Opinion
F083888
09-20-2022
THE PEOPLE, Plaintiff and Respondent, v. STEVEN OSCAR BLACKWELL AUSTIN, Defendant and Appellant.
Rachel Paige Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, Kari Mueller, and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1465879. Dawna F. Reeves, Judge.
Rachel Paige Varnell, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, Kari Mueller, and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Steven Oscar Blackwell Austin appeals the judgment imposing a 27 year, four month prison sentence plus certain fines and fees. This is the third appeal and relates solely to the sentence. As detailed below, we remand the matter for a new sentencing hearing.
BACKGROUND
Prior History
Austin and another man approached a woman in her home. They were both armed with firearms. They held the woman at gunpoint, stole various items from the home, and then fled in the woman's truck. Austin was arrested much later, but only after he tried fleeing in a vehicle from law enforcement. (People v. Austin (Dec. 3, 2018, F073937) [nonpub. opn.] (Austin I).) All told, Austin was convicted of robbery, carjacking, illegally possessing a firearm, and evading, and he was sentenced to serve 32 years, four months in state prison. (Austin I.) He appealed from the judgment.
In the original appeal, this court affirmed the judgment but "remanded to the trial court with directions to exercise its discretion under Penal Code section 12022.53, subdivision (h), as amended by Senate Bill No. 620 (Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018), and Penal Code sections 667, subdivision (a)(1) and 1385, subdivision (b), as amended by Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1-2, eff. Jan. 1, 2019), and, if appropriate following exercise of that discretion, to resentence Austin accordingly." (Austin I.) On remand, the trial court did strike the Penal Code section 667, subdivision (a) enhancement, effectively reducing the sentence by one year. (People v. Austin (Jan. 22, 2021, F079651) [nonpub. opn.] (Austin II).)
Undesignated statutory references are to the Penal Code.
The sentence was effectively reduced by only four years because the stricken enhancement "unstayed [a] section 667.5, subdivision (b) enhancement …." (Austin II; see People v. Jones (1993) 5 Cal.4th 1142, 1152-1153 [both enhancements cannot lie when based on same conviction].) The court also reduced a "restitution fine to $300 'unless and until the People c[ould] demonstrate that [Austin] has the ability to pay.' The reduction was due to intervening 'case law' between the two sentencing hearings. [A] parole revocation fine was likewise reduced to $300, but … other financial obligations were unchanged." (Austin II.) Austin appealed.
On appeal, we again "vacated" the sentence and "directed" "the trial court … to conduct a new sentencing hearing." This time, remand was based on Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590, § 1) which eliminated the section 667.5, subdivision (b) enhancement in this case. Austin was specifically permitted to "challenge any fines, fees, and assessments imposed as part of a new sentence." (Austin II.)
Latest Sentencing Hearing
Following remand from Austin II, the court sentenced Austin to serve 27 years, four months in prison. The sentence was calculated as follows:
Count II: Five years for carjacking (§ 215), doubled to 10 years for a prior strike conviction (§§ 667 & 1170.12), plus 10 years for the firearm enhancement (§ 12022.53, subd. (b)), totaling 20 years.
Count I: One year, four months for robbery (§§ 213 & 1170.1), doubled to two years, eight months for a prior strike conviction (§§ 667 & 1170.12), plus three years, four months for the firearm enhancement (§§ 12022.53, subd. (b) & 1170.1), totaling six years.
Count III: Eight months for illegally possessing a firearm (§§ 29800, subd. (a) & 1170.1), doubled to one year, four months for a prior strike conviction (§§ 667 & 1170.12). This sentence was stayed, under section 654, "to Counts I and II."
Count V: Eight months for evading (Veh. Code, § 2800.2, subd. (a) & § 1170.1), doubled for a prior strike conviction (§§ 667 & 1170.12), totaling one year, four months.
Notably, the court declined to exercise any discretion to further lower the sentence.!(RT 73-74, 69-70)!
Count IV related to a codefendant.
As for fines and fees, Austin declared he had "no assets, no income, and no obligations." !(RT 71)! The court concluded Austin "will be able to earn some money on a pay number and also is able to receive outside sources, for personal use. That is all … eligible as income and," in light of reducing the restitution fine to the statutory minimum, "he will have the ability to pay during his period of incarceration." !(RT 74-75)!
The court ordered the following fines and fees: "A state restitution fund fine in the amount of $300," a "$160 court security fee," a "$120 criminal conviction assessment," a "$900 probation report fee," and an "emergency medical flight fee in the amount of $400 (sic)." !(RT 74-75)! The court noted "[t]he total amount of the fines and fees is less than $2,000." !(RT 75)!
The transcript reflects a $400 emergency medical fee. That fee was entered into the minutes as $4 but does not appear on the abstract of judgment. !(CT 511-512, 508-509)! A $4 fee is consistent with Government Code, section 76000.10.
DISCUSSION
This appeal presents three questions. One, does the $900 probation report fee remain legally valid? !(AOB 8, RB 9)! Two, did the court abuse its discretion in finding Austin had the ability to pay fines and fees? !(AOB 11, RB 11)! Three, does Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 441, § 1) (AB 518), which amended section 654, apply retroactively and warrant a new sentencing hearing in this case? !(ASB 4, RB 14)!
We recite the questions presented in the order discussed by the parties' briefs.
The People agree the probation report fee is now invalid but they dispute the court abused its discretion in finding Austin was able to pay the other fines and fees. !(RB 10- 11, 13-14)! They also agree AB 518 applies retroactively but maintain resentencing is not justified. !(RB 17-18)!
We agree with the parties the probation report fee is invalid. We find AB 518 does warrant a new sentencing hearing. Because we will order a new sentencing hearing, we need not decide whether the court abused its discretion in finding an ability to pay. Nonetheless, we will address some points to provide guidance on remand regarding ability to pay.
I. The Probation Report Fee
Assembly Bill No. 1869 (2019-2020 Reg. Sess.) (Stats. 2020, ch. 92, §§ 1, 2, & 62) (AB 1869) eliminated the $900 probation report fee at issue in this case by adding section 1465.9 to the Penal Code. AB 1869 "authorizes this court to strike the fee[] from the judgment." (People v. Greeley (2021) 70 Cal.App.5th 609, 625.) We will do so in the disposition.
II. AB 518
The parties agree AB 518 applies retroactively but disagree whether any relief is appropriate. Austin argues "[t]rying to determine what a trial court would have done in exercising its discretion in the first instance is a speculative exercise 'unless the record reveals a clear indication of how the court would have exercised its discretion.'" !(ASB 8-9)! He concludes remand is warranted.
The People claim "[t]he court's prior discretionary sentencing choices demonstrate a clear indication that the court would not impose a lesser sentence by applying section 654's newly added sentencing discretion …." !(RB 18)! Austin has the better point.
AB 518 applies retroactively to cases not yet final on appeal. (People v. Jones (2022) 79 Cal.App.5th 37, 43-44 (Jones); People v. Mani (2022) 74 Cal.App.5th 343, 379.) AB 518 applies to Austin's case because the appeal is not yet final.
" 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers'" does not exercise"' "informed discretion …." '" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez).)
Here, the trial court was unaware it had discretion to impose a lesser sentence because, at the time it pronounced judgment in Austin II, section 654 required the court to choose the longest sentence possible where section 654 applied. That is no longer the law. "In such circumstances, … the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (Gutierrez, supra, 58 Cal.4th at p. 1391.) The record contains no clear indication.
It is true, as the People note, the trial court declined to exercise any further discretion in Austin II. But it does not follow the court clearly announced a decision it would never reconsider the sentence. Indeed, the court had no occasion to consider an alternative judgment with the flexibility afforded by AB 518's amendment to section 654.
We have carefully considered section 654, section 1170.1, and the full resentencing rule. (See Jones, supra, 79 Cal.App.5th at p. 46 ["A full resentencing may involve the trial court's revisiting such decisions as the selection of a principal term, whether to stay a sentence, whether to impose an upper, middle, or lower term, and whether to impose concurrent or consecutive sentences."]; People v. Valenzuela (2019) 7 Cal.5th 415, 424-425.) The full resentencing rule applies here. (Jones, supra, at p. 46.)
After considering various sentencing permutations, we are satisfied the trial court's decision not to exercise any discretion in Austin II does not mean it would never impose a lesser sentence. This is particularly so when the judgment in this case was circumscribed by former section 654. A new sentencing hearing is justified.
We do not recite our calculations because we do not wish to influence the trial court's considered discretion. The trial court remains free to impose any sentence consistent with the law.
Upon remand, the trial court should also consider whether its discretion to strike and impose a lesser firearm enhancement is expanded by People v. Tirado (2022) 12 Cal.5th 688. (See People v. Fuller (Sept. 15, 2022, E071794) ___Cal.App.5th ___http://www.courtinfo.ca.gov/opinions.)
III. Other Fines and Fees and Ability to Pay
Finally, we briefly address the remaining fines and fees. The court believed Austin had the ability to pay fines and fees due, in part, to the lengthy sentence and Austin's ability to work in prison and receive monetary gifts from other persons.
"While there is authority supporting the proposition that prisoners are able to pay fines, fees and assessments out of future prison wages [citations], or small gifts from friends or family [citation], because the record is undeveloped, reliance on either proposition is purely speculative" on this record. (People v. Montes (2021) 59 Cal.App.5th 1107, 1123.) "Not all inmates are able to work, due to their own limitations or to prison restrictions, and 'not all inmates [who work] are eligible for paid positions, which are considered a privilege and are subject to various restrictions and requirements.' [Citation.] Furthermore, not all inmates receive monetary gifts from friends or family." (Ibid., fn. omitted; see Cal. Code Regs., tit. 15, §§ 3040, 3041.1.)
Here, there is nothing in the record indicating Austin is earning income while in prison. The only evidence is his statement that he is not earning income. At this point, Austin has presumably been in prison for several years. His in-prison work history and wages, along with any monetary gifts, should be well documented. On remand, the court should ensure its decision on ability to pay is based on objective evidence.
DISPOSITION
The $900 probation report fee is stricken. The sentence is vacated, and the trial court is directed to pronounce judgment in compliance with AB 518 and all other laws in effect at the time. The judgment is otherwise affirmed.
[*] Before Smith, Acting P. J., Meehan, J. and Snauffer, J.