Opinion
E073512
05-20-2020
THE PEOPLE, Plaintiff and Respondent, v. VINCENT JOHNNY AVALOS, Defendant and Appellant.
Vincent Johnny Avalos, in pro. per.; Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF053129) OPINION APPEAL from the Superior Court of Riverside County. Dean Benjamini, Judge. Affirmed. Vincent Johnny Avalos, in pro. per.; Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
The superior court, on remand from an opinion from this court granting defendant's petition for writ of habeas corpus with directions to remove an order requiring defendant submit to HIV/AIDS testing and to hold a Franklin hearing, denied his "oral motion" regarding restitution. After defendant and appellant, Vincent Johnny Avalos, filed an appeal, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and identifying one potentially arguable issue: whether the superior court erred in concluding it lacked jurisdiction to hear defendant's oral motion.
People v. Franklin (2016) 63 Cal.4th 261 (Franklin).
Defendant was offered the opportunity to file a personal supplemental brief, which he has done. Defendant contends he was deprived of his constitutional rights at his sentencing hearing on July 13, 2007, when the superior court excluded defendant, who was representing himself, from the courtroom. Defendant maintains he was thus prevented from objecting to the imposition of a $10,000 restitution fine. He requests that we remand the matter to the superior court for a hearing pursuant to People v Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On our own motion, we take judicial notice of the opinions of this court in People v. Avalos (Oct. 16, 2008, E043700) [nonpub. opn.], defendant's appeal of his original judgment, and In re Avalos (Jan. 10, 2019, E069973) [nonpub. opn.], defendant's petition for writ of habeas corpus. (Evid. Code, §§ 452, 459.) We take much of our procedural recitation from those opinions. The facts of defendant's underlying convictions are irrelevant to the issue on appeal.
On June 4, 2007, "A jury found defendant guilty of attempted premeditated and deliberate murder. (Pen. Code, §§ 664, 187, subd. (a).) Defendant was also found guilty of assault with a firearm (§ 245, subd. (a)(2)), and discharge of a firearm with gross negligence (§ 246.3). In addition, the jury found true the allegations that he personally discharged a firearm in committing the attempted first degree murder (§§ 12022.5, subd. (a), 12022.53, subd. (c)), and personal firearm use enhancements for the remaining counts." (People v. Avalos, supra, E043700.)
All further statutory references are to the Penal Code unless otherwise indicated.
On June 29, 2007, the date set for sentencing, defendant moved to represent himself. The trial court granted his request. Defendant then requested a continuance. The court granted defendant a two-week continuance, "'As long as we agree that it will just be two weeks then that's the end of it.' Defendant responded, 'That's fine, Your Honor.' The trial court advised defendant there would be no further continuances." (People v. Avalos, supra, E043700.)
"At the hearing on July 13, 2007, the trial court stated for the record that defendant had submitted a handwritten request for a continuance that morning. According to the written request, defendant wanted 16 weeks to investigate and research matters pertaining to the case. Defendant provided only that he wanted to investigate potential ineffective assistance of trial counsel claims. Defendant also stated he was not prepared to represent himself at sentencing." (People v. Avalos, supra, E043700.)
"Defendant orally advised the trial court that he wanted to continue the matter in order to file a motion for new trial, 'and there's a lot of serious issues that I need to look into for that motion,' including ineffective assistance of counsel. Defendant stated that his counsel did not call certain witnesses and did not investigate a 'few things.' . . . Defendant also claimed that his attorney never visited him after the preliminary hearing and 'basically didn't even defend me.'" (People v. Avalos, supra, E043700.)
"The trial court was concerned that if it continued the matter, defendant would come back and ask for more time. Defendant responded that he was asking for enough time to investigate and was going to bring an ex parte motion to have an investigator appointed to help him with the new trial motion." (People v. Avalos, supra, E043700.)
"The prosecution advised the trial court that it had not been served with the continuance request two days before the hearing as required and that the written request consisted of authorities merely copied out of a book. The prosecution also responded that defendant had done nothing since the original continuance; the only reason for the delay was so that he could stay in local custody. The prosecution requested that the motion be denied as untimely and that defendant should be held to the same standard as an attorney." (People v. Avalos, supra, E043700.) The court denied defendant's request. (Ibid.)
"After the trial court denied defendant's continuance and proceeded with sentencing, defendant stated, 'Okay. Your Honor, before you proceed any further, at this point I'm requesting counsel be appointed to assist me in what I'm requesting.' The trial court responded, 'Too late, sir.' Defendant stated, 'Your Honor, I'm asking again one more time that counsel be appointed. [The prosecutor's] not giving me no chance to explain what I got to explain. I spoke to no investigator at all about this case. I never even spoke to my attorney. I had no defense at all. How can she say that it was investigated when I never even spoke to an investigator at all?' Defendant argued he had been denied a fair trial. The trial court ruled, 'I understand sir. You can raise all those points with the Appellate Court. You'll be appointed an attorney by them.'" (People v. Avalos, supra, E043700.)
"After the trial court denied defendant's request to have an attorney appointed to represent him, the trial court started with pronouncement of judgment. Defendant interrupted the trial court and stated, 'I do not wish to proceed with sentencing at this time at all, and I do not want to be in contempt, but I feel I'm not being heard out at all. And I'm sorry. I apologize in advance for anything that I might do. I really do not wish to proceed at all.' The trial court instructed defendant not to speak. Despite that warning, defendant stated that he did not want to proceed with sentencing; the trial court responded that it had no choice. Defendant stated, 'I haven't been given a fair chance. Your Honor, I have not been given a fair trial at all.' The trial court indicated it understood defendant's position." (People v. Avalos, supra, E043700.)
"Defendant again stated that he did not want to go forward. The trial court admonished defendant to stop talking or he was going to be removed from the courtroom. Defendant then stated, 'Well, I'll ask in advance that you remove me because I do not wish to proceed with this at all.' The trial court ruled, 'We're going to proceed with the sentencing in your absence. [¶] I've directed him on two separate occasions to stop talking. He continues to interfere with me. I'll find . . . him in contempt, and I'll order him removed forthwith from the courtroom.'" (People v. Avalos, supra, E043700.)
In defendant's absence, the trial court sentenced defendant "to the mandatory sentence of life with the possibility of parole plus 20 years" for the attempted murder and stayed the remaining sentences. (People v. Avalos, supra, E043700.) It also imposed a "restitution fine of $10,000 . . . with an attendant stayed parole revocation fine in the same amount." (Ibid.)
On appeal from the judgment, defendant contended that his Sixth Amendment right to counsel was violated by the trial court's refusal to appoint him counsel to file a new trial motion and represent him at sentencing, and his Sixth Amendment right to counsel was violated by his removal from the courtroom during sentencing, since he was representing himself. (People v. Avalos, supra, E043700.) By opinion filed October 16, 2008, this court affirmed the judgment. (Ibid.)
"In December 2017, [defendant] filed a petition for writ of habeas corpus in the trial court, alleging, among other things, that: (1) he is entitled to a hearing under Franklin to create a record of information relevant to his future youthful offender parole hearing (§§ 3051, 4801); and (2) his abstract of judgment should be amended to exclude the order for HIV/AIDs testing. The trial court denied the petition, concluding that it failed to state a prima facie factual case supporting [defendant's] release from prison and that it impermissibly raised issues raised and rejected in his direct appeal and an earlier habeas petition." (In re Avalos, supra, E069973.)
On February 15, 2018, defendant filed a petition for writ of habeas corpus in this court raising the same issues raised in his petition below. (In re Avalos, supra, E069973.) By opinion filed January 10, 2019, this court granted the petition and directed "the trial court to conduct an evidentiary hearing . . . to allow [defendant] the opportunity to make . . . a record" "of mitigating evidence tied to his youth at the time the controlling offense was committed." (Ibid.) This court further directed the trial court to modify the abstract of judgment to delete the order requiring that defendant submit to HIV/AIDS testing. (Ibid.)
On January 10, 2019, defendant filed a petition pursuant to Dueñas, supra, 30 Cal.App.5th 1157, to remove the $10,000 restitution fine due to his inability to pay.
At a hearing on July 16, 2019, defendant confirmed receipt of the amended abstract of judgment, which removed an HIV/AIDS testing requirement, but asserted "there's an issue also on the restitution." The court asserted, "I'm not addressing any restitution issues . . . now. I'm just—the only change that was made was . . . we were ordered to remove that one particular term. That has been removed." The court noted the only remaining issue on remand was "the Franklin hearing issue; correct?" Defendant responded, "Yes, Your Honor." The court stated, "We'll make sure that you get a copy of those minutes. We'll give you certified copies of those minutes." The court continued the matter for six months for preparation of the materials for the Franklin hearing.
The minute order reflects that defendant's "Oral motion" "Re Fees/fines Inconsistencies in abstract is called for hearing." "Court and Counsel Confer regarding: The Court only has jurisdiction as to the issues stated on the Remittitur." "Motion/Petition denied." --------
II. DISCUSSION
Defendant contends he was deprived of his constitutional rights at his sentencing hearing on July 13, 2007, when the court excluded defendant, who was representing himself, from the courtroom. Defendant maintains that he was thus prevented from objecting to the imposition of a $10,000 restitution fine. He argues that we must remand the matter to the superior court for a hearing pursuant to Dueñas, supra, 30 Cal.App.5th 1157. We disagree.
First, as this court observed in defendant's appeal from the judgment, "a defendant who absences himself from sentencing, even if self-represented, cannot later claim error on appeal. (People v. Parento (1991) 235 Cal.App.3d 1378, 1381-1382.)" (People v. Avalos, supra, E043700.) Here, "defendant refused to continue with sentencing and asked to be removed." (People v. Avalos, supra, E043700.) Thus, this court has already considered and rejected defendant's contention that his removal from the sentencing hearing deprived him of his rights. (People v. Vizcarra (2015) 236 Cal.App.4th 422, 430 [The doctrines of collateral estoppel and law of the case bar a defendant from raising an issue that was raised and rejected in a prior appeal.].)
Second, because defendant sought to address his motion with respect to restitution at the hearing, which was calendared solely to address this court's directions to it on remand, the superior court was without jurisdiction to consider the separate issue of restitution. (People v. Vizcarra, supra, 236 Cal.App.4th at p. 441 ["'On remand with directions, after a judgment on appeal, the trial court has jurisdiction only to follow the directions of the appellate court: it cannot modify, or add to, those directions.'"].)
Third, defendant failed to request a hearing on his restitution motion. Thus, he has forfeited the issue. (People v. Ramirez (2006) 39 Cal.4th 398, 450 [A defendant's failure to request a hearing or press the court for a ruling forfeits the issue on appeal because it deprives the trial court of the opportunity to rule on the request.].)
Fourth, to the extent defendant challenges the restitution fine, the trial court had no jurisdiction to modify the amount initially imposed. (People v. Turrin (2009) 176 Cal.App.4th 1200, 1207 ["A defendant may not contest the amount, specificity, or propriety of an authorized order of a restitution fine for the first time on appeal [citations] let alone in a motion to modify the same in the trial court after it has lost jurisdiction."].)
Fifth, no published decision has applied Dueñas's holding that a defendant is entitled to an ability to pay hearing for fines and fees imposed at sentencing when the judgment has become final. In other words, all published decisions that have remanded for ability to pay hearings have come from appeals where the defendants' judgments were not yet final. (E.g, Dueñas, supra, 30 Cal.App.5th at pp. 1161-1163; People v. Santos (2019) 38 Cal.App.5th 923, 928; People v. Taylor (2019) 43 Cal.App.5th 390, 391.) Here, the sentencing hearing at which the court imposed the restitution fine and fee became final upon the finality of defendant's appeal from the judgment, in January 2009. (People v. Avalos, supra, E043700; see People v. Smith (2015) 234 Cal.App.4th 1460, 1465 ["A judgment becomes final when the availability of an appeal and the time for filing a petition for certiorari have expired."].)
Sixth, Dueñas is irrelevant to the amount of the restitution fine because defendant already had a right to an ability to pay determination at the time of his sentencing hearing. At the time of defendant's hearing, former section 1202.4, subdivision (c), provided that inability to pay could not be considered if the court imposed the then minimum fine. However, "[i]nability to pay may be considered only in increasing the amount of the restitution fine in excess of the two hundred-dollar ($200) or one hundred-dollar ($100) minimum." (Former § 1202.4, subd. (c); Stats 2005, ch. 238, § 1, eff. Jan. 1, 2006.) Since the court imposed a restitution fine well above the minimum, defendant had a right to an ability to pay determination at his sentencing hearing. Thus, the issue could have and should have been raised at the sentencing hearing and/or on appeal from the judgment.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: FIELDS
J. MENETREZ
J.