People v. Amador CA2/1 ( 2021 )

Filed 4/22/21 P. v. Amador CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B304537
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA475591)
v.
FRANK TEOFILO AMADOR,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, William N. Sterling, Judge. Affirmed in
part, reversed in part, and remanded with directions.
Jonathan Bremen, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Jaime L. Fuster and Joseph P. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
Frank Teofilo Amador (defendant) appeals from the
judgment following his convictions on three counts based on an
incident of domestic violence. Defendant’s appointed counsel
filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436(Wende), identifying no issues and requesting that this court
review the record and determine whether any arguable issue
exists on appeal. We did so, and requested supplemental briefing
from the parties regarding (1) imposition of mandatory
assessments, and (2) application of the “Three Strikes” law.
Having considered that briefing, we conclude the trial court
erred by imposing assessments on only one of the counts of which
defendant was convicted, and direct the trial court to impose
those assessments on the other two counts as well. We also
remand for the trial court either to double the sentence on
defendant’s third count, pursuant to the Three Strikes law, or to
dismiss the prior strike conviction as to that count.
FACTUAL BACKGROUND
On March 2, 2019, defendant was staying at the home of
his girlfriend, F.F. Defendant sneezed and coughed while
standing in the kitchen over some salsa F.F. had made. When
F.F. asked him what he was doing, he hit her several times with
his fist, then grabbed her by the neck. He also threw a blender
blade at her, which she stepped on, cutting her foot.
F.F.’s son J.F., age 16, came down the hallway towards the
kitchen. Defendant met him in the hallway and hit him twice on
the head.
F.F. and J.F. locked themselves in J.F.’s room. F.F. called
911, but hung up when defendant said through the door that if
she called the police “somebody was going to die in there.” F.F.
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and J.F. climbed out the bedroom window, walked a block away,
and called the police from there.
PROCEDURAL BACKGROUND
An information charged defendant with four counts.
Count 1 alleged injury to a spouse, cohabitant, boyfriend,
girlfriend or child’s parent after a prior conviction under the
same statute (Pen. Code,1 § 273.5, subd. (f)). Count 2 alleged
assault with a deadly weapon, the blender blade (§ 245,
subd. (a)(1)). Count 3 alleged criminal threats (§ 422, subd. (a)).
Count 4 alleged child abuse under circumstances or conditions
other than great bodily injury or death (§ 273a, subd. (b)), a
misdemeanor.
The information further alleged that defendant had
suffered a prior serious or violent felony conviction, subjecting
him both to sentencing under the Three Strikes law (§§ 667,
subd. (b)–(j), 1170.12) and an enhancement under section 667,
subdivision (a)(1).
The jury found defendant guilty of counts 1, 3, and 4, and
acquitted him of count 2, assault with a deadly weapon.
Defendant admitted to his prior convictions.
The trial court imposed a sentence of 15 years as follows:
on count 1, the high term of five years, doubled to 10 because of
the prior strike conviction, with an additional five years for the
enhancement under section 667, subdivision (a)(1); on count 3,
the high term of three years, to be served concurrent to count 1;
and on count 4, 180 days to be served concurrent to count 1.
1 Unspecified statutory citations are to the Penal Code.
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The trial court imposed fines and assessments, including a
$40 court operations assessment under section 1465.8,
subdivision (a)(1), and a $30 criminal conviction assessment
under Government Code section 70373. The court also awarded
custody credits.
Defendant timely appealed, and we appointed counsel to
represent him. Counsel filed a Wende brief raising no issues on
appeal and requesting that we independently review the record to
determine if the lower court committed any error. We advised
defendant of the opportunity to file a supplemental brief. He
filed none.
After reviewing the record, we requested briefing from the
parties as to whether the trial court erred by (1) not imposing
assessments under section 1465.8 and Government Code
section 70373 on each of defendant’s three convictions, and
(2) failing either to double the sentence on count 3 pursuant to
the Three Strikes law, or to dismiss the prior strike conviction as
to that count. We have received and considered the requested
briefs.
DISCUSSION
A. The Trial Court Must Impose Assessments Under
Section 1465.8 and Government Code Section 70373
on Each of Defendant’s Three Convictions
Section 1465.8, subdivision (a)(1), provides that “an
assessment of forty dollars ($40) shall be imposed on every
conviction for a criminal offense . . . .” Government Code
section 70373, subdivision (a)(1) similarly provides that “an
assessment shall be imposed on every conviction for a criminal
offense . . . .” In the case of a felony or misdemeanor, the amount
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of the assessment is $30. (Ibid.) Here, the trial court imposed
the assessments only once. Because defendant was convicted of
three offenses, however, the trial court should have imposed the
assessments three times, for a total of $120 under section 1465.8
and $90 under Government Code section 70373.
Defendant argues that, under People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas), the trial court was permitted to
stay imposition of the assessments based on defendant’s inability
to pay, and we should presume that is what the trial court
implicitly did here. Alternatively, defendant requests that we
remand for the trial court to conduct a hearing on defendant’s
ability to pay the assessments. The Attorney General agrees
we should remand for an ability-to-pay hearing.
Dueñas is distinguishable and inapplicable to the instant
case. In Dueñas, an unemployed, homeless mother with cerebral
palsy lost her driver’s license when she was unable to pay over
$1,000 assessed against her for three juvenile citations. (Dueñas,
supra, 30 Cal.App.5th at pp. 1160–1161.) Thereafter she received
multiple convictions related to driving with a suspended license,
each accompanied by jail time and additional fees she could not
afford to pay. (Id. at p. 1161.) The trial court rejected Dueñas’s
request to hold an ability-to-pay hearing despite undisputed
evidence that she was indigent. (Id. at p. 1163.)
The appellate court reversed, holding that due process
prohibited imposing the same assessments at issue here and
required the trial court to stay execution of the restitution fine
until the trial court held an ability-to-pay hearing. (Dueñas,
supra, 30 Cal.App.5th at p. 1164.) The court expressed concern
for “the cascading consequences of imposing fines and
assessments that a defendant cannot pay,” noting that Dueñas’s
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case “ ‘doesn’t stem from one case for which she’s not capable of
paying the fines and fees,’ but from a series of criminal
proceedings driven by, and contributing to, Dueñas’s poverty.”
(Id. at pp. 1163–1164.) The court referenced “the
counterproductive nature of this system and its tendency to
enmesh indigent defendants in a cycle of repeated violations and
escalating debt.” (Id. at p. 1164, fn. 1.)
In People v. Caceres (2019) 39 Cal.App.5th 917 (Caceres),
we declined to apply Dueñas beyond its “extreme facts.” (Id.
at p. 923.) We thus rejected a Dueñas challenge brought by a
defendant convicted of criminal threats, concluding that offense
“on its face is not a crime either ‘driven by’ poverty or likely to
‘contribut[e] to’ that poverty such that an offender is trapped in a
‘cycle of repeated violations and escalating debt.’ [Citation.] A
person may avoid making criminal threats regardless of his or
her financial circumstances, and the imposition of $370 in fees
and fines will not impede [the defendant]’s ability to avoid
making criminal threats in the future.” (Caceres, at pp. 928–
929.)
Here, as in Caceres, defendant’s offenses—attacking and
threatening his girlfriend and her son—are not crimes likely to
trap him “in a ‘cycle of repeated violations and escalating debt,’ ”
particularly when he may abstain from committing those offenses
in the future regardless of his financial circumstances. (Caceres,
supra, 39 Cal.App.5th at pp. 928–929.) Dueñas is therefore
inapplicable to the facts of this case and does not provide a basis
for the trial court to stay the imposition of the mandatory
assessments.
Defendant argues that the prosecution forfeited the
assessments issue by not raising it in the trial court. Failure to
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impose a mandatory fee results in an unauthorized sentence that
may be corrected on appeal “ ‘regardless of whether an objection
or argument was raised in the trial and/or reviewing court.’ ”
(People v. Turner (2002) 96 Cal.App.4th 1409, 1414–1415.)
B. The Trial Court Must Either Double the Sentence on
Count 3 or Dismiss the Prior Strike as to That Count
The Three Strikes law “shall be applied in every case in
which a defendant has one or more prior serious or violent felony
convictions . . . .” (§ 667, subd. (f)(1).) If a defendant has one
such prior conviction, “the determinate term . . . shall be twice
the term otherwise provided as punishment for the current felony
conviction.” (Id., subd. (e)(1).) A trial court has authority under
section 1385, however, to dismiss a prior strike conviction rather
than impose the doubled sentenced mandated under section 667,
subdivision (e)(1). (See People v. Superior Court (Romero) (1996)
13 Cal.4th 497, 504.) Further, the trial court may “dismiss a
prior conviction allegation with respect to one count but not
another.” (People v. Garcia (1999) 20 Cal.4th 490, 492–493.)
Here, the trial court doubled the sentence on count 1
pursuant to the Three Strikes law, but did not do so on count 3.2
The trial court did not indicate it was exercising its authority
under section 1385 to dismiss the prior strike conviction as to
count 3. The parties agree this was error, and that we must
remand the matter so the trial court may either double the
concurrent sentence on count 3 or dismiss the prior strike as to
that count.
2 The Three Strikes law does not apply to count 4, a
misdemeanor. (See § 667, subd. (e)(1) [applying to “punishment
for the current felony conviction,” italics added].)
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The Attorney General appears to suggest that we vacate
the sentence entirely and remand for full resentencing. Our
Supreme Court has held that “when part of a sentence is stricken
on review, on remand for resentencing ‘a full resentencing as to
all counts is appropriate, so the trial court can exercise its
sentencing discretion in light of the changed circumstances.’ ”
(People v. Buycks (2018) 5 Cal.5th 857, 893.) The authority cited
for this proposition, however, involved not merely alteration of a
sentence, but “ ‘reversal of one or more subordinate counts of a
felony conviction.’ ” (Ibid., quoting People v. Burbine (2003)
106 Cal.App.4th 1250, 1259.) Here, we are not reversing
any part of the verdict, nor are there any “ ‘changed
circumstances’ ”—indeed, because the trial court imposed a
concurrent sentence on count 3, doubling the sentence on that
count or dismissing the prior strike will not affect the length of
defendant’s total sentence. Thus, a limited remand solely to
correct the Three Strikes issue on count 3 is appropriate. (See
People v. Vizcarra (2015) 236 Cal.App.4th 422, 442 [“courts in
California have long approved limited remands for the correction
of unauthorized sentences”].)
Defendant, citing People v. Brown (1987) 193 Cal.App.3d
957, 961, contends we must direct the trial court not to increase
his sentence on remand beyond the 15 years originally imposed.
We need not reach this argument, nor do we express an opinion
on it. The trial court imposed a concurrent sentence on count 3,
and therefore, assuming arguendo the trial court on remand opts
to double the sentence on that count rather than dismiss the
prior strike conviction, defendant’s actual sentence will not
increase.
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DISPOSITION
The matter is remanded for the trial court either to double
the concurrent three-year sentence on count 3 to six years or
dismiss the prior strike conviction as to that count. The
trial court is further instructed to impose two additional
$40 assessments under Penal Code section 1465.8 and
two additional $30 assessments under Government Code
section 70373. The judgment is otherwise affirmed. The
trial court shall forward the modified abstract of judgment to
the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
FEDERMAN, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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