People v. Brooks CA3 ( 2021 )

Filed 2/8/21 P. v. Brooks 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(El Dorado)
----
THE PEOPLE, C089520
Plaintiff and Respondent, (Super. Ct. No. P18CRF0464)
v.
CEDRIC LEE BROOKS,
Defendant and Appellant.
Defendant Cedric Lee Brooks was convicted by jury of possession of a controlled
substance, i.e., methamphetamine, for sale. In a bifurcated proceeding, the trial court
found defendant was previously convicted of a strike offense within the meaning of the
three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12)1 and also served four prior
prison terms (§ 667.5, former subd. (b)). Following an unsuccessful motion to strike
1 Undesignated statutory references are to the Penal Code.
1
defendant’s prior strike conviction pursuant to People v. Superior Court (Romero) (1996)
13 Cal.4th 497 (Romero), the trial court sentenced him to serve eight years in state prison.
On appeal, defendant contends: (1) the evidence is insufficient to establish he
possessed the methamphetamine with the intent to sell; (2) the trial court prejudicially
abused its discretion by admitting evidence of two prior convictions under Evidence
Code section 1101, subdivision (b); (3) the trial court also abused its discretion by (A)
declining to strike defendant’s prior strike conviction under Romero, and (B) imposing an
upper term sentence; (4) the trial court violated section 1203.1b and defendant’s
constitutional right to due process by imposing a fee for the cost of the probation report
after staying the minimum restitution fine and other mandatory fees due to defendant’s
inability to pay; and (5) we must remand the matter to the trial court with directions to
strike all of defendant’s one-year prior prison term enhancements because Senate Bill No.
136 (2019-2020 Reg. Sess.) (Senate Bill 136), which became effective January 1, 2020,
and eliminates such enhancements for defendant’s crimes, applies retroactively to cases
not yet final on appeal.
Agreeing with the latter contention, we shall modify the judgment to strike each of
defendant’s one-year prior prison term enhancements.2 We also agree the trial court
violated section 1203.1b by imposing the probation report fee after finding an inability to
pay and shall also modify the judgment to strike that fee. Defendant’s remaining
contentions lack merit or are forfeited. The evidence is more than sufficient to support
the jury’s finding defendant possessed the methamphetamine for sale. The trial court did
2 In light of this conclusion, we need not address defendant’s assertion the trial court
erred in staying rather than striking two of these enhancements. We also grant
defendant’s request for judicial notice of certain legislative history materials pertaining to
the passage of Senate Bill 136. Although we need not resort to these materials in this
case, granting judicial notice is nevertheless proper. (Kaufman & Broad Communities,
Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 30.)
2
not abuse its discretion by either admitting evidence of two prior narcotics convictions or
declining to strike defendant’s prior strike conviction under Romero. Finally, defendant
has forfeited his challenge to the trial court’s selection of the upper term. We shall
therefore affirm the modified judgment.
FACTS
During the early morning hours of December 9, 2018, while on patrol in the town
of El Dorado Hills, a sheriff’s deputy spotted two individuals seated in a car that was
parked in a movie theater parking lot. The deputy made contact with both the driver and
defendant, who was seated in the front passenger seat.
Defendant was on postrelease community supervision (PRCS) following his
release from custody for a 2016 narcotics conviction, the details of which will be set forth
later in the opinion. He was directed to step out of the car. Following a patdown search
that uncovered no evidence, defendant was directed to sit on a curb while the deputy
searched the front passenger compartment. As the deputy began this search, defendant
spontaneously stated that he was a drug user and that a straw on the ground outside the
front passenger door belonged to him. The straw had been cut to about four inches in
length. Having previously seen similar straws, the deputy explained they are commonly
used to consume narcotics.
Continuing with the search of the passenger compartment, the deputy found a
clear plastic bag containing a “single large shard” of a “white crystalline substance”
under the front passenger seat. The deputy recognized the substance as
methamphetamine, but found it to be “relatively unusual” to find it in “one large chunk or
shard.” A presumptive field test corroborated the deputy’s suspicion that the substance
was methamphetamine.
3
The deputy placed defendant under arrest and advised him of his Miranda rights.3
Defendant acknowledged he understood the advisement and then repeated that he was a
drug user and asked to provide a urine sample. However, because the deputy did not see
any signs of defendant being under the influence of a controlled substance, he did not
oblige defendant’s request.
Subsequent lab testing confirmed the substance seized from beneath the front
passenger seat was methamphetamine. The shard weighed about 16.6 grams.
Defendant’s cell phone was also found in the passenger compartment. A picture of the
shard of methamphetamine, taken three days before defendant’s arrest, was saved on the
phone. Certain text messages sent and received during the week before defendant’s arrest
indicated defendant was involved in buying and selling drugs. In one of these messages,
sent about a week before his arrest, defendant’s cell phone messaged someone identified
as “Brandon,” asking him about buying “some drugs to resell to . . . a neighbor of his up
the street.” In another message, sent the day before his arrest, defendant’s phone
messaged a “Josh Weed” about buying some “powder,” which is “a common reference to
narcotics.”
Based on the quantity of methamphetamine recovered, “roughly 165 doses,” and
the fact that it was in the form of one “bulk amount” not typically possessed by simple
users of the substance, a narcotics detective testified to his opinion that the shard of
methamphetamine was possessed by defendant for purposes of sale. The detective
explained his opinion was also based on the “one or two messages” on defendant’s cell
phone that were “indicative of sales” and the photo of the shard of methamphetamine that
was also found on defendant’s cell phone. With respect to the photo, the detective
3 Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
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explained such a photo is often used by drug dealers “to market their drugs to their
clientele.”
Finally, as previously indicated, the jury learned defendant was convicted of
possession of narcotics for sale in 2008 and 2016. We describe these offenses in the
discussion portion of the opinion, to which we now turn.
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends the evidence is insufficient to establish he possessed the
methamphetamine in this case with the intent to sell the substance. We disagree.
The standard of review is well-settled: “When reviewing a challenge to the
sufficiency of the evidence, we ask ‘ “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” ’ [Citation.] Because the sufficiency
of the evidence is ultimately a legal question, we must examine the record independently
for ‘ “substantial evidence—that is, evidence which is reasonable, credible, and of solid
value” ’ that would support a finding beyond a reasonable doubt. [Citation.]” (People v.
Banks (2015) 61 Cal.4th 788, 804.)
“ ‘Unlawful possession of a controlled substance for sale requires proof the
defendant possessed the contraband with the intent of selling it and with knowledge of
both its presence and illegal character. [Citation.]’ [Citations.] Intent to sell may be
established by circumstantial evidence. [Citation.]” (People v. Harris (2000) 83
Cal.App.4th 371, 374 (Harris).)
Defendant possessed a “large shard” of methamphetamine weighing about 16.6
grams, the equivalent of “roughly 165 doses.” A narcotics detective testified simple
users of the substance typically do not possess methamphetamine in such a large quantity
or in bulk form, causing him to form the opinion defendant possessed the substance with
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the intent to sell. Also informing the detective’s opinion was the fact that defendant had
text messages on his cell phone that were “indicative of sales,” and also had a photo of
the shard of methamphetamine saved to the phone, commonly used by drug dealers for
marketing purposes.
We conclude the foregoing facts provided substantial support for the detective’s
opinion that defendant possessed the methamphetamine for sale. “ ‘In cases involving
possession of marijuana or [methamphetamine], experienced officers may give their
opinion that the narcotics are held for purposes of sale based upon such matters as the
quantity, packaging and normal use of an individual; on the basis of such testimony
convictions of possession for purpose of sale have been upheld. [Citations.]’ [Citation.]
Thereafter, it is for the jury to credit such opinion or reject it.” (Harris, supra, 83
Cal.App.4th at pp. 374-375.)
Finally, we note additional evidence of defendant’s intent to sell came in the form
of two prior convictions for possession of methamphetamine for purposes of sale. We
describe these offenses, and their similarity with the current offense, immediately below.
II
Prior Crimes Evidence
Defendant also claims the trial court prejudicially abused its discretion by
admitting evidence of two prior narcotics convictions under Evidence Code section 1101,
subdivision (b). He is mistaken.
A.
Additional Background
The prosecution moved in limine to admit evidence of three prior narcotics
convictions under Evidence Code section 1101, subdivision (b), to prove defendant’s
modus operandi, motive, intent to sell, and knowledge of the presence and illegal
character of the shard of methamphetamine found under the passenger seat. The trial
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court ultimately allowed evidence of two of these prior convictions, one in 2008 and one
in 2016.
The relevant facts underlying the 2008 conviction are as follows. A Stockton
police officer pulled over a car being driven by defendant. A subsequent search of
defendant uncovered a white paper towel that was concealed in the front portion of his
waistband. Inside the paper towel were six coin-sized plastic bags, each containing about
a quarter of a gram of methamphetamine. As in this case, after the officer placed
defendant under arrest and advised him of his rights under Miranda, defendant said he
was a user of methamphetamine but did not display any signs of being under the
influence. Defendant also said he planned to smoke the substance, but the officer found
no pipe or other smoking device in his possession. Defendant also possessed about $362
in cash.
The relevant facts underlying the 2016 conviction are as follows. An El Dorado
County sheriff’s deputy made contact with defendant in the gaming area of Red Hawk
Casino. As defendant turned to allow the deputy to perform a patdown search, defendant
pulled a plastic bag out of his front pants pocket and threw it on the floor. The search
uncovered no evidence, but another deputy retrieved the plastic bag from the casino floor.
The bag contained over 16 grams of methamphetamine. After defendant was placed in
the back of a patrol car, he spontaneously stated he did not use methamphetamine.
Defendant also possessed about $1,400 in cash.
At the hearing on the prosecution’s motion to admit this evidence, defense counsel
argued the prior offenses were too dissimilar to the present offense to be admissible under
Evidence Code section 1101, subdivision (b). Counsel pointed out both prior offenses
had “cash involved to some extent” while the present offense did not. Counsel also
argued defendant’s girlfriend was in the car during the 2008 offense, whereas the driver
of the car in this case was “a relative stranger.” Counsel argued: “So what the People are
trying to say is even though propensity evidence is barred, the way in which my client
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behaves is so similar each time, he has this way of selling that’s so unique that they need
to bring in these priors. If they relied on his statements, he says he uses drugs. That --
here is the only time we actually see indicia of use is the blue [straw] that’s not present in
the other cases. [¶] So this case, these facts are different. The argument the People will
be making to get a conviction will be different. The People will be saying that there has
to be a conviction because no one should reasonably have this much methamphetamine
for personal use. That’s fine. It’s a very different argument than what they would have
made in prior cases saying the combination of some methamphetamine, plus some text
messages, plus some money means personal use is not possible. But it’s just a different
mode of operation and it then becomes just propensity evidence . . . .”
In response, the prosecutor first pointed out the evidence in the present case would
include text messages indicative of sales. The prosecutor then argued admission of
evidence of the prior crimes was not sought solely to prove modus operandi, but was also
sought to prove defendant possessed the intent to sell the methamphetamine and
possessed knowledge of its character as a controlled substance. The prosecutor argued
the prior offenses were similar enough to the present offense for these purposes. Finally,
with respect to modus operandi, the prosecutor argued, “obviously there has to be some
unique similarity between the prior cases and in this case. And what I would say is in
each of the . . . prior convictions that the People seek to admit, the Defendant possesses
relatively small quantities of drugs . . . and relatively no indicia of sales. And when
confronted by law enforcement, he claims to be an addict. [¶] In this case, it’s the exact
same modus operandi. He was caught with a relatively small amount of drugs, 16 grams.
We’re not talking about 5, 10, 15 ounces -- or pounds of drugs, and relatively no indicia
of sales in the car, other than a phone which was later found to contain sales texts. So
when confronted by law enforcement, he again claims he’s an addict . . . . [¶] Moreover,
he hides the drugs, particularly in the [2016] conviction at Red Hawk Casino. He tossed
the drugs on the ground when he was caught at the slot machines. In this case, he hid the
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drugs underneath the passenger’s seat of a vehicle. In the 2008 case, he hid the drugs in
his waistband in a paper towel.”
The trial court ruled the 2008 and 2016 convictions were admissible under
Evidence Code sections 1101, subdivision (b) and 352, to prove defendant possessed the
intent to sell the methamphetamine in this case, and also knew of its presence and illegal
character.
B.
Analysis
With certain exceptions, “evidence of a person’s character or a trait of his or her
character (whether in the form of an opinion, evidence of reputation, or evidence of
specific instances of his or her conduct) is inadmissible when offered to prove his or her
conduct on a specified occasion.” (Evid. Code, § 1101, subd. (a).) One such exception is
found in subdivision (b) of this section, which provides: “Nothing in this section
prohibits the admission of evidence that a person committed a crime, civil wrong, or
other act when relevant to prove some fact (such as . . . intent, . . . knowledge, . . .) other
than his or her disposition to commit such an act.” (Id., subd. (b).) We review the trial
court’s admission of other crimes evidence for abuse of discretion. (People v. Lindberg
(2008) 45 Cal.4th 1, 25.)
“In prosecutions for drug offenses, evidence of prior drug use and prior drug
convictions is generally admissible under Evidence Code section 1101, subdivision (b),
to establish that the drugs were possessed for sale rather than for personal use and to
prove knowledge of the narcotic nature of the drugs.” (People v. Williams (2009) 170
Cal.App.4th 587, 607.) This general rule applies here.
When defendant was detained by law enforcement in the movie theater parking
lot, as the sheriff’s deputy began searching the passenger compartment of the car,
defendant stated he was a drug user. He repeated this assertion when the deputy found
the methamphetamine under the passenger seat. The car did not belong to him. It
9
belonged to the driver of the vehicle. Based on these facts, the defense argued reasonable
doubt existed with respect to whether the methamphetamine was possessed by the driver
rather than defendant, and even if it was in defendant’s possession, reasonable doubt
existed with respect to whether he possessed it for personal use rather than for purposes
of sale. As previously explained, the prosecution was required to prove defendant
possessed the methamphetamine with the intent to sell it and with knowledge of its
presence and illegal character. (Harris, supra, 83 Cal.App.4th at p. 374.) The challenged
evidence of defendant’s prior narcotics convictions was properly admitted to establish
such intent and knowledge.
Nevertheless, defendant argues the prior offenses were not “sufficiently similar” to
the present offense to be admissible for these purposes. We disagree.
“The least degree of similarity (between the uncharged act and the charged
offense) is required in order to prove intent. [Citation.] ‘[T]he recurrence of a similar
result . . . tends (increasingly with each instance) to negative accident or inadvertence or
self-defense or good faith or other innocent mental state, and tends to establish
(provisionally, at least, though not certainly) the presence of the normal, i.e., criminal,
intent accompanying such an act . . . .’ [Citation.] In order to be admissible to prove
intent, the uncharged misconduct must be sufficiently similar to support the inference that
the defendant ‘ “probably harbor[ed] the same intent in each instance.” [Citations.]’
[Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) “Likewise, to establish
knowledge when that element is akin to absence of mistake, the uncharged events must
be sufficiently similar to the circumstances of the charged offense to support the
inference that what defendant learned from the prior experience provided the relevant
knowledge in the current offense.” (People v. Hendrix (2013) 214 Cal.App.4th 216, 242-
243.)
Here, in both the present offense and the prior offenses, defendant possessed more
methamphetamine than a simple user of the substance would typically possess and
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attempted to conceal the substance. In the present offense, the shard of
methamphetamine was concealed under the passenger seat of the car. In the 2008
conviction, six small bags of the substance were concealed in a paper towel in his
waistband. In the 2016 conviction, defendant threw a larger bag of methamphetamine,
similar in size to the shard in this case, on the casino floor when contacted by law
enforcement. Moreover, in both the current offense and the 2008 conviction, when the
drugs were discovered, defendant claimed to be a user but did not display any signs of
being under the influence.
We conclude both of these prior offenses are sufficiently similar to the present
offense to support the inference defendant knew of the presence of the methamphetamine
under the passenger seat, knew it was a controlled substance, and probably harbored the
same intent in this case that he harbored in the prior cases, i.e., the intent to sell the
substance. (See People v. Williams, supra, 170 Cal.App.4th at p. 607.)
This conclusion does not end our inquiry, however. “Even if evidence of other
crimes is relevant under a theory of admissibility that does not rely on proving
disposition, it can be highly prejudicial. ‘Regardless of its probative value, evidence of
other crimes always involves the risk of serious prejudice. . . .’ [Citation.] Therefore, the
law places other restrictions on its admissibility.” (People v. Thompson (1980) 27 Cal.3d
303, 318.) Relevant here, Evidence Code section 352 provides for the exclusion of
otherwise admissible evidence if its probative value is “substantially outweighed by the
probability that its admission [would] . . . create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.” “Since ‘substantial prejudicial effect [is]
inherent in [other crimes] evidence,’ uncharged offenses are admissible only if they have
substantial probative value.” (Thompson, at p. 318, fn. omitted.)
There was no abuse of discretion. The challenged evidence had substantial
probative value with respect to whether defendant possessed the requisite knowledge and
intent. The prosecution presented the evidence through the brief testimony of two
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witnesses. Finally, the trial court instructed the jury regarding the limited purposes for
which the prior crimes evidence was admitted, thereby “eliminat[ing] any danger ‘of
confusing the issues, or of misleading the jury.’ [Citation.] We presume the jury
followed these instructions. [Citation.]” (People v. Lindberg, supra, 45 Cal.4th at
pp. 25-26 [no abuse of discretion where evidence had substantial probative value,
prosecution kept its presentation brief so it would be neither cumulative nor excessive,
and trial court provided limiting instruction].)
The trial court did not abuse its discretion in admitting the challenged evidence of
defendant’s 2008 and 2016 narcotics convictions.
III
Sentencing Discretion
Defendant further asserts the trial court abused its discretion by (A) declining to
strike his prior strike conviction under Romero, and (B) imposing an upper term sentence.
Not so.
A.
Denial of Defendant’s Romero Motion
Section 1385, subdivision (a) provides that a “judge or magistrate may, either of
his or her own motion or upon the application of the prosecuting attorney, and in
furtherance of justice, order an action to be dismissed.” In Romero, our Supreme Court
held a trial court may utilize section 1385, subdivision (a) to strike or vacate a prior strike
conviction for purposes of sentencing under the three strikes law, “subject, however, to
strict compliance with the provisions of section 1385 and to review for abuse of
discretion.” (Romero, supra, 13 Cal.4th at p. 504.) Similarly, a trial court’s “failure to
dismiss or strike a prior conviction allegation is subject to review under the deferential
abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374
(Carmony).)
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“In reviewing for abuse of discretion, we are guided by two fundamental precepts.
First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the
sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a
showing, the trial court is presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a particular sentence will not be
set aside on review.” ’ [Citation.] Second, a ‘ “decision will not be reversed merely
because reasonable people might disagree. ‘An appellate tribunal is neither authorized
nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’
[Citations.] Taken together, these precepts establish that a trial court does not abuse its
discretion unless its decision is so irrational or arbitrary that no reasonable person could
agree with it.” (Carmony, supra, 33 Cal.4th at pp. 376-377.)
We are also mindful that “ ‘the Three Strikes law does not offer a discretionary
sentencing choice, as do other sentencing laws, but establishes a sentencing requirement
to be applied in every case where the defendant has at least one qualifying strike, unless
the sentencing court “conclud[es] that an exception to the scheme should be made
because, for articulable reasons which can withstand scrutiny for abuse, this defendant
should be treated as though he actually fell outside the Three Strikes scheme.” ’
[Citation.]” (Carmony, supra, 33 Cal.4th at p. 377.) “[T]he court in question must
consider whether, in light of the nature and circumstances of his present felonies and
prior serious and/or violent felony convictions, and the particulars of his 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 he had not previously been
convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17
Cal.4th 148, 161 (Williams).) Thus, the three strikes law “creates a strong presumption
that any sentence that conforms to these sentencing norms is both rational and proper.”
(Carmony, at p. 378, italics added.) This presumption will be rebutted only in an
“extraordinary case―where the relevant factors described in Williams, supra, 17 Cal.4th
13148, manifestly support the striking of a prior conviction and no reasonable minds could
differ.” (Ibid.)
Here, after hearing argument from counsel, the trial court provided a brief
description of the foregoing standard for ruling on a Romero motion and indicated it had
read and considered defendant’s motion, the prosecution’s opposition, as well as various
supplemental materials filed by defendant. The trial court then provided an overview of
defendant’s criminal history, beginning in 2005 with the strike conviction for robbery, for
which defendant was sentenced to two years in state prison. Defendant was then
convicted of making or passing fictitious checks in 2007, possession of a controlled
substance for sale in 2008, transportation for sale of a controlled substance in 2013, and
possession of a controlled substance for sale in 2016. Sentenced to nine years in state
prison for the latter conviction, defendant was given early release due to changes in the
law and committed the present offense, also possession of a controlled substance for sale,
while on PRCS. The trial court noted defendant has “done well while he was in prison,”
but did not find that to be significant because “[o]ne would expect that he wouldn’t have
any violations of the law while he is in custody.” However, when released on parole or
PRCS, “he has not always been successful in completing either.”
The trial court then explained that defendant was “in his mid [thirties]” and “still a
relatively young man,” but also noted “he has been adamant . . . that it is not drug use that
has led him to these drug convictions but rather [the] dealing of drugs.” Noting the age
of the strike offense, the trial court explained that would be significant had defendant
“kept himself free of custody and offenses, something unfortunately he has not been able
to do.” Finally, the trial court weighed the factors in aggravation against the factors in
mitigation and found the aggravating factors far outweighed those in mitigation. Indeed,
the trial court found only one factor in mitigation, i.e., defendant appeared to have been
motivated to sell drugs by a desire to provide for his family. Based on all of this, the trial
court concluded defendant did not fall outside the spirit of the three strikes law.
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Defendant argues the trial court abused its discretion in declining to strike his prior
strike conviction because the present offense was “a non-serious, nonviolent felony” and,
as the trial court noted, “it appeared [defendant] had been motivated to commit the
offense in an effort to provide for his family.” Defendant also points to “character letters,
reflecting he had community support to assist him in becoming a productive member of
society.” Even accepting defendant’s characterization of the present offense, his
motivation for committing it, and the content of the character letters, these factors do not
outweigh the numerous factors weighing against a determination that defendant fell
outside the spirit of the three strikes law, either “in whole or in part.” (Williams, supra,
17 Cal.4th at p. 161.) This is not a case in which “the relevant factors described in
Williams” so “manifestly support the striking of a prior conviction [that] no reasonable
minds could differ.” (Carmony, supra, 33 Cal.4th at p. 378.)
Nor are we persuaded by defendant’s assertion that Propositions 36, 47, and 57
somehow combine to make the trial court’s denial of his Romero motion an abuse of
discretion. Proposition 36 “diluted the three strikes law by reserving the life sentence for
cases where the current crime is a serious or violent felony or the prosecution has pled
and proved an enumerated disqualifying factor.” (People v. Yearwood (2013) 213
Cal.App.4th 161, 167.) Because this is not a third strike case in which defendant was
sentenced to a life term, Proposition 36 does not apply. “Proposition 47 reclassified as
misdemeanors certain drug- and theft-related offenses that previously were felonies or
wobblers,” such as simple possession of a controlled substance, and “also added a
provision allowing felony offenders ‘serving a sentence for a conviction’ for offenses
now reclassified as misdemeanors to petition to have their sentences recalled and to be
resentenced.” (People v. Valencia (2017) 3 Cal.5th 347, 355.) Because possession of a
controlled substance for sale (Health & Saf. Code, § 11378) was not reclassified by
Proposition 47 (see § 1170.18, subd. (a)), this enactment is also inapplicable to
defendant’s case.
15
Finally, the portion of Proposition 57 relied upon by defendant in this case
amended the California Constitution to add article I, section 32, providing “[a]ny person
convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for
parole consideration after completing the full term for his or her primary offense” and
also providing the Department of Corrections and Rehabilitation with additional
“authority to award credits earned for good behavior and approved rehabilitative or
educational achievements.” (Cal. Const., art. I, § 32, subd. (a); Levenson & Ricciardulli,
Cal. Criminal Procedure (The Rutter Group 2020) Parole, § 31:7, pp. 31-12 to 31-15.)
This constitutional provision has nothing to do with whether a trial court should strike a
prior strike conviction for purposes of sentencing under Romero.
Although we agree with defendant’s general observation that the cited
propositions reflect “a changed mindset from the draconian and stiff penalties for the
non-violent recidivist,” neither individually nor combined do they make the trial court’s
exercise of discretion on defendant’s Romero motion an abuse of discretion. We
conclude there was no such abuse in this case.
B.
Selection of the Upper Term
Defendant does not provide a separate argument regarding the propriety of
selecting the upper term sentence. Instead, as the Attorney General accurately observes,
he “summarily merges his complaint about the upper term with his Romero motion
argument without explaining how the trial court purportedly erred in finding an
aggravating circumstance needed for the upper term.” For this reason, we consider the
point forfeited for failure to raise the issue under a separate heading or provide reasoned
argument and citation to relevant authority. (See Cal. Rules of Court, rule
8.204(a)(1)(B); Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826,
1830, fn. 4 [an appellant must present each point separately in its opening brief, showing
the nature of the question to be presented and the point to be made; failure to do so may
16
be deemed a forfeiture of the argument]; Salas v. Department of Transportation (2011)
198 Cal.App.4th 1058, 1074 [contentions not supported by reasoned argument and
authority are forfeited].)
IV
Imposition of the Probation Report Fee
Defendant additionally contends that the trial court violated both section 1203.1b
and his constitutional right to due process by imposing a fee for the cost of the probation
report after staying the minimum restitution fine and other mandatory fees under People
v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which held “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.”
(Id. at p. 1164.) We conclude imposition of the probation report fee violated section
1203.1b and decline to address defendant’s due process argument under Dueñas.
A.
Additional Background
The probation report notes defendant was working as a residential painter at the
time of the current offense, making $900 per month. The report further notes: “The
defendant was provided a Financial Statement in order to assess the defendant’s ability to
pay, and the application of the sliding scale payment schedule, based on the 2018 Federal
Poverty Guidelines, was used. Therefore, it is respectfully recommended the defendant
be ordered to pay $109.50 for the cost of the Probation Report.”
During the sentencing hearing, defense counsel asked the trial court to “strike” or
“stay any fines in [defendant’s] case” under Dueñas and “some of the other cases that
have subsequently come out” because “there has not been a showing by the People of
[defendant’s] ability to pay, not that they could prove that, he’s in custody, and going to
be in custody for a while, so he doesn’t really have the ability to pay.” The prosecution
declined to be heard on the matter.
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The trial court ruled as follows: “The Court will impose the minimum restitution
fine pursuant to [section] 1202.4 of $300 and stay that restitution fine until there is a
showing that Mr. Brooks has the ability to pay that. [¶] Further, the Court would impose
the additional $300 restitution fine fee pursuant to [section] 1202.45 and stay that
pending successful completion of your parole or [PRCS]. [¶] That means that if you’re
successful on your release, Mr. Brooks, that additional fine would not be due and payable
to the court, sir. [¶] In addition, the Court would impose the cost of the probation report
in the amount of $109.50. That’s pursuant to . . . [section 1203.1b]. The Court will not
stay that. That is ordered and is not covered under [Dueñas]. [¶] The Court would
impose the Court operations fee of $40, the critical needs assessment fee of $30 and stay
that as well pending a showing of ability to pay.”
B.
Analysis
As relevant here, section 1203.1b provides: “In any case in which a defendant is
convicted of an offense and is the subject of any . . . presentence investigation and report,
whether or not probation supervision is ordered by the court, . . . the probation officer, or
the officer’s authorized representative, taking into account any amount that the defendant
is ordered to pay in fines, assessments, and restitution, shall make a determination of the
ability of the defendant to pay all or a portion of the reasonable cost of . . . preparing any
presentence report . . . . The court shall order the defendant to appear before the
probation officer, or the officer’s authorized representative, to make an inquiry into the
ability of the defendant to pay all or a portion of these costs. The probation officer, or the
officer’s authorized representative, shall determine the amount of payment and the
manner in which the payments shall be made to the county, based upon the defendant’s
ability to pay. The probation officer shall inform the defendant that the defendant is
entitled to a hearing, that includes the right to counsel, in which the court shall make a
determination of the defendant’s ability to pay and the payment amount. The defendant
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must waive the right to a determination by the court of the defendant’s ability to pay and
the payment amount by a knowing and intelligent waiver.” (§ 1203.1b, subd. (a).)
“Where the defendant does not waive the right to a judicial determination, the
probation officer ‘shall refer the matter to the court for the scheduling of a hearing to
determine the amount of payment and the manner in which the payments shall be made’
and at that time ‘[t]he court shall order the defendant to pay the reasonable costs if it
determines that the defendant has the ability to pay those costs based on the report of the
probation officer, or his or her authorized representative.’ (§ 1203.1b, subd. (b).)”
(People v. Neal (2018) 29 Cal.App.5th 820, 825.)
Here, the probation officer made the initial determination of defendant’s ability to
pay $109.50 for the costs of the probation report, as provided in section 1203.1b,
subdivision (a). Although there is no indication in the record that the probation officer
informed defendant of his right to a hearing before the trial court at which the court
would make the ultimate determination of his ability to pay, such a hearing was held,
defendant was represented by counsel, and counsel objected to the imposition of “any
fine” under Dueñas because “there has not been a showing by the People of [defendant’s]
ability to pay.” The probation report fee authorized by section 1203.1b is not a “fine,”
but the trial court apparently understood counsel’s objection to cover this fee because it
addressed the probation report fee in its ruling. That ruling, however, did not conclude
defendant possessed the ability to pay the probation report fee. Instead, undoubtedly
because counsel’s specific objection was made under Dueñas, and not under the statutory
requirements of section 1203.1b, the trial court simply ruled the Dueñas decision did not
apply to the probation report fee.
We therefore have a situation in which defendant’s trial counsel can be understood
to have objected to all fines and fees based on defendant’s inability to pay, but did so
under Dueñas, i.e., based on principles of due process, not based on the statutory
requirements of section 1203.1b. For this reason, the Attorney General argues the
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statutory claim is forfeited. We might agree except for the fact that the trial court’s ruling
impliedly finds defendant did not have an ability to pay the probation report fee. Indeed,
the trial court explicitly found the prosecution had not demonstrated defendant possessed
an ability to pay the lesser mandatory assessments of $40 and $30 under section 1465.8
and Government Code section 70373, respectively. Although the forfeiture doctrine
applies to claims that a fine or fee was improperly imposed, not because it was
unauthorized by statute, but because the trial court failed to find an ability to pay (People
v. McCullough (2013) 56 Cal.4th 589, 599 [booking fee]; People v. Crittle (2007) 154
Cal.App.4th 368, 371 [crime prevention fee]; People v. Valtakis (2003) 105 Cal.App.4th
1066, 1072 [probation fee]), in this case, the trial court imposed the probation report fee
after impliedly finding an inability to pay the fee.
Section 1203.1b plainly does not authorize imposition of the probation report fee
in these circumstances. We shall modify the judgment to strike this fee.
V
Retroactive Application of Senate Bill 136
Finally, we also agree, as does the Attorney General, that defendant’s prior prison
term enhancements must be stricken because Senate Bill 136, which became effective
January 1, 2020, and eliminates such enhancements for defendant’s crimes, applies
retroactively to cases not yet final on appeal.
Senate Bill 136 amended section 667.5, subdivision (b), to remove the one-year
enhancement for prior prison terms, except when the offense underlying the prior prison
term was a sexually violent offense. (See § 667.5, subd. (b).) Because Senate Bill 136
reduces sentences for a crime it applies retroactively to convictions not final on appeal
absent evidence of a contrary legislative intent. (See People v. Brown (2012) 54 Cal.4th
314, 323-324; In re Estrada (1965) 63 Cal.2d 740, 745.) The enactment therefore applies
to this case.
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The offenses underlying defendant’s prior prison terms were not sexually violent
offenses. Accordingly, the prior prison term enhancements cannot stand. We shall
modify the judgment to strike each of defendant’s four one-year prior prison term
enhancements.
DISPOSITION
The judgment is modified to strike the probation report fee and each of
defendant’s one-year prior prison term enhancements. As modified, the judgment is
affirmed. The trial court is directed to prepare an amended abstract of judgment
reflecting the modification and to forward a certified copy thereof to the Department of
Corrections and Rehabilitation.
/s/
HOCH, J.
We concur:
/s/
HULL, Acting P. J.
/s/
KRAUSE, J.
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