Opinion
E070948
12-19-2019
THE PEOPLE, Plaintiff and Respondent, v. LEVON ARTHUR HYATT, Defendant and Appellant.
Rachel Varnell, under appointment by the Court of Appeal for, Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. INF1701678 & INF1701884) OPINION APPEAL from the Superior Court of Riverside County. Richard A. Erwood, Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.). Affirmed in part, reversed in part with directions. Rachel Varnell, under appointment by the Court of Appeal for, Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant and Appellant, Levon Arthur Hyatt, committed various acts of domestic violence against his girlfriend (Doe), resulting in the following jury convictions: vandalism over $400 (Pen. Code, § 594, subd. (a); count 2); dissuading a witness by the use of force or threat of force and violence (§ 136.1, subd. (c)(1); count 4); stalking in violation of a restraining order (§ 646.9, subd. (b); count 5); stalking (§ 646.9, subd. (a); count 6); violating a criminal protective order within seven years of a prior conviction and involving an act of violence (§ 166, subds. (c)(1), (c)(4); count 7); simple assault as a lesser included offense of domestic battery (§ 240; count 8); violating a criminal protection order (§ 166, subd. (c)(1); count 9); and misdemeanor vandalism (§ 594, subd. (a); count 10). The trial court sentenced defendant to 14 years and four months in state prison.
Unless otherwise noted, all statutory references are to the Penal Code.
On appeal, defendant contends that his attorney provided ineffective assistance of counsel (IAC) by not filing a Pitchess motion; failing to refile and argue a posttrial Romero motion; and failing to provide zealous closing argument. Defendant further contends the trial court abused its discretion in denying his Romero motion. In addition, defendant asserts that this case must be remanded under Senate Bill No. 1393 (2017-2018 Reg. Sess.) (SB 1393), to permit the trial court to exercise its discretion to strike his 2006 prior serious felony conviction. Defendant also contends that the abstract of judgment should be corrected because it improperly describes count 2 as vandalism over $5,000, whereas the jury found the damage to be at least $400. Defendant further contends the court erred in imposing a $2,000 state restitution fine and a stayed $2,000 parole revocation fine without determining whether he had the ability to pay the fines.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
Defendant has also filed a habeas corpus petition alleging that his trial attorney provided constitutionally deficient representation based on the same grounds raised in the instant appeal (In re the Matter of Levon Arthur Hyatt, case No. E072636). We have addressed the writ petition by separate order.
We reject defendant's contentions, but reverse the sentencing order imposing a prior serious felony enhancement. We further direct the trial court upon remand under SB 1393, to exercise its discretion to determine whether to strike defendant's prior serious felony enhancement under recently amended sections 667 subdivision (a) and 1385, subdivision (b). The judgment is otherwise affirmed. The trial court is also directed to amend the abstract of judgment to correctly describe defendant's count 2 conviction as "vandalism greater than $400."
II.
FACTUAL BACKGROUND
Between January 2017, and June or July 2017, defendant and Doe dated and lived with each other. In June or July of 2017, defendant and Doe broke up, got back together, and then broke up again. During the morning of July 28, 2017, Doe went to defendant's work to return items defendant had left at her house. Defendant wanted Doe to stay and talk. When Doe refused, defendant grabbed Doe's car keys and threw them above the carport. Doe eventually got her keys back.
Later that day, defendant crashed his Dodge Durango SUV into Doe's garage, knocking down the garage door. Doe's two children, mother and grandmother were inside her home at the time. Doe told officers that she and defendant had argued earlier that day and defendant had threatened to drive his vehicle through her garage door. A day or two after the incident, Doe requested a restraining order against defendant. The court issued a no-negative contact protective order, restraining defendant from negative contact with Doe.
During the evening of October 19, 2017, after Doe and defendant had resumed seeing each other, Doe refused to have sex with defendant. In anger, defendant broke Doe's window by throwing a hand weight through the second story window of Doe's bedroom. Defendant then grabbed Doe's cell phone from her, after she said she was going to call the police.
The next morning, defendant retrieved the garage remote from Doe's car. While the two struggled over the garage remote, Doe grabbed her cell phone from defendant. Defendant left, and Doe went to work at the bank. While at work, she texted defendant to leave her alone. When Doe left the bank with a customer after work that day, defendant was waiting for her in the parking lot. Defendant asked Doe for a ride. When she refused, defendant picked up a rock and threatened to break her window if she did not give him a ride. Doe drove away in her car.
J.W., who was a bank customer, testified he witnessed the incident. J.W. saw defendant try to get into Doe's car, and heard Doe scream, "'No. Leave me alone. I want you to go away.'" J.W. saw defendant pick up a rock and say, "'I'll break your f---ing window.'" Eventually, defendant got in his car and left.
At 6:30 p.m. that same day, on October 20, 2017, Doe flagged down Deputy James and told him her ex-boyfriend, defendant, was following her. Doe appeared upset and in fear. She told Deputy James about the events the night before. Later, when Doe got home, the front window of her house was broken and there was a rock on the floor. Doe called Deputy James and told him she had arranged to meet defendant. She asked Deputy James to go instead, and said she wanted defendant prosecuted. Doe said defendant had threatened to destroy her house and she feared for her personal safety. She also sent Deputy James a text that defendant kept contacting her and that, after she told defendant to stop, he replied, "'You deserve everything you got.'"
On October 21, 2017, Officer Charles Oehring took Doe's statement, during which Doe described the incidents on October 19 and 20, 2017. Doe also later told Officer Oehring defendant threatened her from jail.
At trial, Doe testified regarding the incidents on July 28, 2017, and said that it had cost $1,200 to $1,300 to repair her garage door. Doe further testified defendant later agreed to pay for the damage he had caused to her home, including the two broken windows. Doe testified that the cost to repair the upstairs window was $180 and the cost to repair the downstairs window was $220.
Doe testified not only for the prosecution, but also for the defense. She stated that in November 2017, she sent a letter to the court, stating that she had been upset about the broken windows when she spoke to the police and had not been truthful to the officers. She claimed her anger and frustration with defendant negatively influenced what she said to the officers. Doe further testified that after defendant broke her window on October 19, 2017, he did not do any of the things she told the officers he had done, such as take her cell phone, push her, detain her, or threaten her. Doe testified that on October 20, 2017, defendant was waiting for her after work in the parking lot, as he occasionally did, because they were planning to go to a haunted house and she had texted him to wait for her there after work. Doe admitted that during the period between the October incidents and the November letter to the court, she had spoken to defendant on the phone almost every day. She claimed she stopped talking to defendant in February or March 2018, two or three months before the trial.
Defendant's ex-wife, C.H., testified for the prosecution that she was married to defendant from 2006 to 2014. In 2013, they had a physical altercation, during which defendant accused her of cheating. C.H. reported the incident to the police, moved out, and obtained a restraining order against defendant. During another incident in 2013, defendant lunged toward her, tried to grab her cell phone while she was in her car talking on the phone, and said, "'Who are you f---ing talking to?'" The incident was reported to the police. C.H. obtained a no-contact order, after which in 2014, she reported to law enforcement that defendant was sending her texts, including one that said, "'[Y]ou better not be f---ing with nobody else.'"
Investigator Robert Cornet testified for the prosecution as a domestic violence expert regarding the cycle of domestic violence. Investigator Cornet did not interview Doe or defendant.
III.
INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends he received constitutionally ineffective assistance from his trial counsel, Nicolas Estrada, on three occasions during his trial.
"'In order to establish a claim of [IAC], defendant bears the burden of demonstrating, first, that counsel's performance was deficient because it "fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms." [Citations.] Unless a defendant establishes the contrary, we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." [Citation.] If the record "sheds no light on why counsel acted or failed to act in the manner challenged," an appellate claim of [IAC] must be rejected "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." [Citations.] If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice, that is, a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." [Citation.]'" (People v. Lopez (2008) 42 Cal.4th 960, 966, citing People v. Ledesma (2006) 39 Cal.4th 641, 745-746.)
As explained below, we conclude defendant has failed to establish IAC. All of defendant's IAC claims suffer from the same defect: The present record does not preclude the possibility that defense counsel's actions were based upon reasonable strategic decisions. Unless the record reflects the reason for counsel's actions or omissions, or precludes the possibility of a satisfactory explanation, we must reject a claim of ineffective assistance raised on appeal. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267; People v. Ledesma, supra, 39 Cal.4th at p. 746.) Such claims are more appropriately addressed in a habeas corpus proceeding. (People v. Mendoza Tello, supra, at pp. 266-267; People v. Ledesma, supra, at p. 746.)
A. Pitchess Motion
Defendant contends his trial counsel, Estrada, committed IAC by failing to file a Pitchess motion before trial. We disagree.
Before the trial, on March 14, 2018, defendant's previous attorney, Mr. Hickey, informed the court that the prosecutor told him that the People's domestic violence expert witness, Investigator Cornett, might "be involved or entangled in some sort of ethical violations, personnel investigation." Hickey told the court that if the People intended to use Investigator Cornett as their expert witness, defendant intended to file a Brady and Pitchess motion to obtain discovery on Investigator Cornett's credibility and the personnel investigation on him.
People v. Brady (2005) 129 Cal.App.4th 1314 (Brady).
The prosecutor acknowledged that the day before, the prosecution had informed Hickey that there was an ongoing internal investigation regarding Investigator Cornett. The prosecutor advised the court that the People had no information regarding the internal investigation or access to such information. The prosecutor further stated that, because the People did not have any information other than the public information provided to defense counsel, any additional information would need to be acquired by defendant filing a Pitchess motion, and the People would join in the motion. The prosecutor said she had been unable to find a different domestic violence expert who was willing to travel to Indio for the trial.
Hickey informed the court that there had been an article in the local newspaper several weeks before regarding 25 deputies caught in an investigation involving cheating on the investigator exam. Investigator Cornett was one of the deputies named in the article, which reported that he had forwarded exam questions to other deputies in a document entitled, "'Investigator Exam Questions.'" Investigator Cornett reportedly said he did not know the forwarded document contained investigator exam questions.
Hickey asserted that there was "absolute Brady material," which was relevant to Investigator Cornett's credibility and showed that he was willing to lie in order to achieve his objectives. Hickey said that if there was no way to obtain the information about Cornett, other than by filing a Pitchess request, then Hickey wanted a continuance to allow him to file a Pitchess motion. The trial court concluded the prosecution only had a vague notion of what the pending investigation entailed. Therefore, the prosecution did not have anything other than what the prosecutor told Hickey and, thus, Hickey would need to file a Pitchess motion.
Hickey agreed and said he would need an additional 16 days for the motion. The prosecutor stated she did not object to a continuance and agreed there was good cause for a continuance. Hickey stated that defendant might not want a continuance but Hickey believed it was "absolutely necessary to get access to that information." The court permitted Hickey to discuss the matter with defendant and urged defendant to listen to his lawyer, adding: "[I]f you don't have this information to impeach Mr. Cornett, you know, who knows what the impact will be on his testimony." The court further stated that it would grant a continuance, if needed, for the purpose of filing a Pitchess motion.
After a brief recess, Hickey told the court he had discussed the matter with defendant, who said he wanted to go forward with his trial and did not wish to waive time. Therefore, Hickey requested the court to proceed with the trial without the domestic violence expert. Hickey further stated that if the court permitted Investigator Cornett to testify, Hickey believed he could not effectively defend defendant without access to the Pitchess information. Hickey requested a month continuance to file a Pitchess motion. Hickey alternatively suggested a one week continuance to allow the prosecution to find another domestic violence expert. The prosecutor said she had already contacted other experts and they had all declined because they were not willing to travel to Indio.
The court asked Hickey if he wanted a Pitchess hearing set for April 13, 2018 (in one month). Hickey said that was fine, but he knew defendant would object. The court stated it found good cause for setting the Pitchess hearing and continuing the trial, "because this is information that could be used to impeach the witness. Anytime you have evidence that would impeach the witness, that's pretty significant." Therefore, the court granted the continuance over defendant's objection.
In response to the court asking if April 13, 2018, was acceptable for scheduling the Pitchess hearing, defendant blurted out, "Bullshit, man." When told to be quiet, defendant said, "You all violating my rights. I'm ready to start trial. I keep wasting days of my life, my kids' life. My kids in school, they need me. Come on. You need me sitting here—[¶] [¶] . . . I'm ready to start. You guys are wasting days of my life. I'm ready to start trial. Please grant me that wish. . . . [¶] [¶] I've got kids to support. My kids out there keep asking me, 'Daddy, when you coming home?'" When the court reminded defendant that his behavior led to his current circumstances, defendant said, "I was ready to start trial, Your Honor. I'm ready. Please, sir. It's my kids' life. I know I put myself in bad positioning, but, please, I'm ready to start."
The court explained that a continuance was necessary to allow Hickey to file a Pitchess motion in order to effectively represent defendant. The court accordingly set the Pitchess motion hearing date on April 13, 2018, over defendant's objection, with trial set on May 1, 2018, if nothing was produced in response to the Pitchess motion. Otherwise, the trial was ordered to begin the trial within 60 days after the motion hearing.
The following Monday, on March 16, 2018, at a bail review hearing, Hickey informed the court that defendant had hired Estrada as his new attorney. After defendant confirmed that this was correct, the court continued the bail review hearing for three days. The court said it would substitute in Estrada at that time as defendant's new attorney. At the continued bail hearing, when Estrada was substituted in as defendant's attorney, Estrada said he would be ready for trial on May 1, 2018. There was no mention of the proposed Pitchess motion. The March 19, 2018, minute order states that the trial court vacated the April 13, 2018, hearing for a Pitchess motion.
These circumstances suggest that a Pitchess motion was not filed based upon the reasonable strategic decision to comply with defendant's insistence not to file a Pitchess motion because it might delay his trial. Defendant stated he did not want any further trial delays, including any continuances caused by filing a Pitchess motion, regardless of his attorney's insistence that the motion was necessary. A reasonable inference can thus be made from the record that defendant substituted out Hickey and replaced him with Estrada because Hickey had insisted, over defendant's objection, that a Pitchess motion and continuance of the trial were necessary. It is also likely that Estrada did not file a Pitchess motion because defendant did not want him to, because of the possibility that doing so might result in further delay of defendant's trial. We therefore reject defendant's Pitchess IAC claim raised on appeal because the record does not expressly state the reason Estrada elected not to file a Pitchess motion. Also, there is a reasonable tactical explanation for Estrada not doing so.
B. Romero Motion
Defendant contends Estrada was ineffective in representing him by not arguing during sentencing that the court should grant his Romero motion and strike his 2006 prior strike conviction. We conclude defendant has not established IAC in this regard.
Before trial, defendant's attorney, Hickey, filed a Romero motion requesting dismissal of defendant's 2006 prior strike conviction for robbery. The People opposed defendant's Romero motion. Hickey argued in his pretrial Romero motion that the charged offenses were minor, involving nonviolent disagreements with Doe, who partially recanted her statements to the police. Hickey requested that the court dismiss defendant's prior strike because otherwise he would be sentenced to a long term which would prevent him from seeking counseling and therapy, and from returning to community commitments and his children.
In addition, Hickey argued that defendant lacked a serious criminal history following the 2006 prior strike. Hickey asserted defendant had only a few minor misdemeanor convictions during the past 12 years, including a conviction for misdemeanor theft in 2013 (§ 459), a couple of convictions for violating a court order in 2014 (§ 273.6), convictions in 2014 for misdemeanor battery against a spouse (§ 243, subd. (e)(1)) and for misdemeanor resisting an officer (§ 148), and a conviction for misdemeanor trespassing in 2015 (§ 602). Hickey argued that although defendant had a few minor brushes with the law since 2006, none were violent, and those around him considered defendant loving and caring and not a threat. Hickey concluded defendant thus was outside the spirit of the "Three Strikes" law. Hickey also argued that, because defendant's charged offenses were not violent and did not cause injuries, defendant's sentence would be egregiously excessive, unless the court struck his prior strike conviction.
The prosecutor disagreed, arguing defendant's prior misdemeanors involved domestic violence-related crimes against his ex-wife, and every few years defendant committed new offenses, with his charged crimes involving domestic violence. The prosecutor asserted that defendant continued to commit dangerous acts, including the charged offenses of vandalism to a garage while the home was inhabited. Also, defendant prevented Doe from calling the police for help, showed up at Doe's work, and believed his conduct was not wrongful. In addition, defendant's criminal acts committed after his 2006 prior strike conviction, increased in seriousness over the years. The prosecutor therefore requested the court to deny defendant's Romero motion.
The trial court concluded that defendant had a "fair amount of history of violence," including stalking convictions and a 2006 robbery conviction. In addition, his current case included serious convictions. A judge previously told defendant to stay away from Doe and he did not do so. The court in the instant case concluded it was "clear" defendant was "not going to do anything that the [c]ourt tells him to do. . . . [H]e's basically not complying with anything that the [c]ourt has ordered him to do." The court stated defendant was "the prime candidate for being treated as a strike defendant." The court noted he had multiple convictions, he could not deal with rejection by females, and he reacts violently toward females. The court added that, although defendant had not yet been to prison, "the court system has not treated him as seriously as it should have in the first place." The court concluded by stating "[t]he public needs to be protected from someone like him. He's a walking time bomb with respect to any female."
The court denied defendant's pretrial Romero motion without prejudice, adding that the court would allow defendant to renew his motion at the end of the case if defendant had something he wanted to add in support of his Romero motion. At the end of the trial, defendant asked the court if it was going to review his Romero motion before sentencing. The court agreed to do so.
During the sentencing hearing on July 13, 2018, the court noted defendant sent the court a letter requesting the court to dismiss his prior strike conviction. The trial court stated it had reviewed defendant's letter, his pretrial Romero motion, and defendant's family's character letters. The prosecutor and Estrada both submitted on the renewed pretrial Romero motion and opposition, without providing any oral argument. The court denied defendant's posttrial renewed Romero motion, concluding defendant did not fall outside of the spirit of the Three Strikes law because he had three violent misdemeanor convictions in 2014, and had violated his probation multiple times.
Defendant argues Estrada provided ineffective assistance by failing to file a posttrial Romero motion and by failing to provide any oral argument when the court considered defendant's request for Romero relief. Defendant asserts that Estrada should have argued that defendant's prior strike conviction was remote in time and his offenses committed between his 2006 prior strike conviction and present offenses, were all misdemeanors. But these arguments were already raised and rejected by the trial court when it heard defendant's pretrial Romero motion.
We conclude defendant has not established IAC because defendant has not demonstrated that Estrada's representation was deficient. (People v. Lopez, supra, 42 Cal.4th at p. 966; People v. Ledesma, supra, 39 Cal.4th at pp. 745-746.) The record on appeal does not preclude the possibility that Estrada's acts of not filing or arguing a posttrial Romero motion were based upon reasonable strategic decisions. Rather, the record supports a reasonable inference that during sentencing, Estrada made a reasonable tactical decision to rely on the previously filed Romero motion and argument. The trial court had previously denied the pretrial Romero motion and there were no compelling new grounds or arguments to add to the previous Romero motion. During the hearing on the pretrial Romero motion, the trial court had made it clear that it believed defendant fell well within the spirit of the Three Strikes law. Any refiled Romero motion would be heard by that same judge, and therefore Estrada could have reasonably concluded that it was highly unlikely that the trial court would grant a posttrial refiled Romero motion.
Furthermore, Estrada's failure to file a Romero motion posttrial was not prejudicial because defendant filed a letter requesting Romero relief, which the trial court considered during sentencing in lieu of a refiled Romero motion. Estrada's failure to orally argue during the hearing on defendant's renewed Romero motion was also not prejudicial because the trial court stated it had reviewed defendant's pretrial Romero motion and the People's opposition, in addition to defendant's letter requesting the court to strike his prior strike conviction. Estrada could have reasonably concluded that any additional argument would not have added anything and would have been futile.
C. Closing Argument
Defendant contends Estrada was ineffective in failing to zealously argue his case during closing argument. The prosecutor provided lengthy closing argument, amounting to 31 pages of reporter's transcript, whereas Estrada's closing argument was extremely brief. Estrada argued:
"So proof beyond a reasonable doubt. That is the burden of proof that [the prosecutor] must meet to prove the charges against [defendant]. He was not required to prove or disprove anything. [Defendant] was not required to testify. The entire burden of proving all the charges beyond a reasonable doubt is on [the prosecution].
"[The prosecution] also has the burden of proving beyond a reasonable doubt each and every element of each offense charged. If [the prosecutor] fails to meet the burden of proof, it is your duty to acquit.
"The evidence shows that [defendant] did not commit any of the charges but one. This case is about a verbal dispute between a boyfriend and a girlfriend. [Defendant] admits breaking the window. However, the rest of the alleged counts have not been established; and, therefore, he should not be convicted of those charges.
"In this case, [the prosecutor's] chocolate chip cookie never left the cookie jar. This case is an example of [defendant] being overcharged by the district attorney's office. And, therefore, your duty here as jurors is to acquit [defendant] of all charges except for the vandalism charge for the window."
Defendant argues that Estrada's closing argument was deficient because he did not expand on the defense theory of the case, did not argue the lack of the strength and credibility of the prosecution's witnesses, and did not discuss how the prosecution failed to establish the elements of each charged crime. Defendant also asserts that Estrada could have argued that the domestic violence expert's theory was inapplicable because defendant was not a domestic abuser and Doe did not suffer any harm.
The right to effective assistance of counsel extends to closing arguments. (Yarborough v. Gentry (2003) 540 U.S. 1, 5.) "Nonetheless, counsel has wide latitude in deciding how best to represent a client, and deference to counsel's tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage." (Id. at pp. 5-6.) Closing arguments should sharpen and clarify the issues. But "which issues to sharpen and how best to clarify them are questions with many reasonable answers. Indeed, it might sometimes make sense to forgo closing argument altogether. [Citation.] Judicial review of a defense attorney's summation is therefore highly deferential." (Id. at p. 6.)
There is a "strong presumption that counsel's actions were sound trial strategy under the circumstances prevailing at trial. [Citations.] . . . The decision of how to argue to the jury after the presentation of evidence is inherently tactical." (People v. Freeman (1994) 8 Cal.4th 450, 498.) Here, Estrada's closing argument comes within the permissible range of competent representation.
As the California Supreme Court noted in People v. Williams (1997) 16 Cal.4th 153, 265, reversals for IAC "during closing argument rarely occur; when they do, it is due to an argument against the client which concedes guilt, withdraws a crucial defense, or relies on an illegal defense." (People v. Moore (1988) 201 Cal.App.3d 51, 57; accord, People v. Williams, supra, at p. 265.) Defendant is not asserting any of these circumstances. Rather, defendant is arguing that, because Estrada's closing argument was brief and did not expand upon the evidence and flaws in the prosecution's case, Estrada failed to zealously argue defendant's case during closing argument.
The court in People v. Padilla (1995) 11 Cal.4th 891, 949, rejected a similar IAC challenge, in which the defendant argued that, instead of highlighting discrepancies in testimony, "as competent representation required, counsel's summation of the evidence was brief, disjointed, cursory, unfocused, and often beside the point." The Padilla court concluded that, "[t]he jury scarcely needed a detailed road map in the form of closing argument to understand and evaluate the meaning of the evidence before it . . . ." (Ibid.)
In People v. Cudjo (1993) 6 Cal.4th 585, the defendant also objected to his counsel's perfunctory closing argument as "brief (eight pages of transcript), perfunctory, unfocussed, and generally a 'dismal performance.'" (Id. at p. 634.) The Cudjo court held there was no prejudicial error because "[t]he effectiveness of an advocate's oral presentation is difficult to judge accurately from a written transcript, and the length of an argument is not a sound measure of its quality. Although defense counsel's argument in this case appears to have been somewhat lacking in clarity, not to mention eloquence, we are not persuaded that it fell below the standard of reasonably competent representation or that there is a reasonable probability that a better presentation would have resulted in a more favorable penalty verdict." (People v. Cudjo, supra, at pp. 634-635.)
In People v. Espinoza (1979) 99 Cal.App.3d 44, in which the defendant was charged with robbery, defense counsel did not even make a closing argument to the jury. The court in Espinoza rejected the defendant's IAC objection. (Id. at p. 48.) The Espinoza court reasoned that the defendant's attorney "did not want to give the prosecutor an opportunity to make a fiery rebuttal. Basically, defense counsel concluded that the prosecutor had undertried the case and the best response was to waive closing argument. Under the circumstances of this case, it was a judgment call well within his prerogative to make." (Ibid.)
As the court in Espinoza noted, this court's analysis of whether a defense attorney's closing argument constitutes IAC "cannot be made in a doctrinaire fashion, speculating on the possible theories which defense counsel might have asserted in his closing argument. The trial of a case is an art form. Experienced counsel develop a feel for the subtleties or nuances of a case as it proceeds which may affect the style of advocacy or counsel's judgment on a given issue during trial. Matters which may appear to be insignificant on appeal or which may not even be reflected on the record . . . may play, independently or collectively, an important part on the tactical choices made by a sensitive and skilled trial lawyer." (People v. Espinoza, supra, 99 Cal.App.3d at p. 47.)
In the instant case, there were reasonable tactical reasons for Estrada providing a brief closing argument focusing on defendant's admitted guilt of the lesser included vandalism offense of breaking Doe's window. By doing so, Estrada could have reasonably intended to divert the jury's attention away from the domestic violence allegations and bolster defendant's credibility, by focusing on defendant's willingness to admit an act of vandalism. Estrada's brief argument was also tactically beneficial in limiting the scope of the prosecutor's rebuttal. As a consequence of Estrada's brief closing argument, the prosecutor's rebuttal argument was also brief and did not accentuate evidence of defendant's violent acts, which the prosecutor could have otherwise exploited to great advantage in rebuttal.
Even if there were additional arguments that would have supported the defense, it does not follow that counsel was incompetent for failing to include them in closing argument. (Yarborough v. Gentry, supra, 540 U.S. at p. 7.) This is because "judicious selection of arguments for summation is a core exercise of defense counsel's discretion." (Id. at p. 8.) As the court in Yarborough noted, "[e]ven if some of the arguments would unquestionably have supported the defense, it does not follow that counsel was incompetent for failing to include them. Focusing on a small number of key points may be more persuasive than a shotgun approach." (Id. at p. 7.) Therefore, "[w]hen counsel focuses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect. See Strickland [v. Washington (1984)] 466 U.S. [668,] 690 (counsel is 'strongly presumed' to make decisions in the exercise of professional judgment). That presumption has particular force where a petitioner bases his ineffective-assistance claim solely on the trial record, creating a situation in which a court 'may have no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive.' [Citation.]" (Yarborough v. Gentry, supra, at p. 8.) We conclude that, even though Estrada's closing argument was brief, defendant has not established on appeal that Estrada's closing argument constitutes IAC.
IV.
DENIAL OF DEFENDANT'S ROMERO MOTION
Defendant contends the trial court abused its discretion by denying his Romero motion. The procedural background regarding defendant's Romero motion and renewed Romero request is summarized above in section III. B. of this opinion.
Defendant argues the court should have granted his Romero motion because his 2006 prior strike conviction was remote, and his criminal record during the period between his 2006 conviction and the charged offenses consisted of only misdemeanors. Defendant maintains that the misdemeanors were also not violent offenses within the meaning of section 667.5, subdivision (c), because they were misdemeanors, not felonies. Defendant also argues that, even if the court struck his 2006 prior strike conviction, his sentence would still be substantial, because of the number of his current convictions.
A trial court has discretion to dismiss a strike prior under section 1385. (Romero, supra, 13 Cal.4th at pp. 529-530.) The trial court must consider "'whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.'" (People v. Carmony (2004) 33 Cal.4th 367, 377.)
We apply the abuse of discretion standard when reviewing a trial court's refusal to dismiss a prior conviction allegation under section 1385. (People v. Carmony, supra, 33 Cal.4th at p. 375.) "This standard is deferential. . . . [I]t asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts." (People v. Williams (1998) 17 Cal.4th 148, 162.) "[T]he circumstances must be 'extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record.'" (People v. Carmony, supra, at p. 378.)
Defendant has failed to show the trial court's decision denying his pretrial Romero motion and posttrial renewed Romero request during sentencing was irrational or arbitrary. Defendant's criminal history continued after his 2006 strike conviction for robbery in 2006, and therefore his 2006 prior strike conviction was not remote. During that interim period, defendant had several misdemeanor convictions, including misdemeanor burglary in 2013 (§ 459), misdemeanor battery against a spouse in 2014 (§ 243, subd. (e)(1)), two violations of a domestic violence restraining order in 2014 (§ 273.6), and misdemeanor resisting an officer in 2014 (§ 148). Also, in 2015, defendant was convicted of trespassing (§ 602).
Most of these crimes involved domestic violence, as did his current convictions, which included acts of defendant crashing his car into Doe's garage, throwing a hand weight through Doe's bedroom window, throwing a rock through another window at Doe's home, and threatening and harassing her continuously over a sustained period of time. Defendant also repeatedly violated the terms of his probation, demonstrating that prior attempts at rehabilitation and deterrence were unsuccessful.
We conclude that defendant's criminal history and the seriousness of his current convictions, demonstrate a pattern of domestic violence and establish that defendant did not fall outside the spirit of the Three Strikes law. The trial court therefore did not abuse its discretion in denying defendant's Romero motion.
V.
DISCRETION TO STRIKE PRIOR SERIOUS FELONY CONVICTION
Defendant contends that SB 1393 requires this case to be remanded so that the trial court can exercise its newly authorized discretion to strike defendant's 2006 prior serious felony conviction under recently amended sections 667 and 1385. We agree SB 1393 applies retroactively and that remand is necessary to allow the court to exercise its discretion and decide whether to strike defendant's prior serious felony conviction.
At the time of defendant's resentencing hearing on July 13, 2018, former section 1385 included the following provision: "(b) This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under [s]ection 667." This provision was deleted from section 1385 by SB 1393, enacted on September 30, 2018, and in effect as of January 1, 2019. As amended, section 1385, subdivision (b) gives the trial court discretion to dismiss or strike a prior serious felony conviction for sentencing purposes. (People v. Garcia (2018) 28 Cal.App.5th 961, 971.) The trial court therefore is no longer prohibited from striking prior serious felony convictions during sentencing.
SB 1393 applies retroactively to all cases in which the trial court imposed a five-year enhancement for a prior serious felony conviction, provided the judgment was not final when SB 1393 became effective on January 1, 2019. (People v. Garcia, supra, 28 Cal.App.5th at p. 972.) The provision applies retroactively because, "[w]hen an amendatory statute either lessens the punishment for a crime or, as [SB] 1393 does, '"vests in the trial court discretion to impose either the same penalty as under the former law or a lesser penalty,"' it is reasonable for courts to infer, absent evidence to the contrary and as a matter of statutory construction, that the Legislature intended the amendatory statute to retroactively apply to the fullest extent constitutionally permissible—that is, to all cases not final when the statute becomes effective." (Ibid.)
The People agree that SB 1393 applies retroactively. Therefore, remand is appropriate to allow the trial court to consider whether to strike defendant's prior serious felony conviction in the interest of justice, "unless the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken a firearm enhancement." (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) In other words, "if '"the record shows that the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required."'" (Ibid.; see also Romero, supra, 13 Cal.4th at p. 530, fn. 13.)
Here, the trial court's sentencing choices and statements during sentencing do not foreclose the possibility the trial court would strike defendant's prior serious felony conviction for sentencing purposes if it had the discretion to do so. (People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.) Remand is thus appropriate to allow the trial court to exercise its discretion in determining whether to strike defendant's prior serious felony enhancement under SB 1393.
VI.
THE ABSTRACT OF JUDGMENT SHOULD BE AMENDED
Defendant maintains, and the People concede, the abstract of judgment inaccurately describes count 2 as "vandalism > $5000 or over." Defendant requests this court to order the abstract of judgment to be amended to state: "Vandalism > $400 or over."
Upon reviewing the record, we agree the abstract incorrectly describes count 2 as "vandalism > $5000 or over." The record shows that defendant was charged with vandalism over $400, not $5,000, and the jury found that the amount of vandalism was greater than $400. The trial court thus should amend the abstract of judgment to conform with the oral pronouncement of the judgment, to show that defendant was convicted in count 2 of vandalism greater than $400. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [the Court of Appeal may correct an abstract of judgment that does not accurately reflect the oral judgment of a sentencing court].)
VII.
IMPOSITION OF FINES AND FEES
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant contends the trial court violated his constitutional right to due process by imposing a $2,000 state restitution fine (§ 1202.4, subd. (b)) and a stayed $2,000 parole revocation fine (§ 1202.45) without first assessing his ability to pay. Defendant is not challenging the other court imposed fees and assessments. The People argue defendant forfeited his objection to the restitution fine and parole revocation fine by not objecting in the trial court. We agree.
The parole revocation fine "shall be suspended unless the person's parole, postrelease community supervision, or mandatory supervision is revoked." (§ 1202.45, subd. (c).)
In People v. Castellano (2019) 33 Cal.App.5th 485, the court held the defendant did not forfeit his objection to imposition of fines, fees, and assessments without an ability-to-pay hearing. (Id. at p. 489.) The Castellano court explained that when the trial court sentenced the defendant, "Dueñas had not yet been decided; and no California court prior to Dueñas had held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant's ability to pay. Moreover, none of the statutes authorizing the imposition of the fines, fees or assessments at issue authorized the court's consideration of a defendant's ability to pay. Indeed . . . in the case of the restitution fine, Penal Code section 1202.4, subdivision (c), expressly precluded consideration of the defendant's inability to pay. When, as here, the defendant's challenge on direct appeal is based on a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial, reviewing courts have declined to find forfeiture." (People v. Castellano, supra, at p. 489; see People v. Jones (2019) 36 Cal.App.5th 1028, 1033; see generally People v. Brooks (2017) 3 Cal.5th 1, 92 ["'[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence'"]; but see People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 .)
Castellano and other post- Dueñas cases that imposed minimum restitution fines are thus distinguishable from the instant case with regard to the issue of forfeiture because in those cases, the trial court imposed the minimum statutory restitution fine, whereas the restitution fine imposed in the instant case exceeded the minimum statutory fine. Section 1202.4, subdivision (c) states, in relevant part: "The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. A defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of subdivision (b)." (Italics added.)
Subdivision (c) of section 1202.4 thus states the trial court is barred from considering the defendant's inability to pay the minimum authorized restitution fines. But section 1202.4 does not preclude the trial court from considering ability to pay when imposing a restitution fine exceeding the statutorily authorized minimum amount. Dueñas, which involves imposition of the minimum statutory restitution fine, thus does not provide a newly announced constitutional principle applicable to cases involving imposition of restitution fines exceeding the statutory minimum. Therefore, because there would be no reason under section 1202.4 not to object based on inability to pay a restitution fine exceeding the statutory minimum, failure to object in the trial court forfeits the objection on appeal. As concluded in People v. Aviles (2019) 39 Cal.App.5th 1055 "[e]ven if Dueñas applied to this case, defendant forfeited his ability to pay challenge because he failed to object to the amounts imposed at the sentencing hearing." (People v. Aviles, supra, at p. 1073, citing People v. Frandsen, supra, 33 Cal.App.5th at p. 1153; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464.) Nevertheless, because the issue is of a constitutional nature, we will address defendant's objection to the fines on the merits.
Defendant argues that under Dueñas, a stay is necessary because "using the criminal process to collect a fine" a defendant cannot pay is unconstitutional. (Dueñas, supra, 30 Cal.App.5th at p 1160.) Dueñas involved an unemployed, homeless mother with cerebral palsy, whose family, which included two young children, was unable to afford even basic necessities due to poverty and the inability to work. (Id. at pp. 1060-1161.) Dueñas's inability to pay several juvenile citations had resulted in suspension of her driver's license, which led to a series of misdemeanor convictions over the years for driving with a suspended license and additional court fees she was also unable to pay. (Id. at p. 1161.) Dueñas routinely served time in jail in lieu of paying the fines she owed and was sent to collections on other fees related to her court appearances. (Ibid.)
After pleading no contest to yet another misdemeanor charge of driving with a suspended license, the trial court imposed on Dueñas certain assessments and a $150 restitution fine, the minimum amount at the time, required under section 1202.4, subdivision (b). The trial court rejected Dueñas's argument that the imposition of the assessments and the fine without consideration of her ability to pay them violated her constitutional rights to due process and equal protection. (Dueñas, supra, 30 Cal.App.5th at p. 1163.) The Court of Appeal in Dueñas reversed, holding that "the assessment provisions of Government Code section 70373 and . . . section 1465.8, if imposed without a determination that the defendant is able to pay, are . . . fundamentally unfair[, and] imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution." (Dueñas, supra, at p. 1168.) The Dueñas court also held that imposition of a minimum restitution fine without consideration of Dueñas's ability to pay violated due process. (Id. at pp. 1169-1172.) The Dueñas court reversed the order imposing the fines, fees, and assessments, and directed the trial court to stay the execution of the restitution fine "unless and until the People prove that Dueñas has the present ability to pay it." (Id. at pp. 1172-1173.)
The People argue Dueñas incorrectly evaluates the constitutionality of defendant's restitution fine objection based on due process principles, rather than under the Excessive Fines Clause of the Eighth Amendment to the United States Constitution. We agree, for the reasons stated in People v. Caceres (2019) 39 Cal.App.5th 917 (Caceres) and People v. Aviles, supra, 39 Cal.App.5th at pages 1061-1064 (See also People v. Kopp (2019) 38 Cal.App.5th 47, 96, review granted Nov. 13, 2019, S257844 (Kopp)). In Caceres, the court declined to follow Dueñas's holding that the defendant's right to due process was violated by imposing fees, assessments, and fines without holding an ability-to-pay hearing. The Caceres court concluded that the facts in Dueñas were "peculiar" and "extreme." Caceres therefore did not reach whether Dueñas was correctly decided as to those extreme facts, because the facts in Caceres were not as extreme or similar. (Caceres, supra, at p. 926.) Such is also the case in the instant case.
The Caceres court further concluded regarding the restitution fine that, "[b]y holding that trial courts must tailor the imposition of costs to each defendant's ability to pay, Dueñas in effect proposes a '"less drastic remedial alternative[]"' [citation] to the current statutory scheme, which is more than what due process requires. Given Dueñas's unique facts, we eschew a conclusion that the entire system of imposing postconviction fees and fines is irrational and contravenes due process. [¶] In light of our concerns with the due process analysis in Dueñas, we decline to apply its broad holding requiring trial courts in all cases to determine a defendant's ability to pay before imposing court assessments or restitution fines." (Caceres, supra, 39 Cal.App.5th at p. 928.) The Caceres court held that, to the extent the defendant in Caceres could not pay the imposed costs and was subject to a civil judgment, "we are not persuaded that such a consequence violates due process. In sum, the trial court did not violate Caceres's due process rights by imposing the assessments and restitution fine without first ascertaining his ability to pay them." (Id. at p. 929; see also People v. Hicks (2019) 40 Cal.App.5th 320, 325-329, review granted Nov. 26, 2019, S258946 (Hicks); Kopp, supra, 38 Cal.App.5th at pp. 96-97.)
The court in Hicks, supra, 40 Cal.App.5th 320, also rejects the due process analysis in Dueñas. (Hicks, supra, at p. 329.) Citing Kopp, the court in Hicks concludes "'[T]here is no due process requirement that the court hold an ability to pay hearing before imposing a punitive fine and only impose the fine if it determines the defendant can afford to pay it.'" (Hicks, supra, at p. 329, citing Kopp, supra, 38 Cal.App.5th at pp. 96-97.) We likewise reject Dueñas, to the extent that Dueñas held that under due process, the trial court must determine in all cases a defendant's ability to pay before imposing court fines, such as restitution and parole revocation fines. (Caceres, supra, 39 Cal.App.5th at pp. 926-927; Hicks, supra, at pp. 327-329; Kopp, supra, at pp. 96-97.)
Unlike in Caceres, Hicks, and Dueñas, here, the trial court imposed punitive fines exceeding the statutory minimum. We therefore address whether imposing the fines requires an ability-to-pay hearing. The court in Hicks holds that, regardless of whether the fine is a minimum fine, there is no "across-the-board prohibition" of imposition of fines on indigent defendants. (Caceres, supra, 39 Cal.App.5th at p. 926.) In addition, the court in Aviles states that a constitutional challenge to the imposition of punitive fines "should be based on the [E]xcessive [F]ines [C]lause of the Eighth Amendment instead of the due process rationale utilized in Dueñas." (People v. Aviles, supra, 39 Cal.App.5th at p. 1060.) This is because the Excessive Fines Clause provides "an explicit textual source of constitutional protection against" a specific harm, which is narrower than the due process clause. (Graham v. Connor (1989) 490 U.S. 386, 395.)
We note, however, that the California Supreme Court has observed that the due process and excessive fines analyses are sufficiently similar that "'[i]t makes no difference whether we examine the issue as an excessive fine or a violation of due process.'" (Dueñas, supra, 30 Cal.App.5th at p. 1171, fn. 8, quoting People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728.)
"Like the Eighth Amendment's proscriptions of 'cruel and unusual punishment' and '[e]xcessive bail,' the protection against excessive fines guards against abuses of government's punitive or criminal-law-enforcement authority. This safeguard, we hold, is 'fundamental to our scheme of ordered liberty,' with 'dee[p] root[s] in [our] history and tradition.' [Citation.] The Excessive Fines Clause is therefore incorporated by the [d]ue [p]rocess [c]lause of the Fourteenth Amendment." (Timbs v. Indiana (2019) 139 S.Ct. 682, 686-687; see also, People v. Aviles, supra, 39 Cal.App.5th 1069; Kopp, supra, 38 Cal.App.5th at p. 97.)
Under the Excessive Fines Clause, which prohibits the imposition of excessive fines, proportionality is key: The amount of the fine must bear some relationship to the gravity of the offense that it is designed to punish. (United States v. Bajakajian (1998) 524 U.S. 321, 334; see also City and County of San Francisco v. Sainez (2000) 77 Cal.App.4th 1302, 1321.) The defendant's ability to pay a punitive fine is also an important factor to be considered under the Excessive Fines Clause. (Dueñas, supra, 30 Cal.App.5th at p. 1171, fn. 8; City and County of San Francisco v. Sainez, supra, at p. 1322.)
The Eight Amendment provides: "'Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.'" (Shore v. Gurnett (2004) 122 Cal.App.4th 166, 172.) "The United States Supreme Court has held that the Fourteenth Amendment renders the Eighth Amendment's prohibition against excessive fines and cruel and unusual punishment 'applicable to the States.'" (Id. at p 173, fn. 2, citing Cooper Industries, Inc. v. Leatherman Tool Group, Inc. (2001) 532 U.S. 424, 433-434.) --------
The United States Supreme Court set out the following four factors to be considered when evaluating whether a fine is excessive under the Excessive Fines Clause: (1) the defendant's culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant's ability to pay. (United States v. Bajakajian, supra, 524 U.S. at pp. 337-338; People v. Aviles, supra, 39 Cal.App.5th at p. 1070; Kopp, supra, 38 Cal.App.5th at p. 97; People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at p. 728.) The defendant bears the burden of establishing the fine constitutes an unconstitutional excessive fine. (United States v. Cheeseman (3rd Cir. 2010) 600 F.3d 270, 283; People v. Contreras (2018) 4 Cal.5th 349, 395 [defendant has considerable burden to show punishment is cruel and unusual].) This court may review de novo whether defendant's fines are excessive under the Eighth Amendment. (United States v. Bajakajian, supra, at p. 336, fn. 10; People v. Aviles, supra, at p. 1072.)
We conclude that, because defendant's fines are not grossly disproportionate to his level of culpability and the harm he caused, the fines are not excessive under the Eighth Amendment, Excessive Fines Clause. (People v. Aviles, supra, 39 Cal.App.5th at p. 1072.) Defendant's charged offenses included various acts of domestic violence against his girlfriend, resulting in defendant being sentenced to 14 years and four months in state prison. Defendant was convicted of vandalism of over $400; dissuading a witness by the use of force or threat of force and violence; stalking in violation of a restraining order; stalking; violating a criminal protective order within seven years of a prior conviction and involving an act of violence; simple assault; and misdemeanor vandalism. Defendant's restitution fine is about the same amount as the cost of repairing the two windows defendant broke ($400) and the cost of repairing the Doe's garage ($1,200 to $1,300).
Furthermore, a reasonable inference can be made from the record that the court considered defendant's ability to pay and reasonably found that defendant would be able to pay the fines. The probation department recommended substantially greater fines, which the trial court indicated it reduced, taking into consideration defendant's ability to pay the fines. In determining defendant's ability to pay the fines, the trial court could consider defendant's future earning capacity, including the ability to earn prison wages. (See People v. DeFrance (2008) 167 Cal.App.4th 486, 505 [defendant sentenced to prison did not show absolute inability to pay $10,000 restitution fine even though prison wages would make it difficult for him to pay the fine, it would take a very long time, and the fine might never be paid]; People v. Ramirez (1995) 39 Cal.App.4th 1369, 1377 [a trial court may consider the defendant's future ability to pay, including his ability to earn wages while in prison]; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 ["defendant's ability to obtain prison wages and to earn money after his release from custody" are properly considered when determining whether a defendant has the ability to pay].)
We conclude the court reasonably could have concluded defendant would have the opportunity to earn income during his 14-year-four-month term in prison, as well as after his release from custody. The record shows that, at the time of sentencing, defendant was 35 years old and had an Associate Degree and Bachelor of Science degree. He was employed at the time of his arrest, earning $1,500 a month. We therefore conclude the trial court considered defendant's ability to pay and did not abuse its discretion in imposing the $2,000 state restitution fine and $2,000 parole revocation fine.
Furthermore, even assuming the trial court erred in not conducting a hearing on defendant's ability to pay the fines, any such error was harmless because, as discussed above, the record demonstrates that defendant would be able to pay the fees. Defendant has ample time to pay the fines "from a readily available source of income while incarcerated" and from income likely earned after he completes his sentence. (People v. Johnson (2019) 35 Cal.App.5th 134, 140; People v. Jones, supra, 36 Cal.App.5th at p. 1035.)
VIII.
DISPOSITION
The judgment of conviction is affirmed. The sentence is vacated and the matter is remanded with directions the trial court exercise its discretion to determine whether to strike defendant's 2006 prior serious felony conviction under recently amended sections 667 subdivision (a) and 1385, subdivision (b). After the trial court exercises its discretion, it shall forward a certified copy of the amended and/or corrected abstract of judgment to the Department of Corrections and Rehabilitation.
The trial court is also directed to amend the abstract of judgment to correctly describe defendant's count 2 conviction as "vandalism greater than $400."
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. I concur: FIELDS
J.
RAPHAEL, J., Concurring.
I join the entire opinion except that, as to the due process challenge to the imposition to fines under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), I would reach no further than holding that the challenge is forfeited.
I would not address the due process objection on the merits, and I would not reach further to decide whether Dueñas was correctly decided; whether the Eighth Amendment is available to challenge a trial court's imposition of a fine, fee, or assessment without a determination of a defendant's ability to pay it; and whether the Eighth Amendment provides the exclusive vehicle for such a procedural challenge, even if it provides for substantive review of the penalty ultimately imposed. (See Hale v. Morgan (1978) 22 Cal.3d 388, 397-405 [ due process clauses of federal and state constitutions invalidate applications of statute that permitted "arbitrary, excessive, and unreasonable" penalties against landlords; penalties were "mandatory, fixed, substantial, and cumulative," applied against persons of "disparate culpability," and were distinguishable from statutes that "require the consideration of various ameliorating factors"].)
I note that in this case, the People argue that the Eighth Amendment is the sole constitutional means for a challenge to a restitution fine, but concede that the due process clause applies to "non-punitive fines to pay for access to justice" such as assessments for court operations and court facilities, and that the People "do[] not seek to uphold the imposition of these assessments on those who have no ability to pay."
RAPHAEL
J.