Opinion
F077926
03-03-2022
THE PEOPLE, Plaintiff and Respondent, v. GILDARDO HERNANDEZ, Defendant and Appellant.
Lillian Hamrick, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and John Merritt, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF171476A. John D. Oglesby, Judge.
Lillian Hamrick, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and John Merritt, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PEÑA, J.
INTRODUCTION
The People charged Gildardo Hernandez (defendant) with (among other conduct) felony receipt of a stolen vehicle (Pen. Code, § 496d). (Undesignated statutory references are to the Penal Code.) The vehicle in question was over 30 years old. Prior to trial, defendant requested a special instruction that the prosecution needed to prove the vehicle's value exceeded $950 to support a felony conviction under section 496d, subdivision (a). Defendant asked for this instruction in light of the Safe Neighborhoods and Schools Act's (Proposition 47) reduction of certain theft crimes not exceeding $950 to misdemeanors.
The jury found defendant guilty of the charge and determined the car's value exceeded $950. In a bifurcated bench trial, the court found true allegations defendant suffered three prior prison convictions. Prior to sentencing, defendant asked the court to convert the matter to a misdemeanor pursuant to section 17, subdivision (b) (hereafter section 17(b)), but the court denied defendant's motion.
The court sentenced defendant to the upper term of three years on his conviction under section 496d, subdivision (a) and imposed 3 one-year prior prison term enhancements pursuant to section 667.5, former subdivision (b). It also imposed various fines, fees, and assessments.
Defendant raises four issues on appeal. He claims his trial counsel was ineffective because his counsel did not object to certain testimony concerning the car's value. Next, defendant claims Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136) requires striking his three prior prison term enhancements. In addition, defendant claims the trial court abused its discretion when it denied his motion to treat his case as a misdemeanor. Finally, defendant claims the trial court violated his due process rights when it imposed the fines, fees, and assessments against him at sentencing without first determining his ability to pay. For this argument, he relies on the Second Appellate District's decision in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
We requested supplemental briefing on the effect, if any, Senate Bill No. 483 (2021-2022 Reg. Sess.) (Senate Bill 483) and Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567) have on the issues raised in this appeal.
We will remand the matter because we conclude defendant is entitled to the benefit of Senate Bill 136, Senate Bill 483 and Senate Bill 567. We otherwise affirm the judgment.
FACTUAL BACKGROUND
Introductory Facts
On March 5, 2018, Donald Gilliam's wife called him about a car parked near their house. When Gilliam returned home, he approached the car and noticed defendant lying inside it with his mouth open. Gilliam took down the car's license plate number and called law enforcement.
Kern County Sheriff's deputy Rodney Jones arrived and met with Gilliam. Gilliam showed Deputy Jones videos from his surveillance camera of defendant around the car and, at points, operating the car. Gilliam identified defendant as the person sleeping in the car.
Defendant came around the corner and started walking towards Deputy Jones's patrol car. Defendant ran toward a house after he saw Deputy Jones. Jones followed him, forced the door of the house open, and apprehended defendant near the back door. Jones searched defendant and found a set of shaved keys in his pocket. Four of the shaved keys started the car.
Antoinette Medina arrived at the scene, identified herself as the owner of the car, and drove off with it.
Johnnie Portis owned the car in question-a 1987 Nissan Maxima. Portis learned his car disappeared from the front of his house three days before deputies arrested defendant. He and his wife were the only ones who had keys to the car. Portis testified his wife brought the car home five or six days after it was taken. He also testified he later sold it for $2,500.
Criminal Charges and Verdict
An information filed on March 26, 2018, charged defendant with receiving a stolen vehicle (§ 496d, subd. (a); count 1), possession of burglary tools (§ 466; count 2), and resisting arrest (§ 148, subd. (a)(1); count 3). On count 1, the information alleged defendant suffered six prior prison convictions within the meaning of section 667.5, former subdivision (b).
A jury found defendant guilty on all counts. It found true an allegation the value of the vehicle exceeded $950. At a subsequent bench trial, the court found true three prior prison convictions within the meaning of section 667.5, former subdivision (b).
Prior to sentencing, defendant moved to reduce the matter to a misdemeanor pursuant to section 17(b)(3). The trial court denied defendant's motion.
At sentencing, defendant received the upper term of three years on count 1. The trial court added three years pursuant to the prior prison term enhancements. The court announced defendant's first three years would be served in custody with the remainder of the sentence to be served on mandatory supervision for a total fixed term of six years. It also imposed a $300 restitution fine pursuant to section 1202.4, subdivision (b). It imposed three $40 assessments pursuant to Penal Code section 1465.8 and three $30 court facilities fees pursuant to Government Code section 70373.
Defendant timely filed his notice of appeal on August 8, 2018.
DISCUSSION
I. Defendant's Ineffective Assistance of Counsel Argument Is Moot But Also Fails on the Merits
Defendant's ineffective assistance of counsel argument rests on the premise that the prosecution could sustain a felony conviction under section 496d, subdivision (a) only if it proved the car's value exceeded $950. As explained below, this argument is moot, but we otherwise conclude trial counsel's performance was not deficient.
A. Relevant Factual Background
Prior to trial, defendant requested the following special instruction concerning the car's value:
"In count one, it is alleged that the vehicle at issue in this case was valued at over $950.
The record before us does not indicate the information alleged the vehicle's value exceeded $950.
"If you find the defendant guilty of the crime charged in count one, you must determine whether the allegation is true or not true.
"The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true."
Defendant asked for this instruction on the grounds that violations of section 496d, subdivision (a) that do not exceed $950 are misdemeanors pursuant to Proposition 47.
At trial, Johnnie Portis testified he sold the vehicle for $2,500 after his wife recovered it. On cross-examination, he could not provide an exact value for the vehicle. The defense introduced evidence Portis submitted registration records to the Department of Motor Vehicles in which he stated the car's value was $300. Portis acknowledged he listed the vehicle's value at $300 under penalty of perjury.
During Deputy Jones's redirect examination, the prosecutor asked the officer questions about the car's value. The defense successfully objected five times, including twice on hearsay grounds. Consequently, Deputy Jones did not testify on this subject on redirect.
On recross-examination, defense counsel asked Deputy Jones if he looked up the vehicle's Blue Book value, inquired with a dealership, or took any other measures to assess the vehicle's value, and Deputy Jones confirmed he had not. Then the following colloquy occurred:
"[Defense Counsel] Q. Now, I know that you wrote a report in this case and so did very many other officers in this case. Are you familiar with the various reports in this case?
"[Deputy Jones] A. Not all of them, no. Just pretty much mine is what I've wrote and what I remember.
"Q. So you aren't able to tell me about what someone else's report says?
"A. The only one that I'm familiar with is probably Fox-Deputy Fox and Deputy Vorhees because they were pretty consistently staying with me … during this whole thing. [¶] … [¶]
"Q. So Deputy Vorhees' report gives a number of the estimated value?
"A. That's the same number I have in my report.
"Q. Is that the same number that was given by the reporting party?
"A. I have no idea to be honest with you.
"Q. So, basically, you are not the person who actually had this conversation?
"A. This conversation with the $1,200?
"Q. Yes.
"A. Okay. This conversation was probably done when Vorhees was standing by with Bakersfield PD waiting for the responsible owner to respond to pick up his vehicle.
Q. So at some point the owner told you that it was worth $1,200?
"A. Didn't tell me. He probably told BPD when he reported it stolen."
On further redirect examination, Deputy Jones stated he agreed with the $1,200 estimate of the vehicle.
B. Standard of Review and Applicable Law
To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate (1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) defendant suffered prejudice because of counsel's performance or lack thereof. (In re Visciotti (1996) 14 Cal.4th 325, 351; People v. Weaver (2001) 26 Cal.4th 876, 925.) Prejudice in this context means "there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" (Weaver, supra, at p. 925.) This is a difficult burden to carry on appeal. (People v. Lucas (1995) 12 Cal.4th 415, 436; see People v. Mai (2013) 57 Cal.4th 986, 1009 ["It is particularly difficult to prevail on an appellate claim of ineffective assistance"].)
A reviewing court examining a claim of ineffective assistance of counsel gives great deference to counsel's reasonable tactical decisions. (People v. Lucas, supra, 12 Cal.4th at p. 436.) We presume trial counsel's conduct "'falls within the wide range of reasonable professional assistance.'" (Id. at p. 437.) Moreover, if the appellate record "'fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.'" (People v. Weaver, supra, 26 Cal.4th at p. 955.)
C. Analysis
We reject defendant's ineffective assistance of counsel argument for several reasons.
First, the issue is effectively moot. As mentioned above, defendant asked for this instruction because he believed Proposition 47 required the prosecution to prove the car's value exceeded $950 to secure a felony conviction under section 496d, subdivision (a).
However, as defendant noted to us in a supplemental letter brief, the California Supreme Court spoke on the issue in People v. Orozco (2020) 9 Cal.5th 111 (Orozco). In Orozco, the defendant in question was found in possession of a stolen vehicle valued at $301. (Id. at p. 116.) The defendant pled guilty, and then, after Proposition 47's enactment, asked the trial court to treat his conviction as a misdemeanor. (Orozco, at p. 116.) The trial court declined to do so and the Court of Appeal affirmed on the ground Proposition 47 did not apply to section 496d, subdivision (a). (Orozco, at p. 116.) The Supreme Court affirmed, holding the defendant's conviction under section 496d "is not eligible for a sentence reduction under Proposition 47." (Orozco, at p. 119.) By extension, Orozco suggested that section 496d's omission from the purview of Proposition 47 meant "prosecutors [retained] their discretion to charge section 496d offenses involving vehicles worth $950 or less as felonies." (Orozco, at p. 120.)
Accordingly, defendant's felony charge did not hinge on the car's value. Instead, it remains a "wobbler" offense chargeable as a felony in accordance with the court's discretion. (People v. Lee (2017) 16 Cal.App.5th 861, 866 [describing § 496d as a "wobbler"]; but see Use Note to CALJIC No. 14.65.1 (2020 rev.) [stating that as a consequence of Orozco, "convictions under Penal Code section 496d remain felonies"].) This forecloses defendant's ineffective assistance of counsel claim.
Notwithstanding the above, we cannot conclude defense counsel's performance was deficient. Defendant's argument focuses on Deputy Jones's testimony (elicited from his trial counsel) where Deputy Jones confirmed the $1,200 value he wrote in his report derived from a statement the vehicle's owner (identified as Antoinette Medina in the parties' briefs) allegedly made to one of Deputy Jones's colleagues-Deputy Vorhees.
There may have been a meritorious objection to this testimony. Defendant cites hearsay and the confrontation clause of the Sixth Amendment as potential grounds. However, "'[competent counsel may often choose to forgo even a valid objection … [and] "[t]he choice of when to object is inherently a matter of trial tactics not ordinarily reviewable on appeal."'" (People v. Slaughter (2002) 27 Cal.4th 1187, 1210, abrogated in part on other grounds in People v. Diaz (2015) 60 Cal.4th 1176, 1190; see People v. Campbell (2020) 51 Cal.App.5th 463, 506 [failure to raise certain objections to testimony, including hearsay, not ineffective assistance of counsel].)
And here, we cannot conclude there could be no possible tactical reason for defense counsel's failure to object to the challenged testimony. Rather, it is possible defense counsel wanted to cast doubt on Deputy Jones's ability to value the vehicle. Indeed, defense counsel asked a series of questions that ultimately confirmed Deputy Jones performed no independent investigation on the car's value. Furthermore, while Jones testified the party who reported the vehicle stolen gave a value of $1,200 to Deputy Vorhees, he also testified that number was not directly provided to him and so it may be that defense counsel believed this testimony reduced Jones's credibility in front of the jury. We also note defense counsel raised several successful objections when the prosecution attempted to have Jones value the vehicle during redirect examination.
Against this backdrop, we cannot conclude defense counsel's failure to object to testimony (that she elicited) could not be considered "sound trial strategy." (People v. Little (2012) 206 Cal.App.4th 1364, 1380 [defense counsel's decision to elicit from law enforcement officer a hearsay statement from defendant not ineffective assistance of counsel and could be considered "sound trial strategy"].) Therefore, defendant's ineffective assistance of counsel argument fails at the first prong.
We also cannot conclude defense counsel's actions prejudiced defendant. For one, with the benefit of Orozco, we know defendant's felony conviction did not hinge on the car's value exceeding $950. Setting this aside, the jury received instructions the vehicle should be valued according to its "fair market value," which meant "the price a reasonable buyer and seller would agree on" and "the highest price the property would reasonably have been sold for in the open market at the time of and in the general location of the theft." The most relevant testimony the jury heard on this point was Johnnie Portis's unchallenged testimony he sold the vehicle for $2,500 sometime after his wife recovered it and brought it home. Defendant now casts doubt on that testimony, but his after-the-fact deductions do not convince us it is reasonably probable he would have obtained a more favorable verdict under the instructions the jury received.
In conclusion, Orozco moots defendant's ineffective assistance of counsel claim. Setting that aside, defendant falls short of demonstrating his trial counsel's performance was deficient. And even if defendant met this prong, we do not find it is reasonably probable he would have obtained a more favorable verdict.
II. Defendant Is Entitled to Relief Under Both Senate Bill 136 and Senate Bill 483
Defendant next claims Senate Bill 136 requires striking the three prior prison term enhancements the trial court imposed at sentencing pursuant to section 667.5, former subdivision (b). The People agree this is the correct result.
Via Senate Bill 136, the Legislature amended section 667.5, subdivision (b) to apply a one-year enhancement only if'"a defendant served a prior prison term for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (d).'" (People v. Gastelum (2020) 45 Cal.App.5th 757, 772.) Pursuant to the Estrada rule, Senate Bill 136 "applies retroactively to all cases not yet final as of its January 1, 2020, effective date." (People v. Jennings (2019) 42 Cal.App.5th 664, 682, citing In re Estrada (1965) 63 Cal.2d 740.)
Under In re Estrada, a presumption exists that "statutory amendments that reduce the punishment for a crime ... apply retroactively in cases where the judgment is not final on the statute's operative date." (People v. Barton (2020) 52 Cal.App.5th 1145, 1152; see In re Estrada, supra, 63 Cal.2d at p. 745.)
To begin with, defendant is entitled to the benefit of Senate Bill 136. The trial court found true that defendant suffered prior prison convictions for burglary (Pen. Code, § 460), unlawful taking of a vehicle (Veh. Code, § 10851), and manufacture of an illegal firearm. None of these are "sexually violent offenses" within the meaning of Welfare and Institutions Code section 6600, subdivision (d). Moreover, because defendant's appeal is presently before us, the judgment is not final. (People v. Jennings, supra, 42 Cal.App.5th at p. 682.) Therefore, the prison enhancements should be stricken.
Regarding Senate Bill 483, the People argue remand is appropriate because the recall and resentencing provision "applies regardless of the finality of a defendant's judgment under [the Estrada rule]." Defendant, by contrast, suggests he does not fall within the scope of newly enacted section 1171.1 because he is not presently serving a term of incarceration and his judgment is not final.
Senate Bill 483 became effective January 1, 2022. In Senate Bill 483, the Legislature declared its intent "to retroactively apply ... [Senate Bill 136] to all persons currently serving a term of incarceration in jail or prison for [a section 667.5, subdivision (b) enhancement]." (Stats 2021, ch. 728, § 1.) Pursuant to the legislations, newly added section 1171.1, subdivision (a) states "[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5 [except for sexually violent offenses] is legally invalid." (See § 1171.1, subd. (a).) Moreover, the statute provides:
"(b) The Secretary of the Department of Corrections and Rehabilitation and the county correctional administrator of each county shall identify those persons in their custody currently serving a term for a judgment that includes an enhancement described in subdivision (a) and shall provide the name of each person, along with the person's date of birth and the relevant case number or docket number, to the sentencing court that imposed the enhancement. [¶]... [¶]
"(c) Upon receiving the information described in subdivision (b), the court shall review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a). If the court determines that the current judgment includes an enhancement described in subdivision (a), the court shall recall the sentence and resentence the defendant." (§ 1171.1, subds. (b)-(c).)
The resentencing called for in section 1171.1 shall result in a lesser sentence than the one originally imposed unless the court finds by clear and convincing evidence a lesser sentence would endanger public safety. (§ 1171.1, subd. (d)(1).) The resentencing hearing also may be waived. (§ 1171.1, subd. (e).)
We conclude defendant is entitled to the benefit of Senate Bill 483. It is true section 1171.1, subdivision (c)'s reference to a recall and resentencing scheme suggests the statute assumes convictions are final. (See § 1171.1, subd. (c).) However, we see no reason not to apply this statute to this case, which would simply require remand for resentencing rather than recall of the sentence. In our view, excluding defendant from accessing the benefits of Senate Bill 483 runs contrary to In re Estrada's presumption that ameliorative statutory changes "'should apply to every case to which it constitutionally could apply.'" (People v. McKenzie (2020) 9 Cal.5th 40, 48, quoting In re Estrada, supra, 63 Cal.2d at pp. 744-745.)
We also disagree that defendant's present custody status removes him from the retroactive benefits of Senate Bill 483. The court "split" defendant's sentence, which required him to serve three years in custody with the remainder to be served under mandatory supervision pursuant to section 1170, subdivision (h) for a total term of six years. Under the period of mandatory supervision, the trial court retains the power to "revoke or modify the mandatory supervision and sentence defendant to imprisonment in the county jail." (People v. Conatser (2020) 53 Cal.App.5th 1223, 1229, citing People v. Chavez (2018) 4 Cal.5th 771, 782.) Accordingly, defendant's criminal action or prosecution had not concluded before Senate Bill 483 took effect and so he is entitled to the benefit in the change of the law irrespective of whether he is presently serving the mandatory supervision portion of his sentence. (Conatser, supra, at pp. 1229-1230 [defendant sentenced to a split sentence entitled to retroactive benefit of new law because "'[i]t cannot be said that this criminal prosecution or proceeding concluded before the ameliorative legislation took effect, '" quoting People v. McKenzie, supra, 9 Cal.5th at p. 46.)
Accordingly, pursuant to Senate Bill 483, we will remand the matter for resentencing in accordance with section 1171.1.
III. The Trial Court Did Not Abuse Its Discretion When It Declined to Treat Defendant's Conviction as a Misdemeanor
Defendant next asserts the court abused its discretion by denying his motion to treat his conviction under section 496d as a misdemeanor. We disagree.
A. Relevant Factual Background
Following his conviction, defendant moved, in part, for the court to treat the matter as a misdemeanor pursuant to section 17(b)(3). The motion discussed the factors in California Rules of Court, rule 4.410 (objectives of sentencing) defendant considered applicable to this case. For example, defendant argued his crime did not involve violence or property damage, that he was not a danger to society, and that a misdemeanor presented a more appropriate punishment. The motion also noted defendant served several months in custody prior to sentencing and his probation report did not recommend any form of restitution.
The People opposed defendant's motion. This opposition discussed applicable circumstances in aggravation pursuant to California Rules of Court, rule 4.421 and the general objective of sentencing under California Rules of Court, rule 4.410. The opposition emphasized defendant's "substantial criminal history," the fact defendant was released on mandatory supervision when he received the stolen vehicle, and certain actions defendant took after receiving the vehicle (such as attempting to paint it and using shaved keys). The People also argued defendant needed felony level punishment because he had received prior relief under section 17(b) for stealing a vehicle and this was his third conviction for possession of a stolen vehicle.
At the hearing, defendant submitted his motion on the papers without argument. The trial court denied defendant's motion because the "defendant's significant recidivism weighs against the Court exercising such leniency." The court explained to defendant that "you have too significant of a criminal history for [the court] to reduce a felony to a misdemeanor under these circumstances."
B. Applicable Law and Standard of Review
Section 17 provides the applicable law for reclassifying "wobbler" offenses. (People v. Park (2013) 56 Cal.4th 782, 790.) Specifically, section 17, subdivision (b) governs the "court's exercise of discretion to classify the crime as a misdemeanor" when the wobbler offense is not charged as a misdemeanor. (Park, at p. 790.) Relevant here, section 17(b)(3) states:
"(b) When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [¶] … [¶]
"(3) When the court grants probation to a defendant and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor."
Whether to treat a wobbler as a misdemeanor pursuant to section 17(b) falls within the discretion of the trial court. (People v. Lee, supra, 16 Cal.App.5th at p. 866.) The California Supreme Court has stated a trial court's exercise of its discretion in this regard should be "an intensely fact-bound inquiry taking all relevant factors, including the defendant's criminal past and public safety, into due consideration; and the record must so reflect." (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 981-982 (Alvarez))
A reviewing court will not disturb the trial court's decision unless the record "clearly shows the decision was irrational or arbitrary." (People v. Sy (2014) 223 Cal.App.4th 44, 66, citing Alvarez, supra, 14 Cal.4th at p. 977.) "'Absent such a showing, we presume the court acted to achieve legitimate sentencing objectives.'" (People v. Tran (2015) 242 Cal.App.4th 877, 887.)
C. Analysis
We conclude the trial court acted within the bounds of its discretion when it denied defendant's motion.
Both parties detailed their reasons for and against reducing the conviction to a misdemeanor. As mentioned above, defendant cited to the California Supreme Court's opinion in Alvarez and discussed relevant factors under California Rules of Court, rule 4.410 in support of his motion. The prosecution also offered a detailed opposition noting aggravating factors for the trial court's consideration. The opposition mentioned defendant received relief under section 17(b) when he violated the same statute in 2005. Defendant submitted this motion on the papers without argument. The court denied the motion and mentioned defendant's "significant recidivism" as a basis for its denial.
We see no abuse of discretion. The collective briefing on the matter reveals a discussion of "all relevant" factors the parties believed were necessary for the court's consideration. (See Alvarez, supra, 14 Cal.4th at pp. 974, 981.) Defendant takes issue with the court's "one sentence explanation," citing defendant's recidivism as a basis for denying his motion. However, defendant must make an affirmative showing the trial court did not consider the numerous other factors the parties discussed in their briefings to the court. (People v. Gollardo (2017) 17 Cal.App.5th 547, 562 ["Defendant's reliance on the trial court's silence does not meet his affirmative burden to prove error on appeal"].) His argument falls short of that burden. By extension, nothing in the record indicates the trial court's decision not to treat defendant's conviction as a misdemeanor exceeds the bounds of reason. (Alvarez, supra, 14 Cal.4th at p. 978.) Accordingly, we find no error.
IV, Defendant's Dueñas Challenge is Moot
Defendant's final argument asserts the trial court violated his due process rights when it imposed $210 in assessments (Gov. Code, § 70373; Pen. Code, § 1465.8) and a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)) without first determining his ability to pay the amounts. He cites the Second Appellate District's decision in Dueñas, supra, 30 Cal.App.5th 1157 in support of this argument.
In Dueñas, despite the defendant's undisputed evidence of an inability to pay, the trial court imposed a restitution fine equal to the statutory minimum pursuant to section 1202.4, subdivision (c), and two assessments because they were mandatory regardless of an inability to pay. (Dueñas, supra, 30 Cal.App.5th at p. 1163.) The Court of Appeal determined due process of law required the trial court to conduct an ability to pay hearing prior to imposing court facilities and court operations assessments. (Id. at p. 1164.) It also concluded due process required the trial court to stay execution of the restitution fine until the People demonstrated the defendant had the ability to pay the restitution fine notwithstanding the language of section 1202.4. (Dueñas, at p. 1172.) It remanded the matter to the trial court with directions to stay execution of the restitution fine until the People proved the defendant had the "present ability to pay it." (Id. at p. 1173.)
We have deemed a Dueñas challenge moot when we otherwise remanded the case. (See, e.g., People v. Montoya (2021) 68 Cal.App.5th 980, 984 ["[B]ecause the case will be remanded for modification of the length of defendant's probation term, defendant's Dueñas argument is moot"].) The same dynamic is apparent here because defendant is entitled to resentencing. We see no reason to preclude defendant from raising an ability to pay challenge on remand.
The People note the Supreme Court is presently 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.)
V. Defendant Is Entitled to the Benefit of Senate Bill 567
The trial court sentenced defendant to the upper term of three years on count 1. We requested further briefing from the parties on the effect, if any, recently enacted Senate Bill 567 has on this sentence. The People state this legislation applies retroactively to defendant as well. Defendant, by contrast, notes he has already served the maximum sentence on count 1, but otherwise contends a resentencing should occur.
Senate Bill 567 amends section 1170 to make the middle term the presumptive sentence for a term of imprisonment unless certain circumstances exist. (Stats. 2021, ch. 731, § 1.3.) The exceptions to the general rule apply when there is a stipulation to, or findings beyond a reasonable doubt (by a jury or the court) of facts supporting aggravating circumstances justifying the upper term. (Ibid) Notwithstanding the above, the "court may consider the defendant's prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury [but it] does not apply to enhancements imposed on prior convictions." (Ibid)
Our review of the record indicates the trial court's imposition of the upper term on count 1 would not now pass muster under Senate Bill 567. At sentencing, the trial court adopted the summary of three circumstances in aggravation discussed in the probation report regarding defendant's "significant criminality or criminal history, significant violation of probationary statuses." The trial court conducted a bench trial on defendant's prior prison convictions and found three of them true beyond a reasonable doubt but the record does not indicate the court found any aggravating circumstances true beyond a reasonable doubt. We also do not see any aggravating circumstances the defendant stipulated to in the record.
While defendant claims he has already served his three-year upper term, he notes resentencing might benefit him because it will allow the trial court to consider credit for custody time served in excess of that required to fulfill his sentence in this case as a basis for striking fines or fees. Furthermore, the People note he is entitled to the benefit of this statute pursuant to the Estrada rule. Therefore, we conclude defendant is also entitled to resentencing in line with Senate Bill 567.
DISPOSITION
The matter is remanded for resentencing. Resentencing should occur in compliance with Senate Bill 136, Senate Bill 483, and Senate Bill 567, though we express no view on how the court should exercise its discretion within the parameters of these new laws. We affirm the judgment in all other respects.
WE CONCUR: LEVY, Acting P. J., MEEHAN, J.