Opinion
F077829
05-27-2020
THE PEOPLE, Plaintiff and Respondent, v. GREGORY LAVELL JOHNSON, Defendant and Appellant.
Maureen M. Bodo, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F15902497)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. Maureen M. Bodo, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
-ooOoo-
INTRODUCTION
Appellant/defendant Gregory Lavell Johnson pleaded no contest to possession of methamphetamine while housed at Coalinga State Hospital (Coalinga) and was sentenced to the second strike term of four years. On appeal, he contends the court abused its discretion when it denied his request to dismiss the prior strike conviction. He further argues the court improperly imposed a restitution fine and other fees without finding he had the ability to pay those amounts based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We will affirm.
FACTS
Given defendant's plea, the following facts are from the preliminary hearing.
Defendant was housed at Coalinga, which treats sexually violent predators (SVPs) and other state prison inmates. When defendant initially arrived, he voluntarily signed a form acknowledging that all patients and staff were subject to random searches.
On November 15, 2014, Sergeant Ronald Swafford advised Officer Francisco Moreno, Jr., that he saw defendant and another patient in an area of the hospital where defendant did not reside, in violation of hospital policy. Swafford further advised Moreno that he saw an exchange between defendant and the other patient. The other patient was searched and found in possession of methamphetamine. Swafford directed Moreno to make contact with defendant and conduct a search of his living area because he suspected that defendant possessed methamphetamine.
Moreno and Officer Benjamin Corona went to defendant's room, which he shared with three other men. Defendant was not there. The other occupants were escorted out and the room was secured, and an officer stayed by the doorway as Moreno looked for defendant.
Officer Moreno encountered defendant walking in the hallway near his room. Moreno called out to defendant and said they needed to talk. Defendant ran away and went into a nearby restroom, and threw objects into the toilet and attempted to flush it. Defendant ignored Moreno's repeated orders to stop and a struggle ensued. The officers forced defendant to the floor and placed him in handcuffs. They recovered 120 stamps and a rolled cigarette from the toilet. These items were classified as contraband for that area of the hospital.
After defendant was restrained, the officers searched his room. They found methamphetamine inside defendant's jacket, which was hanging on top of defendant's locker in his bed area. Officer Moreno testified the substance was at least one gram and an amount that was usable.
PROCEDURAL BACKGROUND
The initial charges
On December 27, 2016, an information was filed in the Superior Court of Fresno County charging defendant with possession of an illegal substance, methamphetamine, in a jail facility (Pen. Code, § 4573.6, subd. (a)), with five prior strike convictions (§ 667, subds. (b)-(i), § 1170.12, subds. (a)-(d)). Plea proceedings
All further statutory references are to the Penal Code unless otherwise noted.
On January 4, 2018, a first amended information was filed that alleged the same substantive count but only alleged one prior strike conviction.
Thereafter, defendant pleaded no contest to the charged violation of section 4573.6, subdivision (a) and admitted the prior strike allegation, pursuant to a negotiated disposition for a maximum term of six years. Sentencing hearing
On May 23, 2018, the court denied defendant's motion to dismiss the prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), and sentenced defendant to the lower term of two years, doubled to four years as the second strike sentence. The court imposed a restitution fine of $300 (§ 1202.4) and suspended the parole revocation fine of $300 (§ 1202.45). The court also imposed a court security fee of $40 (§ 1465.8) and a criminal conviction assessment fee of $30 (Gov. Code, § 70373). Defendant did not object to the fine or fees.
The probation report had recommended a restitution fine of $2,400.
On July 18, 2018, defendant filed a notice of appeal.
DISCUSSION
I. The prior strike conviction
Defendant contends the court abused its discretion when it denied his request to dismiss the prior strike conviction pursuant to section 1385. Defendant asserts the court's denial of the motion was "cursory" and improperly "influenced by a matter that was still subject to determination by a jury" as to whether he was a SVP at the time of the incident.
We will review the record to place in context the court's statements at the sentencing hearing about defendant's status.
A. Defendant's record
According to the probation report, defendant had a prior juvenile adjudication for involuntary manslaughter (§ 192.2) and was placed in the California Youth Authority (CYA) in 1979. He was paroled in 1980 and discharged in 1981.
As an adult, defendant was convicted of attempted burglary in Louisiana in 1981 and sentenced to five years. He was released in 1984.
In 1985, defendant was convicted of rape (§ 261), sentenced to five years in prison, and ordered to register as a sex offender.
In 1989, he was convicted in Monterey County of sodomy with force on a person under the age of 14 years (§ 286, subd. (c)); escape from jail (§ 4532, subd. (b)); assault with force and great bodily injury (§ 245, subd. (a)(4)); and two counts of sexual penetration with a foreign object by force (§ 289, subd. (a)). He was sentenced to 31 years in prison and again ordered to register as a sex offender. In a separate action in Monterey County in 1989, he was convicted of assault with a deadly weapon (§ 245, subd. (a)), and escaping from jail (§ 4532, subd. (b)), and sentenced to a consecutive term of eight years. He was also found in violation of parole and returned to prison.
B. The prior strike convictions
The initial information alleged defendant had five prior strike convictions that would have resulted in a third strike term in this case: rape in violation of section 261 in 1985; sodomy with force on a person under the age of 14 years in violation of section 286, subdivision (c) in 1989; two convictions for sexual penetration with a foreign object by force in violation of section 289, subdivision (a) in 1989; and assault with a deadly weapon in violation of section 245, subdivision (a) in 1989.
As part of the negotiated disposition in this case, a first amended information was filed that alleged defendant only had one prior strike conviction, based on his rape conviction in violation of section 261 in 1985. Defendant pleaded no contest to the charged offense and admitted the prior conviction, for an indicated maximum term of six years.
C. Defendant's status
At the preliminary hearing, Moreno testified he believed defendant was at Coalinga as a sexually violent predator (SVP).
While the probation report does not address defendant's status, there are several references in the record to defendant's status at Coalinga at the time of the charged offense. Prior to the preliminary hearing, defendant filed a motion to suppress evidence based on the search of his room. The motion stated that defendant was housed at the hospital "as a civil detainee ... while awaiting retrial on possible commitment" as a SVP. The People's opposition to the suppression motion stated defendant had been housed at the hospital "since March 1, 2012, as a civilly committed sexually violent predator under Welfare and Institutions Code section 6602."
The People's opposition also stated that defendant had voluntarily signed an advisement about random searches when he entered the hospital in 2012. At the preliminary hearing, defendant withdrew his suppression motion based on an absence of proof.
At the sentencing hearing, the court and the parties again discussed defendant's status. The court reviewed defendant's record and denied counsel's motion for conduct credits. In the course of addressing the motion, the court stated defendant was at Coalinga "pending SVP. He goes to an SVP trial. The jury is hung. So he goes back as an SVP." The court asked defense counsel if defendant would have been released from Coalinga if he had not been found in possession of narcotics, or if he could have posted bail and been released after being charged with the narcotics offense in this case. Counsel said no, and conceded defendant could not have been released from the hospital unless the People dismissed the SVP petition. The prosecutor said defendant had been in the "exact same location" at Coalinga and it had been his "residence" since 2012
The court stated, "He's in as an SVP. He commits a crime while he's in as an SVP, or he doesn't commit a crime as an SVP, that doesn't change his SVP hold. He's in as an SVP. And he's going to stay in."
Defense counsel replied defendant was not an SVP, but "[h]e's pending SVP." The court said, "But he's being held pending SVP proceedings," and counsel said that was correct. Defense counsel said defendant's lawyer for the SVP case had "continued the retrial" in the pending SVP matter pending the outcome of the criminal charges.
D. Denial of defendant's motion to dismiss
At the sentencing hearing, defense counsel stated defendant entered his plea for a maximum term of six years with the understanding that the court was going to consider whether to instead sentence him to four years. Defense counsel asked the court to impose the lower term, and also made an oral motion to dismiss the single prior strike conviction pursuant to section 1385 and Romero. Defense counsel argued defendant's "strikes" were "very old" and from the 1980s, and should be dismissed because of the amount of time he had already been in custody pending the resolution of his retrial on the SVP petition.
The prosecutor replied that the negotiated disposition was reached because the People filed an amended information that eliminated the four prior strike convictions that had previously been alleged, based on the determination that a third strike sentence of 25 years to life was excessive in this case. The prosecutor argued the court should impose a term between four and six years "based on the defendant's criminal history and specifically the fact that he is pending an SVP commitment while in the confines of Coalinga State Hospital and has contraband and the dangers that that poses to the institution as well as the programming of the other particular inmates ...."
The court denied defendant's motion to dismiss the prior strike conviction:
"... I am not going to exercise my discretion pursuant to Romero or [section] 1385. I do not believe that the sentence to be imposed would result in a severe, unreasonable and disproportionate sentence. I recognize the discretion I have to do that. [¶ ] I do find that [defendant's] criminal history is significant. And while it is [his] SVP status that he has remained not out in public, his criminal conduct dating back to 1985 which was a
forcible rape; 1988, a [section] 286 sodomy with a person under the age of 14; 1988 as well, the assault with a deadly weapon and a parole violation, I do not believe that there has been such a substantial break in custody that would, um, cause the court to exercise its discretion."
The court found the lower term of two years was appropriate under the facts and circumstances of the case, and doubled it to four years as the second strike sentence.
E. Section 1385
The trial court has discretion to dismiss a prior strike conviction in furtherance of justice under section 1385. (§ 1385, subd. (a); Romero, supra,13 Cal.4th 497, 529-530.) In considering whether to exercise its discretion, 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. Williams (1998) 17 Cal.4th 148, 161.)
"[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [¶] In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not 'aware of its discretion' to dismiss [citation], or where the court considered impermissible factors in declining to dismiss." (People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).)
We review the court's decision under section 1385 under the deferential abuse of discretion standard. (Carmony, supra, 33 Cal.4th 367, 375-377; People v. Williams, supra, 17 Cal.4th at p. 162.) " 'It is not enough to show that reasonable people might disagree about whether to strike one or more' prior conviction allegations. [Citation.] Where the record is silent [citation], or '[w]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance' [citation]. Because the 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, the continuation of which the law was meant to attack' [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary." (Carmony, supra, 33 Cal.4th at p. 378.)
F. Analysis
Defendant asserts the court abused its discretion because he did not receive an individualized sentence, the court refused to dismiss the prior strike conviction by treating defendant "as an SVP as a settled matter," it reached a "cursory conclusion" about his background based on "a 33-year-old conviction" alleged as the prior strike conviction, and it failed to consider the "non-criminal aspects" of his background or future prospects.
To the contrary, the court was well aware of its discretion to address defendant's request to dismiss the prior strike conviction under section 1385 and Romero. Contrary to defendant's arguments, the court was not improperly influenced by his placement at Coalinga or his pending retrial on the SVP petition. Instead, the court and the parties extensively discussed defendant's status at the sentencing hearing relative to his motion for custody credits. The court agreed with defense counsel that defendant was awaiting a retrial on a pending SVP petition, but defense counsel did not dispute the prosecutor's statements that defendant had been at the hospital as an SVP since 2012.
Defendant complains that the court failed to consider other aspects of his character that did not involve his prior felony convictions or his prior placement at the hospital. It is defendant's burden to show the court's decision was irrational or arbitrary. (Carmony, supra, 33 Cal.4th at pp. 376-378.) The court reviewed the entirety of the evidence and reports before it, and defendant did not present any statements or evidence to dispute the court's findings.
In addition, the court did not solely rely on the 1985 rape conviction that was alleged as the prior strike in this case. Instead, the court reviewed defendant's lengthy record of serious felonies that included multiple sex offenses and a parole violation, and acknowledged the prosecutor's explanation that the other four prior strike convictions had already been dismissed by the People based on the determination that a third strike term was not appropriate in this case. Finally, the court was concerned about defendant's possession of drugs while housed in a state hospital that would have led to dangerous situations for both the staff and other individuals.
The court did not abuse its discretion when it decided not to dismiss the prior strike conviction. II. The restitution fine and fees
Defendant contends the court improperly ordered him to pay the $300 restitution fine and other fees because he is indigent and lacks the ability to pay those amounts, in violation of his constitutional right to due process as set forth in Dueñas.
A. Background
At the sentencing hearing, the court imposed the four-year term and then ordered defendant to pay a restitution fine of $1,000 (§ 1202.4). Defense counsel objected and asked the court to reduce the fine to the statutory minimum of $300 based on defendant's indigency and inability to pay. The court agreed and modified the order to impose a restitution fine of $300, and suspended the parole revocation fine of $300 (§ 1202.45). The court also imposed a $40 court security assessment fee (§ 1465.8) and a $30 criminal conviction assessment fee (Gov. Code, § 70373).
The probation report recommended a restitution fine of $2,400.
B. Analysis
Defendant asserts the matter must be remanded for the court to hold an ability to pay hearing, and the restitution fine must be stayed and the fees reversed unless the court finds he has the ability to pay these amounts, pursuant to Dueñas and People v. Castellano (2019) 33 Cal.App.5th 485.
Defendant's due process argument is based on Dueñas, which was decided after his sentencing hearing and while this appeal was pending. Dueñas held that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay" before it imposes any fines or fees. (Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1167.)
The California Supreme Court is currently considering whether trial courts must consider a defendant's ability to pay before imposing or executing fines, fees, and assessments; and if so, which party bears the applicable burden of proof. (See People v. Kopp (2019) 38 Cal.App.5th 47, 94-98, review granted Nov. 13, 2019, S257844.) --------
As we explained in People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles), we believe Dueñas was wrongly decided and an Eighth Amendment analysis is more appropriate to determine whether restitution fines, fees, and assessments in a particular case are grossly disproportionate and thus excessive. (Aviles, supra, 39 Cal.App.5th at pp. 1068-1072.) Under that standard, the fines and fees imposed in this case are not grossly disproportionate to defendant's level of culpability and the harm he inflicted, and thus not excessive under the Eighth Amendment. (Id. at p. 1072.)
Next, even if Dueñas were to apply in this case, defendant did not forfeit review of the issue. Section 1202.4, subdivisions (c) and (d) permit a party to raise an ability to pay objection when the court imposes a restitution fine above the statutory minimum. The court initially imposed a $1,000 restitution fine. Defense counsel objected and requested the court to instead impose the statutory minimum fine of $300, and the court agreed.
Once the court imposed the minimum restitution fine, defendant lacked the statutory ability to further object under the governing law at the time of his sentencing hearing. (Cf. People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154.) In addition, the statutes that authorize the imposition of the court operations and facilities fees and assessments do not permit a defendant to make any kind of ability to pay objection. (§ 1465.8, subd. (a)(1); Gov. Code, § 70373, subd. (a)(1).)
However, even if we agreed with Dueñas and Castellano, we would still reject defendant's constitutional claims and find any error arising from the court's failure to make an ability to pay finding was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Jones (2019) 36 Cal.App.5th 1028, 1030-1031; People v. Johnson (2019) 35 Cal.App.5th 134, 139-140.)
" ' "Ability to pay does not necessarily require existing employment or cash on hand." [Citation.] "[I]n determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendant's present ability but may consider a defendant's ability to pay in the future." [Citation.] This include[s] the defendant's ability to obtain prison wages and to earn money after his release from custody. [Citation.]' [Citations.]" (Aviles, supra, 39 Cal.App.5th at p. 1076.)
We can infer from the instant record that defendant has the ability to pay the aggregate amount of $370 imposed in this case from probable future wages, including prison wages. (Aviles, supra, 39 Cal.App.5th at p. 1076; People v. Douglas (1995) 39 Cal.App.4th 1385, 1397; People v. Ellis (2019) 31 Cal.App.5th 1090, 1094.) There is nothing in the record to show that defendant would be unable to satisfy the fines and fees imposed by the court while serving his prison term, even if he fails to obtain a prison job.
While it may take defendant time to pay the amounts imposed in this case, that circumstance does not support his inability to make payments on these amounts from either prison wages or monetary gifts from family and friends during his prison sentence. (See, e.g., People v. Lewis (2009) 46 Cal.4th 1255, 1321; People v. DeFrance (2008) 167 Cal.App.4th 486, 505.) In People v. Potts (2019) 6 Cal.5th 1012, the trial court ordered a defendant convicted of capital murder to pay the statutory maximum restitution fine of $10,000, partially based on the probation officer's erroneous statement that a condemned inmate would be assigned a job in prison. Potts clarified that a defendant sentenced to death would not be permitted to work but found the court's error was harmless beyond a reasonable doubt and the court's restitution order was otherwise lawful. (Id. at pp. 1055-1056.) The defendant's alleged inability to pay because he lacked a prison job would be "blunted by the fact that he would retain at least some of the money sent to him" by family and friends. (Id. at p. 1056.) Potts held the trial court was "permitted to conclude that the monetary burden the restitution fine imposed on defendant was outweighed by other considerations," such as the seriousness and gravity of the offense, and the circumstances of its commission. (Id. at pp. 1056-1057.)
We thus conclude that based on the record before this court, defendant has the ability to pay the statutory minimum restitution fine and the mandatory fees and assessments that were imposed. Defendant's circumstances in this case are vastly different from the probationer's situation in Dueñas.
DISPOSITION
The judgment is affirmed.