Opinion
C087973
03-06-2020
THE PEOPLE, Plaintiff and Respondent, v. RAHEEM ISAIAH THOMAS, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 18FE002528)
Defendant Raheem Isaiah Thomas was convicted of being a felon in possession of a firearm, possessing the firearm for the benefit of a criminal street gang, and having a prior strike and a prior serious felony. On appeal, he requests we remand the case to permit the trial court to consider whether to exercise its discretion and strike his prior serious felony enhancement pursuant to Senate Bill No. 1393 (2017-2018 Reg. Sess.; Stats. 2018, ch. 1013, §§ 1-2) (Senate Bill 1393). Citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant further argues the trial court erred in imposing various fines and fees without holding a hearing regarding defendant's ability to pay them. We will remand this case to allow the trial court to consider whether to strike the prior serious felony conviction enhancement. We also will modify the judgment to correct the omission of certain mandatory fees. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2018, police followed defendant as he drove with two male passengers, finally stopping at an apartment complex. Police subsequently found a loaded nine-millimeter pistol concealed in one of the passenger's pants pockets. Police also found a loaded handgun on the floorboard of the front passenger area of the car. At the time, defendant was a convicted felon and could not lawfully possess firearms. Defendant was compliant with police demands during the incident.
During the August 2018 trial, the prosecution's gang expert opined that the two guns found during the incident were possessed for the benefit of a criminal street gang. Defendant had previously told police that he was a member of a criminal street gang. The two passengers also were members of criminal street gangs.
A jury found defendant guilty of being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)) and found true that defendant committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). In bifurcated proceedings, the trial court found true that defendant had a prior strike and a prior serious felony. (§§ 667, subds. (a)-(i), 1192.7, subd. (c).)
Undesignated statutory references are to the Penal Code. --------
During the September 2018 sentencing hearing, the trial court found defendant ineligible for probation and sentenced him to state prison for an aggregate term of 13 years as follows: the midterm of two years for the unlawful firearm possession conviction doubled due to the strike (four years total), the upper term of four years consecutive for the gang enhancement, and five years' consecutive for the prior serious felony conviction enhancement. In selecting the upper term for the gang enhancement, the trial court noted that defendant was on probation at the time of the offense.
The trial court also imposed a $300 restitution fine (§ 1202.4, subd. (b)) and a corresponding $300 parole revocation fine, suspended unless parole is revoked (§ 1202.45). The trial court waived the jail booking and jail classification fees (Gov. Code, § 29550.2) "in the interests of justice." During the sentencing hearing, defense counsel requested that the classification and booking fees be waived, and the restitution fine be "reduced." The abstract of judgment lists a $40 court operations assessment (§ 1465.8) and a $30 court facilities assessment (Gov. Code, § 70373).
DISCUSSION
I
Defendant's sentence includes a five-year prior serious felony enhancement pursuant to section 677, subdivision (a). At the time defendant was sentenced, the court had no discretion to strike such an enhancement. (See former § 667, subd. (a) & former § 1385, subd. (b).)
Senate Bill 1393 (2017-2018 Reg. Sess.), which went into effect on January 1, 2019, amends section 667, subdivision (a), and 1385, subdivision (b), to allow a trial court to exercise its discretion to strike or dismiss a prior serious felony allegation for sentencing purposes.
Defendant argues that the amendments apply retroactively to his case, which is not yet final. He asks us to vacate the judgment and remand the matter so the trial court may exercise its new discretion and consider striking the prior serious felony enhancement. The People concede the matter must be remanded, and we agree.
Unless there is evidence to the contrary, it is reasonable to infer that amendments to statutes that either reduce the punishment for a crime or vest in the trial court the discretion to impose a lesser penalty, such as Senate Bill 1393, apply to all defendants whose judgments are not final as of the amendment's effective date. (In re Estrada (1965) 63 Cal.2d 740, 745; People v. Garcia (2018) 28 Cal.App.5th 961, 972-973.) There is nothing in the amendment suggesting the Legislature intended it to apply prospectively only, so the act applies retroactively to this case.
The trial court imposed the midterm on the principal count and did not otherwise clearly indicate during the sentencing hearing that it would have declined to exercise discretion to lessen defendant's sentence. Accordingly, the appropriate remedy is to remand the matter. (See People v. Franks (2019) 35 Cal.App.5th 883, 892 ["[r]emand is required unless 'the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] enhancement' even if it had the discretion"].)
II
Our review of the record indicates that the abstract of judgment includes a $40 court operations assessment (§ 1465.8) and a $30 court facilities assessment (Gov. Code, § 70373), despite the trial court's failure to orally pronounce these fees. Generally, an oral pronouncement of judgment controls (People v. Mesa (1975) 14 Cal.3d 466, 471), but where assessments are mandatory, "their omission may be corrected for the first time on appeal." (People v. Castellanos (2009) 175 Cal.App.4th 1524, 1530.) We shall modify the judgment to reflect the assessments included on the abstract of judgment.
III
Defendant next contends the trial court violated his rights to due process and equal protection by imposing fines and fees without holding a hearing to determine his ability to pay them. This argument relies primarily on Dueñas, supra, 30 Cal.App.5th 1157, which held that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under [section 1465.8] and Government Code section 70373." (Dueñas, at p. 1164.) The Dueñas court also held that "although [section 1202.4] bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Dueñas, at p. 1164.) Defendant requests that we strike the fines.
The People respond that defendant has forfeited the issue because he failed to object in the trial court. The People further argue defendant will have an opportunity to request such a hearing, should the matter be remanded. We agree with subsequent courts that Dueñas was incorrect in holding that the due process doctrine of "fundamental fairness" requires courts to conduct a preassessment ability-to-pay determination before imposing fines and fees on a criminal defendant. (People v. Hicks (2019) 40 Cal.App.5th 320, 326-327, review granted Nov. 26, 2019, S258946 (Hicks); People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1069, review den. Dec. 11, 2019, S258563; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1034-1041 (conc. opn. of Benke, J.), review den. Sept. 18, 2019, S256881 (Gutierrez); People v. Santos (2019) 38 Cal.App.5th 923, 935-940 (dis. opn. of Elia, J.).) As such, we find defendant's contentions lacking in merit.
In support of its due process rationale, Dueñas relies on authorities holding that it is unconstitutional to punish an indigent defendant, or impede his or her access to the courts, solely on the basis of his poverty. (Dueñas, supra, 30 Cal.App.5th at pp. 1165-1168, citing In re Antazo (1970) 3 Cal.3d 100, 103 [invalidating practice of requiring convicted defendants to serve jail time if they were unable to pay a fine or a penalty assessment], and Griffin v. Illinois (1956) 351 U.S. 12, 16-17, 19-20 [100 L.Ed. 891, 897-898, 899] [striking down a state practice of granting appellate review only to convicted criminal defendants who could afford a trial transcript].)
As courts have subsequently noted, the line of authorities in Dueñas addressing an indigent defendant's right of access to courts are inapplicable because the imposition of the challenged fines and assessments did not affect the ability of the defendant in Dueñas to present a defense at trial or to challenge the trial court's rulings on appeal. (Hicks, supra, 40 Cal.App.5th at p. 326, review granted Nov. 26, 2019, S258946; People v. Aviles, supra, 39 Cal.App.5th at pp. 1067-1069; People v. Caceres (2019) 39 Cal.App.5th 917, 927 (Caceres); see also Gutierrez, supra, 35 Cal.App.5th at pp. 1038-1039 (conc. opn. of Benke, J.).)
Similarly, the authorities cited by Dueñas prohibiting incarceration for indigence alone are also inapplicable. (Hicks, supra, 40 Cal.App.5th at p. 326; Caceres, supra, 39 Cal.App.5th at p. 927.) We are not persuaded that the mere possibility that an indigent defendant might be unable to pay a debt (and therefore suffer associated collection practices) constitutes punishment rising to the level of a due process violation, especially because defendant here has not yet failed to pay or suffered any sanctions for failing to do so. (See Caceres, at p. 927 ["Dueñas cites no authority for the proposition that [the negative consequences from a civil judgment] constitute 'punishment' rising to the level of a due process violation"]; see also Gutierrez, supra, 35 Cal.App.5th at p. 1039 (conc. opn. of Benke, J.) [fines and fees imposed in Dueñas did not "satisf[y] the traditional due process definition of a taking of life, liberty or property"].) In sum, the trial court did not violate defendant's due process rights by imposing the fines without first ascertaining his ability to pay them. We therefore affirm this aspect of the judgment.
DISPOSITION
The judgment is modified to include a $40 court operations assessment (§ 1465.8) and a $30 court facilities assessment (Gov. Code, § 70373). The matter is remanded to the trial court to allow it to consider exercising its discretion under sections 667 and 1385 to strike the prior serious felony conviction enhancement. After exercising this discretion, if appropriate, the trial court is directed to prepare an amended abstract of judgment reflecting its judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
KRAUSE, J. We concur: MURRAY, Acting P. J. DUARTE, J.