Filed 1/27/20 P. v. Miller CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

DAMEON MILLER,

Defendant and Appellant.

B294274

(Los Angeles County

Super. Ct. No. BA465938)

APPEAL from a judgment of the Superior Court of Los Angeles County, Mildred Escobedo, Judge. Affirmed and remanded with directions.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General and Daniel C. Chang, Deputy Attorney General for Plaintiff and Respondent.

_____________________________

INTRODUCTION

A jury convicted Dameon Miller of false imprisonment by violence and first degree robbery of an inhabited dwelling house, and the trial court sentenced him to prison for 35 years. Miller does not challenge his convictions. He argues only we should remand the matter to give the trial court an opportunity to exercise discretion whether to strike a five-year enhancement under Penal Code section 667, subdivision (a)(1), and to give Miller an opportunity to request a hearing on his ability to pay the fines, fees, and assessments the trial court imposed. We affirm the convictions and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

Miller and two other men knocked on the door of a house, pushed the door open when a 17-year-old girl answered it, and pointed a gun at the girl. Miller and the other men entered the house and told the girl and her older brother and sister, who were also in the home, to get down on the floor. The men tied the three siblings’ hands behind their backs, told them at gunpoint to go into a bedroom, and put a blanket over their heads. Miller and the other men robbed the house, taking jewelry, electronics, and a smart phone, and tried to find a safe in the house. Eventually, the three men left the house, got into their cars, and drove away.

A jury found Miller not guilty on three counts of kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1)), but guilty of three lesser included offenses of false imprisonment effected by violence, menace, fraud, or deceit (id., § 237, subd. (a)). The jury also convicted Miller on three counts of first degree robbery of an inhabited dwelling house (id., §§ 211, 212.5, subd. (a)) and found true the allegation Miller voluntarily acted in concert with two or more persons in committing the robbery in an inhabited dwelling house, within the meaning of section 213, subdivision (a)(1)(A). The jury was unable to reach a verdict on the allegation Miller personally used a firearm within the meaning of section 12022.53, subdivision (b). In a bifurcated proceeding, Miller admitted that he had a prior conviction for a felony that was a serious felony within the meaning of section 667, subdivision (a)(1), and a serious or violent felony within the meaning of the three strikes law (§§ 667, subds. (b)-(j), 1170.12) and that he had served four prior prison terms within the meaning of section 667.5, subdivision (b).

The trial court sentenced Miller to an aggregate prison term of 35 years. On one of the first degree robbery convictions, the court imposed a term of 18 years (the upper term of nine years, doubled under the three strikes law), and on each of the other robbery convictions the court imposed consecutive terms of four years (one-third the middle term of six years, doubled under the three strikes law). For the three false imprisonment convictions, the court imposed consecutive terms of one year four months (one-third the middle term of two years, doubled under the three strikes law). The court imposed a five-year enhancement under section 667, subdivision (a)(1), for the prior serious felony conviction and struck under section 1385 the one-year enhancements under section 667.5, subdivision (b), in furtherance of justice.

DISCUSSION

A. Remand Is Appropriate for the Trial Court To Consider Whether To Strike the Enhancement Under Section 667, Subdivision (a)(1)

When the trial court sentenced Miller, section 667 prohibited the court from striking the five-year enhancement under that statute. (See People v. Garcia (2018) 28 Cal.App.5th 961, 971.) The Legislature, however, has since amended sections 667 and 1385, effective January 1, 2019, to give trial courts discretion to dismiss, in furtherance of justice, a five-year sentence enhancement under section 667, subdivision (a). (See Stats. 2018, ch. 1013, §§ 1-2; Garcia, at p. 973.) We agree with the parties the new law applies retroactively to Miller because his appeal was not final on the law’s effective date. (See People v. Gonzalez (2019) 39 Cal.App.5th 115, 123; People v. Sexton (2019) 37 Cal.App.5th 457, 473.)

The People argue “remand for resentencing is unwarranted here because the trial court’s statements at sentencing clearly indicated that it would not have dismissed the enhancement in any event.” (See People v. Franks (2019) 35 Cal.App.5th 883, 892 [“Remand is required unless ‘the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] enhancement’ even if it had the discretion.”]; People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081 [remand is required when “the record does not ‘clearly indicate’ the court would not have exercised discretion to strike the firearm allegations had the court known it had that discretion”]; People v. McDaniels (2018) 22 Cal.App.5th 420, 425 [same].) “In reviewing whether the trial court made such an unequivocal indication, we consider the trial court’s statements and sentencing decisions.” (Franks, at p. 892.)

Did the court clearly indicate it would not have stricken the five-year enhancement under section 667, subdivision (a)(1), if it had the discretion to do so? Not quite. Certainly the trial court had some harsh words for Miller and his conduct. The court reviewed Miller’s criminal history and stated it showed Miller “has not and will not be a productive citizen. All he knows is crime. . . . It would appear he does not care in the slightest about anyone other than himself.” Turning to the facts of this case, the court stated that Miller “planned a surgical attack on the residents within the home with weapons and a specific plan to ultimately subdue the residents by binding them” and that he and his confederates had “no concern for anyone other than themselves and what they would gain.” The court commented Miller abandoned his children, “has been up to no good for all these years,” and has “clearly proven this by his history and his conduct” he “will not follow the law.” The court further stated, “I cannot and I will not subject the public to any further violence or crimes from this defendant because it is very clear, he goes to prison, he gets out, he commits a crime. He goes into custody, he gets out, he commits a crime. Just keeps committing crimes. He doesn’t care.” And the court imposed the upper term on Miller’s burglary conviction.

But the court also exercised its discretion to strike four enhancements under section 667.5, subdivision (b), for Miller’s prior prison terms, stating: “The court does exercise its discretion and will not add four [1-]year priors pursuant to 667.5(b). They are, for sentencing purposes, not going to be added. Therefore, the court will 1385 the 667.5(b) priors for sentencing purposes.” The court also emphasized it was not striking the prior serious felony conviction because it did not have discretion to do so: “I cannot strike the priors, and I will not.” The court added it intended “to impose the full terms on all counts,” which the court did, but that sentiment apparently did not extend to imposing full terms on the enhancements, because the court struck four of them. Thus, the record does not clearly indicate the trial court, having exercised discretion to strike four 1-year enhancements, would not also have exercised discretion to strike a five-year enhancement had the court known it had that discretion. (See People v. Almanza (2018) 24 Cal.App.5th 1104, 1110 [“[r]emand is required unless the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so”]; People v. Billingsley, supra, 22 Cal.App.5th at p. 1081 [defendants “‘“are entitled to sentencing decisions made in the exercise of the ‘informed discretion’ of the sentencing court”’”].)

B. Remand Is Also Appropriate To Give Miller the Opportunity To Request a Hearing on His Ability To Pay the Fines, Fees, and Assessments

In People v. Dueñas (2019) 30 Cal.App.5th 1157 this court held trial courts cannot impose a court operations assessment under section 1465.8 or a court facilities assessment under Government Code section 70373 without first determining the defendant’s ability to pay. (Dueñas, at pp. 1168, 1172.) Here, the trial court ordered Miller to pay a $30 court facilities assessment under Government Code section 70373, a $40 court security fee under section 1465.8, a $10 crime prevention fee under section 1202.5, and a restitution fine of $300. Miller argues that, because the trial court imposed these fines, fees, and assessments without finding he had the ability to pay them, they must be stricken.

The People argue that Miller forfeited this argument by failing to raise it in the trial court and that the record does not establish Miller is unable to pay the fines, fees, and assessments. The People also argue that, “[a]lthough in Dueñas the court analyzed the defendant’s restitution fine using due process principles,” the “proper analytic framework is that of the excessive fines clause of the Eighth Amendment” to the United States Constitution and that, “[e]ven if analyzed under due process principles, [Miller’s] restitution fine was constitutionally imposed.”

Miller did not forfeit the argument. As we explained in People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano), which the People ask us (and we decline) “to reconsider,” at the time the trial court sentenced Miller, “Dueñas had not yet been decided; and no California court prior to Dueñas had held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant’s ability to pay. Moreover, none of the statutes authorizing the imposition of the fines, fees or assessments at issue authorized the court’s consideration of a defendant’s ability to pay. Indeed . . . in the case of the restitution fine, . . . section 1202.4, subdivision (c), expressly precluded consideration of the defendant’s inability to pay. When, as here, the defendant’s challenge on direct appeal is based on a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial, reviewing courts have declined to find forfeiture.” (Castellano, at p. 489; see People v. Santos (2019) 38 Cal.App.5th 923, 929-934; People v. Jones (2019) 36 Cal.App.5th 1028, 1032; see generally People v. Brooks (2017) 3 Cal.5th 1, 92 [“‘[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence’”].) Therefore, Miller did not forfeit his argument we should remand the matter for a hearing on his ability to pay the court facilities assessment, court security fee, and restitution fine.

Nor does Dueñas require the defendant to demonstrate adverse consequences from imposition of the fines, fees, and assessments. “[A] defendant must in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court. In doing so, the defendant need not present evidence of potential adverse consequences beyond the fee or assessment itself, as the imposition of a fine on a defendant unable to pay it is sufficient detriment to trigger due process protections.” (Castellano, supra, 33 Cal.App.5th at p. 490; see Dueñas, supra, 30 Cal.App.5th at pp. 1168-1169.) Thus, on remand Miller does not need to present evidence of potential adverse consequences beyond the amount of the fines, fees, and assessments, and the trial court should consider all relevant factors in determining Miller’s ability to pay, including any wages Miller may earn during his incarceration. (See Castellano, at p. 490.)

The People’s Eighth Amendment argument fares no better. As we explained in People v. Belloso (2019) 42 Cal.App.5th 647, the Supreme Court has held that, in analyzing “the constitutionality of civil penalties imposed by the trial court, ‘It makes no difference whether we examine the issue as an excessive fine or a violation of due process.’ Because both the Dueñas due process and [the] excessive fines analyses require consideration of a defendant’s ability to pay, there is no need to analyze the constitutionality of fines and fees under the Eighth Amendment.” (Id. at p. 660, quoting People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728.) An Eighth Amendment analysis must include an evaluation of the defendant’s ability to pay, which is “critical to the analysis, especially for the minimum restitution fine (currently $300) that must be imposed in every case regardless of the defendant’s culpability and the defendant’s ability to pay.” (Belloso, at p. 662.) Cases analyzing the constitutionality of imposing fines, fees, and assessments on indigent defendants under the Eighth Amendment are asking the wrong question and then answering it incompletely. (See, e.g., People v. Aviles (2019) 39 Cal.App.5th 1055.)

Finally, imposition of the fines, fees, and assessments violated Miller’s due process rights. As we explained in People v. Belloso, supra, 42 Cal.App.5th 647 it is “a basic principle of fairness that the rich and poor should have equal access to the justice system, consistent with the principle underlying the holding in [Griffin v. Illinois (1956) 351 U.S. 12, 17 [76 S.Ct. 585]] that ‘all people charged with crime must, so far as the law is concerned, “stand on an equality before the bar of justice in every American court.”’” (Belloso, at p. 656.) “Without an ability-to-pay determination, the consequences to a defendant from imposition of an assessment or fine differ solely because of his or her financial condition. As this court observed in Dueñas, collection of unpaid assessments could damage the defendant’s credit, potentially interfere with child support obligations, restrict employment opportunities, and otherwise impact the defendant’s reentry to society and rehabilitation. [Citation.] These consequences are particularly troubling as to the assessments because they are imposed not as a punishment, but to fund the court system. [Citation.]. . . . [F]ailure to pay the restitution fine could similarly result in serious consequences, including preventing a defendant from obtaining dismissal of his or her conviction and enforcement of a civil judgment against the defendant. [Citation.] In light of these differing consequences, under Griffin, there is no ‘“equality before the bar of justice.”’” (Belloso, at pp. 656-657.) Thus, a “defendant who does not pay fines or fees faces potentially severe consequences that punish him or her based on poverty, not the underlying crime.” (Id. at p. 658.) Cases finding no due process violation are wrongly decided. (See, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946; People v. Caceres (2019) 39 Cal.App.5th 917, 920.)

DISPOSITION

The convictions are affirmed. The sentence is vacated and the matter is remanded for the trial court to consider whether to exercise its discretion to strike the prior serious felony conviction enhancement under section 667, subdivision (a)(1). The matter is also remanded to allow Miller to request a hearing to determine his ability to pay the fees, fines, and assessments imposed by the trial court, other than the crime prevention fee under section 1202.5. If Miller demonstrates his inability to pay, the trial court must strike the court facilities and court operations assessments and the court security fee, and stay execution of the restitution fines. If Miller fails to demonstrate his inability to pay, the court may enforce the fines, fees, and assessments the court previously imposed.

SEGAL, J.

We concur:

ZELON, Acting P. J. FEUER, J.