People v. Smith CA1/3 ( 2021 )

Filed 1/29/21 P. v. Smith CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, A159496
v.
HENRY A. SMITH, JR., (Solano County
Defendant and Appellant. Super. Ct. No. VCR-213103)
Defendant Henry A. Smith, Jr. appeals from the resentencing on his
convictions for murder of a police officer, robbery, and possession of a firearm.
He contends that his murder sentence is erroneous because (1) the abstract of
judgment incorrectly reflects an additional term that was not imposed on
resentencing, and (2) he cannot be sentenced to any additional term beyond
life without parole. He also contends that the trial court improperly imposed
fines, fees, and restitution without determining his ability to pay them. We
conclude that the abstract of judgment should be modified to correct the
clerical error as to the murder sentence, and affirm the judgment in all other
respects.
FACTUAL AND PROCEDURAL BACKGROUND
The following is a brief summary of the factual and procedural
background in this case relevant to the resolution of the appeal.
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Defendant was charged by amended information with first degree
murder (Pen. Code § 187, subd. (a));1 second degree robbery (§ 211); and felon
in possession of a firearm (§ 12021, subd. (a)(1)). In connection with the
murder count, the information further alleged that defendant personally and
intentionally used and fired a handgun, killing police officer James Capoot
(§§ 12022.5, subd. (a), 12022.53, subds. (b)–(d) (sections 12022.53(b)–(d)), and
alleged the special circumstances that defendant killed Officer Capoot
knowing he was peace officer engaged in his duties (§ 190.2, subd. (a)(7)
(section 190.2(a)(7))), while committing robbery (§ 190.2, subd. (a)(17) (section
190.2(a)(17))), and to avoid lawful arrest and escape from lawful custody
(§ 190.2, subd. (a)(5) (section 190.2(a)(5))).
The jury found defendant guilty as charged, and the trial court
sentenced defendant on November 9, 2015. For the murder conviction, the
court imposed three concurrent terms of life without parole (LWOP) based on
the section 190.2(a)(5), 190.2(a)(7), and 190.2(a)(17) special circumstance
findings. The court also imposed a concurrent 50 years to life term as a
second strike pursuant to section 1170.12. The court also imposed a
concurrent 25 years to life term as a firearm enhancement under section
12022.53(d). It stayed the remaining firearm enhancements.
Defendant appealed his conviction and argued, among other things,
that he was entitled to resentencing under the January 2018 amendment to
section 12022.53, which provides trial courts with the discretion to strike
firearm enhancements “in the interest of justice . . . .” (§ 12022.53, subd. (h),
as amended Stats. 2017, ch. 682, § 2.) We remanded for resentencing and
affirmed in all other respects, concluding that “remand is appropriate
1Unless otherwise indicated, all further section references will be to
the Penal Code.
2
because the trial court has had no occasion to consider whether it would
strike the enhancements.” (People v. Smith (Nov. 27, 2018, A147175)
[nonpub. opn.], at p. 9.)
At the December 18, 2019 resentencing hearing, the court imposed a
LWOP term for the murder conviction based on the section 190.2(a)(7) special
circumstance finding. The court also imposed the two LWOP terms based on
the section 190.2(a)(5) and 190.2(a)(17) special circumstance findings, but
stayed those terms pursuant to the prohibition against multiple punishment
under section 654.
The court then declined to exercise its discretion to strike or dismiss
the firearm enhancement under section 12022.53(d), and imposed a 25 years
to life term to run consecutive to the LWOP term. The court described the
“principal” factors considered in reaching its decision, including that the
firearm was discharged at Officer Capoot three times, all apparently from
behind or to his side. The court stayed the other two firearm enhancements
under sections 12022.53(b) and 12022.53(c).
The court ordered defendant to pay a $10,000 restitution fine (§ 1202.4,
subd. (b)); $120 court security fee (§ 1465.8); $90 criminal conviction fee (Gov.
Code § 70373); and $480 in actual restitution (§ 1202.4, subd. (f)). It imposed
but stayed a $10,000 parole revocation restitution fine (§ 1202.45). Defense
counsel then stated: “We object on [defendant’s] inability to pay.” The court
responded: “Okay. Let me leave it like this, both as to the restitution fund
fine and the court security fees and criminal conviction assessment, but not
actual restitution: If the First District Court of Appeal determines that a
defendant’s inability to pay is a sufficient reason, in and of itself, to not
impose those, I’m okay with that.”
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The abstract of judgment reflects the terms of defendant’s murder
sentence from the December 18, 2019 hearing: imposed LWOP term
pursuant to section 190.2(a)(7) and consecutive 25 years to life term pursuant
to section 12022.53(d) enhancement; and imposed but stayed enhancements
pursuant to sections 190.2(a)(5), 190.2(a)(17), 12022.53(b), and 12022.53(c).
But it also states that defendant’s murder sentence included a term of “50
years to Life.” The minute order similarly identifies a “50 yrs to life
concurrent” term for defendant’s murder sentence.
Defendant filed a timely appeal from the resentencing.
DISCUSSION
A. Murder Sentence
Defendant argues that his murder sentence was erroneous for two
reasons. First, he contends that the abstract of judgment, and corresponding
minute order, reflect an additional term for the murder conviction—50 years
to life—that was part of the court’s original sentencing, but not part of the
resentencing on December 18, 2019. The Attorney General acknowledges the
clerical error, and requests that the abstract of judgment be corrected. We
agree. The abstract of judgment shall be amended to reflect that the court
resentenced defendant on the murder conviction as follows: imposed LWOP
term pursuant to section 190.2(a)(7) and consecutive 25 years to life term
pursuant to section 12022.53(d) enhancement; and imposed but stayed
enhancements pursuant to sections 190.2(a)(5), 190.2(a)(17), 12022.53(b), and
12022.53(c). (People v. Mitchell (2001) 26 Cal.4th 181, 185 [reviewing court
can order that an abstract of judgment be corrected].)
Second, defendant contends that the murder sentence was erroneous
because “[h]e may only be given one sentence of LWOP, not LWOP plus
something else.” While defendant directs this argument to the “50 years to
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Life” term that we resolve by correction of the abstract of judgment, any such
argument as to the 25 years to life term for the firearm enhancement is
rejected. (§ 12022.53(d) [explaining that firearm enhancement is punishable
by “additional and consecutive” term of 25 years to life]; People v. Shabazz
(2006) 38 Cal.4th 55, 70 [confirming enhancement under section 12022.53(d)
may be imposed even when defendant is sentenced to LWOP].)
B. Ability to Pay
Defendant also argues that remand is required because the trial court
failed to determine defendant’s ability to pay before ordering him to pay the
$10,000 restitution fine, $120 court security fee, $90 criminal conviction fee,
and $480 in actual restitution.2 Defendant relies on People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas) for his argument.
We disagree. In Dueñas, the defendant, “an indigent and homeless
mother of young children” who suffered from cerebral palsy, dropped out of
high school due to her illness, was not working, received public assistance,
and had been unable to pay prior citations and fees, was convicted of driving
with a suspended license. (Dueñas, supra, 30 Cal.App.5th at pp. 1160–1163.)
At sentencing, she argued she did not have the ability to pay fees and fines,
produced evidence of her inability to pay, and requested a hearing on the
issue. (Id. at pp. 1162–1163.) The trial court struck some fees but imposed a
$150 restitution fine (§ 1202.4), $40 court operations assessment (§ 1465.8),
and a $30 court facilities assessment (Gov. Code § 70373). (Id. at pp. 1162,
1163.)
2 In his opening brief, defendant also argued that the $10,000
restitution fine and $480 actual restitution were improper as they were not
“orally pronounced” by the court. In his reply brief, defendant withdrew this
argument.
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Here, as a preliminary matter, the $480 actual restitution ordered is
not subject to the reasoning in Dueñas. (People v. Evans (2019) 39
Cal.App.5th 771, 777.) As Dueñas explains, actual restitution to the victim
(based on loss and paid directly to the victim to compensate for such loss) is
different than a restitution fine paid into a statewide victim compensation
fund. (Dueñas, supra, 30 Cal.App.5th at p. 1169.) Indeed, section 1202.4,
subdivision (g) expressly prohibits the consideration of a defendant’s ability
to pay in determining the amount of a restitution order to a victim.
Defendant cites no cases that extend the holding in Dueñas to victim
restitution under section 1202.4, subdivision (f), and we decline to do so here.
As to the fees and fines, even assuming error under Dueñas,3 any error
was harmless beyond a reasonable doubt. (People v. Johnson (2019) 35
Cal.App.5th 134, 140.) Nothing in the record indicates that defendant, like
the defendant in Dueñas, has a history of being unable to pay court
assessments, has limited assets or income that he needs to devote to vital
child-care needs, or has a disability that casts doubt on his ability to obtain
the funds for payment in the future.
Moreover, a defendant’s ability to pay is not limited to his present
financial situation. (People v. Staley (1992) 10 Cal.App.4th 782, 785.)
Rather, it can be based on a person’s future ability to earn, including his
ability to earn prison wages. (People v. Hennessey (1995) 37 Cal.App.4th
1830, 1837.) Here, defendant will be serving life in prison and has the
capacity to earn during that time. Based on this record, even assuming the
trial court erred when it assessed fines and fees without first determining
3The substantive holding in Dueñas has been strongly criticized.
(People v. Hicks (2019) 40 Cal.App.5th 320, 326–329, review granted Nov. 26,
2019, S258946.) Because we conclude that any error under Dueñas was
harmless, we need not determine whether the decision is correct.
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defendant’s ability to pay, we conclude that any potential error was harmless
beyond a reasonable doubt.
DISPOSITION
The trial court is directed to issue an amended abstract of judgment
that corrects the clerical error and reflects defendant’s resentencing on the
murder conviction: imposed LWOP term pursuant to section 190.2(a)(7) and
consecutive 25 years to life term pursuant to section 12022.53(d)
enhancement; and imposed but stayed enhancements pursuant to sections
190.2(a)(5), 190.2(a)(17), 12022.53(b), and 12022.53(c). Defendant’s sentences
on the second degree robbery and felon in possession of a firearm convictions,
as well as the fines, fees, and restitution ordered by the trial court, remain in
force. The trial court shall forward a copy of the amended abstract to the
Department of Corrections and Rehabilitation. In all other respects, the
judgment is affirmed.
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_________________________
Petrou, J.
WE CONCUR:
_________________________
Fujisaki, Acting P.J.
_________________________
Jackson, J.
A159496/People v. Smith
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