Filed 12/13/19 P. v. Loza CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ALEJANDRO LOZA,

Defendant and Appellant.

D075287

(Super. Ct. No. SCD276263)

APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed, sentence vacated and remanded with directions.

Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Alejandro Loza of three counts of vandalism causing a loss in excess of $400 (Pen. Code, § 594, subd. (a)(b)(1)) and one count of vandalism causing a loss of less than $400 (§ 594, subd. (a)(b)(2)(A).) The jury also found the gang enhancements alleged as to each count to be true. (§ 186.22, subd. (b)(1).) Loza admitted a prison prior (§ 667.5, subd. (b).)

Loza was sentenced to a term of six years in prison. The court imposed a $7,200 restitution fine (§§ 1202.4, subd. (b), 1202.45.) In addition, the court imposed a number of fees and assessments.

Loza appeals. He originally did not challenge his convictions or his custodial sentence. After the briefing in this case was completed, the Legislature passed Senate Bill No. 136, effective January 1, 2020. The statute affects the imposition of one-year consecutive terms for the prison prior enhancement under section 667.5, subdivision (b). In his supplemental brief Loza contends the one-year term imposed for the prison prior in this case is unauthorized after January 1, 2020. The People correctly agree with Loza’s contention. We will direct the trial court to strike the term imposed for the enhancement and to modify the abstract of judgment accordingly.

Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Loza contends the court erred in imposing such fines, fees and assessment without first conducting a hearing to determine his present ability to pay. Appellate counsel recognizes the defense did not object to the imposition of any of the fines, fees or assessments. Counsel argues Dueñas does not permit forfeiture and, in any event, those cases which have applied the forfeiture doctrine to Dueñas challenges were wrongly decided. In addition, Loza challenges each of the sums imposed.

We will find these issues have been forfeited by failure to timely raise them in the trial court. Accordingly, we will not discuss the merits of Loza’s multiple challenges and will affirm the judgment in its entirety.

DISCUSSION

I

The Dueñas Issue Has Been Forfeited

A. Facts regarding fines, fees and assessments

The court sentenced Loza to six years in prison. It imposed a restitution fine of $7,200 (Pen. Code, § 1202.4, subd. (b)), a parole revocation fine that was stayed of $7,200 (Pen. Code, § 1202.45), a court security fee of $160 (Pen. Code, § 1465.8), a criminal conviction assessment of $120 (Gov. Code, § 70373), a criminal justice administration fee of $154 (Gov. Code, § 29550), a theft fine of $39 (Pen. Code, § 1202.5), and victim restitution of $2,234.46 (Pen. Code, § 1202.4, subd. (f)). Loza did not object to imposition of the fines or fees, and did not request a hearing on his ability to pay.

B. Loza forfeited his Dueñas challenge by failing to timely object.

Loza contends the trial court erred by imposing the above-described fines, fees, and assessments without first determining whether he had the ability to pay them. He bases this contention on the recent decision in Dueñas, supra, 30 Cal.App.5th 1157, which held that imposing fines, fees, and assessments on a defendant who is unable to pay them violates constitutional due process. Loza acknowledges that, unlike the defendant in Dueñas, he did not object to the fines, fees, and assessments during sentencing. Nevertheless, he maintains he has not forfeited his challenge because Dueñas was not decided until after he was sentenced, and it represents a “novel and unforeseeable” change in the law. On the record before us, we conclude Loza forfeited this challenge.

Notably, the statutes authorizing $7,393 of the $7,673—about 96 percent—of the fines, fees, and assessments Loza now challenges authorized the trial court to consider Loza’s ability to pay. First, by imposing a restitution fine of $7,200 under Penal Code section 1202.4, the trial court exceeded the $300 minimum fine, thereby authorizing the court to consider Loza’s “[i]nability to pay.” (Pen. Code, § 1202.4, subd. (c).) Second, the $154 criminal justice administration fee imposed under Government Code section 29550 et seq. is mandatory “[i]f the person has the ability to pay” it. (Gov. Code, § 29550.2.) Likewise, the $39 theft fine imposed under Penal Code section 1202.5 is mandatory “[i]f the court determines that the defendant has the ability to pay all or part of the fine . . . .” (Pen. Code, § 1202.5, subd. (a).)

Loza’s silence during sentencing in the face of more than $7,000 in challengeable fines, fees, and assessments “is a classic example of the application of the forfeiture doctrine relied upon by the California Supreme Court in numerous criminal sentencing cases decided well before Dueñas.” (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 (Gutierrez), citing People v. Aguilar (2015) 60 Cal.4th 862, 864 [applying the forfeiture rule to challenges to probation-related costs and an order for reimbursement of fees paid to appointed trial counsel]; People v. Trujillo (2015) 60 Cal.4th 850, 853-854 [applying the forfeiture rule to an unpreserved claim regarding probation-related fees and defendant’s inability to pay them]; People v. Nelson (2011) 51 Cal.4th 198, 227 [defendant’s claim that the trial court erred by failing to consider ability to pay a restitution fine is forfeited by the failure to object].)

“[E]ven before Dueñas a defendant had every incentive to object to imposition of” a significant restitution fine and other fees and assessments that expressly permit a challenge on the basis of the defendant’s inability to pay. (Gutierrez, supra, 35 Cal.App.5th at p. 1033.) By failing to do so here, Loza forfeited his right to raise this

challenge on appeal.

II

Senate Bill No. 136 Requires the Court to Strike the Sentence for the Prison Prior

Effective January 1, 2020, imposition of a one-year term for prison prior enhancements such as imposed here are unauthorized. Loza’s case will not be final on appeal until the effective date of Senate Bill No. 136. The parties agree Loza will be entitled to the benefit of the new statute as on January 1, 2020. (See People v. Chavez (2018) 22 Cal.App.5th 663, 708-712.) Since there is no dispute about the applicability of the statute, we will vacate the sentence and remand the case to the trial court with directions to strike the section 667.5, subdivision (b) enhancement and resentence accordingly (People v. Wright (2019) 31 Cal.App.5th 749, 756-757).

DISPOSITION

The sentence is vacated, and the case is remanded to the trial court with directions to strike the section 667.5 enhancement and resentence as may be appropriate. The court shall amend the abstract of judgment and forward the amended abstract to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

DATO, J.