Opinion
F078700
08-10-2020
THE PEOPLE, Plaintiff and Respondent, v. WALTER GENE GRABLE, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Kenneth N. Sokoler, Sean M. McCoy and Daniel B. Bernstein, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF367166)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Kenneth N. Sokoler, Sean M. McCoy and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
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INTRODUCTION
Appellant/defendant Walter Gene Grable pleaded no contest to second degree burglary and was sentenced to a second strike term of 10 years in prison. On appeal, he contends the prior prison term enhancements must be stricken, and the court improperly ordered him to pay a restitution fine and other fees in violation of his due process rights pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We will strike defendant's admissions to the prior prison term enhancements and otherwise affirm.
FACTS
Given defendant's no contest plea, the facts are from the preliminary hearing testimony, which the parties stipulated to as the factual basis for his plea.
Around 8:30 a.m. on June 20, 2018, Deputy Josh Akin of the Tulare County Sheriff's Department responded to the Bronco Trailer Company, and spoke to several employees, identified as S.L., E.R., J.M. and J.L. They reported that vehicles on the property had been broken into the previous night. They determined numerous items had been stolen from the vehicles, including a generator, battery chargers, stereo decks, an amplifier, speakers, and a gasoline can. The total value of the stolen property from all the vehicles exceeded $1,000.
They further reported a building had been burglarized and the missing property included three battery chargers, a Honda motor, a pressure washer, a small television, and two eight-gallon propane tanks, with a total value of $945.
The employees said they found a trail of their missing property that led from the company to a nearby homeless encampment on Bradham Drive, where they found additional stolen property.
Akin reviewed the company's surveillance video, and it showed two suspects on the property that broke into the vehicles and removed items. The video also showed one suspect walking back and forth from the building.
Akin received a tip from an anonymous source that defendant was one of the suspects. Akin determined defendant was on probation and subject to being searched. Akin went to defendant's residence and found him standing outside. Defendant's mother gave her consent to search the home. Akin found the stolen gasoline can, clothes that matched those worn by the suspect on the surveillance video, and shoes with a pattern that matched the shoeprints that led away from the company to the homeless camp.
Akin interviewed defendant's sister, who reported defendant contacted her around 6:11 a.m., and asked her to meet him at a transient camp on Bradham. When she arrived, defendant loaded a larger speaker and the gasoline can into her car, and asked her to take the items to their house. Defendant later met her at the house and removed the items from her car.
PROCEDURAL BACKGROUND
On July 20, 2018, an information was filed in the Superior Court of Tulare County that charged defendant with count 1, second degree vehicular burglary of a GMC Yukon belonging to E.R. (Pen. Code, § 459); count 2, grand theft of personal property, a stereo, tools, and equipment belonging to S.L., with a value exceeding $950 (§ 487, subd. (a)); and counts 3 and 4, misdemeanor petty theft of personal property, respectively, stereo equipment belonging to J.L., and a stereo belonging to J.M. (§ 484, subd. (a)).
All further statutory citations are to the Penal Code unless otherwise indicated.
As to counts 1 and 2, it was alleged defendant had one prior strike conviction (§§ 667, subd. (b)-(i), 1170.12), and seven prior prison term enhancements (§ 667.5, subd. (b)). Plea Proceedings
On September 4, 2018, defendant pleaded no contest to count 1, second degree vehicular burglary, and admitted the special allegations, pursuant to a negotiated disposition for the lower term of 16 months, doubled to 32 months as the second strike term; dismissal of the remaining charges with a waiver as to restitution pursuant to People v. Harvey (1979) 25 Cal.3d 754; and that he would be released pending sentencing with a waiver pursuant to People v. Cruz (1988) 44 Cal.3d 1247 (Cruz), with the understanding that he could be sentenced up to 10 years, including imposition of the seven prior prison term enhancements, if he was arrested on new charges or failed to appear as ordered. Defendant's failure to appear
Cruz held that a defendant may waive the right to withdraw his guilty plea if he is "fully advised" of that right. (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5.) If a defendant is fully advised of his rights, "the trial court may withdraw its approval of the defendant's plea and impose a sentence in excess of the bargained-for term" if the defendant violates a condition of his plea. (Ibid.) A Cruz waiver must be "obtained at the time of the trial court's initial acceptance of the plea, and it must be knowing and intelligent." (Ibid.)
Once a defendant agrees to a Cruz waiver, he is no longer permitted to withdraw the plea if the court decides to impose a greater sentence than the bargainedfor term after the defendant fails to appear for sentencing. (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5; see also People v. Masloski (2001) 25 Cal.4th 1212, 1214, 1223.)
A " 'Cruz waiver' " thus "gives a trial court the power to 'withdraw its approval of the defendant's plea and impose a sentence in excess of the bargainedfor term,' if the defendant willfully fails to appear for sentencing." (People v. Puente (2008) 165 Cal.App.4th 1143, 1146, fn. 3.)
On October 25, 2018, defendant failed to appear for the sentencing hearing as ordered in violation of his Cruz waiver, and a no-bail bench warrant was issued for his arrest. On October 31, 2018, defendant was returned to court after being arrested on the bench warrant, and remanded into custody without bail. Sentencing hearing
On December 19, 2018, the court heard and denied defendant's motion to discharge his appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118.
The court conducted the sentencing hearing and, based on defendant's Cruz waiver, sentenced him to an aggregate term of 10 years in prison, based on the upper term of three years, doubled to six years as the second strike term for count 1, plus four one- year terms for the prior prison term enhancements. (§ 667.5, subd. (b).) The trial court stayed the other three prior prison term enhancements and dismissed the remaining counts.
The court followed the recommendation in the probation report and imposed a $600 restitution fine (§ 1202.4, subd. (b)) and suspended the parole revocation fine of $600 (§ 1202.45), with victim restitution in an amount to be determined (§ 1202.4, subd. (f)). The court also imposed a $40 court operations assessment fee (§ 1465.8), and a $30 criminal conviction assessment fee (Gov. Code, § 70373). The court found defendant did not have the ability to pay attorney's fees.
In his opening brief, defendant correctly states the amount of the restitution fine, but later erroneously states the restitution fine was $300.
Defense counsel stated defendant wanted to tell the court that he could not afford restitution and wanted to get more time instead. The court replied it had not ordered any victim restitution, and the restitution fine was based on a 32-month sentence and not the 10-year term it had just imposed that would have resulted in triple the amount. Defense counsel acknowledged "[t]here's already been some consideration," and thanked the court.
On January 17, 2019, defendant filed a timely notice of appeal.
DISCUSSION
I. The prior prison term enhancements.
Defendant admitted seven prior prison term enhancements pursuant to section 667.5, subdivision (b). The court imposed four consecutive one-year terms for these enhancements.
In supplemental briefing, defendant asserts, and the People concede, that defendant's admissions to the seven prior prison term enhancements, and the four one-year terms imposed for those enhancements, must be stricken.
Effective January 1, 2020, Senate Bill No. 136 amended section 667.5, subdivision (b), to limit prior prison term enhancements to only prior terms that were served for sexually violent offenses as defined by Welfare and Institutions Code section 6600, subdivision (b). (§ 667.5, subd. (b), as amended by Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020.) The parties agree that none of defendant's prior prison terms were served for a sexually violent offense and, thus, defendant's admissions and the four years imposed for the enhancements must be stricken. II. The restitution fine and fees.
Given this conclusion, we need not address defendant's alternate contention, that the People agree with, that the court erroneously "stayed" the other three section 667.5, subdivision (b) enhancements instead of "striking" them.
Defendant relies on Dueñas and argues the court improperly imposed the restitution fine and fees in violation of his due process rights without determining whether he had the ability to pay these amounts. Defendant asserts the order imposing the fine and fees must be vacated and reversed.
We decline to vacate or reverse the court's orders for the restitution fine and fees. As we recently explained in People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles), we believe Dueñas was wrongly decided and an Eighth Amendment analysis is more appropriate to determine whether restitution fines, fees, and assessments in a particular case are grossly disproportionate and thus excessive. (Aviles, at pp. 1068-1072.) Under that standard, the fine and fees imposed in this case are not grossly disproportionate to defendant's level of culpability, and thus not excessive under the Eighth Amendment. (Aviles, at p. 1072.)
The California Supreme Court is currently considering whether trial courts must consider a defendant's ability to pay before imposing or executing fines, fees, and assessments; and if so, which party bears the applicable burden of proof. (See People v. Kopp (2019) 38 Cal.App.5th 47, 94-98, review granted Nov. 13, 2019, S257844.) --------
The People argue that even if Dueñas applied, defendant forfeited any challenge to his alleged inability to pay the fine and fees because he failed to object at the sentencing hearing. When the court imposes a restitution fine greater than the $300 statutory minimum amount, "[s]ection 1202.4 expressly contemplates an objection based on inability to pay." (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153 (Frandsen); Aviles, supra, 39 Cal.App.5th at p. 1073; § 1202.4, subds. (c), (d).) While Dueñas had not been decided at the time of defendant's sentencing hearing, defendant had the statutory right to object to the $600 restitution fine and demonstrate his alleged inability to pay, and such an objection "would not have been futile under governing law at the time of his sentencing hearing." (Frandsen, supra, 33 Cal.App.5th at p. 1154; Aviles, supra, 39 Cal.App.5th at pp. 1073-1074.) In addition, any objections to the assessments imposed under section 1465.8 and Government Code section 70373 would not have been futile. "Although both statutory provisions mandate the assessments be imposed, nothing in the record of the sentencing hearing indicates that [the defendant] was foreclosed from making the same request that the defendant in Dueñas made in the face of those same mandatory assessments. [The defendant] plainly could have made a record had his ability to pay actually been an issue. Indeed, [he] was obligated to create a record showing his inability to pay the ... restitution fine, which would have served to also address his ability to pay the assessments." (Frandsen, supra, 33 Cal.App.5th at p. 1154; Aviles, supra, 39 Cal.App.5th at p. 1074.)
We note, however, that defense counsel objected at the sentencing hearing to the court's imposition of "restitution" based on defendant's representation that he could not pay it. The court replied it had imposed a restitution fine based on a lesser sentence than what it had just imposed.
To the extent defendant's objection preserved any issue under Dueñas, we would still reject defendant's constitutional claims and find any error arising from the court's failure to make an ability to pay finding was harmless beyond a reasonable doubt since defendant has the ability to pay the fine and fees imposed in this case. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Jones (2019) 36 Cal.App.5th 1028, 1030-1031; Aviles, supra, 39 Cal.App.5th at pp. 1075-1077.)
" ' "Ability to pay does not necessarily require existing employment or cash on hand." [Citation.] "[I]n determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendant's present ability but may consider a defendant's ability to pay in the future." [Citation.] This include[s] the defendant's ability to obtain prison wages and to earn money after his release from custody. [Citation.]' " (Aviles, supra, 39 Cal.App.5th at p. 1076.)
We can infer from the instant record that defendant has the ability to pay the aggregate amount of the fine and fees from probable future wages, including prison wages. (Aviles, supra, 39 Cal.App.5th at p. 1076; People v. Ellis (2019) 31 Cal.App.5th 1090, 1094; People v. Douglas (1995) 39 Cal.App.4th 1385, 1397.) There is nothing in the record to show that defendant would be unable to satisfy the fine and fees imposed by the court while serving his prison term, even if he fails to obtain a prison job. While it may take defendant some time to pay the amounts imposed in this case, that circumstance does not support his inability to make payments on these amounts from either prison wages or monetary gifts from family and friends during his prison sentence. (See, e.g., People v. DeFrance (2008) 167 Cal.App.4th 486, 505; People v. Lewis (2009) 46 Cal.4th 1255, 1321.) In People v. Potts (2019) 6 Cal.5th 1012, the trial court ordered a defendant convicted of capital murder to pay the statutory maximum restitution fine of $10,000, partially based on the probation officer's erroneous statement that a condemned inmate would be assigned a job in prison. Potts clarified that a defendant sentenced to death would not be permitted to work but found the court's error was harmless beyond a reasonable doubt and the court's restitution order was otherwise lawful. (Id. at pp. 1055-1056.) The defendant's alleged inability to pay because he lacked a prison job would be "blunted by the fact that he would retain at least some of the money sent to him" by family and friends. (Id. at p. 1056.) Potts held the trial court was "permitted to conclude that the monetary burden the restitution fine imposed on defendant was outweighed by other considerations," such as the seriousness and gravity of the offense, and the circumstances of its commission. (Id. at pp. 1056-1057.)
Finally, the court's finding that defendant lacked the ability to pay attorney's fees does not support his arguments about the restitution fine and fees. Section 987.8, subdivision (b) states that in considering the defendant's ability to pay and reimburse the county for the costs of appointed counsel, the court must give defendant notice that such costs may be assessed and an opportunity to be heard. In addition, the court may consider both the defendant's "present financial position and his reasonably discernible financial position during the following six months. [Citation.]" (People v. Rodriguez (2019) 34 Cal.App.5th 641, 646.) "But there's an important exception: If the defendant is sentenced to prison or to county jail for more than 364 days, he 'shall be determined not to have a reasonably discernible future financial ability to reimburse' defense costs '[u]nless the court finds unusual circumstances.' [Citation.] [¶] Put another way, there is 'a presumption under the statute that a defendant sentenced to prison does not have the ability to reimburse defense costs.' [Citation.] To rebut this presumption, there must be 'unusual circumstances.' [Citation.]" (Ibid.) As applied to this case, the sentencing court's decision not to order defendant to repay the costs of appointed counsel was based on section 987.8's specific statutory presumption, which does not apply to whether he had the ability to pay the restitution fine and fees. (See Aviles, supra, 39 Cal.App.5th at pp. 1074-1075.)
DISPOSITION
Defendant's admissions to the seven prior prison term enhancements pursuant to section 667.5, subdivision (b), and the four consecutive one-year terms imposed for those enhancements, are stricken in light of Senate Bill No. 136, and his sentence is modified to six years.
The trial court is directed to prepare and forward to appropriate authorities a new abstract of judgment reflecting the modification. As modified, the judgment is affirmed.