Opinion
B286431
02-06-2020
THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. JOSEFINA PEDROZA et al., Defendants and Appellants.
Cynthia Grimm, under appointment by the Court of Appeal, for Defendant and Appellant Ashley Pineda. James E. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Josefina Brisset Pedroza. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Zee Rodriguez and Paul S. Thies, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. GA099581) APPEAL from judgments of the Superior Court of Los Angeles County, Michael Villalobos, Judge. Affirmed; remanded with directions. Cynthia Grimm, under appointment by the Court of Appeal, for Defendant and Appellant Ashley Pineda. James E. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Josefina Brisset Pedroza. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Zee Rodriguez and Paul S. Thies, Deputy Attorneys General, for Plaintiff and Respondent.
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Ashley Pineda and Josefina Pedroza appeal from judgments of conviction for second-degree robbery. Pedroza filed an opening brief raising no issues and asking this court to review the record independently. Pineda contends no substantial evidence supports findings that force was used or that she intended to aid and abet the robbery; the prosecutor committed misconduct; the trial court made several instructional errors, improperly denied her motion to dismiss a prior strike, and took a uniformed plea; and the matter must be remanded for resentencing. We affirm but remand for resentencing.
Factual Background
On the evening of September 2, 2016, Pineda and Julver Abram waited outside a convenience store when Pedroza, who was heavily intoxicated, walked out with a stolen case of beer. Roy Amaya, the store clerk, followed and retrieved the beer, but as he walked back to the store Pineda, who was also intoxicated, began punching him in the back, face, and arm, scratching him, pulling at his shirt, and trying to take the beer from him. Amaya reentered the store despite the women's efforts, and placed the beer on the counter.
Pineda and Pedroza followed Amaya into the store and resumed striking him and trying to take the beer, but he again fended them off. Pedroza started a third "fight" with Amaya, during which she hit him, then grabbed a nearby kitchen knife and lunged at him with it. Amaya disarmed her and held her for police.
During Amaya's third scuffle with Pedroza, Pineda took a bottle of champagne and left the store.
The Los Angeles County District Attorney charged Pineda, Pedroza and Abram with one count of second-degree robbery for having stolen "personal property by force and/or fear" (Pen. Code, § 212.5, subd. (c)), and alleged Pineda had suffered one prior serious felony conviction (§ 667, subd. (a)(1)) and one prior strike conviction (§§ 667, subds. (b)-(j), 1170.12, subd. (b)).
Further statutory references are to the Penal Code unless otherwise indicated.
Pedroza and Pineda were convicted by a jury, Pineda as an aider and abettor of Pedroza. Abram was acquitted. Pedroza was sentenced to the mid-term of three years, plus one year for having personally used a deadly weapon, with 633 days of custody credit. She was ordered to pay a conviction assessment fee of $30 (Gov. Code, § 70373), a court operations assessment of $40 (§ 1465.8), a restitution fine of $300 (§ 1202.4, subd. (m)), and a $300 fine that was suspended pending successful completion of probation (§ 1202.44). The court suspended imposition of sentence and ordered her to serve five years probation and complete a drug rehabilitation program.
Pineda was sentenced to nine years in state prison, comprising the low term of two years, doubled due to her prior strike, plus five years due to her prior serious felony conviction. (§§ 213, subd. (a)(2), 667, subd. (a)(1), 667, subd. (e)(1).) She was also ordered to pay a $30 criminal conviction assessment fee, a $40 court operations assessment fee, a $300 restitution fine (§ 1202.4, subd. (b)), and a $300 parole or post-release community supervision revocation fee, stayed upon the successful completion of parole or supervision (§ 1202.45).
Defendants timely appealed.
DISCUSSION
I. Pedroza's Appeal
We appointed counsel to represent Pedroza on appeal. After examination of the record, appointed counsel filed an opening brief raising no issues and asking this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436, 441-442.) On December 24, 2018, we sent letters to Pedroza and appointed counsel, directing counsel to immediately forward the appellate record to Pedroza and advising her that within 30 days she could personally submit any contentions or issues that he wished us to consider. She has not responded. We have examined the entire record and find no arguable issue exists, and are therefore satisfied Pedroza's attorney complied with his responsibilities. (Id. at p. 441.)
II. Pineda's Appeal
A. Sufficient Evidence Supported Pineda's Conviction, and No Claim-of-Right or Mistake-of-Fact Instruction Was Appropriate
Pineda contends insufficient evidence supported her conviction because no evidence indicated she knew Pedroza planned to steal the beer and intended to assist her in doing so. We disagree.
"Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211; People v. Morales (1975) 49 Cal.App.3d 134, 139.) A person who aids and abets the commission of a crime is a principal in the crime and shares the guilt of the actual perpetrator. (§ 31.) A person aids and abets the commission of a crime when she, with knowledge of the unlawful purpose of the perpetrator, and with the intent or purpose of committing, facilitating, or encouraging commission of the crime, by act or advice aids, promotes, encourages or instigates the commission of the crime. (People v. Prettyman (1996) 14 Cal.4th 248, 259.) Because there is rarely direct evidence of intent, specific intent must usually be shown from the circumstances of the crime. (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946.)
In reviewing a claim of insufficient evidence, we evaluate whether the record, viewed in the light most favorable to the judgment, discloses evidence of reasonable, credible, and solid value from which a rational fact finder could find the defendant guilty beyond a reasonable doubt. (People v. Snow (2003) 30 Cal.4th 43, 66.) We presume the existence of every fact in support of the judgment that the trier of fact could reasonably deduce from the evidence. (People v. Thompson (2010) 49 Cal.4th 79, 113.)
Here, Pineda attempted to retrieve beer from Amaya that Pedroza had stolen, striking him in the back, face, and arm in the process. After he returned to the store she followed, and continued to strike and try to take the beer. These actions show Pineda intended to help Pedroza steal the beer. Accordingly, we conclude the evidence was sufficient to support the conviction.
Pineda argues no evidence suggests she knew Pedroza had stolen the beer, as she was standing outside when the theft occurred. We disagree. When a store clerk follows a customer outside to retrieve store property, it is reasonable to infer the customer failed to pay. The evidence entitled the jury to draw this reasonable inference, and thus supported the finding of Pineda's knowledge and intent.
Pineda argues the evidence establishes she formed no culpable intent before or during the course of the robbery, as she did not intervene until after Amaya had retrieved the beer and thus ended the robbery. We disagree.
"The taking element of robbery itself has two necessary elements, gaining possession of the victim's property and asporting or carrying away the loot. [Citation.] Thus, in determining the duration of a robbery's commission we must necessarily focus on the duration of the final element of the robbery, asportation. [¶] Although, for purposes of establishing guilt, the asportation requirement is initially satisfied by evidence of slight movement [citation], asportation is not confined to a fixed point in time. The asportation continues thereafter as long as the loot is being carried away to a place of temporary safety." (People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. omitted.) Therefore, to fulfill the requirements for aiding and abetting culpability, the aider "must form the intent to facilitate or encourage commission of the robbery prior to or during the carrying away of the loot to a place of temporary safety." (Ibid.)
Here, the loot did not reach a temporary place of safety, and the robbery did not end, until Amaya had Pedroza restrained, which did not occur until after Pineda attacked him twice. She therefore formed the intent to aid Pedroza during the course of the robbery, if not before.
In a related note, Pineda contends her attorney rendered ineffective assistance by failing to request a claim-of-right or mistake-of-fact instruction, given that the evidence supported a reasonable inference that Pineda believed Pedroza had paid for the beer. We disagree.
"The claim-of-right defense provides that a defendant's good faith belief, even if mistakenly held, that he has a right or claim to property he takes from another negates the felonious intent necessary for conviction of theft or robbery." (People v. Tufunga (1999) 21 Cal.4th 935, 938.) "[A] trial court is not required to instruct on a claim-of-right defense unless there is evidence to support an inference that appellant acted with a subjective belief he or she had a lawful claim on the property." (People v. Romo (1990) 220 Cal.App.3d 514, 519.)
Here, no evidence suggests, and Pineda did not claim at trial, that Pineda acted with the subjective belief that Pedroza had a lawful claim to the beer. The only possible suggestion of such a right was that Pedroza had the beer in her possession as she walked out of the store. But as stated above, Amaya's following Pedroza out and retaking the beer conclusively negated the suggestion. We will strengthen our statement above—that it was reasonable for Pineda to infer Pedroza had failed to pay—and say that was the only reasonable inference. Certainly, no evidence suggests the contrary inference, that Pineda thought Pedroza had paid. Thus, no claim-of-right instruction was appropriate, and Pineda's counsel was not ineffective for failing to request one.
B. No Lesser-Included Instruction or Pinpoint "Force" Instruction was Appropriate
Pineda contends the trial court erred by failing to instruct the jury on lesser theft offenses because insufficient evidence showed that she used enough force to effect a robbery. We disagree.
A trial court must instruct on general principles of law relevant to the issues raised in a criminal case. (People v. Koontz (2002) 27 Cal.4th 1041, 1085.) This includes an obligation to instruct on lesser included offenses when substantial evidence raises a question as to whether all elements of the charged offense are present. (People v. Breverman (1998) 19 Cal.4th 142, 154.)
" 'Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.' " (People v. Breverman, supra, 19 Cal.4th at p. 154, fn. 5.) A trial court errs if it fails to instruct "on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support." (Id. at p. 162.) The "existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude" ' that the lesser offense, but not the greater, was committed." (Ibid.)
"We review de novo a trial court's failure to instruct on a lesser included offense," viewing the evidence "in the light most favorable to the defendant." (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.)
Pineda contends instructions on lesser-included theft offenses were required because there was insufficient evidence that she used enough force against Amaya to complete a robbery. The point is irrelevant, as Pineda was convicted as an aider and abettor, i.e., not based on the amount of force she used. Had Pineda used no force at all she would still not have been entitled to a lesser included instruction.
On a related note, Pineda argues the trial court should have given a pinpoint instruction defining "force" for purposes of robbery, because the jury could reasonably have concluded no force was used in the robbery itself: She obtained the beer simply by taking it off the shelf, and did not start to use force until Amaya had already retrieved it, i.e., after the robbery was complete. We disagree.
First, when a commonly understood term has no technical meaning peculiar to the law, an instruction as to its meaning is not required. (People v. Anderson (1966) 64 Cal.2d 633, 639.) "The terms 'force' and 'fear' as used in the definition of the crime of robbery have no technical meaning peculiar to the law and must be presumed to be within the understanding of jurors." (Id. at p. 640.) Second, Pedroza used force to effect the robbery. That she did not begin to do so until the beer was in Amaya's possession, and was ultimately unable to retain the beer, is irrelevant. As we said above, the loot reached no temporary place of safety, and the robbery did not end, until Amaya had Pedroza restrained.
C. No Unanimity Instruction was Necessary
During closing argument the prosecutor told the jury there were three robberies—outside the store involving beer, inside as to the beer, and again inside as to the bottle of champagne taken by Pineda—during a "continuing robbery."
Pineda argues the trial court prejudicially erred by failing sua sponte to give a unanimity instruction such as CALCRIM No. 3500, as the jury might have convicted her of the champagne robbery, which ostensibly succeeded, but not the beer robberies, which to a layperson could be seen to have failed. We disagree.
In People v. Russo (2001) 25 Cal.4th 1124, our Supreme Court said, "In a criminal case, a jury verdict must be unanimous. [Citations.] . . . Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.] [¶] This requirement of unanimity as to the criminal act 'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.' [Citation.] For example, in People v. Diedrich [(1982)] 31 Cal.3d 263, the defendant was convicted of a single count of bribery, but the evidence showed two discrete bribes. We found the absence of a unanimity instruction reversible error because without it, some of the jurors may have believed the defendant guilty of one of the acts of bribery while other jurors believed him guilty of the other, resulting in no unanimous verdict that he was guilty of any specific bribe. [Citation.] 'The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.' " (Id. at p. 1132.)
But a unanimity instruction is not required in all cases where the evidence shows that more than one act could suffice for a conviction of a particular offense. " ' "A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged." [Citations.] "Where the acts were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place, the instruction is not necessary to the jury's understanding of the case." ' " (People v. Champion (1995) 9 Cal.4th 879, 932 [court did not err in refusing unanimity instruction on single charge of rape supported by two acts of penetration when the evidence supporting the acts was "virtually identical" and theory of defense was that defendant had not participated in any of the acts].) "[T]he possibility of disagreement exists where the defendant is accused of a number of unrelated incidents, such as alleged rapes at different times or places, leaving the jurors free to believe different parts of the testimony and yet convict the defendant. [Citations.] Disagreement may also exist where the defendant offers a defense which could be accepted or rejected as to some but not all of the acts. In this situation, the jurors again may disagree as to which act the defendant was guilty of and yet convict him. [Citations.] [¶] If under the evidence presented such disagreement is not reasonably possible, the instruction is unnecessary." (People v. Gonzalez (1983) 141 Cal.App.3d 786, 791-792, fns. omitted [failure to give CALJIC No. 17.01 not error when record showed that two acts of penetration involved the same victim, occurred at the same location within minutes of each other, and the defense argument that victim had consented to one of the rapes was not supported by the evidence]; see People v. Mota (1981) 115 Cal.App.3d 227, 233 [prosecutor not required to elect three specific acts supporting the three rape charges when victim testified to "many continuous acts of forced sexual intercourse"]; but see People v. Madden (1981) 116 Cal.App.3d 212, 218-219 [prejudicial error for court to fail to give unanimity instruction when number of sex acts exceeded number of sex offenses charged and the record did not demonstrate that the jury had unanimously agreed on the acts].)
Similarly, "the unanimity instruction is not required when the acts alleged are so closely connected as to form part of one transaction. [Citations.] The 'continuous conduct' rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them." (People v. Stankewitz (1990) 51 Cal.3d 72, 100.)
Here, no unanimity instruction was required because there was only one continuous robbery transaction, the theft of alcohol from Amaya through use of force. That two different types of alcohol were taken does not mean two robberies were committed.
D. There was No Prejudicial Prosecutorial Misconduct
Pineda contends the prosecutor misstated the law in several respects during argument and improperly appealed to the jury's emotions. We disagree.
" 'Improper remarks by a prosecutor can " 'so infect [] the trial with unfairness as to make the resulting conviction a denial of due process.' " ' " (People v. Carter (2005) 36 Cal.4th 1114, 1204.) "[A] prosecutor who uses deceptive or reprehensible methods to persuade either the court or the jury has committed misconduct, even if such action does not render the trial fundamentally unfair." (Ibid.)
Pineda argues the prosecutor misstated the law when she told the jury during closing argument that it was irrelevant whether Pedroza's use of force was used to retain the beer rather than remove it from the store in the first place. This correctly stated the law. (People v. Flynn (2000) 77 Cal.App.4th 766, 771-772 ["the requisite force or fear need not occur at the time of the initial taking"].)
Pineda argues the prosecutor misstated the law when she told the jury that "[t]heft, plus force equals robbery and aider and abettor," leaving out the intent element for aider and abettor liability. Pineda neglects to quote the prosecutor's entire statement, which included the following: "How about those people who didn't actually commit the theft? How do we make them—how do we find them guilty? Well, we find them guilty if the intent of those people who aided and abetted were formed; that's what this instruction says; that the aider and abettors must have formed the intent to aid and abet the commission of the robbery before or while a perpetrator, the person, who actually committed the theft carried away the property to a place of temporary safety." (Italics added.)
Pineda argues the prosecutor misstated the law when she told the jury that aider and abettor intent may be formed any time before stolen property reaches a place of temporary safety, and that the aider and abettor is equally as guilty as the principle actor. These were correct statements. (People v. Cooper, supra, 53 Cal.3d at pp. 1165, 1169-1170 [a defendant can act as an aider and abettor during the commission of the robbery "so long as the loot is being carried away to a place of temporary safety"]; § 31; People v. Lopez (2011) 198 Cal.App.4th 1106, 1118, disapproved of on another ground in People v. Banks (2015) 61 Cal.4th 788 [principal and aider and abettor equally guilty].)
Pineda assigns several more instances of prosecutorial error to equally correct statements. They bear no further discussion.
Pineda argues that the prosecutor "improperly inflamed the jurors' passion and prejudice" when she told them to "think about Roy Amaya that night. He was simply doing his job that night," and "the time where all the excuses end is now. Hold them responsible and find them guilty."
Although the prosecutor "may vigorously argue his case and is not limited to 'Chesterfieldian politeness' " [citation], excessive appeals to the sympathy or passions of the jury are inappropriate at the guilt phase of a criminal trial, such as directing the jury to view the crime through the eyes of the victim. (People v. Fields (1983) 35 Cal.3d 329, 363.) Here, the prosecutor's one indulgence was arguably improper, but beyond a reasonable doubt it had no power to excite the jury's sympathy or passions.
E. Pineda Knowingly Admitted her Prior Conviction
At sentencing Pineda admitted she had suffered a prior conviction. She now argues her admission was invalid because the trial court failed to advise her of her right to confront witnesses and remain silent. We disagree.
A defendant has a statutory right to a jury trial on the factual issues raised by a denial of a prior conviction allegation. (People v. Vera (1997) 15 Cal.4th 269, 274.) The defendant may waive the right to a jury trial and have the court determine the truth of the allegation, or admit the prior conviction (§ 1158), but can do so only knowingly and voluntarily. The record must therefore affirmatively show that the defendant had a "full understanding of what the plea connotes and of its consequence." (Boykin v. Alabama (1969) 395 U.S. 238, 244.) Accordingly, before accepting a defendant's admission of a prior conviction the trial court must advise the defendant of the right against compulsory self-incrimination, the right to confrontation, and the right to a jury trial. (Id. at p. 243; In re Tahl (1969) 1 Cal.3d 122, 132.) These are called Boykin-Tahl rights. When the court fails to do so, we review the entire record, together with evidence of the defendant's experience in the criminal justice system, to determine whether the defendant's admission nevertheless constituted a knowing and voluntary waiver of his Boykin-Tahl rights. (People v. Mosby (2004) 33 Cal.4th 353, 360-361.)
Here, the totality of the circumstances shows that Pineda knowingly and voluntarily waived her rights. She had been previously convicted of a crime to which she had pleaded no contest, thus waiving her right to a trial following Boykin-Tahl advisements. And she had just undergone a trial, represented by counsel, at which she did not testify. Thus, she not only would have known of, but had just exercised, her right to remain silent at trial, forcing the prosecution to prove she had robbed Amaya. And because she had, through counsel, confronted witnesses at that immediately concluded trial, she would have understood that at a trial she had the right of confrontation. Pineda therefore understood what waiving her trial rights entailed, having previously done so. Thus, the totality of the circumstances show that she understood what her Boykin-Tahl advisements were and she knowingly and voluntarily waived them. (See People v. Mosby, supra, 33 Cal.4th at pp. 364-365 [presenting similar facts].)
F. Pineda's Romero Motion was Properly Denied
Appellant contends the trial court abused its discretion in denying her motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to dismiss her prior strike for robbery. We disagree.
A prior strike may be dismissed under section 1385 "in furtherance of justice." (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 530-531.) In determining whether to dismiss a strike, "the court in question must consider whether, in light of the nature and circumstances of [her] present felonies and prior serious and/or violent felony convictions, and the particulars of [her] background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though [she] had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
Our review is for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374-375.)
Here, Pineda argued to the trial court that she was heavily intoxicated during the robbery, but had begun addressing her alcohol abuse problem. Although it acknowledged that intoxication diminishes one's capacity to form specific intent, the court found that Pineda's recent criminal history outweighed her candidacy for substance abuse programs. It said, "In 2011, she was convicted of the robbery. The facts and circumstances of the robbery again she was kind of like an aider and abettor in that the companion was armed with a firearm, but the defendant, according to the probation report, indicates that she was the one that actually grabbed the necklace from the victim while the companion had the firearm. So that was in 2011. It's not that old. She had completed her sentence. She was no longer on parole at the time—or probation at the time of the current offense, but it was fairly recent. And she got a huge break on that case in that she was granted probation. And I just feel that it's too much to ask to again ask for striking of a prior or probation or anything like that even though I think she would benefit from services that relate to treatment of her alcohol problem. So in any event, for those reasons, the court will deny the striking of the prior serious felony conviction. The Romero motion is denied."
Thus, as People v. Williams requires, the court considered the nature of the instant and prior offenses and the particulars of Pineda's background, character, and prospects before deeming her within the three strikes scheme's spirit. Nothing more was required.
G. Remand Pursuant to Senate Bill No. 1393 is Warranted
Pineda argues in a supplemental brief that Senate Bill No. 1393 requires her case to be remanded to permit the trial court to consider whether to dismiss her section 667, subdivision (a)(1), prior serious felony enhancement. We agree.
In determining Pineda's sentence, the trial court applied a section 667, subdivision (a)(1), prior serious felony enhancement, which added five years to her prison term.
On September 30, 2018, before Pineda had exhausted her opportunities to challenge the trial court's judgment in reviewing courts, the Legislature amended section 1385 to remove a provision preventing a judge from striking prior serious felony convictions for purposes of sentence enhancement under section 667, subdivision (a)(1). (Stats. 2018, ch. 1013, § 1 (Sen. Bill No. 1393), effective Jan. 1, 2019; see former §§ 667, subd. (a)(1), 1385, subd. (b) ["This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667"].) A judge now has discretion to do so.
Where a trial court is unaware that it has the discretion to reduce a defendant's sentence, "[r]emand is required unless the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so." (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110; see People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [remand unnecessary where "the trial court indicated that it would not, in any event, have exercised its discretion to lessen the sentence"].)
Most of the published cases considering whether remand is appropriate to allow the trial court to exercise its previously-lacking discretion in the first instance have concluded that remand is appropriate. (People v. Johnson (2019) 32 Cal.App.5th 26, 69 [Sen. Bills Nos. 1393 & 620]; People v. Garcia (2018) 28 Cal.App.5th 961, 973 [Sen. Bill No. 1393]; People v. Almanza, supra, 24 Cal.App.5th 1109-1111 [Sen. Bill No. 620 applying to firearm enhancement]; People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081-1082 [Sen. Bill No. 620]; People v. McDaniels (2018) 22 Cal.App.5th 420, 427-428 [Sen. Bill No. 620].)
However, in People v. McVey (2018) 24 Cal.App.5th 405 (McVey), the Court of Appeal found that remand "would serve no purpose but to squander scarce judicial resources." (Id. at p. 419.) There, the defendant shot a homeless man multiple times, killing the victim, and received an aggregate sentence of 16 years 8 months. (Id. at pp. 409-410.) In imposing a 10-year term for a firearm enhancement, the trial court described the defendant's attitude as "pretty haunting," and stated, "[T]his is as aggravated as personal use of a firearm gets," and "the high term of 10 years on the enhancement is the only appropriate sentence on the enhancement." (Id. at p. 419.)
In People v. Jones (2019) 32 Cal.App.5th 267 (Jones), the defendant, who had violently attacked a bar employee with a knife over his dissatisfaction with how a drink had been mixed, was convicted of attempted premeditated murder, assault with a deadly weapon and assault likely to produce great bodily injury. (Id. at pp. 269-270.) The defendant committed the crimes only months after having been released from prison after serving a 10-year sentence for stabbing his ex-wife multiple times with a knife. (Id. at pp. 273-274.) At sentencing, the trial court noted that although the defendant displayed "genial conduct" during court proceedings, his actions displayed a "temper" that was "oftentimes triggered by drinking," along with "a [penchant] to use knives, apparently." The court stated that the defendant had "earned the sentence" imposed, and it gave the court "great satisfaction in imposing the very lengthy sentence." (Id. at p. 274.) In holding that remand for resentencing in light of Senate Bill No. 1393 was unwarranted, the appellate court stated that the "defendant's actions were premeditated, dangerous, senseless and absurd, [and] he attempted to kill [the victim] only a few months after being released from prison where he had been for 10 years." (Id. at p. 275.) The court further noted that "[b]esides not exercising its discretion for leniency when it could have, the trial court made clear its intention to impose the most stringent sentence it could justifiably impose." (Id. at pp. 274-275.)
Here, although the trial court rejected Pineda's request to strike her prior serious felony conviction under Romero, it imposed only the low term of two years and made no pointed comments such as those made in McVey and Jones. In denying her motion the court remarked only that Pineda had received "a huge break [in her prior] case in that she was granted probation," and while the court felt she "would benefit from services that relate to treatment of her alcohol problem," it was just "too much to ask to again ask for striking of a prior or probation or anything like that."
Neither these statements nor denial of Pineda's Romero motion itself give a "clear indication" that the trial court would have similarly refused to reduce Pineda's sentence by striking her prior conviction for purposes of removing the five-year enhancement, "even if at the time of sentencing it had the discretion to do so." (People v. Almanza, supra, 24 Cal.App.5th at p. 1110.) Remand is therefore appropriate so that the trial court may exercise its discretion in the first instance in light of the amendments to section 1385.
H. Court-Imposed Assessments and Fines Did Not Violate Due Process
The trial court imposed several fines and fees without a hearing to determine Pineda's ability to pay them. In a second supplemental brief Pineda argues that imposition of the fines and fees was unconstitutional absent such a hearing pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168 (Dueñas). We disagree.
The defendant in Dueñas had cerebral palsy, was homeless and unemployed, and had two children. She began accruing various fines as a teenager for driving without a license, which she never could pay. Upon her fourth misdemeanor conviction Ms. Dueñas was placed on probation, and at her request the court held a hearing on her ability to pay a $150 restitution fine (the minimum amount required under § 1202.4, subd. (b)(1)), court operations and criminal conviction assessments (§ 1465.8; Gov. Code, § 70373), and attorney fees. (Dueñas, supra, 30 Cal.App.5th at pp. 1161-1162.) Because it was undisputed she lacked the ability to pay, the court waived the attorney fees but determined the assessments were statutorily required, and felt it was prohibited from considering her inability to pay the restitution fine. (Id. at p. 1163.)
Our colleagues in Division Seven of this District reversed, holding that due process precludes a court from imposing court facilities and operations assessments, and requires the trial court to stay execution of any restitution fines, absent a finding that the defendant "has the present ability to pay" them. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) Very recently our colleagues in Division Two disagreed with Dueñas, holding that due process precludes a court from imposing fines and assessments only if to do so would deny the defendant access to the courts or result in the defendant's incarceration. (People v. Hicks (2019) 40 Cal.App.5th 320, 329 (Hicks).) We find Hicks to be the better reasoned decision. (See People v. Caceres (2019) 39 Cal.App.5th 917 [declining to apply Dueñas's "broad holding" beyond its "unique facts"].)
"To reach its holding, Dueñas wove together two distinct strands of due process precedent. [¶] The first strand secures a due process-based right of access to the courts . . . [citation] . . . requir[ing] courts to waive court costs and fees that would otherwise preclude criminal and civil litigants from prosecuting or defending lawsuits or from having an appellate court review the propriety of any judgment. [Citations.] [¶] The second strand erects a due process-based bar to incarceration based on the failure to pay criminal penalties when that failure is due to a criminal defendant's indigence rather than contumaciousness." (Hicks, supra, 40 Cal.App.5th at p. 325.)
But "[t]he first strand does not dictate Dueñas's bar on imposing fees because the imposition of assessments, fines and fees does not deny a criminal defendant access to the courts. [Citations.] The cases requiring the removal of financial bars to access are keyed to ensuring that the litigant has a full and fair opportunity to present the merits of his or her claims at trial and on appeal. [Citations.] In this regard, access is part and parcel of the 'opportunity to be heard' that the constitutional right of due process is meant to secure." (Hicks, supra, 40 Cal.App.5th at p. 326.) Dueñas's second strand also does not dictate its "bar on imposing fees because their imposition, without more, does not result in incarceration for nonpayment due to indigence." (Ibid.) "The cases prohibiting incarceration for indigence alone rest on the notion that '[f]reedom from imprisonment . . . lies at the heart of the liberty that [the Due Process] Clause protects.' [Citation.] The act of imposing an assessment, fine or fee upon a criminal defendant at the time of sentencing does not mandate instant incarceration and thus does not infringe that very fundamental liberty interest." (Ibid.)
On the contrary, "[o]ur Supreme Court in [In re Antazo (1970) 3 Cal.3d 100] expressly declined to 'hold that the imposition upon an indigent offender of a fine [or] penalty assessment, either as a sentence or as a condition of probation, constitutes of necessity in all instances a violation of the equal protection clause.' [Citation.] Antazo refused to prohibit the imposition of fines and assessments upon indigent defendants for good reason, which the United States Supreme Court explained best: 'The State . . . has a fundamental interest in appropriately punishing persons—rich and poor—who violate its criminal laws,' such that '[a] defendant's poverty in no way immunizes him from punishment.' [Citation.] To confer such an immunity, that Court has said, 'would amount to inverse discrimination [because] it would enable an indigent [defendant] to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other . . .' [citation]. By adopting an across-the-board prohibition on the very imposition of assessments and fines on indigent defendants, Dueñas prohibits a practice that Antazo sanctioned (albeit under a different constitutional provision). What is more, Dueñas mandates the very type of 'inverse discrimination' condemned by the Court . . . ." (Hicks, supra, 40 Cal.App.5th at p. 327.)
Further, "Dueñas is inconsistent with the purposes and operation of probation. The chief purpose of probation is to ' "rehabilitat[e]" ' and 'reintegrat[e] . . . [a] [defendant] into the community.' [Citations.] One way to achieve this purpose is to require the defendant-probationer to make an effort to repay his debt to society. This is why our Legislature has specifically empowered trial courts to 'require[,] as a condition of probation[,] that [a] probationer go to work and earn money' in order 'to pay any fine imposed or reparation condition.' [Citation.] And it is why the constitutional prohibition against incarcerating a defendant for the inability to pay criminal penalties due solely to his indigence does not prohibit 'revoking probation and using imprisonment as an appropriate penalty' when a probationer has 'fail[ed] to make sufficient bona fide efforts to seek employment or borrow money in order to pay the fine or restitution.' [Citation.] Dueñas impedes the purpose of probation because it prohibits the imposition of any assessment, fines or fees at the outset of the probationary period and thus relieves the indigent probationer of any duty to make any effort to repay his debts and thereby rehabilitate himself. Dueñas is also inconsistent with the operation of probation, which typically lasts a number of years (§ 1203.1, subd. (a)) and thus gives probationers a significant period of time to repay their financial obligations—either due to their bona fide efforts or to other changes in their financial circumstances. [Citations.] By precluding the imposition of assessments, fines and fees at the outset (and thus absolving them of any duty to pay them), Dueñas deprives indigent probationers of any time to repay those obligations." (Hicks, supra, 40 Cal.App.5th at pp. 327-328.)
In our case, imposition of the assessments and fees in no way interfered with Pineda's right to present a defense at trial or to challenge the trial court's rulings on appeal; they were imposed after trial. And their imposition did not result in Pineda's incarceration, the robbery and conviction did.
In sum, the trial court did not violate Pineda's due process rights by imposing the assessments and restitution fine without first ascertaining her ability to pay them.
DISPOSITION
The judgments are affirmed. Upon remand, the trial court shall determine whether to strike the enhancement imposed under section 667, subdivision (a)(1). If the court strikes the enhancement, it shall reduce Pineda's sentence accordingly, amend the abstract of judgment, and forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED
CHANEY, J. We concur:
ROTHSCHILD, P. J.
BENDIX, J.