a common way thieves took high-priced items from Target was by removing a bar code sticker off a lower-priced item and putting it over the bar code for the higher-priced item.
On August 12, he discovered, based on this inventory list, that a large amount of Nicorette gum was missing from its shelf. He searched the entirety of the store and the warehouse but could not account for the missing gum.
Herrera reviewed past surveillance video. He went back to August 2, 2017. A man, later identified as defendant, and a woman were seen filling a shopping cart with Nicorette gum boxes. They went to the luggage department and placed a duffle bag in the cart. Defendant then went to a portion of the store that was not covered by surveillance cameras. When defendant and the woman reappeared in the cameras, the duffle bag was still in the cart but the Nicorette gum was no longer visible. In addition, food items had been added to the cart. The duffle bag appeared to have items inside because it was normally flat but was now "raised up." Defendant went to the self-checkout registers at the front of the store. Defendant scanned the food items in the cart but not the duffle bag. Defendant and the woman exited the store without paying for the duffle bag and whatever was inside. Defendant's electronic receipt reflected only the food items. Herrera determined defendant took a total of $688.90 of merchandise.
b. Upland Target
On October 11, 2017, Joana Meza was working as an asset protection specialist at the Target in Upland. Meza was alerted to a possible theft the prior day by another Target employee. Meza reviewed surveillance footage from the prior day. She observed defendant enter and exit the Upland store. She recognized defendant from a previous theft incident at another store.
Defendant pushed a shopping cart into the Upland store. He walked to the aisle where the Nicorette gum was shelved. He put 18 boxes in his cart. Defendant proceeded to a self-checkout register. At this point, Meza saw some chocolate and other food, and a box for a toaster in defendant's cart. The Nicorette gum was no longer in the cart. His electronic receipt did not have the toaster box or Nicorette gum purchases listed. The toaster was worth $19.99. Meza conducted inventory and found that 18 boxes of Nicorette gum were missing from the shelf. The 18 boxes were valued at $1,194.24.
Defendant also entered the Upland store on October 25, 2017. He again went to the aisle containing the Nicorette gum. He put 16 boxes in his cart. Defendant then went to the appliance aisle of the store. He selected a box for an air purifier from the shelf. Defendant proceeded to the self-checkout and scanned some tape for $2 only. He walked out of the store with the air purifier box without scanning it. After defendant left the store, 16 boxes of Nicorette gum were missing with a total value of $955.84.
Meza never saw defendant physically put the Nicorette gum boxes into the toaster or air purifier boxes. However, defendant spent time in aisles in which she could not see on the video surveillance.
c. Montclair Target
Hector Collazo was employed as an asset protection specialist at the Target in Montclair on October 11, 2017. He investigated a theft of 12 Nicorette gum boxes that went missing on October 10, 2017. He reviewed surveillance video from that day.
Defendant was seen on surveillance video entering the Target in Montclair on October 10. He entered the aisle containing Nicorette gum. He took 12 boxes off the shelf. He then walked to another area in the store. He was not seen the entire time on surveillance video. Prior to checking out of the store, defendant added kitchen appliances to his cart and the gum was no longer in the cart. Defendant went to the self-checkout register. He scanned grocery items he had in the cart. He used a handheld scanner to scan the bar code on the appliance box so he did not need to take it out of the cart. Collazo reviewed the electronic records for the transaction and discovered that the box scanned as a small candy bag worth one dollar, and not an appliance. Collazo had the entire store searched for the Nicorette gum but it could not be located. The total value of the 12 boxes was $719.88.
Four days later, on October 14, 2017, defendant returned to the Montclair Target. He went to the aisle containing the Nicorette gum. He put 12 boxes of Nicorette gum in the cart and went to another area in the store. He added a large box from housewares and some other small items to the cart. The Nicorette gum was no longer visible in the cart. He proceeded to the self-checkout registers. Again, he used a handheld scanner to scan the box and it scanned as a small candy bag. The 12 boxes of gum were missing from the store and were worth $718.88.
Defendant returned to the Montclair Target on October 16, 2017. The surveillance video depicted him entering the aisle containing the Nicorette gum but a Target employee was standing by the gum. He went to other aisles until the employee left and then filled up his cart with 13 boxes of Nicorette gum. He went to the sporting goods aisle and selected a box of either roller blades or a scooter. He also filled the cart with groceries and went to the self-checkout registers. He scanned the groceries and then used the handheld scanner to scan the box that remained in the cart. There were no visible Nicorette gum boxes in the cart. His receipt did not include the roller blades or scooter. After he left, 13 boxes of Nicorette gum valued at $729.87 were missing from the store.
d. Rancho Cucamonga Target
Noah Martinez was working as an asset protection specialist at the Rancho Cucamonga Target on November 6, 2017. He was assigned to investigate a theft at the store, which occurred on October 25, 2017. He reviewed the surveillance video from the store for that day. Defendant walked through the store. He was accompanied by a female. The female took two boxes of diet pills (valued at $62 each) from the shelf and put them in the cart. Defendant took eight boxes of Nicorette gum from the shelf. He obtained a box that normally contained a makeup mirror and put it in his cart. The mirror was later found in the store missing the box. Defendant walked to an area of the store where there were no cameras. When he returned to an area that was subject to video surveillance, the diet pills and Nicorette boxes were no longer visible in the cart. The makeup mirror box was in the cart. Defendant checked out. The barcodes on the items he scanned did not match the items he had in the cart. The prices were much lower.
Martinez explained that it was easy to remove barcode stickers from lower-priced items and place them on higher priced items. Eight boxes of Nicorette gum were missing after defendant left the store and were valued at $479.92. The video did not show defendant putting the Nicorette gum in the makeup mirror box.
e. Investigation
Target was able to identify the card that was used by defendant to purchase items in the Upland store. Target was able to connect the card to items purchased at its other stores and pull surveillance video. All of the information was provided to San Bernardino County Sheriff's Deputy Daniel Lopez.
Deputy Lopez was given the video surveillance and reports from Target. Deputy Lopez was able to identify defendant as the person in the video surveillance and went to his home on November 14, 2017. Defendant was not home but he lived with his mother. Defendant's mother let Deputy Lopez into the home. The door to defendant's bedroom was open and Deputy Lopez could see stacks of Nicorette gum boxes on the top of his dresser. He also saw boxes of diet pills. Defendant arrived at the home with his girlfriend. Deputy Lopez recognized defendant's girlfriend from the Target video surveillance. Deputy Lopez found additional items in defendant's trunk.
Defendant told Deputy Lopez that the items in his bedroom belonged to him and that he stole them from Target. Defendant told Deputy Lopez he had been taking items from Target since January 2017. Defendant helped Deputy Lopez load all of the boxes into his patrol vehicle.
Deputy Lopez's conversation with defendant was played for the jury. Defendant first told Deputy Lopez that the items in his bedroom belonged to his friend; he had hired defendant to count the items. Deputy Lopez then advised defendant he had been seen on surveillance video at several Target stores and that he knew defendant was taking the items. Deputy Lopez also told defendant that the video showed his girlfriend. Defendant then admitted stealing the gum from Target and selling the Nicorette gum to someone. Defendant admitted he took tags from one-dollar items and put them on other higher priced items.
2. DEFENSE CASE
Defendant insisted he did not steal any Nicorette gum from the Target stores in Upland, Ontario, Montclair or Rancho Cucamonga. He admitted he switched tags on items with lower prices but not on the Nicorette gum. Defendant told Deputy Lopez he took the Nicorette gum because he was under the influence of methamphetamine when he was speaking with him and to protect his girlfriend. Defendant obtained the Nicorette gum in his bedroom from a dumpster outside the Target store in Upland in July 2017.
Defendant picked up the Nicorette gum boxes from the shelf in the Targets and photographed the bar codes so he could determine how much the gum he found was worth. He did not take the gum out of the store.
Defendant admitted he had suffered prior felony convictions of making terrorist threats and burglary. He also was caught leaving a Norco Target on May 11, 2017, with Nicorette gum without paying for it. He insisted he was on his way to the bathroom to take pictures of the gum, not to steal it. On August 2, 2017, he was caught by a loss prevention officer at the Eastvale Target trying to take Nicorette gum. On August 24, 2017, defendant was caught trying to take Nicorette gum from the Pomona Target. Defendant had stuffed the Nicorette gum in a roller blade box. Defendant explained he was taking it to the bathroom to take a picture and did not intend to steal it.
Finally, on October 25, 2017, he was caught at the La Verne Target trying to take a box filled with Nicorette gum. He was stopped at the cash register. He again denied he was going to steal the gum; he was just going to take pictures.
Defendant insisted he just switched tags on items and never stuffed boxes with Nicorette gum. He thought that taking pictures of the bar code on the Nicorette gum was illegal.
3. REBUTTAL
When defendant spoke with Deputy Lopez, he did not appear to be under the influence.
Jaime Guerrero worked at the Pomona Target as an asset protection specialist. On August 24, 2017, he observed defendant stuffing Nicorette gum boxes into a roller blade box. Defendant also took a tag off a jacket and put it in his cart. He and the woman with him started to exit the store. Guerrero detained defendant. Several Nicorette gum boxes were found in the box. Defendant admitted he was attempting to steal the gum.
Matthew Schaefer was a security manager at the La Verne Target. On October 26, 2017, defendant came into the store with a female. He was detained at a self-checkout register with a box that contained nine Nicorette gum boxes rather than the original merchandise. Schaefer also indicated that the Target stores do not dispose of Nicorette gum in their dumpsters. They had a special process to dispose of them.
DISCUSSION
A. MIRANDA VIOLATION
Defendant contends the trial court erred and violated his Fourth Amendment federal constitutional rights by admitting his un-Mirandized statement to Deputy Lopez. We conclude that any error committed by the trial court by admitting defendant's statement that he stole the Nicorette gum was harmless beyond a reasonable doubt.
1. ADDITIONAL FACTUAL BACKGROUND
The trial court agreed to conduct an Evidence Code section 402 hearing prior to the admission of defendant's statement. Defendant's counsel indicated the issue was whether defendant was in custody when he made his statements. Deputy Lopez was called to testify. He went to defendant's house on November 14, 2017. He was accompanied by defendant's parole officer. They were both in uniform.
Defendant was not home but defendant's mother was home and allowed them in the house. She directed them to defendant's room. The door was open. In plain view, Deputy Lopez saw stacks of Nicorette boxes on the dresser inside the room. Neither Detective Lopez nor the parole officer raised their voice with defendant's mother; they did not make any threats; and did not draw their weapons.
Defendant drove up with his girlfriend. Deputy Lopez approached defendant and asked if he could speak with him. Deputy Lopez did not block the path to the house. Deputy Lopez asked defendant about the items he had seen in his bedroom. Defendant first told Deputy Lopez that he had them because he was counting them for some kind of job. Deputy Lopez then told defendant that he had been seen on Target surveillance video and knew that defendant had stolen the items. Defendant then admitted he had stolen the items. Deputy Lopez asked if they could go back in the house. Defendant agreed and they walked together back into defendant's bedroom. Defendant gave more detail to Deputy Lopez as to how he stole the Nicorette gum and how he sold the gum.
Their conversation was calm and defendant was cooperative. Defendant did not appear to be intimidated. Defendant never told Deputy Lopez to leave or that he did not want to speak with him. Deputy Lopez loaded the items into bags to take with him. Defendant helped him find bags and helped load the bags. Defendant voluntarily helped Deputy Lopez put the bags into his patrol vehicle.
Defendant was not placed in handcuffs and was cooperative. Defendant and his girlfriend gave their consent to Deputy Lopez to search their vehicle. Deputy Lopez found additional stolen items in the trunk and retrieved them. Defendant's parole officer was not present when Deputy Lopez spoke with defendant. Once Deputy Lopez had loaded all of the stolen items into his parole vehicle, he informed defendant he was under arrest. Defendant was not in handcuffs prior to this time. Deputy Lopez, when he first encountered defendant, asked to search him to make sure he had no weapons and defendant complied. Deputy Lopez never told him that he was not free to leave.
On cross-examination, Deputy Lopez stated he was in full uniform and that he had gone to the location to conduct an investigation of the Target thefts. In searching him for weapons, Deputy Lopez advised defendant to extinguish his cigarette and put his hands on his head. Deputy Lopez never told him he was free to leave. Deputy Lopez read him his Miranda rights once they were in his patrol vehicle. He did not give them earlier because defendant was free to leave or stop talking at any time prior to his arrest. Deputy Lopez was calm and kept a casual tone throughout the incident.
The trial court noted that it could see the arguments on both sides. Counsel for defendant's position was the investigation had focused on defendant; Deputy Lopez had issued commands to extinguish the cigarette; and defendant felt that he could not leave. The People contended throughout the entire conversation defendant freely moved around and volunteered to help Deputy Lopez load his car. Although Deputy Lopez was in uniform, police officers did not have to give Miranda warnings for every conversation. Here, the conversation was casual. Defendant was cooperative and free to move.
The trial court found there was interrogation but not custody. It noted the relevant factors in this case, "The Defendant was not arrested prior to the statement. He was not handcuffed. He engaged in a voluntary conversation with Officer Lopez, described as even pleasant at times. [Defendant] was cooperative, even led the Officer to the bedroom to look at and eventually box up the items, even participated in boxing up the items." The trial court did order that any reference to parole be edited from the recording before being played for the jury but the record does not include the unedited transcript. Defendant's statement was played to the jury, as detailed ante.
2. HARMLESS ERROR
We need not address the merits of defendant's claim as we find that the admission of his statement that he stole the Nicorette gum was harmless beyond a reasonable doubt. "[W]hen a confession has been obtained by means that render it inadmissible under the federal Constitution, the prejudicial effect of its admission in evidence must be determined under the federal Chapman standard of whether the error was harmless beyond a reasonable doubt." (People v. Sims (1993) 5 Cal.4th 405, 447, overruled on other grounds in People v. Storm (2002) 28 Cal.4th 1007.)
Chapman v. California (1967) 386 U.S. 18, 24.
Here, ample circumstantial evidence supported defendant's guilt without his statement. Defendant entered the Ontario Target and put several boxes of Nicorette gum in his cart. He was then seen with a duffle bag in his cart, which appeared full and the gum was not present. After defendant left, the boxes of Nicorette gum were missing.
Defendant entered the Upland Target on two separate occasions. He was seen putting 18 boxes and 16 boxes of Nicorette gum in his cart respectively; getting a large box from another area in the store; and then leaving without paying for the box. This exact number of boxes of Nicorette gum were missing from the Upland Target after defendant left.
In addition, defendant took Nicorette boxes from the Montclair Target on three separate occasions. He was observed the first two times taking 12 boxes of the gum, and the third time, 13 boxes. He did not pay for the gum and was seen leaving the store with a large box which scanned as a lower-priced item. The exact same number of Nicorette gum boxes were missing from the store after defendant left the Montclair Target. Finally, he took eight boxes from the Rancho Cucamonga Target.
Not only was defendant seen on the surveillance video in all of these stores, when Deputy Lopez went to defendant's home, boxes of Nicorette gum were found in defendant's bedroom, which were found during a consensual search. Based on the foregoing circumstantial evidence, the admission of his statement that he stole the Nicorette gum from Target was clearly harmless beyond a reasonable doubt.
Moreover, the jury was instructed that they could not convict defendant based on his pre-trial statements alone. The jury was instructed, "You have heard evidence that the Defendant made oral statements before the trial. You must decide whether the Defendant made any of those statements, in whole or in part. If you decide that the Defendant made such statements, consider the statements, along with all of the evidence, in reaching your verdict. It is up to you to decide how much importance to give to the statements. [¶] Consider with caution any statement made by the Defendant tending to show his guilt unless the statement was written or otherwise recorded. [¶] The Defendant may not be convicted of any crime based on his out-of-court statements alone. You may rely on Defendant's out-of-court statements to convict him only if you first conclude that other evidence shows that the charged crime was committed. [¶] That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed. [¶] . . . [¶] You may not convict the Defendant unless the People have proved his guilt beyond a reasonable doubt." We presume the jurors followed the instructions and relied on all the evidence, not just his statement, in convicting defendant. (People v. Doolin (2009) 45 Cal.4th 390, 442.)
Defendant contends on appeal that he only testified because of the admission of his statement, which allowed the People to introduce prejudicial evidence of similar crimes he committed. This argument is specious. As detailed ante, the surveillance video evidence against defendant was overwhelming. Defendant could have decided to testify based on him being seen in the video surveillance and then the incriminating evidence of Nicorette gum boxes were found in his bedroom. The admission of defendant's statements was harmless beyond a reasonable doubt.
B. ABILITY TO PAY RESTITUTION FINE AND COURT OPERATION FEES
Defendant claims, relying on Dueñas, supra, 30 Cal.App.5th 1157 that the trial court violated his federal constitutional rights to due process by failing to determine his ability to pay the mandatory court facilities assessment of $30 imposed pursuant to Government Code section 70373; the court operations fee in the amount of $40 imposed pursuant to Penal Code section 1465.8; and the minimum restitution fine of $300 imposed pursuant to section 1202.4, subdivision (b). Defendant requests that the case be remanded to the trial court for a determination of whether he has the ability to pay the two fees and the restitution fine. The People argue that defendant forfeited the challenge by failing to request an ability to pay hearing in the trial court. Moreover, any conceivable error occasioned by the failure to determine if defendant had the ability to pay the mandatory fees and fine, was harmless beyond a reasonable doubt.
1. ADDITIONAL FACTUAL BACKGROUND
At the sentencing hearing, the trial court stated it was going to impose "the $70 Court Operation Fees." It also stated, "I'm going to charge the minimum State Restitution Fine, because I would like [defendant] to pay Target back. So I'm going to impose a $300 State Restitution Fine, and a second fine of 300 is imposed and stayed pending successful completion of parole. [¶] He's ordered to pay restitution to the Target' store in the amount of $5,536.01 to be collected by the Department of Corrections and Rehabilitation." At no time did defendant's counsel object on the ground that defendant did not have the ability to pay restitution or the fees and the trial court never addressed the issue. The trial court only stated, "I do think appointed counsel did a very good job, but I'm not going to assess that on [defendant]; or the presentence investigation." The trial court did not address whether defendant had the ability to pay any of the fees and fine.
The minute order reflects that the trial court imposed a restitution fine in the amount of $300 (Pen. Code, § 1202.4) and a stayed probation revocation fine in the same amount (§ 1202.45). It also reflected defendant was ordered to pay court operation fees in the amount of $70 pursuant to Government Code section 70373 and Penal Code section 1465.8.
2. ANALYSIS
Government Code section 70373, subdivision (a)(1) provides "To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense, including a traffic offense." Penal Code section 1465.8, subd. (a)(1) provides that "[t]o assist in funding court operations, an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal offense, including a traffic offense." These sections do not include language regarding the defendant's ability to pay the fees. Penal Code section 1202.4, subdivision (b) provides for a mandatory minimum restitution fine in the amount of $300 absent "compelling and extraordinary reasons for not doing so." If the trial court wishes to exceed $300, it must determine if the defendant has the ability to pay the additional fine. (Pen. Code, § 1202.4, subd. (d).)
Defendant was sentenced on August 10, 2018. On January 8, 2019, the Court of Appeal issued an opinion in Dueñas, supra, 30 Cal.App.5th 1157. In Duenas, the defendant was a probationer who suffered from cerebral palsy, was indigent, homeless and was the mother of young children. She requested and received a full hearing on her ability to pay the court facilities fee, court operations fee and the mandatory minimum restitution fine. Despite her clear inability to pay these fees and fine, the trial court mandatorily imposed them. (Id. at pp. 1162-1163.)
The appellate court held that the trial court violated the defendant's right to due process under both the United States and California Constitutions by imposing court operations and facilities assessments pursuant to Government Code section 70373 and Penal Code section 1465.8 without making a determination as to the defendant's ability to pay, even though such determination was not required by the statute. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) Further, the appellate court concluded that the imposition of restitution fines pursuant to section Penal Code section 1202.4, subdivision (b), raises similar constitutional concerns, and therefore held that, while the trial court must impose the minimum restitution fine even if the defendant demonstrates an inability to pay, "the court must stay the execution of the fine until and unless the People demonstrate that the defendant has the ability to pay the fine." (Dueñas, at p. 1172.)
Initially, the People contend that defendant forfeited his claim by failing to object to the imposition of these fees and fine and arguing an ability to pay at the time of sentencing. However, Dueñas had not been decided at the time of defendant's sentencing. In People v. Castellano (2019) 33 Cal.App.5th 485, the court rejected this forfeiture argument and found " 'no California court prior to Dueñas had held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant's ability to pay. . . . When, as here, the defendant's challenge on direct appeal is based on a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial, reviewing courts have declined to find forfeiture." (Id. at p. 489.) Other courts have found forfeiture when there was a failure to object finding (1) this was not purely a legal challenge; and (2) that the change in the law was foreseeable. (See People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154 [defendant forfeited challenge by not objecting to fines and assessments at sentencing in a case involving a restitution fine greater than the minimum].)
We need not determine whether defendant forfeited his claim on appeal or whether Dueñas was properly decided. Even if Dueñas applies to this case, the People have argued the record supports defendant has the ability to pay based on his prison wages, rendering any conceivable constitutional error harmless beyond a reasonable doubt. Defendant has not responded to this argument in his reply brief.
In People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837, the court held the ability to pay includes a defendant's ability to pay in the future, such as the earning of prison wages. In People v. Frye (1994) 21 Cal.App.4th 1483, 1487, the court found that the trial court could consider both the defendant's present ability and the ability to pay in the future through the use of prison wages. Moreover, Government Code section 70373, and Penal Code sections 1202.4, subdivision (b) and 1465.8, say nothing about the current ability to pay.
In People v. Johnson (2019) 35 Cal.App.5th 134, a case decided after Dueñas, the court held, relying upon Henessey, "Not only does the record show Johnson had some past income-earning capacity, but going forward we know he will have the ability to earn prison wages over a sustained period. The idea that he cannot afford to pay $370 while serving an eight-year prison sentence is unsustainable. Thus, even if we were to assume Johnson is correct that he suffered a due process violation when the court imposed this rather modest financial burden on him without taking his ability to pay into account, we conclude that, on this record, because he has ample time to pay it from a readily available source of income while incarcerated, the error is harmless beyond a reasonable doubt." (Id. at p. 247.)
Here, defendant has been sentenced to six years in state prison. Prisoners earn wages while in prison and restitution fines can be deducted from those wages to pay these fines. (See Pen. Code, §§ 2700, 2085.5.) Given the length of defendant's sentence, he will have enough money to pay the assessments and fines. As in Johnson, even if we were to assume defendant suffered a due process violation when the court imposed the minimum fees and fine without taking his ability to pay into account, we conclude, because he has ample time to pay the fine and fees from a readily available source of income while incarcerated, the error is harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.)
C. CORRECTION OF ABSTRACT OF JUDGMENT
Defendant contends the abstract of judgment erroneously includes a 15 percent surcharge on the $5,536.01 direct victim restitution payable to Target, which was not imposed at the time of sentencing. The People concede the error.
The minute order from sentencing states, "Victim Restitution imposed; to be collected by DOC (+15%) $5,536.01 Pursuant to PC 1202.4" to Target. The abstract of judgment reflected these amounts, including the 15 percent charge. At the oral pronouncement of sentence, there was no discussion of a 15 percent surcharge. "An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment and may not add to or modify the judgment it purports to digest or summarize." (People v. Mitchell (2001) 26 Cal.4th 181, 185.) As such, we will order that the minute order and abstract of judgment be corrected to eliminate the reference to a 15 percent surcharge on the direct victim restitution.
The People contend we must modify the abstract of judgment to include pursuant to Penal Code section 2085.5 that defendant's prison wages must be used to deduct the restitution fine and that the California Department of Corrections and Rehabilitation (CDCR) is entitled to an administrative fee. Penal Code section 2085.5, subdivision (a), "allows the California Department of Corrections and Rehabilitation (CDCR) to deduct a portion of an inmate's prison wages if that inmate owes a restitution fine under certain enumerated statutes [including Penal Code section 1202.4]." (People v. Ellis (2019) 31 Cal.App.5th 1090, 1092.) "Under the subdivision, the CDCR has the authority to deduct a portion of an inmate's wages (20 to 50 percent) if that inmate owes a restitution fine imposed under certain enumerated statutes." (Id. at p. 1093.) Subdivision (c) of section 2085.5, provides that the secretary of the CDCR shall deduct and retain from the wages and trust account deposits of a prisoner, unless prohibited by federal law, an administrative fee to cover the actual administrative costs not to exceed 10 percent of the restitution fine.
Penal Code section 2085.5 does not apply to the court operations and facilities fees.
It is " 'well established that when the trial court pronounces a sentence which is unauthorized by the Penal Code that sentence must be vacated and a proper sentence imposed whenever the mistake is appropriately brought to the attention of the . . . reviewing court.' " (People v. Rowland (1988) 206 Cal.App.3d 119, 126.)
Defendant contends in the reply brief that the CDCR has the authority to collect the fee and administrative fee under Penal Code section 2085.5 without a court order. As such, the abstract of judgment need not be corrected. Defendant's argument is well taken. We need not amend the abstract of judgment.
D. SENATE BILL 136
On October 8, 2019, Senate Bill 136 was signed into law and was effective on January 1, 2020. Senate Bill 136 modifies Penal Code section 667.5, subdivision (b), to eliminate the one-year sentences for prior prison terms served unless the prior prison term involves a conviction of a sexually violent offense (which is not involved here). The statute is retroactive and applies to cases not yet final as of its effective date. (See People v. Garcia (2018) 28 Cal.App.5th 961, 972-973.)
The trial court found defendant had suffered two Penal Code section 667.5, subdivision (b), priors. At the time of sentencing, the trial court stayed one of the priors and struck the second prior prison term found true. We order that the prior prison terms be stricken. Both priors appear on the abstract of judgment—one shown as stayed and other stricken—but reference to the two priors should be stricken from the abstract of judgment.
It appears from the second amended information, the two priors were served at the same time.
Further, as conceded by the People, the prior prison term could not be stayed and had to be imposed. As such, this court could order the prior prison term that was stayed, stricken on this basis. (See People v. Langston (2004) 33 Cal.4th 1237, 1241 ["Once the prior prison term is found true within the meaning of section 667.5(b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken"].)
DISPOSITION
The trial court is directed to correct the minute order from sentencing and the abstract of judgment (1) to strike the 15 percent surcharge reflected on the direct victim restitution fine; and (2) to strike the two section 667.5, subdivision (b) prison prior terms from the abstract of judgment. The trial court is further directed to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. SLOUGH
J.