Opinion
C084041
05-15-2020
THE PEOPLE, Plaintiff and Respondent, v. JASMIN CHIMERE MOORE-GRANT, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F04710, 15F05478, & 15F06495)
Defendant Jasmin Chimere Moore-Grant pleaded no contest to numerous counts of identity theft after she entered various workplaces and took credit cards from employees, later using them to purchase merchandise at several businesses. She was sentenced to an aggregate split term of 21 years with 13 years in custody and eight years on mandatory supervision. As conditions of mandatory supervision, the trial court imposed two conditions requiring defendant to allow probation officers warrantless access to her electronic storage devices, including cell phones and computers, and requiring her to give officers her passwords and access codes to her electronic mail and other internet accounts.
On appeal, defendant contends the electronics search conditions (1) violate People v. Lent (1975) 15 Cal.3d 481 (Lent), and (2) are unconstitutionally overbroad. In supplemental briefing, defendant argues (3) the court operations assessment, criminal conviction assessment, minimum restitution fine, and direct restitution must be stayed pending a determination of her ability to pay; (4) to the extent trial counsel failed to object to the restitution fine based on an inability to pay, she received ineffective assistance of counsel; (5) the 10 percent annual interest amount imposed on the direct victim restitution order was unauthorized; (6) the criminal impact fee imposed under Penal Code section 1465.7 should be stricken because the court did not impose a required underlying section 1464 assessment; and (7) the one-year terms for each of the prior prison term enhancements must be stricken based on statutory amendments effected by Senate Bill No. 136.
Undesignated statutory references are to the Penal Code.
We conclude defendant's challenges to the electronics search conditions were properly preserved and that the conditions are invalid under Lent. We further conclude the trial court did not err in imposing the fees, fines, and assessments without determining defendant's ability to pay. We shall remand the matter for resentencing for the trial court to strike the prior prison term enhancements, and to impose various fees, fines, and assessments applicable to defendant's offense, and shall order the clerk to prepare an amended abstract of judgment that reflects all of the fees, fines, and assessments imposed.
FACTUAL AND PROCEDURAL BACKGROUND
Over the course of several months in 2015, defendant entered various workplaces on different days and stole employees' credit cards while they were away from their cubicles. She later used the credit cards to make purchases at several local businesses.
On August 13, 2015, defendant was charged in Sacramento County case No. 15F04710 with second degree burglary (§ 459), two counts of identity theft (§ 530.5, subd. (a)), and possession of personal identifying information with intent to defraud (§ 530.5, subd. (c)(2)). Two prior prison terms (§ 667.5, former subd. (b)) were also alleged. That same day, defendant pleaded no contest to the charges and prior prison term allegations in exchange for seven years in state prison; if she returned to court on September 10, 2015, her sentence would be reduced to three years for the second degree burglary offense and concurrent terms of 16 months each for the remaining convictions.
Six days before her surrender date, the People filed another case (case No. 15F05478) charging defendant with four counts of second degree burglary and 32 counts of identity theft. A month later, in October 2015, the People filed a third case (case No. 15F06495), charging defendant with 29 counts of identity theft.
In November 2016, defendant entered a global plea to 10 counts of identity theft in case No. 15F05478, 11 counts of identity theft in case No. 15F06495, in addition to her previous plea in case No. 15F04710. Under the terms of the plea agreement, defendant would be sentenced to a split sentence of 13 years in custody and eight years on mandatory supervision.
Defendant pleaded no contest to counts 2, 3, 5, 7, 12, 15, 19, 23, 29, and 30 (§ 530.5, subd. (a)) in case No. 15F05478. She pleaded no contest to counts 2, 5, 9, 13, 16, 19, 22, 23, 25, 27, and 28 (§ 530.5, subd. (a)) in case No. 15F06495.
In January 2017, the court sentenced defendant to an aggregate term of 21 years in county jail (§ 1170, subd. (h)(5)(b)), with the final eight years of her sentence suspended and subject to mandatory supervision. The probation report recommended that the court impose various terms of mandatory supervision including an electronics search condition (Probation Condition No. 2) that stated: "P.C. 1546 searchable - Defendant shall submit his/her person, place, property, automobile, electronic storage devices, and any object under his/her control, including but not limited to cell phones and computers, to search and seizure by any law enforcement officer or probation officer, any time of the day or night, with or without a warrant, with or without his/her presence or further consent. [¶] Defendant being advised of his/her constitutional and statutory rights pursuant to Penal Code section 1546 et seq. in this regard, and having accepted probation, is deemed to have waived same and also specifically consented to searches of his/her electronic storages devices. [¶] Defendant shall provide access to any electronic storage devices and data contained therein, including disclosing and providing any and all information necessary to conduct a search."
The probation report further recommended Probation Condition No. 15, which required defendant to "disclose all e-mail accounts, all Internet accounts, and any other means of access to any computer or computer network, all passwords and access codes. Defendant shall consent to the search of such e-mail and Internet accounts at any time and the seizure of any information or data contained therein without a search warrant or probable cause."
At the sentencing hearing, defense counsel objected "to the terms of probation that will allow probation to go into [defendant's] cell phone whenever they want to." Counsel objected to the electronics search conditions given the nature of modern cell phones and special information available on those phones.
The court responded by noting on the record that the court and counsel had an earlier chambers conference specifically regarding the electronics search terms. In the court's opinion, "given the nature of these charges . . . where she personally used personal identifying information of other individuals, that it is not uncommon to have use of a cell phone to perpetuate that particular crime." Citing Lent, the trial court found that the electronics search conditions were appropriate to monitor defendant on mandatory supervision.
The court imposed a $300 restitution fine (§ 1202.4), with the same amount imposed and suspended pending revocation of mandatory supervision (§ 1202.45, subd. (b)), a $1,000 court operations assessment (§ 1465.8), and a $750 court facilities assessment (Gov. Code, § 70373). The court also imposed a criminal impact fee pursuant to section 1465.7, subdivision (a), and direct victim restitution of $7,235.52 (§ 1202.4, subd. (f)). Defendant timely appealed.
DISCUSSION
1.0 Electronics Search Conditions
Defendant challenges the electronics search conditions on several grounds, including that the conditions are unreasonable under Lent. The People argue defendant forfeited the issue by failing to object on the record based on Lent, or, alternatively, that the conditions are valid under Lent.
Initially, we reject the People's forfeiture argument. The record shows defendant twice objected to the conditions -- during the sentencing hearing and before the hearing in a chambers conference with the judge and opposing counsel. The trial court, moreover, specifically cited Lent in denying defendant's objection and finding the conditions valid. Defendant's objections were therefore sufficient to preserve her appellate claim.
Turning to the merits of defendant's challenge, we agree the conditions as written are unreasonable. Given this conclusion, we do not reach defendant's alternative challenges to the conditions.
A trial court has broad discretion to impose reasonable conditions of probation in order to promote the rehabilitation of the probationer and to protect public safety. (§ 1203.1, subd. (j); People v. Olguin (2008) 45 Cal.4th 375, 379 [" 'The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions.' "].) A trial court does not abuse its discretion unless its determination is arbitrary or capricious or " ' "exceeds the bounds of reason, all of the circumstances being considered." ' " (People v. Welch (1993) 5 Cal.4th 228, 234.)
Under Lent, a probation condition is invalid if it " '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .' " (Lent, supra, 15 Cal.3d at p. 486.) All three prongs of the Lent test must be met to invalidate a probation condition. (People v. Olguin, supra, 45 Cal.4th at p. 379.) Thus, "even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality." (Id. at p. 380.)
Communicating electronically is not itself criminal. And nothing in the sparse record suggests any electronic device played a role in defendant's current offense. The question, then, is whether the electronics search conditions are reasonably related to preventing future criminality.
Our Supreme Court recently addressed a similar issue in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). The probation condition at issue in Ricardo P. required a juvenile who admitted two counts of felony burglary to submit to warrantless searches of his electronic devices and passwords at any time even though there was no indication that he used an electronic device in connection with the burglaries. (Id. at p. 1115.) The court imposed the electronics search condition in order to monitor the juvenile's compliance with separate conditions prohibiting him from using or possessing illegal drugs after he said he had stopped smoking marijuana following his arrest because it prevented him from thinking clearly. (Id. at pp. 1115-1116.) To support the condition, the juvenile court noted that minors typically brag about their drug usage by posting on the Internet or showing pictures of themselves using drugs or with drug paraphernalia. (Id. at p. 1117.)
Although the Supreme Court was skeptical about the juvenile court's generalization that teenagers tend to brag about drug use online, even accepting the premise as true, the Supreme Court held that the electronics search condition was not reasonably related to future criminality under Lent's third prong because the burden imposed on the minor's privacy was substantially disproportionate to the condition's goal of monitoring and deterring drug use. (Ricardo P., supra, 7 Cal.5th at pp. 1116, 1119-1120.) Given the breadth of sensitive and confidential information accessible on devices like cell phones, the limited justification for the condition did not support the significant burden imposed. (Id. at pp. 1122-1123.)
In so finding, the Supreme Court held that the third prong of the Lent test "requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality." (Ricardo P., supra, 7 Cal.5th at p. 1121.) It "contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition." (Id. at p. 1122.)
Although the requisite proportionality was lacking in Ricardo P., the court emphasized that electronics search conditions are not categorically invalid. (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129.) In certain cases, the Supreme Court recognized, a probationer's offense or personal history might provide a sufficient factual basis to determine an electronics search condition was a proportional means of deterring the probationer from future criminality. (Ibid.)
Here, as in Ricardo P., only the third prong of the Lent test is at issue. The factual basis for the plea indicates only that defendant stole employees' wallets and credit cards while they were away from their work cubicles, and used the stolen cards to purchase merchandise at local businesses. Nothing in the record indicates defendant used the cards to make Internet transactions, or used an electronic device in committing the present offenses, or had any history of using electronic devices to commit, facilitate, or plan criminal conduct, or to brag about such conduct on social media. The prosecutor did not file any written papers requesting the conditions or supporting them with specific evidence linking the conditions to defendant or her offenses. Nor did the prosecutor argue in favor of the conditions or offer any additional evidence supporting the conditions at the sentencing hearing.
While the court opined at the hearing that it was not uncommon to use a cell phone for identity theft, the court's generalized statement was unrelated to defendant or her specific offenses. Even presuming that the court's premise is true, like the statements about teenagers posting their drug use online in Ricardo P., such a generalized, hypothetical statement -- unrelated to the particular defendant before the court -- does not satisfy the requirements of Lent. "If we were to find this record sufficient to sustain the probation condition at issue, it is difficult to conceive of any case in which a comparable condition could not be imposed, especially given the constant and pervasive use of electronic devices and social media . . . today. In virtually every case, one could hypothesize that monitoring a probationer's electronic devices and social media might deter or prevent future criminal conduct." (Ricardo P., supra, 7 Cal.5th at p. 1123.)
Accordingly, we find that the electronics search conditions are not reasonably related to future criminality and are therefore invalid under Lent. The conditions impose a burden that is substantially disproportionate to the legitimate interests in promoting rehabilitation and public safety. (Ricardo P., supra, 7 Cal.5th at p. 1120; Lent, supra, 15 Cal.3d at p. 486.) Having determined the conditions are invalid under Lent, we need not address defendant's additional contentions challenging the conditions on appeal. 2.0 Fees, Fines, and Assessments
In supplemental briefing, defendant challenges various fees, fines, and assessments imposed by the trial court. Relying primarily on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), she argues that imposing the court operations and court facilities assessments as well as the restitution fines and direct victim restitution without first determining her ability to pay them violated due process. In her view, these financial obligations must be stayed or vacated pending a determination of her ability to pay. (§§ 1465.8, 1202.4, 1202.45, subd. (b); Gov. Code, § 70373.)
Defendant also challenges imposition of interest on the restitution ordered in the amount of 10 percent per annum under section 1214.5, subdivision (b)(2), claiming it was unauthorized because she was not placed on probation. And she contends a criminal impact fee imposed pursuant to section 1465.7 must be stricken.
Anticipating the People's forfeiture argument, defendant asserts that she did not forfeit her ability to pay challenge because Dueñas was decided after her sentencing and any objection would have been futile based on existing law. To the extent her claims have been forfeited by failure to object, defendant contends her counsel was constitutionally ineffective.
2.1 Additional Background
With some modifications, the trial court adopted the fees, fines, assessments, and direct victim restitution set forth in the presentence probation report, without determining defendant's ability to pay these obligations. For her 25 convictions, the court imposed a $1,000 court operations assessment ($40 for each conviction) (§ 1465.8), and a $750 court facilities assessment ($30 for each conviction) (Gov. Code, § 70373). The court also imposed a $300 restitution fine (§ 1202.4), which it reduced from the $6,300 recommended by probation, and a $300 revocation restitution fine (§ 1202.45), which was stayed unless mandatory supervision was revoked. The court imposed $7,235.52 in direct victim restitution (§ 1202.4, subds. (a), (f)), and ordered defendant to pay 10 percent annual interest, citing section 1214.5, subdivision (b)(2) (restitution payable in installments) as the basis for the interest payment. The court also imposed a $10 fine for crime prevention programs (§ 1202.5), and ordered defendant to pay a criminal impact fee under section 1465.7, subdivision (a), calculated as 20 percent of the base fine amount.
The trial court may adopt the fees, fines, and assessments as set forth in the probation report if the report includes both the amounts and statutory bases for the financial impositions. (See People v. Hamed (2013) 221 Cal.App.4th 928, 939-940; People v. Voit (2011) 200 Cal.App.4th 1353, 1373; People v. Sharret (2011) 191 Cal.App.4th 859, 864.)
The court struck the main jail booking and classification fees (Gov. Code, § 29550.2), and the cost of the presentence and investigation report (§ 1203.1b, subd. (a)).
2.2 Dueñas-based Challenge
Although it is defendant's burden to establish an inability to pay (accord, People v. Kopp (2019) 38 Cal.App.5th 47, 96, review granted Nov. 13, 2019, S257844; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154,), defendant neither objected to the imposed fees, fines, and assessments generally nor asserted her inability to pay them, to refute the presumption that defendants capable of working who are serving a lengthy prison term will be able to pay assessments from prison wages (People v. Johnson (2019) 35 Cal.App.5th 134, 139), instead accepting them as listed in the probation report.
Citing Dueñas, defendant argues that because she was indigent, imposing the fees, fines, and assessments without expressly considering her ability to pay violates due process. The defendant in Dueñas had in fact sought a hearing on her ability to pay on constitutional grounds, unlike defendant. (Dueñas, supra, 30 Cal.App.5th at pp. 1162-1163.) As a result, existing authority would hold that defendant has forfeited the issue on appeal (People v. Frandsen, supra, 33 Cal.App.5th at pp. 1154-1155), although there is also authority to the contrary (People v. Johnson, supra, 35 Cal.App.5th at pp. 137-138; People v. Castellano (2019) 33 Cal.App.5th 485, 489). There is also settled law that failure to object to the amount of a restitution fine on the ground of inability to pay forfeits the issue on appeal. (People v. Nelson (2011) 51 Cal.4th 198, 227; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.) Defendant has thus forfeited our plenary review of this issue.
In any event, subsequent published authority has called the reasoning of Dueñas into question. As digested in People v. Hicks (2019) 40 Cal.App.5th 320 (review granted Nov. 26, 2019, S258946), Dueñas is premised on authority involving a right under due process of access to the courts, and a bar against incarceration for an involuntary failure to pay fees or fines. (Hicks, at p. 325.) However, a postconviction imposition of fees and fines does not interfere in any respect with the right of access to either the trial or appellate court. (Id. at. p. 326.) The postconviction imposition of fees and fines also does not result in any additional incarceration, and therefore a liberty interest that due process would protect is not present. (Ibid.) Since the stated bases for the conclusion in Dueñas do not support it, the question is whether due process generally otherwise compels the same result. (Hicks, at p. 327.) The People have a fundamental interest in punishing criminal conduct, as to which indigency is not a defense (otherwise, defendants with financial means would suffer discrimination). It would also be contrary to the rehabilitative purpose of probation if a court were precluded at the outset from imposing the payment of fees and fines as part of educating a defendant on obligations owed to society. (Id. at pp. 327-328.) "For the reasons set forth above, we conclude that due process does not [generally] speak to this issue and that Dueñas was wrong to conclude otherwise." (Id. at p. 329.) People v. Kingston, supra, 41 Cal.App.5th at pages 279 through 281, agreed with Hicks.
The analysis of Dueñas in Hicks is adopted in People v. Kingston (2019) 41 Cal.App.5th 272, 279-281, and is paralleled in People v. Aviles (2019) 39 Cal.App.5th 1055, 1068-1069 (Aviles), People v. Caceres (2019) 39 Cal.App.5th 917, 927, and in the opinions of individual justices in People v. Santos (2019) 38 Cal.App.5th 923, 937-938 (dis. opn. of Elia, J.), and Gutierrez, supra, 35 Cal.App.5th at pp. 1034-1040 (conc. opn. of Benke, J.).
Aviles also found Dueñas to be wrongly decided, finding the only proper limit on fees and fines is the constitutional prohibition against excessive fines under the Eighth Amendment to the federal Constitution. (Aviles, supra, 39 Cal.App.5th at pp. 1061, 1067, 1069-1072; accord, People v. Kopp, supra, 38 Cal.App.5th at p. 96, rev.gr.) Therefore, given the absence of any valid claim under due process, we conclude defendant is not entitled to a remand for the trial court to consider her ability to pay the restitution fines and assessments. We therefore reject this argument.
Defendant's excessive fines argument fairs no better. She argues that imposing the minimum $300 restitution fine in this case without considering her ability to pay violated the excessive fines clauses of the federal and state Constitutions (U.S. Const., 8th Amend.; Cal Const., art. I, § 17). (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 731 [after examining the relevant considerations, a reviewing court can decide for itself whether a fine or penalty is unconstitutionally excessive].)
"The Eighth Amendment prohibits the imposition of excessive fines. The word 'fine,' as used in that provision, has been interpreted to be ' "a payment to a sovereign as punishment for some offense." ' [Citation.]" (Gutierrez, supra, 35 Cal.App.5th at p. 1040 (conc. opn. of Benke, J.).) The determination of whether a fine is excessive for purposes of the Eighth Amendment is based on the factors set forth in United States v. Bajakajian (1998) 524 U.S. 321 (Bajakajian). (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at pp. 728-729 [applying Eighth Amendment analysis to both defendant's federal and state excessive fines claims].)
"The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. [Citations.] . . . [A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." (Bajakajian, supra, 524 U.S. at p. 334.)
"The California Supreme Court has summarized the factors in Bajakajian to determine if a fine is excessive in violation of the Eighth Amendment: '(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. [Citations.]' (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at p. 728; see Gutierrez, supra, 35 Cal.App.5th at p. 1040 (conc. opn. of Benke, J.).) While ability to pay may be part of the proportionality analysis, it is not the only factor. (Bajakajian, supra, 524 U.S. at pp. 337-338.)" (Aviles, supra, 39 Cal.App.5th at p. 1070.) We review the excessiveness of a fine challenged under the Eighth Amendment de novo. (Id. at p. 1072.)
Here, we find the $300 restitution fine imposed for defendant's numerous convictions for burglary and identity theft is not grossly disproportional to the level of harm and defendant's culpability in this matter. She pleaded guilty to 25 offenses, and stole employees' credit cards, using them to enrich herself with material items. The minimum restitution fine is commensurate with her culpability in these matters.
We likewise reject defendant's argument that Dueñas should be extended to cover direct victim restitution under subdivision (f) of section 1202.4 and the 10 percent interest rate that statutorily accrues on direct victim restitution under section 1202.4, subdivision (f)(3)(G).
The $7,235.52 in direct restitution and the 10 percent interest payment at issue here differ fundamentally from the restitution fine and mandatory assessments considered in Dueñas. Payment of direct victim restitution under section 1202.4, subdivision (f), including the interest payment, goes directly to victims and compensates them for economic losses they have suffered because of the defendant's crime. (§ 1202.4, subd. (f) ["in every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court"].) Subdivision (f) implements the state constitutional mandate that "all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer." (Cal. Const., art. I, § 28, subd. (b)(13)(A).)
The restitution fine, by contrast, is intended to be additional punishment for a criminal offense. (People v. Hanson (2000) 23 Cal.4th 355, 362 [the Legislature intended restitution fines as a criminal penalty rather than as a civil remedy]; Dueñas, supra, 30 Cal.App.5th at p. 1169; People v. Holman (2013) 214 Cal.App.4th 1438, 1451.) And the mandatory court operations and court facilities assessments do not go to compensate the victim, but rather are intended as funding mechanisms for California courts. (Dueñas, at p. 1165; see People v. Alford (2007) 42 Cal.4th 749, 757-758 [§ 1465.8]; People v. Fleury (2010) 182 Cal.App.4th 1486, 1492 [Gov. Code, § 70373].)
Unlike the restitution fine and the assessments, the purpose of direct victim restitution and the annual interest on the restitution order is neither to punish a defendant nor to raise funds for the courts. Instead, it is intended to make the victim reasonably whole. (People v. Holman, supra, 214 Cal.App.4th at p. 1451.) Given the significant differences in purpose and effect between direct victim restitution and the mandatory assessments and restitution fine at issue in Dueñas, we decline to extend the rule of Dueñas to direct victim restitution or the interest payment thereon. (Accord, People v. Evans (2019) 39 Cal.App.5th 771, 777.)
2.3 Basis for Interest on Direct Victim Restitution
Defendant objects that section 1214.5, which the probation report cited and the court adopted as the basis for imposing 10 percent annual interest on the direct victim restitution amount, does not apply because she was not placed on probation. Thus, she contends the 10 percent per annum interest payment must be stricken. While we agree the trial court identified the wrong statutory provision to support the interest order, section 1202.4, subdivision (f) authorizes the 10 percent annual interest award. We therefore reject her claim. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 145 [a trial court ruling that is correct in law will not be disturbed on appeal merely because given for a wrong reason; if correct on any theory, appellate court will affirm regardless of the trial court's reasoning].)
Section 1214.5 provides in relevant part that "[i]n any case in which the defendant is ordered to pay more than fifty dollars ($50) in restitution as a condition of probation, the court may, as an additional condition of probation since the court determines that the defendant has the ability to pay, as defined in subdivision (e) of Section 1203.1b, order the defendant to pay interest at the rate of 10 percent per annum on the principal amount remaining unsatisfied." (§ 1214.5, subd. (a).) Under the statute's plain language, the provision applies to persons placed on probation, which defendant was not.
Section 1202.4, subdivision (f)(3)(G), however, authorizes interest at a rate of 10 percent per annum on any direct victim restitution award. That subdivision provides, "(f)(3) To the extent possible, the restitution order . . . shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct, including, but not limited to, all of the following: [¶] . . . [¶] (G) Interest, at the rate of 10 percent per annum, that accrues as of the date of sentencing or loss, as determined by the court."
Given subdivision (f)(3)(G) of section 1202.4, the interest ordered on the direct victim restitution amount was proper. (People v. Letner and Tobin, supra, 50 Cal.4th at p. 145.) We therefore decline to strike the interest amount.
2.4 Criminal Impact Fee
Defendant contends that the criminal impact fee imposed pursuant to section 1465.7, and calculated as 20 percent of the base fine amount, is improper because the trial court did not impose any assessment under section 1464.
The People disagree, arguing that the criminal impact fee was proper because the trial court imposed a $10 base fine for crime prevention programs given defendant's burglary conviction (§ 1202.5, subd. (a)). The People have the better argument.
Section 1202.5 provides: "In any case in which a defendant is convicted of . . . [burglary under section 459] . . . , the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed." (§ 1202.5, subd. (a).) Thus, defendant was subject to the $10 crime prevention program fine after pleading guilty to burglary.
Section 1465.7, subdivision (a) states: "A state surcharge of 20 percent shall be levied on the base fine used to calculate the state penalty assessment as specified in subdivision (a) of Section 1464." Based on defendant's $10 base fine for crime prevention programs, the 20 percent criminal impact fee would be $2. The fact that the trial court failed to impose other mandatory penalties and surcharges on the base fine amount, as the People point out, does not otherwise invalidate the criminal impact fee as imposed.
As the People note, additional mandatory penalties and surcharges apply to the $10 section 1202.5 crime prevention program fine for defendant's burglary conviction. (People v. Sorenson (2005) 125 Cal.App.4th 612, 617 ["The Legislature has superimposed onto the base fine scheme a number of penalties, assessments, fees, and surcharges," which attach to "almost all . . . fines" imposed in criminal cases].) Here, the trial court should have imposed a $10 penalty assessment under section 1464, subdivision (a)(1), a $7 penalty assessment under Government Code section 76000, subdivision (a)(1), a $5 state court construction penalty under Government Code section 70372, subdivision (a)(1), a $1 DNA penalty under Government Code section 76104.6, subdivision (a)(1), and a $4 DNA state-only penalty under Government Code section 76104.7, subdivision (a). (People v. Knightbent (2010) 186 Cal.App.4th 1105, 1109; see People v. Castellanos (2009) 175 Cal.App.4th 1524, 1528.) Because these additional penalties and surcharges are mandatory, we shall order the trial court to impose them upon remand. (Knightbent, at p. 1109; Castellanos, at p. 1530 [because the additional assessments, surcharge, and penalties applicable to a § 1202.5 fine are mandatory, their omission may be corrected for the first time on appeal].)
Section 1464, subdivision (a)(1) states in relevant part: "Subject to Chapter 12 (commencing with Section 76000) of Title 8 of the Government Code, and except as otherwise provided in this section, there shall be levied a state penalty in the amount of ten dollars ($10) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses . . . ."
Government Code section 76000, subdivision (a)(1) provides: "Except as otherwise provided elsewhere in this section, in each county there shall be levied an additional penalty in the amount of seven dollars ($7) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses . . . ."
Government Code section 70372, subdivision (a)(1) provides: "Except as otherwise provided in this article, there shall be levied a state court construction penalty, in the amount of five dollars ($5) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses . . . . This penalty is in addition to any other state or local penalty, including, but not limited to, the penalty provided by Section 1464 of the Penal Code and [Government Code] Section 76000."
Government Code section 76104.6, subdivision (a)(1) states: "Except as otherwise provided in this section, for the purpose of implementing the DNA Fingerprint, Unsolved Crime and Innocence Protection Act (Proposition 69) . . . there shall be levied an additional penalty of one dollar ($1) for every ten dollars ($10), or part of ten dollars ($10), in each county upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses . . . ."
Government Code section 76104.7, subdivision (a) provides: "Except as otherwise provided in this section, in addition to the penalty levied pursuant to Section 76104.6, there shall be levied an additional state-only penalty of four dollars ($4) for every ten dollars ($10), or part of ten dollars ($10), in each county upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses . . . ."
For the reasons previously stated regarding the mandatory assessments and restitution fines, we similarly reject defendant's Dueñas-based due process challenge to these additional penalties and assessments.
2.5 Corrections to Abstract of Judgment
The abstract of judgment, as the People point out, fails to reflect some of the fees, fines, and assessments imposed by the trial court at sentencing. These include the $300 restitution fines (§§ 1202.4, 1202.45), a $10 crime prevention program fine (§ 1202.5), and the state surcharge of 20 percent levied on the base fine amount (§ 1465.7).
As a general rule, the abstract of judgment filed by a trial court must include "a detailed recitation of all the fees, fines and penalties on the record." (People v. High (2004) 119 Cal.App.4th 1192, 1200; see People v. Sharret, supra, 191 Cal.App.4th at p. 864 [reasoning that the trial court may orally impose penalties by shorthand references to " 'penalty assessments' " but the trial court clerk should then specify penalties in the minute order and abstract of judgment].) Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Zackery (2007) 147 Cal.App.4th 380, 385.) Accordingly, we shall order the abstract of judgment corrected.
3.0 Prior Prison Term Enhancements
Given recent legislative changes to section 667.5, in supplemental briefing defendant contends we should strike the two 1-year prior prison enhancements imposed under section 667.5, former subdivision (b) for her prior convictions of unauthorized use of personal identifying information (§ 530.5) and unlawful taking or driving a vehicle (Veh. Code, § 10851). The People agree.
On October 8, 2019, the Governor signed Senate Bill No. 136 (2019-2020 Reg. Sess.), which amended section 667.5, effective January 1, 2020 (Stats. 2019, ch. 590, § 1). This bill narrowed the eligibility for the one-year prior prison term enhancement to those who have served a prior prison sentence for a sexually violent offense, as defined. The statute as amended now provides: "Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code, provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody or the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or any felony sentence that is not suspended." (§ 667.5, subd. (b).)
We agree with the parties that Senate Bill No. 136's amendment should be applied retroactively in this case. Whether a particular statute is intended to apply retroactively is a matter of statutory interpretation. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307 [noting "the role of a court is to determine the intent of the Legislature"].) Ordinarily, new criminal legislation is presumed to apply prospectively unless the statute expressly declares a contrary intent. (§ 3.) Where the Legislature has reduced punishment for criminal conduct, however, an inference arises under In re Estrada (1965) 63 Cal.2d 740 " 'that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.' " (Lara, at p. 308.) Conversely, the Estrada rule " 'is not implicated where the Legislature clearly signals its intent to make the amendment prospective, by the inclusion of an express saving clause or its equivalent.' " (People v. Floyd (2003) 31 Cal.4th 179, 185, italics omitted.)
"A new law mitigates or lessens punishment when it either mandates reduction of a sentence or grants a trial court the discretion to do so. (People v. Francis (1969) 71 Cal.2d 66, 75-78.)" (People v. Hurlic (2018) 25 Cal.App.5th 50, 56.)
Here, Senate Bill No. 136 narrowed who was eligible for a section 667.5, subdivision (b) prior prison enhancement, thus rendering ineligible many individuals, including defendant, whose prior prison history no longer includes a qualifying offense. There is nothing in the bill or its associated legislative history that indicates an intent that the court not apply this amendment to all individuals whose sentences are not yet final. Under these circumstances, we find that Estrada's inference of retroactive application applies. (See, e.g., People v. Nasalga (1996) 12 Cal.4th 784, 797-798 [applying Estrada inference of retroactivity to legislative changes to § 12022.6, subds. (a) & (b) enhancements].) Defendant's judgment was not final when the statute took effect, thus entitling her to its benefits. (See People v. Vieira (2005) 35 Cal.4th 264, 305-306 [defendant entitled to retroactive application of criminal statute that takes effect during the time defendant has to petition to the Supreme Court]; People v. Hurlic, supra, 25 Cal.App.5th at p. 53 [certificate of probable cause not required to challenge an agreed-upon sentence based on a retroactive change in the law that lessens punishment for sentencing enhancement].) Accordingly, we shall remand the matter to the trial court to strike defendant's two 1-year prior prison enhancements and for resentencing.
We are aware that the issue of whether a certificate of probable cause is required for a defendant to challenge a negotiated sentence based on a subsequent ameliorative, retroactive change in the law is currently pending before our Supreme Court. (See People v. Kelly (2019) 32 Cal.App.5th 1013 [dismissing appeal for defendant's failure to obtain a certificate of probable cause], review granted June 12, 2019, S255145; People v. Stamps (2019) 34 Cal.App.5th 117 [remanding for resentencing given Senate Bill No. 1393 (2017-2018 Reg. Sess.)], review granted June 12, 2019, S255843.)
DISPOSITION
Defendant's convictions are affirmed, and the matter is remanded for resentencing. Upon remand, the trial court shall strike Probation Conditions Nos. 2 and 15 from the terms of mandatory supervision, and shall strike the two 1-year prior prison term enhancements under section 667.5, subdivision (b). The court shall also impose a $10 penalty assessment (§ 1464, subd. (a)(1)), a $7 penalty assessment (Gov. Code, § 76000, subd. (a)(1)), a $5 state court construction penalty (Gov. Code, § 70372, subd. (a)(1)), a $1 DNA penalty (Gov. Code, § 76104.6, subd. (a)(1)), and a $4 DNA state-only penalty (Gov. Code, § 76104.7, subd. (a)) on the $10 crime prevention fund base fine orally imposed pursuant to section 1202.5. The clerk shall prepare an amended abstract of judgment that reflects all of the fees, fines, and assessments imposed by the court, including the $300 restitution fines (§§ 1202.4, 1202.45), the $10 for crime prevention programs (§ 1202.5), the state surcharge of 20 percent levied on the base fine amount, which should be $2 (§ 1465.7), and the direct victim restitution of $7,235.52 (§ 1202.4, subd. (f)).
/s/_________
BUTZ, J. I concur: /s/_________
MURRAY, J. ROBIE, J., Concurring and Dissenting.
I concur in all parts of the Discussion except section 2.2 relating to defendant's challenge to the fines and assessments imposed by the trial court. Defendant believes Dueñas calls into question the imposition of the $300 restitution fine, $300 stayed parole revocation fine, $1,000 court operations assessment, $750 court facilities assessment, $7,235.52 direct victim restitution fine, and the 10 percent statutory interest rate accruing on the direct victim compensation without a determination of her ability to pay. (Maj. opn. ante, at pp. 5, 10; People v. Dueñas (2019) 30 Cal.App.5th 1157.) I agree with the majority that defendant's challenge to the direct victim restitution fine and associated 10 percent interest rate accrual is not subject to the ability to pay analysis discussed in Dueñas. (Maj. opn. ante, at pp. 14-15.) I disagree, however, with the majority's conclusion that defendant forfeited her challenge to the other assessments and fines, and that Dueñas was wrongly decided. (Maj. opn. ante, at pp. 11-14.)
Defendant did not forfeit the ability-to-pay argument, as the majority concludes. (Maj. opn., ante at p. 11.) As stated in Castellano, a trial court is required to determine a defendant's ability to pay only if the defendant raises the issue, and the defendant bears the burden of proving an inability to pay. (People v. Castellano (2019) 33 Cal.App.5th 485, 490.) In the absence of authority invalidating the challenged fines and assessments on inability to pay at the time the trial court imposed them, however, defendant could not have reasonably been expected to challenge the trial court's imposition thereof. "Reviewing 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." (People v. Welch (1993) 5 Cal.4th 228, 237.)
I agree with Dueñas that principles of due process would preclude a trial court from imposing the fines and assessments at issue if a defendant demonstrates he or she is unable to pay them. (People v. Dueñas, supra, 30 Cal.App.5th at p. 1168.) I do not find the analysis in Hicks to be well-founded or persuasive and believe the majority has it backwards -- it is Hicks that was wrongly decided, not Dueñas. (People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946.) I further do not agree with Aviles that the only proper limit on fees and fines is the constitutional prohibition against excessive fines under the Eighth Amendment to the federal Constitution. (People v. Aviles (2019) 39 Cal.App.5th 1055, 1061, 1067, 1069-1072.)
I believe a limited remand under Dueñas is appropriate to permit a hearing on defendant's ability to pay the fines and assessments, other than the direct victim restitution fine and associated statutory interest rate accrual, because her conviction and sentence are not yet final. (See People v. Castellano, supra, 33 Cal.App.5th at pp. 490-491.)
/s/_________
Robie, Acting P. J.