People v. Hernandez CA3 ( 2022 )


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  • Filed 9/30/22 P. v. Hernandez CA3
    NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    THIRD APPELLATE DISTRICT
    (Sacramento)
    ----
    THE PEOPLE,                                                                                C095190
    Plaintiff and Respondent,                                    (Super. Ct. No. 19FE016011)
    v.
    DAVID ANTHONY HERNANDEZ,
    Defendant and Appellant.
    Defendant David Anthony Hernandez pled no contest to three robberies and guilty
    to one count of grand theft in exchange for a stipulated sentence of 16 years four months.
    Though the trial court sentenced him accordingly, he argues this case must be remanded
    for resentencing due to changes made to Penal Code1 section 1170, subdivision (b) by
    Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731) (Senate Bill 567). He
    further contends, based on People v. Dueñas (2019) 
    30 Cal.App.5th 1157
     (Dueñas), the
    trial court erred in refusing to stay his restitution fine and strike the assessments it
    imposed. We shall affirm.
    1   Undesignated statutory references are to the Penal Code.
    1
    FACTUAL AND PROCEDURAL BACKGROUND
    An amended information charged defendant with second degree robbery (counts
    one, two & three) and grand theft (count four). (§§ 211, 487, subd. (a).) The information
    alleged an enhancement defendant personally inflicted great bodily injury in connection
    with count three. (§ 12022.7, subd. (a).) The information also alleged defendant had a
    prior strike (§§ 667, subds. (b)-(i), 1170.12) and a prior serious felony (§ 667, subd. (a)).
    Because defendant’s arguments relate solely to his stipulated sentence and fines
    and assessments, we will forego an extended discussion of the facts of his crime. Suffice
    it to say, defendant and another man robbed two other men at a gas station. In a separate
    incident, defendant punched a third man in the face and took his cell phone, and
    hoverboard. In the last incident, defendant went into a store, asked to see a cellphone and
    ran away with it.
    Pursuant to the plea agreement, defendant pled no contest to counts one, two,
    three, guilty to count four, and admitted the great bodily injury enhancement. In
    exchange, the prosecution offered to dismiss the prior serious felony allegation and
    stipulated to a sentence of 16 years four months. The trial court confirmed the agreement
    to the stipulated sentence when it took defendant’s plea.
    Defense counsel’s only comment regarding sentencing was to ask for the
    “minimum fines/fees that the [c]ourt can impose.”
    The trial court imposed the stipulated term of 16 years four months in prison.
    Despite the probation report recommendation of $4,800 for the restitution fine and the
    suspended revocation fine, the trial court imposed a restitution fine of $1,000 (§ 1202.4,
    subd. (b)), with a matching, stayed parole revocation restitution fine (§ 1202.45). It also
    imposed a mandatory court operations assessment in the amount of $160, and a court
    facilities assessment in the amount of $120. (§ 1465.8, subd. (a)(1); Gov. Code,
    § 70373.) The court waived and did not impose any other fines or fees.
    2
    Defendant timely appealed; the case was fully briefed on August 8, 2022, and
    assigned to this panel shortly thereafter.
    DISCUSSION
    Defendant argues the matter must be remanded for resentencing pursuant to
    Senate Bill 567. He also asserts the trial court erred in failing to stay the restitution fine
    and strike the assessments imposed. The Attorney General first argues defendant waived
    his right to appeal during the sentencing hearing. For purposes of this appeal, we will
    assume no waiver and reach the merits. As set forth below, we disagree with defendant’s
    claims.
    A.     Senate Bill 567
    Defendant argues the case should be remanded for resentencing because the trial
    court imposed the upper term on two counts with no aggravating facts stipulated to or
    admitted by defendant nor found true by a jury. Because he was sentenced in accordance
    with and pursuant to the stipulated sentence, we reject this claim.
    Senate Bill 567 amended section 1170, effective January 1, 2022. (Stats. 2021, ch.
    731.) Under the amended version of section 1170, when a judgment of imprisonment is
    to be imposed and a statute specifies three possible terms, “the court shall, in its sound
    discretion, order imposition of a sentence not to exceed the middle term, except as
    otherwise provided in [section 1170, subdivision (b)(2)].” (§ 1170, subd. (b)(1).) Section
    1170, subdivision (b)(2) provides the trial court may impose a sentence exceeding the
    middle term “only when there are circumstances in aggravation of the crime that justify
    the imposition of a term of imprisonment exceeding the middle term, and the facts
    underlying those circumstances have been stipulated to by the defendant, or have been
    found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.”
    The parties agree Senate Bill 567 applies retroactively to defendant’s case under In
    re Estrada (1965) 
    63 Cal.2d 740
    . We agree it applies retroactively here. (People v.
    Flores (2022) 
    75 Cal.App.5th 495
    , 500.)
    3
    The parties disagree as to the effect Senate Bill 567 should have on the case.
    Defendant argues the case should be remanded to allow defendant a new sentencing
    hearing under the amended statute. The Attorney General argues because defendant
    stipulated to an upper term sentence, the trial court had no discretion to impose anything
    other than the stipulated sentence. We agree with the Attorney General.
    We find People v. Brooks (2020) 
    58 Cal.App.5th 1099
    , which considered the
    application of similar legislative changes, persuasive. In Brooks, the defendant agreed to
    a stipulated sentence in a plea agreement. (Id. at p. 1102.) After the trial court sentenced
    the defendant, the Legislature enacted section 1170.91, which required the trial court to
    consider trauma a defendant suffered as a result of military service as a mitigating factor
    when imposing a sentence under section 1170. (Brooks, at pp. 1103-1104.) The trial
    court denied the defendant’s petition to recall his sentence under the new law, finding it
    had no power to resentence him because he had agreed to a stipulated term in his plea
    agreement. (Id. at p. 1103.) In affirming, the appellate court concluded because the
    defendant stipulated to the term of his sentence in his plea agreement, the trial court did
    not apply judicial discretion at the time it sentenced him and it had no discretion on
    resentencing, because to do so would unlawfully modify the terms of his plea agreement.
    (Id. at pp. 1106-1107.) Once the trial court accepted the plea agreement, it was required
    to impose the sentence called for by the plea bargain. (Ibid.) As a result, when the court
    sentenced the defendant to the stipulated term, it was not exercising its triad sentencing
    discretion. (Ibid.) Put another way, “ ‘when a trial court sentences a defendant who has
    agreed to a stipulated sentence for a term of years, the trial court exercises no discretion
    to decide between an upper, middle and lower term and may not consid er factors in
    mitigation and aggravation. Therefore, the trial court is not “imposing a term under
    subdivision (b) of Section 1170.” (§ 1170.91, subd. (a).)’ ” (Id. at p. 1109.)
    Like the statute in Brooks, the relevant changes in Senate Bill 567 rest on the trial
    court’s exercise of its sentencing discretion under section 1170, subdivision (b), to select
    4
    the appropriate sentence from the triad available. In defendant’s case, the trial court
    imposed a sentence in accordance with the plea agreement, which included two upper
    term sentences in the calculation necessary to derive the total stipulated 16-year four-
    month sentence. The trial court accepted the plea agreement. Thus, as in Brooks, the
    trial court had no triad discretion under section 1170, subdivision (b), but was required to
    sentence defendant to the agreed upon term, which it did. (People v. Brooks, supra,
    58 Cal.App.5th at pp. 1106-1107.) As a result, the retroactive changes of Senate Bill 567
    do not affect his sentence.
    B.     Restitution Fine, Parole Revocation Fine, and Assessments
    Relying on Dueñas, supra, 
    30 Cal.App.5th 1157
    , defendant argues the trial court
    abused its discretion when it imposed the $1,000 restitution fine, the suspended $1,000
    parole revocation fine, the court operations assessment, and the court facilities
    assessment without making findings of his ability to pay. Anticipating he may have
    forfeited this argument by not raising it at sentencing, he asserts his counsel was
    ineffective for not making the argument. We reject both claims.
    “In general, a defendant who fails to object to the imposition of fines, fees, and
    assessments at sentencing forfeits the right to challenge those fines, fees, and assessments
    on appeal. [Citations.]” (People v. Greeley (2021) 
    70 Cal.App.5th 609
    , 624, review den.
    Jan. 5, 2022, S272033.) Defendant was sentenced on November 5, 2021, almost three
    years after the publication of Dueñas. (Dueñas, supra, 
    30 Cal.App.5th 1157
     [decided
    Jan. 8, 2019].) Accordingly, defendant’s failure to request an ability to pay hearing based
    on Dueñas forfeits this issue on appeal, as does his failure to object this is an excessive
    fine under the Eighth and Fourteenth Amendments to the United States Constitution and
    article I, section 17 of the California Constitution. (Greeley, at p. 624; People v. Torres
    (2019) 
    39 Cal.App.5th 849
    , 860.)
    We also reject defendant’s argument section 1237.2 and his letter to the trial court
    under this provision cures his forfeiture. Section 1237.2 states: “An appeal may not be
    5
    taken by the defendant from a judgment of conviction on the ground of an error in the
    imposition or calculation of fines, penalty assessments, surcharges, fees, or costs unless
    the defendant first presents the claim in the trial court at the time of sentencing, or if the
    error is not discovered until after sentencing, the defendant first makes a motion for
    correction in the trial court, which may be made informally in writing. The trial court
    retains jurisdiction after a notice of appeal has been filed to correct any error in the
    imposition or calculation of fines, penalty assessments, surcharges, fees, or costs upon the
    defendant’s request for correction. This section only applies in cases where the erroneous
    imposition or calculation of fines, penalty assessments, surcharges, fees, or costs are the
    sole issue on appeal.”
    Although this section makes the issue of fines and assessments cognizable on
    appeal, it does not bar the application of the forfeiture doctrine based on a failure to
    object when the fine was imposed. (People v. Jenkins (2019) 
    40 Cal.App.5th 30
    , 39-40.)
    This is especially true here because the law defendant seeks to apply existed for almost
    three years before sentencing and he waited four more months to object. Under these
    circumstances, the belated assertion of this preexisting legal claim does not constitute an
    error discovered after sentencing.
    Further, we do not agree with the premise of defendant’s argument the trial court
    failed to make an ability to pay determination. Here, the court imposed a $1,000
    restitution fine, not the $300 minimum restitution fine for a felony matter. (§ 1202.4,
    subd. (b)(1).) Thus, the court implicitly determined defendant had the ability to pay more
    than the statutory minimum, and declined to impose the $4,800 recommended by the
    probation department. (Id., subd. (c) [“[i]nability to pay may be considered only in
    increasing the amount of the restitution fine in excess of the minimum fine pursuant to
    paragraph (1) of subdivision (b)”].) If defendant had evidence he wished the court to
    consider when determining his ability to pay, it was his duty to present the evidence to
    the court at the time. (Id., subd. (d).) He did not do so.
    6
    Anticipating his failure to object forfeited this claim, defendant asserts his
    attorney’s failure to raise this objection amounts to ineffective assistance of counsel.
    Again, we disagree.
    A claim of ineffective assistance of counsel requires defendant to show by a
    preponderance of the evidence (1) counsel’s performance fell below the objective
    standard of prevailing professional norms, and (2) defendant was prejudiced by counsel’s
    failing. (Strickland v. Washington (1984) 
    466 U.S. 668
    , 688-695.) On direct appeal, a
    conviction will be reversed for ineffective assistance “only if (1) the record affirmatively
    discloses counsel had no rational tactical purpose for the challenged act or omission, (2)
    counsel was asked for a reason and failed to provide one, or (3) there simply could be no
    satisfactory explanation. All other claims of ineffective assistance are more appropriately
    resolved in a habeas corpus proceeding.” (People v. Mai (2013) 
    57 Cal.4th 986
    , 1009.)
    Here, the record is silent as to why defense counsel did not raise a Dueñas
    objection. The trial court implicitly made an ability to pay determination when it
    imposed a restitution fine in excess of the $300 statutory minimum and less than a third
    of the sum recommended by the probation department. (§ 1202.4, subds. (b)(1), (c).)
    These fines were imposed at the same time as the trial court imposed the remaining $280
    in assessments and waived all other fines and fees. Nothing in the record suggests a
    reasonable probability the court would have determined defendant was unable to pay had
    defendant’s counsel objected specifically to the imposition of those fees. Indeed, defense
    counsel may have reasonably believed due to the significant reduction in the two fines
    from the probation department’s recommendation and the trial court’s elimination of all
    other fines and fees, any further objection would be futile. We cannot conclude defense
    counsel provided ineffective assistance based on his failure to object.
    7
    DISPOSITION
    The judgment is affirmed.
    /s/
    BOULWARE EURIE, J.
    We concur:
    /s/
    MAURO, Acting P. J.
    /s/
    HOCH, J.
    8
    

Document Info

Docket Number: C095190

Filed Date: 9/30/2022

Precedential Status: Non-Precedential

Modified Date: 9/30/2022