Opinion
E071794
07-01-2021
THE PEOPLE, Plaintiff and Respondent, v. AARON MOSES et al., Defendants and Appellants.
Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant and Appellant Aaron Murl Moses, Jr. Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant Eric Lavell Fuller, Jr. Steven A. Brody, under appointment for the Court of Appeal, for Defendant and Appellant Destinee Sharniele Tresvant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. RIF1701359 John D. Molloy, and David A. Gunn, Judges. Affirmed in part, vacated in part, and remanded with directions.
Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant and Appellant Aaron Murl Moses, Jr.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant Eric Lavell Fuller, Jr.
Steven A. Brody, under appointment for the Court of Appeal, for Defendant and Appellant Destinee Sharniele Tresvant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MENETREZ J.
This appeal arises from the armed robbery of a nail salon followed by a high-speed pursuit of the perpetrators after they fled the scene. Victims identified Aaron Murl Moses, Jr., Eric Lavell Fuller, Jr., and Destinee Sharniele Tresvant as three of the perpetrators. A jury convicted Moses and Fuller of numerous offenses arising from the incident and found related firearm enhancements true. Tresvant pleaded guilty after the trial court found her competent to stand trial and found that she was ineligible for pretrial mental health diversion.
In addition, codefendants Wensheila Marsha Swisher and Destin Carl Pipkins pled guilty before trial to various offenses, resulting in sentences of two years and 15 years in state prison.
On appeal, Tresvant argues that the trial court erred by directing a verdict against her in a competency proceeding and by failing thereafter to conclude that she did not make a prima facie showing for pretrial mental health diversion under Penal Code section 1001.36 (further unlabeled statutory references are to this code). Fuller and Tresvant argue that the trial court abused its discretion by failing to consider imposing uncharged lesser included firearm enhancements, and Tresvant argues that the trial court abused its discretion by failing to strike the enhancement. Fuller also contends that the trial court failed to consider his ability to pay various fines and fees. Moses raises numerous sentencing issues. We conclude that Moses's sentence was unauthorized because the trial court failed to impose a sentence for each of the offenses. We consequently vacate Moses's sentence, remand for resentencing, and do not address his other claimed sentencing errors. We also strike an unauthorized fee imposed on Fuller, correct an error in the abstract of judgment for Fuller, and otherwise affirm the judgments.
BACKGROUND
We need not and do not describe the underlying facts from the jury trial for Moses and Fuller, because the only issues we address as to Moses and Fuller pertain to sentencing issues that do not depend on those facts.
A. Tresvant's Competency to Stand Trial
Before trial commenced for all defendants, Tresvant's counsel expressed doubt about Tresvant's competency, because Tresvant had made statements to counsel about the presence of FBI agents and people with a third eye in her cell. The trial court suspended proceedings as to Tresvant. After Tresvant was examined by court-appointed medical professionals for the defense and the prosecution, the court held a competency trial before a jury.
1. Defense Evidence
The defense presented one witness, Dr. William H. Jones, Ph.D., a court-appointed clinical psychologist who in October 2018 had conducted a 90-minute evaluation of Tresvant for competency. Dr. Jones reviewed Tresvant's police records but did not review her mental health records from jail or her childhood medical records. He questioned Tresvant about her family, education, relationships, employment history, medical history, and psychiatric history. He also asked Tresvant questions designed to elicit information about her psychological functioning, how she thinks, and whether she was experiencing symptoms of emotional distress. He further questioned Tresvant about “her understanding of the courtroom proceedings, ” and he believed that Tresvant “appear[ed] to understand” that the purpose of the evaluation was to determine her competency.
Tresvant reported that as a child she had been treated for unspecified mental health issues. When she was interviewed, Tresvant was taking two types of antidepressant medications. Tresvant reported that she was experiencing auditory and visual hallucinations and that she had heard hallucinated voices since childhood but had not heard any hallucinated voices after she started taking medication in jail. She claimed that the hallucinated voices distracted her and influenced her behavior. Dr. Jones did not test Tresvant to determine if she was malingering and did not consider the inconsistencies in her interview sufficient to conclude that she was malingering.
On the basis of his 90-minute evaluation of Tresvant, Dr. Jones concluded and summarized in a written report that Tresvant suffered from paranoid schizophrenia, was not competent to stand trial, and would not be able to assist her attorney in presenting a defense.
On cross-examination, Dr. Jones testified that after preparing the report he changed his opinion about Tresvant's competency to stand trial and whether she suffered from paranoid schizophrenia. Before testifying, Dr. Jones reviewed Tresvant's mental health records from jail and reports prepared by two other mental health experts, Dr. David Walsh, Ph.D., and Dr. Michael E. Kania, Ph.D., who had evaluated Tresvant before Dr. Jones.
In reviewing Tresvant's medical records, Dr. Jones learned that when Tresvant first spoke with mental health staff at jail “she did not report any voices.” Tresvant instead presented to them as having anxiety and depression and was diagnosed as suffering from major depressive disorder of an unspecified degree—mild, moderate, or severe. Dr. Jones noted that “[t]here's a type of severe depression in which a person may hear hallucinated voices, but that was not indicated in [Tresvant's] records.” In addition, it is possible that someone suffering from severe major depressive disorder could suffer from hallucinations, and “depression, in some cases, could make a person incompetent.”
A few weeks before Dr. Jones evaluated Tresvant, Dr. Walsh evaluated her and reported that Tresvant “did not endorse or exhibit any symptoms of psychosis, mania, panic or intoxication.” In reviewing the reports of Drs. Walsh and Kania, Dr. Jones was struck by the fact that Tresvant had reported hallucinations to one of those doctors and not to the other. Having reviewed the additional material about Tresvant's mental health, Dr. Jones reflected on cross-examination about how some of Tresvant's claims of auditory and visual hallucinations to him had been “unusual” or “odd” and were not of the kind typically reported by individuals suffering from paranoid schizophrenia. Tresvant's volunteering that the voices “never instructed her to hurt anybody else” also was atypical, but he noted that inmates who express that they might hurt someone else are housed differently in jail.
Given the variation in Tresvant's reports of hallucinations, Dr. Jones found his conclusion that Tresvant experienced hallucinations to be “more questionable.” On the basis of the inconsistent reporting of hallucinations to Drs. Walsh and Kania and to mental health staff at jail, Dr. Jones reported that he had become “doubtful about the schizophrenia conclusion, ” thinking it was “probably not correct.” Dr. Jones opined that Tresvant suffered instead from depression and anxiety. He doubted that Tresvant's responses to him were accurate. On the basis of “all the new information” he had obtained and reviewed, Dr. Jones opined that a “preponderance of the evidence supported” the conclusion that Tresvant was competent to stand trial.
2. Directed Verdict Motion
Following the defense case, the prosecutor orally moved for a directed verdict, arguing that there was not “sufficient evidence to sustain a jury to find, even by a preponderance of the evidence, that the defendant is incompetent.” The court entertained argument from both parties and reserved ruling on the motion until after hearing the prosecution's evidence.
3. Prosecution Evidence
The prosecution called three witnesses: Dr. Walsh and two deputy probation officers who had interacted with Tresvant in juvenile hall. Dr. Walsh opined that Tresvant was competent to stand trial, and Dr. Walsh did not believe that Tresvant suffered from any mental illness, including paranoid schizophrenia. Tresvant did not exhibit “any outward symptoms of mental illness, ” psychosis, panic, or intoxication. Dr. Walsh believed that Tresvant was being voluntarily evasive, a conclusion he did not reach lightly, and that any symptoms of impairment she might have been displaying resulted from “an intentional strategy” and were “not due to mental illness.” Dr. Walsh knew that Tresvant was taking antidepressant medication, which he explained is “relatively common” in jail.
In May 2017, approximately one month after the offenses were committed, Deputy Probation Officer Colin Villiers interviewed Tresvant for the purpose of preparing a juvenile fitness hearing report. Officer Villiers questioned Tresvant about her mental health history, and Tresvant said that she had never had any mental health treatment or counseling or been prescribed any psychotropic medication. She “did not believe she needed counseling.” Tresvant seemed “quite bright, ” “pleasant, attentive, funny, [and] engaging.” Supervising Probation Officer Todd Hough testified in 2017 that while Tresvant was housed at the juvenile hall where he worked, Tresvant was “one of [the] top youth in the unit, ” where she was considered a leader, was “very respectful to staff, ” interacted well with her peers, and did well in school.
4. Directed Verdict on Competency
After hearing the prosecution's evidence, the court concluded that Tresvant had not carried her burden of demonstrating by a preponderance of the evidence that she was incompetent to stand trial. Finding there to be no substantial evidence to support a verdict that Tresvant was incompetent, the court directed the verdict against Tresvant and found her to be competent.
B. Pretrial Mental Health Diversion and Tresvant's Guilty Plea and Sentencing
Sometime after the trial court found Tresvant competent to stand trial, Tresvant filed two motions for pretrial mental health diversion on the ground that she suffers from major depressive disorder. The trial court conducted a hearing on the motions and found that Tresvant did not make a prima facie showing of two of the eligibility requirements for diversion.
The timing of the filings is unclear because they are file-stamped October 30, 2019, and November 20, 2019, but a hearing on the matter was held on February 22, 2019.
Tresvant thereafter pled guilty to five counts of robbery (for five separate victims) and to one count of recklessly evading an officer, and she admitted as true that she personally used a firearm in committing each of the five robbery offenses. (§§ 211, 12022.53, subd. (b), 1192.7, subd. (c)(8); Veh. Code, § 2800.2.) She was sentenced to 14 years in state prison.
C. Convictions of Moses and Fuller
A jury convicted Fuller and Moses of five counts of robbery (one for each victim) and one count of recklessly evading an officer. (§ 211; Veh. Code, § 2800.2.) The jury found true that Moses and Fuller personally used a firearm in committing each of the robbery offenses. (§§ 12022.53, subd. (b), 1192.7, subd. (c)(8).) Before trial, Moses pled guilty to being a prohibited person in possession of a firearm. (§ 29820; count 7.) Fuller and Moses were sentenced to 32 years and four months in state prison. The trial court imposed consecutive sentences for all of the robbery offenses and declined to strike the firearm enhancements.
DISCUSSION
A. Tresvant's Competency to Stand Trial
Tresvant argues that the trial court erred by directing a verdict for the prosecution on her competency to stand trial. She claims that there was substantial evidence from which a jury could have found her incompetent and that she is entitled to a new trial on her competency. We are not persuaded.
“A person shall not be tried or adjudged to punishment... while that person is mentally incompetent.” (§ 1367, subd. (a); People v. Rogers (2006) 39 Cal.4th 826, 846.) “A defendant is mentally incompetent if, as a result of a mental disorder or developmental disability, he or she is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” (People v. Lawley (2002) 27 Cal.4th 102, 131 (Lawley).) “When the accused presents substantial evidence of incompetence, due process requires that the trial court conduct a full competency hearing.” (Ibid.;§ 1368.)
“A defendant is presumed competent unless the contrary is proven by a preponderance of the evidence, ” (Lawley, supra, 27 Cal.4th at p. 131) and the defendant bears the burden of proof (People v. Mendoza (2016) 62 Cal.4th 856, 871). Upon commencement of the competency trial, “counsel for the defendant shall offer evidence in support of the allegation of mental incompetence, ” and the prosecution follows by presenting its case. (§ 1369, subds. (b)(1), (c).)
Even though a competency hearing arises in the context of a criminal trial, the hearing “is a special proceeding, governed generally by the rules applicable to civil proceedings.” (Lawley, supra, 27 Cal.4th at p. 131; People v. Lawson (1918) 178 Cal. 722, 728; see also People v. Conrad (1982) 132 Cal.App.3d 361, 374 (Conrad) [affirming the trial court's entry of judgment notwithstanding the verdict on the defendant's competence]; People v. Mapp (1983) 150 Cal.App.3d 346, 351, 353 (Mapp) [relying on Conrad in affirming directed verdict for the prosecution in a proceeding regarding restoration of sanity].) Code of Civil Procedure section 630 provides that “after all parties have completed the presentation of all of their evidence in a trial by jury, any party may, without waiving his or her right to trial by jury in the event the motion is not granted, move for an order directing entry of a verdict in its favor.” (Code Civ. Proc., § 630, subd. (a).) “In considering whether there was error in granting of the directed verdict, we must view the evidence in the light most favorable to [Tresvant] and indulge in every legitimate inference that may be drawn from the evidence in [her] favor and disregard conflicting evidence to determine whether there was evidence of sufficient substantiality to support a verdict” that she was not competent to stand trial. (Mapp, supra, 150 Cal.App.3d at p. 351.) To be substantial, evidence “must be ‘of ponderable legal significance... reasonable in nature, credible, and of solid value.'” (People v. Johnson (1980) 26 Cal.3d 557, 576 (Johnson).) We independently review a directed verdict. (Guillory v. Hill (2015) 233 Cal.App.4th 240, 249.)
Tresvant's only witness was Dr. Jones, and he concluded that she was competent to stand trial. In arguing that there was substantial evidence from which a jury could have concluded otherwise, Tresvant points to Dr. Jones's initial conclusion that Tresvant was not competent to stand trial, which was based solely on his interview of her. Tresvant argues that the trial court improperly weighed the credibility of witnesses and was required to ignore Dr. Jones's subsequent conclusion that she was competent to stand trial. But this was not a situation in which competing experts reached different conclusions, and the trial court credited one expert opinion while discrediting the other. Instead, the same expert withdrew his prior opinion and concluded that Tresvant was competent to stand trial. Dr. Jones's repudiation of his prior opinion in the written report deprived that opinion of evidentiary value—that is, it was not “‘reasonable in nature, credible, and of solid value.'” (Johnson, supra, 26 Cal.3d at p. 576.) There consequently was no expert evidence that Tresvant was not competent to stand trial. Thus, viewing the evidence in the light most favorable to Tresvant, the record does not contain any evidence, let alone substantial evidence, that she was not competent to stand trial.
Because there was no evidence from which the jury could conclude that Tresvant was not competent to stand trial, we conclude that the trial court did not err by entering a directed verdict against Tresvant on her competency.
B. Pretrial Mental Health Diversion for Tresvant
Tresvant next argues that the trial court erred by concluding that she did not make a prima facie showing of eligibility for pretrial mental health diversion under section 1001.36. We conclude that the trial court did not abuse its discretion.
1. Relevant Proceeding
Attached to Tresvant's second motion for pretrial mental health diversion were the October 26, 2018, competency evaluation from Dr. Jones in which he had concluded she suffered from paranoid schizophrenia, her medical records from jail, various academic transcripts and certificates, and letters from friends and family. A California assemblyman who had known Tresvant her entire life described her as being “a strong leader among her peers in the community.” Someone else with an unspecified connection to Tresvant described her as “a born leader.” Others remarked on her academic prowess, intelligence, and strength.
Sometime after finding Tresvant competent to stand trial, the trial court held a hearing it described as “a prima facie diversion hearing” under section 1001.36 to determine whether Tresvant had made a prima facie showing for pretrial mental health diversion. The trial court assumed for the sake of argument that Tresvant had made a prima facie showing that she suffered from a qualifying mental health disorder (namely, major depressive disorder) and that the disorder was treatable. But the trial court found that Tresvant had failed to make a prima facie showing that she did not pose an unreasonable risk of danger to public safety if treated in the community and that her disorder played a significant role in the commission of the charged offense.
With respect to whether Tresvant's major depressive disorder played a significant role in the commission of the charged offenses, defense counsel made an offer of proof that Dr. Jones would testify that (1) “he wrote in the report that her major depressive disorder influenced her, or somehow the condition allowed her to be manipulated to go into a vehicle where co-defendants were committing this robbery, ” (2) Tresvant suffered from this condition when the robberies were committed, and (3) people suffering from major depressive disorder are followers and not leaders. The court accepted that there existed evidence that Tresvant was depressed after having been in custody for over one year but concluded there was no evidence that she suffered from depression when the crimes were committed. The court explained, “[t]here is no real indication, even from the doctor's reports that I reviewed, that she was suffering from that type of condition based on responses from her family and friends at the time of the incident herself.”
2. Analysis
Section 1001.36 provides that certain criminal defendants suffering from qualifying mental disorders may be eligible for pretrial diversion, which the statute defines as “postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment.” (§ 1001.36, subds. (a)-(c).) For defendants charged with a qualifying crime, a trial court may grant pretrial diversion if all of the following requirements are met: (1) The court is satisfied that the defendant suffers from a qualifying mental disorder; (2) the court is satisfied that the disorder played a significant role in the commission of the charged offense; (3) a qualified mental health expert opines that the defendant's symptoms will respond to mental health treatment; (4) the defendant consents to diversion and waives his or her speedy trial right; (5) the defendant agrees to comply with treatment; and (6) the court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety if treated in the community. (§ 1001.36, subd. (b)(A)-(F); People v. Frahs (2020) 9 Cal.5th 618, 626-627 (Frahs).) “If the defendant makes a prima facie showing that he or she meets all of the threshold eligibility requirements and the defendant and the offense are suitable for diversion, and the trial court is satisfied that the recommended program of mental health treatment will meet the specialized mental health treatment needs of the defendant, then the court may grant pretrial diversion. (§ 1001.36, subds. (a), (b)(3) & (c)(1).)” (Frahs, supra, at p. 627.) “The hearing on the prima facie showing shall be informal and may proceed on offers of proof, reliable hearsay, and argument of counsel. If a prima facie showing is not made, the court may summarily deny the request for diversion or grant any other relief as may be deemed appropriate.” (§ 1001.36, subd. (b)(3).)
Diversion under section 1001.36 is discretionary, not mandatory, even if all of the requirements are met. (§ 1001.36, subd. (a); Frahs, supra, 9 Cal.5th at p. 626.) We therefore review for abuse of discretion the trial court's decision whether to grant a request for mental health diversion. (See People v. Hall (2016) 247 Cal.App.4th 1255, 1264 (Hall).)
Tresvant argues that we do not review for abuse of discretion the trial court's determination of whether a defendant has made a prima facie showing of eligibility, arguing instead that she “need only show the court erred in failing to apply the correct prima facie analysis to her showing of eligibility.” For the two factors on which the trial court based its determination in this case, we do not agree. We review for abuse of discretion the trial court's determination of whether resentencing a petitioner under section 1170.18 “would pose an unreasonable risk of danger to public safety.” (People v. Jefferson (2016) 1 Cal.App.5th 235, 242; Hall, supra, 247 Cal.App.4th at pp. 1263-1264.) Section 1001.36 expressly adopts the definition of “unreasonable risk of danger to public safety” that is provided in section 1170.18. (§ 1001.36, subd. (b)(1)(F).) Tresvant has not provided any reason why a different standard of review should apply to reviewing the trial court's determination of whether a defendant has made a prima facie showing regarding this identical factor in section 1001.36. Likewise, the court's determination of whether the court “is satisfied that the defendant's mental disorder was a significant factor in the commission of the charged offense” (§ 1001.36, subd. (b)(1)(B)) appears to be inherently discretionary—the court must exercise its discretion to determine whether it is “satisfied” that the role of the mental disorder was sufficiently “significant” to qualify. Because the trial court must exercise its discretion in making both of those determinations, we review them for abuse of discretion. (In re White (2020) 9 Cal.5th 455, 469.) At the same time, we recognize that “‘[a]n abuse of discretion is shown when the trial court applies the wrong legal standard'” (Hall, supra, at p. 1264), and we independently review questions of statutory interpretation (People v. Dimacali (2019) 32 Cal.App.5th 822, 827).
Tresvant argues that her offers of proof concerning Dr. Jones's testimony constituted a prima facie showing that her mental health disorder was a “significant factor” in her commission of the offenses. She contends that at the prima facie showing stage the trial court was not allowed to consider anything except her uncontradicted evidence in determining whether she made a prima facie showing. In the context of this case, we do not agree.
In general, a prima facie showing “‘is one that is sufficient to support the position of the party in question.'” (People v. Garcia (2020) 57 Cal.App.5th 100, 110; People v. Law (2020) 48 Cal.App.5th 811, 820.) Prima facie evidence, however, “‘“is that which suffices for the proof of a particular fact, until contradicted and overcome by other evidence. It may, however, be contradicted, and other evidence is always admissible for that purpose.”'” (People v. Nunez (2020) 57 Cal.App.5th 78, 88, review granted Jan. 13, 2021, S265918.)
Nothing in the language of the statute suggests that, in determining whether a defendant has made a “prima facie showing” for eligibility, a trial court is required to consider only the defendant's evidence. The statute does not limit the court's consideration of “offers of proof, reliable hearsay, and argument of counsel” to those presented or made by the defense. (§ 1001.36, subd. (b)(3).) The Legislature knew how to and could have added limiting language to the statute if it desired such a limitation. (People v. Albillar (2010) 51 Cal.4th 47, 57.) We will not read such limiting language into the statutory text. (Pacific Gas & Electric Co. v. Superior Court (2017) 10 Cal.App.5th 563, 571.) In the absence of such an express limitation, we conclude that the trial court is not limited to consideration of evidence, argument by counsel, and offers of proof made by the defendant in determining whether the defendant has made a prima facie showing of eligibility for diversion.
Moreover, in the context of this case, requiring the court to consider only Tresvant's evidence and offers of proof would be particularly absurd, given the evidence that had already been introduced about Tresvant's mental health in the competency proceeding. It would make no sense to require the court to disregard that evidence, find a prima facie case on that basis, set a further hearing on diversion, and then be confronted with the same evidence that the court knew about but deliberately ignored at the prima facie showing stage. Thus, in determining whether Tresvant made a prima facie showing, the trial court properly considered evidence outside of the offers of proof presented by Tresvant. The court did not apply an improper analytical framework.
The trial court did not abuse its discretion by concluding that Tresvant did not make a prima facie showing that major depressive order was a significant factor in her commission of the offenses. First, the offer of proof that Dr. Jones would testify that he wrote in his report that Tresvant's major depressive disorder influenced her or somehow “allowed her to be manipulated to go into a vehicle where co-defendants were committing this robbery” is of negligible value. Dr. Jones's report was submitted in support of Tresvant's motion, and in it he concluded that Tresvant suffered from paranoid schizophrenia and not major depressive disorder, as proffered by defense counsel. Moreover, the paranoid schizophrenia diagnosis (which Dr. Jones retracted at the competency trial, as described ante) was the basis for the report's statement that Tresvant was a “a very dependent and passive person who would be likely to blindly follow the suggestions of her attorney or peers.” The first offer of proof concerning Dr. Jones's testimony thus is conclusively refuted by other evidence Tresvant submitted with her motion.
Second, the remaining offers of proof concerning Dr. Jones's testimony do not address how Tresvant's mental disorder played a role in her commission of the offenses, let alone the significance of that role. Aside from the statements about what Dr. Jones had written in his report, the offers of proof were that Dr. Jones would testify that Tresvant suffered from major depressive disorder when the robberies were committed and that people who suffer from major depressive disorder are followers and not leaders. Evidence that a defendant suffers from a mental disorder that generally tends to make someone a follower and not a leader does not show that the disorder played a significant role (or any role) in that particular defendant's commission of that particular offense. The evidence does not exclude the obvious possibility that leaders can suffer from major depression too, or that a person suffering from major depression who consequently tends to be a follower in some circumstances may also be a leader or coequal participant in others. The offer of proof that Dr. Jones would testify that Tresvant suffers from major depression and that people who suffer from major depression tend to be followers rather than leaders thus does not constitute a prima facie showing that Tresvant's alleged mental disorder played a significant role, or any role at all, in her commission of the offenses. Therefore, even if the trial court were limited to considering Tresvant's offers of proof, the trial court did not abuse its discretion by concluding that Tresvant did not make a prima facie showing that a mental disorder played a significant role in her commission of the offenses.
The evidence introduced at the competency trial further supports our conclusion that the trial court did not abuse its discretion. At the competency trial, there was no evidence that Tresvant was depressed when she committed the offenses. Instead, the evidence showed that she suffered from an unspecified degree of major depressive disorder while incarcerated, which Dr. Walsh explained is common. The probation officers who interacted with Tresvant around the time of her detention (immediately after the robberies were committed) described her as bright, engaged, and a leader. Those impressions were overwhelmingly supported by the reference letters Tresvant submitted, in which numerous people described her as smart and a leader. Moreover, when she was evaluated for a juvenile fitness hearing one month after the offenses were committed, Tresvant told the probation officer that she did not have any mental health history and that she “did not believe she needed counseling.” Given all of that evidence, it was well within the trial court's discretion to determine that there was no prima facie showing that at the time of the charged offenses Tresvant suffered from depression at all, let alone to such a degree that her depression played a significant role or any role in her commission of the offenses.
For all of these reasons, we conclude that the trial court did not abuse its discretion by concluding that Tresvant failed to make a prima facie showing that her mental disorder was not a significant factor in the commission of the offenses. Because a defendant is not statutorily eligible for pretrial mental health diversion unless all of the threshold criteria are met (§ 1001.36, subd. (b)(1)), we need not and do not decide whether the trial court abused its discretion by concluding that Tresvant did not make a prima facie showing that she did not pose an unreasonable risk of danger to public safety.
C. Resentencing for Moses
The abstract of judgment and sentencing minute order for Moses reflect that the trial court imposed two-year concurrent sentences for both count 6 (Veh. Code, § 2800.2) and count 7 (§ 29820). However, as the People correctly point out, the abstract of judgment and minute order do not accurately reflect the oral imposition of sentence, and the oral pronouncement of judgment controls. (People v. Zackery (2007) 147 Cal.App.4th 380, 385.)
At Moses's sentencing, the court stated: “For Count 6, you are sentenced to the midterm of two years in state prison, that term to run concurrent to all other terms for the violation of [section 29820].” Section 29820, however, is the count 7 offense. The trial court did not state that it was imposing any sentence for the Vehicle Code section 2800.2 violation, the proper offense for count 6. It therefore is not clear whether the trial court orally imposed the two year sentence for count 6 or count 7, and whichever count it was, the court failed to impose a sentence for the other. Thus, because the trial court failed to impose a sentence for each of the offenses of which Moses was convicted, Moses's sentence was not authorized. (§ 12 [“The several sections of this code which declare certain crimes to be punishable as therein mentioned, devolve a duty upon the court authorized to pass sentence, to determine and impose the punishment prescribed”]; People v. Lara (1984) 155 Cal.App.3d 570, 574.) We therefore vacate the sentence and remand for resentencing.
On remand, the trial court may reconsider Moses's entire sentence. (People v. Burbine (2003) 106 Cal.App.4th 1250, 1258.) Because Moses's original sentence was unauthorized, it is possible that the trial court may impose a longer aggregate sentence on remand. (People v. Serrato (1973) 9 Cal.3d 753, 764, disapproved on another ground by People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.) Our remand for resentencing eliminates the need for us to consider whether Moses's remaining arguments concerning sentencing succeed in showing prejudicial error. The trial court will have another opportunity to state its reasons for whatever sentence it imposes, and Moses will have the opportunity to raise in the trial court all of the issues he has raised on appeal, including his ability to pay any fines, fees, and assessments.
D. Tresvant's Firearm Enhancement
Tresvant argues that the trial court abused its discretion by failing to strike the 10-year firearm enhancement imposed under section 12022.53, subdivision (b). We are not persuaded.
Section 12022.53, subdivision (b), provides that any person who personally uses a firearm in the commission of a robbery “shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years.” (§ 12022.53, subds. (a)(4), (b).) When Tresvant was sentenced, the trial court had the authority to strike the personal use firearm enhancements “in the interest of justice pursuant to [s]ection 1385.” (§ 12022.53, subd. (h).) In determining whether to strike a firearm enhancement under section 12022.53, subdivision (h), the court must consider the same factors as when sentencing a defendant. (People v. Pearson (2019) 38 Cal.App.5th 112, 117 (Pearson); Cal. Rules of Court, rules 4.428(b) [factors to consider when striking an enhancement under § 1385], 4.410 [general objectives in sentencing], 4.421 [aggravating factors], 4.423 [mitigating factors].)
We review for abuse of discretion the trial court's determination of whether to dismiss or strike a sentencing enhancement under section 1385. (People v. Carmony (2004) 33 Cal.4th 367, 376.) “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”' [Citations.] Second, a ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'”' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at pp. 376-377.)
At Tresvant's sentencing, the court indicated that it had reviewed a preplea report, the People's sentencing memorandum, and extensive documentation submitted by the defense, including character letters. Tresvant argued that the court should strike the firearm enhancement based on numerous alleged mitigating circumstances, including that the robberies were her first offenses and that she had been a “model person prior to being arrested.” In imposing Tresvant's sentence, the trial court expressed sympathy for situations Tresvant had to overcome as a child, and the court was impressed by the amount of community support for Tresvant. And the trial court took into account Tresvant's young age and lack of criminal history. But the court found the brutality of the crimes, in which multiple victims were terrorized, outweighed those factors. The court also was “disturbed” by Tresvant's minimization of her role in the offenses despite her guilty pleas. The court imposed a sentence “to reflect the seriousness of this crime to the community and to the folks involved, to these victims.” The court imposed a 10-year term for the first firearm enhancement and exercised its discretion to strike the remaining four firearm enhancements.
In challenging the trial court's imposition of the 10-year term for the firearm enhancement, Tresvant points to all of the allegedly mitigating circumstances, which she claims warrant striking the enhancement. But she does not argue that the trial court failed to take those circumstances into consideration or that the trial court's finding that those circumstances were outweighed by the brutality of the crimes was irrational or arbitrary. In any event, the trial court considered all of the relevant factors it was required to consider when sentencing a felony defendant (Pearson, supra, 38 Cal.App.5th at p. 117), including Tresvant's age, criminal history, and her role in the crime. Tresvant was identified as one of four armed intruders in a takeover robbery of a retail business with five victims present. The trial court did not abuse its discretion by concluding that the nature of the offenses outweighed mitigating factors and warranted imposing the firearm enhancement.
Tresvant has therefore failed to carry her burden of demonstrating that the trial court abused its discretion by declining to strike the firearm enhancement under sections 12022.53, subdivision (h), and 1385.
E. Lesser Included Firearm Enhancements
Relying on People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison), Fuller and Tresvant argue that the matter must be remanded for resentencing to allow the trial court to consider imposing an uncharged lesser included firearm enhancement under section 12022.5, subdivision (a). Morrison holds that the trial court has the discretion to impose an uncharged lesser enhancement after striking a firearm enhancement under section 12022.53. (Morrison, supra, at p. 220.) Other Courts of Appeal have reached a contrary conclusion, concluding that a court is not authorized to impose an uncharged lesser firearm enhancement. (People v. Tirado (2019) 38 Cal.App.5th 637, 644, review granted Nov. 13, 2019, S257658; People v. Garcia (2020) 46 Cal.App.5th 786, 790-791, review granted June 10, 2020, S261772; see also People v. Delavega (2021) 59 Cal.App.5th 1074, 1094.) The Supreme Court has granted review on this issue and will resolve the conflict. Fuller and Tresvant argue that we should follow Morrison. But this court has already rejected Morrison. (People v. Yanez (2020) 44 Cal.App.5th 452, 458.) Fuller and Tresvant have not provided any basis for this court to depart from our recent precedent, so we decline to do so. (Estate of Sapp (2019) 36 Cal.App.5th 86, 109, fn. 9.)
F. Ability to Pay Hearing for Fuller
At sentencing, the court ordered but suspended a $300 parole revocation fine (§ 1202.45, subds. (b)-(c)) and ordered Fuller to pay a $300 restitution fine (§ 1202.4, subd. (b)), a $514.58 criminal justice administration fee (Gov. Code, § 29550, subd. (c)), $420 in court operations and facilities fees (§ 1465.8, subd. (a)(1); Gov. Code, § 70373, subd. (a)(1)), and up to $1,095 for the cost of the presentence probation report, with the amount to be set by the probation department (§ 1203.1b, subd. (a)).
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which was decided after Fuller was sentenced in November 2018, Fuller argues that imposition of the fines and fees without a determination of his ability to pay violated his due process rights. He also argues that imposition of those fines and fees without an ability to pay hearing violated the Eighth Amendment's prohibition against excessive fines. We conclude that any error with respect to the court operations and facilities fees, the booking fee, and the restitution fine was harmless.
The Supreme Court has granted review in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844 , to decide whether a court is required to “consider a defendant's ability to pay before imposing or executing fines, fees, and assessments.”
The People argue that the restitution fine is punitive in nature and should be analyzed under the Eighth Amendment's excessive fines clause, not the due process clause. They contend that the restitution fine is constitutional under the excessive fines clause. Moreover, they argue that even if a due process analysis applies, the fine survives rational basis review and therefore is constitutional. We need not address those arguments, given our conclusion that any error in imposing the fine was harmless beyond a reasonable doubt.
Dueñas held that defendants have a due process right under the federal and state Constitutions to a hearing on their ability to pay court operations and facilities fees. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) In addition, “to avoid serious constitutional questions” raised by the statutory restitution scheme, the court must stay execution of the mandatory restitution fine unless the court determines that the defendant has the ability to pay it. (Id. at p. 1172.) The same court that decided Dueñas has since clarified that, at the ability to pay hearing, the defendant bears the burden of showing his or her inability to pay, and the court “must consider all relevant factors, ” including “potential prison pay during the period of incarceration to be served by the defendant.” (People v. Castellano (2019) 33 Cal.App.5th 485, 490-491.) This court has held that defendants sentenced before Dueñas who did not raise the issue of ability to pay in the trial court did not thereby forfeit a due process challenge to a minimum restitution fine or to court operations and facilities fees. (People v. Jones (2019) 36 Cal.App.5th 1028, 1030-1035 (Jones).) This same rationale applies to the imposition of a criminal justice administration fee under Government Code section 29550, because the statute mandates imposition of the fee without consideration of a defendant's ability to pay. (Gov. Code, §29550, subd. (c).)
The same rationale does not apply, however, to the cost of the presentence probation report imposed under section 1203.1b. Here, the trial court ordered Fuller to pay the cost of the presentence probation report “in an amount and manner to be determined by the probation department, not to exceed $1,095.” Fuller's counsel did not object. Insofar as Fuller argues that his trial counsel was ineffective for not objecting to the imposition of this cost, we are not persuaded. The trial court's order complied with the procedure set forth in section 1203.1b, subdivision (a), which requires the court to “order the defendant to appear before the probation officer... to make an inquiry into the ability of the defendant to pay all or a portion of” the costs of the presentence probation report. The probation officer then “shall determine the amount of payment and the manner in which the payments shall be made to the county, based upon the defendant's ability to pay.” (§ 1203.1b, subd. (a), italics added.) The probation officer must “inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant's ability to pay and the payment amount.” (§ 1203.1b, subd. (a).) Nothing in the record indicates what amount was set by the probation department, if any has been set yet, for the cost of the report. Nor does the record indicate that the probation department failed to consider Fuller's ability to pay, or that Fuller's counsel failed to raise the issue before the probation department. On this record, there is no basis for us to conclude that Fuller's counsel's representation fell below an objective standard of reasonableness or that any such deficient performance was prejudicial. (People v. Sepulveda (2020) 47 Cal.App.5th 291, 302.)
Should Fuller's circumstances change, he may seek to modify or vacate the order requiring him to pay the cost of the presentence probation report. (§ 1203.1b, subd. (f).)
In addition, as to the suspended parole revocation fine, the trial court was required to set the amount of the parole revocation fine at the same amount as the restitution fine. (§ 1202.45, subd. (b).) But the fine was suspended, and it will not be reinstated unless and until Fuller is paroled and his parole is revoked. Any prejudice therefore is too speculative.
With respect to the court operations and facilities fees, the booking fee, and the restitution fine, we conclude that any error in imposing those fees without an ability to pay hearing was harmless beyond a reasonable doubt. (Jones, supra, 36 Cal.App.5th at p. 1035.) “Ability to pay does not necessarily require existing employment or cash on hand” (People v. Staley (1992) 10 Cal.App.4th 782, 785), and “every able-bodied” prisoner must work while imprisoned. (§ 2700.) Wages in prison range from $12 to $56 per month, depending on the job and skill level involved. (Cal. Code Regs., tit. 15, § 3041.2, subd. (a)(1); see also Cal. Code Regs., tit. 15, § 3040, subd. (k) [“An inmate's assignment to a paid position is a privilege dependent on available funding, job performance, seniority and conduct”]; People v. Cervantes (2020) 46 Cal.App.5th 213, 229 (Cervantes) [recognizing that an inmate's assignment to a paid position is a privilege].)
According to his probation report, Fuller was 18 years old when he was sentenced, did not have a previous employment history, and was in good physical and mental health without any physical limitations. Fuller will owe approximately $1235 in fees and fines (as to which his challenges are not forfeited). Assuming that Fuller earns the minimum monthly wage in prison ($12) and does not have any money added to his trust accounts, he will pay off that total amount in approximately 102 months or eight and one-half years. His sentence far exceeds this amount of time. We therefore conclude that the failure to conduct an ability to pay hearing for those fees and fines was harmless beyond a reasonable doubt.
G. Presentence Incarceration Cost
Section 1203.1c provides that a court may order a defendant to pay the cost of incarceration pending disposition of the case if the “defendant is convicted of an offense and is ordered to serve a period of confinement in a county jail, city jail, or other local detention facility as a term of probation or a conditional sentence.” (§ 1203.1c, subd. (a).) Fuller was sentenced to state prison and ordered to pay $1,500 in presentence incarceration costs pursuant to section 1203.1c. As the People correctly agree, the trial court was not authorized to order Fuller to pay for the cost of presentence incarceration, because he was not ordered to serve a period of confinement in jail as a term of probation or conditional sentence, which section 1203.1c requires for such an order. (Cervantes, supra, 46 Cal.App.5th at p. 228.) We consequently strike the presentence incarceration costs for Fuller.
H. Custody Credit
A criminal defendant is entitled to actual custody credit for “all days of custody” spent in jail before sentencing (§ 2900.5, subd. (a)), “including partial days” (People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48). “Calculation of custody credit begins on the day of arrest and continues through the day of sentencing.” (Ibid.; People v. Bravo (1990) 219 Cal.App.3d 729, 735.) Fuller was awarded 577 days of actual custody credit, but he was entitled to 578 days of actual custody credit between his arrest date on April 18, 2017, and the date of his sentencing on November 16, 2018. The abstract of judgment and sentencing minute order for Fuller should be corrected to reflect 578 days of actual custody credit.
DISPOSITION
Moses's sentence is vacated, and the matter is remanded for resentencing. The trial court is directed to amend Fuller's abstract of judgment and sentencing minute order to reflect the striking of the presentence incarceration cost of $1,500 and to reflect that he received 578 days of actual custody credit. The trial court is directed to forward certified copies of the amended abstracts of judgment for Fuller and Moses (after resentencing for Moses), a copy of the corrected sentencing minute order for Fuller, and a copy of the resentencing minute order for Moses to the California Department of Corrections and Rehabilitation. In all other respects, the judgments are affirmed.
We concur: RAMIREZ P. J. McKINSTER J.