Opinion
B299472
04-28-2020
THE PEOPLE, Plaintiff and Respondent, v. GEOFFREY S. BUENO, Defendant and Appellant.
Elizabeth Horowitz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Assistant Attorney General, Scott A. Taryle and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA062308) APPEAL from a judgment of the Superior Court of Los Angeles County. Lisa Chung, Judge. Affirmed in part and remanded with directions. Elizabeth Horowitz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Assistant Attorney General, Scott A. Taryle and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant Geoffrey S. Bueno appeals from the judgment entered upon his conviction and sentence of two counts of second degree robbery and one count of possession of a controlled substance. He complains that when the case was remanded for resentencing the trial court committed several sentencing errors by: (1) abusing its discretion when it refused to strike all of his prior serious felony enhancements alleged under Penal Code section 667 subdivision (a)(1); (2) failing to exercise its discretion to reconsider the restitution fine in light of the reduction in his sentence; and (3) failing to conduct a hearing on his ability to pay the fines and fees imposed. As we shall explain, only appellant's argument about the restitution fine has merit.
All statutory references are to the Penal Code, unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
The factual and procedural background incorporates the relevant facts from this court's opinion in the prior appeal (case No. B277399) and additional facts pertinent to the issues in this appeal.
In March 2014, appellant was arrested and charged with two counts of robbery after he stole approximately $100 worth of merchandise from a Home Depot store and used physical force to resist two store employees who attempted to stop him from escaping with the merchandise. The information further alleged that appellant had committed two strike offenses as defined under section 667, subdivision (d), and section 1170.12, subdivision (b), and two serious felony convictions under section 667, subdivision (a)(1).
Appellant was also charged with one count of possession of a controlled substance after a small baggie of methamphetamine was found in appellant's possession after his arrest.
The strike qualifying prior offenses were a 1992 voluntary manslaughter conviction with a gang allegation; and a 2009 felony robbery conviction based on his use of force or fear while attempting to escape during a theft.
In 2016, the jury returned guilty verdicts on all the counts. The trial court sentenced appellant to 47 years to life, as follows: On count 1, 25 years to life, plus 10 years for the two prior conviction enhancements; and on count 2, two years, plus 10 years for the two prior conviction enhancements. The trial court also imposed criminal conviction assessments, security fees and restitution, and parole revocation fines.
The court imposed the enhancement on the two prior strikes alleged on count 1 under section 667, subdivision (d) and struck the prior strikes allegations on count 2. On the controlled substances count, the trial court imposed 365 days in county jail, to run concurrently with the other sentences.
While the prior appeal was pending, Senate Bill No. 1393 (Stats. 2018, ch. 1013) that rendered discretionary the previously mandatory five-year serious prior conviction sentence enhancement under section 667, subdivision (a)(1) became law. Consequently, this matter was remanded to the trial court to consider whether to exercise its discretion to strike the five-year sentencing enhancements imposed on counts 1 and 2.
At the June 19, 2019 resentencing hearing, appellant asked the court to strike all of the five-year sentence enhancements. In support of his request, appellant submitted documentation indicating that he had completed various educational and rehabilitation programs while in prison and pointed out that his current convictions did not involve the use of weapons or the theft of items of high monetary value.
The prosecutor pointed out appellant's lengthy criminal history but did not offer an opinion on whether the court should strike all or any the enhancements.
The probation report disclosed, that appellant who was 42 years old at the time of his arrest for the current offenses in 2016, had a record of arrests and convictions dating back to 1990. In 1992, he suffered a voluntary manslaughter conviction that included a criminal street gang allegation, for which he received an eight-year prison sentence. In 1999, he suffered convictions for a felony vehicle code violation, a misdemeanor DUI and a petty theft, and was sentenced to probation for those convictions. In 2002, however, his probation was revoked, and he was sentenced to state prison for 8 months, after he was convicted of felon in possession of a firearm. In 2003, he was convicted of violating Vehicle Code section 2800.2 (driving with willful or wanton disregard for safety of others while fleeing police), and was sentenced to prison for six years. In 2009, appellant was convicted of robbery and was sentenced to prison for four years. He was paroled in 2013 and was on parole on the robbery conviction when he committed the current crimes.
Acknowledging that appellant had done well while in prison, the court exercised its discretion and struck the two 5-year enhancements alleged in count 2. Recognizing, however, that appellant had an extensive criminal history and that his prior strikes were serious, the trial court refused to strike either of the five-year enhancements alleged on count 1.
Appellant's counsel also asked the court to reconsider the $8,000 restitution fine previously imposed. The court refused, stating that the hearing was limited to only reconsidering the enhancements.
The court then sentenced appellant to a total of 37 years to life. The record also reflects that the court re-imposed $90 of criminal conviction assessments (Gov. Code, § 70373), $120 in court security fees (§ 1465.8), a $10 crime prevention fine with penalty assessments (§ 1202.5), an $8,000 restitution fine (§ 1202.4, subd. (b)), an $8,000 parole revocation fine (§ 1202.45) (which was stayed), and a $50 crime lab fine, plus $30 for other penalty assessments.
Appellant timely appeals.
DISCUSSION
A. Imposition of the Prior Conviction Sentencing Enhancements
Appellant argues that the trial court abused its discretion by declining to strike all the prior serious felony enhancements. We disagree.
The trial court's decision to impose or to strike an enhancement is discretionary. (See People v. Wilson (2019) 42 Cal.App.5th 408, 412-413 [recognizing the trial court's discretion in sentencing under section 667, subdivision (a)].) We review for abuse of discretion and will affirm unless appellant demonstrates the trial court's decision is arbitrary or exceeds the bounds of reason. (People v. Carmony (2004) 33 Cal.4th 367, 374, 376 [trial court's discretionary sentencing decisions are reviewed under the abuse of discretion standard of review].)
Here the court struck two of the four enhancements. Based on the record, the court made an informed discretionary sentencing decision. Appellant's criminal behavior spanned more than 25 years, and his propensity for criminality persisted despite several periods of incarceration. Even on parole, he continued to commit crimes, some of which involved the use of force and physical violence. In light of appellant's recidivism and the purpose of the sentencing scheme, we conclude that the court did not abuse its discretion by declining to strike the two enhancements alleged in count 1. (See People v. Lassiter (1988) 202 Cal.App.3d 352, 356 [purpose of the five-year sentencing enhancement for a prior felony is to deter habitual criminal activity and to provide retributive punishment of persons who repeatedly break the law by significantly enhancing their sentences for subsequent convictions].)
In addition, we do not agree with appellant that the court failed to take into account his current circumstances and those of the crime when resentencing him. Although appellant had made recent strides to improve himself while in prison and the current crimes did not involve high-value items or serious injuries, the court correctly considered his entire record in coming to its decision. Indeed, the court acknowledged his prison record and the value of the items stolen in striking two of the four enhancements. In our view, appellant has not demonstrated that the balance the court struck in sentencing him was irrational or arbitrary.
B. Imposition of Fines , Fees , and Assessments.
Appellant contends that because the court reduced his sentence by 10 years, it was required to reconsider the $8,000 restitution fine it had earlier imposed. In addition, he asserts that with respect to all fines, fees, and assessments imposed, the court erred in failing to conduct an ability to pay hearing as required by People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We address each argument in turn.
In Dueñas, the defendant—an unemployed, homeless mother with cerebral palsy—had suffered multiple misdemeanor convictions stemming from driving with a suspended license, and lacked the ability to pay the criminal fines, fees and assessments imposed on her convictions. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) The appellate court held that due process entitled criminal defendants, like Dueñas, to a hearing to determine an ability to pay criminal fines, fees and assessments, and that absent a finding that the defendant "has the present ability to pay," the court could not impose them. (Id. at p. 1164.)
1. Reconsideration of the restitution fine
A trial court must act with the full knowledge of the scope of its sentencing discretion. (People v. Fuhrman (1997) 16 Cal.4th 930, 944 ["where the record affirmatively discloses that the trial court misunderstood the scope of its discretion, remand to the trial court is required to permit that court to impose sentence with full awareness of its discretion"] (italics omitted).) Where, as here, a defendant is resentenced, the trial court has the discretion to reconsider the restitution fine previously imposed and to order a different fine, even when the order remanding for resentencing did not expressly direct the trial court to reconsider that fine. (People v. Rosas (2010) 191 Cal.App.4th 107, 119-120.) The transcript of the June 19, 2019 sentencing hearing discloses that the trial court misunderstood the scope of its resentencing authority when it refused appellant's request to reconsider the $8,000 restitution fine, stating that the resentencing hearing was only to consider striking appellant's enhancements. The court's failure to recognize its authority requires that we remand the matter to permit the court to reconsider the fine with the "full awareness of its discretion." (See also People v. Fuhrman, supra, 16 Cal.4th at p. 944.)
We express no opinion on the amount of the restitution fine that court should impose on remand.
In addition, if on remand the court imposes a different restitution fine, then it shall also modify the $8,000 parole revocation fine because, under section 1202.45, the parole revocation fine must be imposed in the same amount as the restitution fine. (See § 1202.45, subds. (a) & (c) ["In every case where a person is convicted of a crime and [the] sentence includes a period of parole, the court shall . . . assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4" and the parole revocation fine "shall be suspended unless the person's parole . . . is revoked"]; People v. Preston (2015) 239 Cal.App.4th 415, 424-425 & 429 [recognizing that the failure to impose identical restitution and parole revocation fines is reversible error].)
2. Hearing on ability to pay
Appellant contends that, before imposing any fees, fines, or assessments, Dueñas required the trial to conduct a hearing on whether he had the ability to pay. (Dueñas, supra, 30 Cal.App.5th at pp. 1163-1168.) We conclude the issue is forfeited and, even if it were not forfeited, appellant's argument fails.
The Attorney General disagrees with Dueñas and instead argues that courts should evaluate fines and fees under the excessive fines clause of the Eighth Amendment to the United States Constitution. Appellant, however, did not raise an Eighth Amendment claim in his opening brief and we therefore decline to address that question. (See People v. Caceres (2019) 39 Cal.App.5th 917, 923 [declining to address the application of Eighth Amendment in this context because appellant had not raised it in the opening brief].)
Preliminarily, by failing to raise the matter in the trial court, appellant forfeits this contention. Even though Dueñas, decided in January 2019, predated appellant's June 2019 sentencing hearing, appellant did not argue that he was entitled to an ability to pay hearing under Dueñas, nor did he express any concern about his ability to pay the fees, fines, and assessments. Thus, he has forfeited his claim. (See People v. Nelson (2011) 51 Cal.4th 198, 227 [ability to pay restitution fine is forfeited by failure to object at the sentencing hearing]; People v. Trujillo (2015) 60 Cal.4th 850, 859 [the constitutional nature of the defendant's claim regarding his ability to pay did not justify a deviation from the forfeiture rule].)
And even if it were not forfeited, appellant has not demonstrated error. Following People v. Hicks (2019) 40 Cal.App.5th 320, we have held that Dueñas was wrongly decided because it misapplied due process precedents. (See People v. Kingston (2019) 41 Cal.App.5th 272, 279-282.) We agree with Hicks's conclusion that Dueñas improperly wove together two distinct strands of due process precedent. (See People v. Hicks, supra, 40 Cal.App.5th at pp. 327-329.) As the Hicks court observed, the first strand secures a due-process-based right of access to courts. The second strand erects a due-process-based bar to incarceration for failure to pay penalties when that failure is due to indigence. Imposing fines, fees, and assessments, however, does not deny a criminal defendant access to the courts. And, the mere imposition of those penalties does not result in incarceration. (See People v. Kingston, supra, 41 Cal.App.5th at pp. 279-280, citing People v. Hicks, supra, 40 Cal.App.5th at pp. 325-326.) Appellant was not denied access to the court, and he was not incarcerated because he could not pay the fines and fees; he was incarcerated because of the crimes that he committed. Thus, neither strand prohibits imposing assessments and fines in this case. Lastly, we note that appellant has not offered any facts to show a lack of financial ability either in the trial court or on appeal.
The California Supreme Court granted review of Hicks. (See People v. Hicks, review granted Nov. 26, 2019, S258946.) --------
Consequently, the court did not err in failing to conduct a hearing on appellant's ability to pay before imposing fees, fines, and assessments.
DISPOSITION
The matter is remanded to the trial court to reconsider the restitution fine (§ 1202.4, subd. (b)) in light of that court's June 19, 2019 reduction of appellant's sentence. If the court modifies the restitution fine, it shall also modify the parole revocation fine (§ 1202.45) accordingly, amend the abstract of judgment, and forward the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. We concur:
CHANEY, J.
BENDIX, J.