Filed 12/18/19 P. v. Smith CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

SHARON BUTLER SMITH,

Defendant and Appellant. H046451

(Santa Clara County

Super. Ct. No. C1780660)
Sharon Butler Smith pleaded no contest to grand theft (Pen. Code, § 487, subd. (a)) and admitted she had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12). After denying Smith’s Romero motion, the trial court sentenced her to 32 months in state prison. The court also imposed a $600 restitution fine (§ 1202.4, subd. (b)(2)), a $40 court operations fee (§ 1465.8), a $30 court facilities fee (Gov. Code, § 70373), a $129.75 criminal justice fee (Gov. Code, § 29550), and a $10 fine plus penalty assessment

(§ 1202.5), without first determining whether Smith had the ability to pay the fines and fees.

Smith asserts the trial court erred when it denied her Romero motion to dismiss her strike conviction, because her criminal behavior has been decreasing in severity over time. We do not agree, and find the trial court did not abuse its discretion in denying Smith’s motion.

Pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Smith requests that we remand the matter to the trial court for a determination of her ability to pay the fees, and that we stay the execution of the $600 restitution fine (§ 1202.4, subd. (b)), until the prosecution can prove she has the ability to pay.

We find Smith forfeited her appellate challenge to the $600 restitution fine (§ 1202.4, subd. (b)), the $129.75 criminal justice administration fee (Gov. Code, § 29550), and the $10 fine plus penalty assessment (§ 1202.5), because she did not object to the trial court’s imposition of these fines and fee despite having a statutory basis to do so.

We find Smith impliedly has the ability to pay the $40 court operations fee (§ 1465.8), and the $30 court facilities fee (Gov. Code, § 70373). We will therefore affirm the judgment.

I. STATEMENT OF THE FACTS AND CASE
II.
In December 2017, Smith stole merchandise from the Nordstrom store in Valley Fair Mall in San Jose that was worth approximately $1,500. Smith was detained by Nordstrom’s loss prevention manager outside of the store. Smith was later arrested by a police officer.

Smith was charged by information with grand theft (§ 487, subd. (a)). The information also alleged that Smith had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12). Smith pleaded no contest to the charge and admitted her prior strike conviction in exchange for a maximum sentence of 32 months in prison.

Smith filed a Romero motion requesting that the trial court exercise its discretion to dismiss her prior strike conviction. The trial court denied Smith’s Romero motion, finding that Smith fell within the ambit of the “Three Strikes” law due to her criminal history and continuing criminality. Smith was sentenced to 32 months in prison. The court imposed a $600 restitution fine (§ 1202.4, subd. (b)), $600 suspended restitution fine (§ 1202.45), $40 court operations fee (§ 1465.8), $30 court administration fee (Gov. Code, § 70373), $129.75 criminal justice administration fee (Gov. Code, § 29550), and $10 fine, plus penalty assessment (§ 1202.5). Smith filed a timely notice of appeal.

III. DISCUSSION
IV.
A. Denial of Romero Motion
B.
Section 1385 authorizes a trial court to strike prior strike convictions “in furtherance of justice.” (Romero, supra, 13 Cal.4th at pp. 504, 529, 530.) That discretion, however, is “limited.” (Id. at p. 530.) “[T]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts’ discretion in sentencing repeat offenders.” (Id. at p. 528.) “To achieve this end, ‘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 [or she] actually fell outside the Three Strikes scheme.” ’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)

In exercising its discretion, the trial court must “ ‘ “consider[ ] both . . . the constitutional rights of the defendant, and the interests of society represented by the People . . . .” ’ ” (Romero, supra, 13 Cal.4th at p. 530, italics omitted.) The trial court must accord “preponderant weight . . . to factors intrinsic to the [Three Strikes] scheme, such as the nature and circumstances of the defendant’s present felonies and prior serious and/or violent felony convictions, and the particulars of his [or her] background, character, and prospects.” (People v. Williams (1998) 17 Cal.4th 148, 161.) “[N]o weight whatsoever may be given to factors extrinsic to the scheme, such as the mere desire to ease court congestion or, a fortiori, bare antipathy to the consequences for any given defendant. [Citation.]” (Ibid.) Ultimately, the trial court must determine whether “the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he [or she] had not previously been convicted of one or more serious and/or violent felonies.” (Ibid.)

We review a trial court’s discretionary sentencing choices, including its refusal to strike a prior strike conviction, for abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 375.) “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.” ’ [Citations.] 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.” (Id. at pp. 376-377.)

“[A] trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not ‘aware of its discretion’ to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation].” (Carmony, supra, 33 Cal.4th at p. 378.) An abuse of discretion also occurs where the trial court “strikes a sentencing allegation[ ] solely ‘to accommodate judicial convenience or because of court congestion,’ ” or “simply because a defendant pleads guilty.” (Romero, supra, 13 Cal.4th at p. 531.)

On the other hand, “[w]here the record is silent [citation], or ‘[w]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance’ [citation].” (Carmony, supra, 33 Cal.4th at p. 378.)

Smith asserts the trial court abused its discretion in denying her Romero motion because the court relied on her criminal history and concluded that her crimes were increasing in severity. She argues the trial court’s conclusion was incorrect because her current crime was actually less serious than other crimes she had committed in the past. Specifically, Smith notes that her 2015 prior strike offense was a theft crime in which she swung a knife and cut a store employee when the employee confronted her after she left the store with stolen merchandise. In the present case, on the other hand, Smith stole property from Nordstrom, but did not commit any violent acts when she was stopped by security personnel outside the store.

Based on our review of the record, we do not agree with Smith that her crimes were decreasing in severity. Smith has a 30-year criminal history that includes convictions for assault with a deadly weapon (§ 245, subd. (a)(1)), petty theft (§ 484, subd. (a)), petty theft with a prior (§§ 484, subd. (a); 666, subd. (a)), battery (§ 242), and transportation/sales of a controlled substance (Health & Saf. Code, § 11352, subd. (a)). Smith’s past crimes were primarily thefts and offenses that Smith committed incident to stealing merchandise from stores or attempting to flee with stolen goods. In 2004, Smith stole merchandise from Target and admitted she did so to support her drug habit. While she was on bail for the Target theft, Smith stole merchandise from Safeway and, when confronted by a loss-prevention officer, struck the officer with a hammer. In 2005, Smith was involved in a drug transaction with an undercover police officer and told the officer she was keeping some of the rock cocaine for herself, and that she was stealing to pay her debt to drug dealers. In 2012, Smith stole clothing from Walmart and punched the loss-prevention officer in the face when she was apprehended. In 2015, Smith stole merchandise from JC Penney’s and when confronted by the loss-prevention officer, brandished a knife and cut the officer’s cheek and neck. The prosecution of this event resulted in her conviction of a strike offense, assault with a deadly weapon (§ 245, subd. (a)(1)). A few months prior to the offense before us on appeal that occurred in December 2017, Smith stole $2,100 worth of merchandise from a Nordstrom store, and when approached by a loss prevention officer, threatened the officer, and fled to her car. Once in her car, Smith drove in the direction of the officer. Police pursued Smith in her car, and she was ultimately arrested.

The fact that Smith was not violent during the current offense does not negate the trial court’s conclusion that Smith’s “[c]ontinuing criminality does appear to be increasing in severity and [appellant had] a significant criminal history as well.” Following the strike offense in 2015, Smith committed two thefts at Nordstrom in 2017 within months of one another. The value of the merchandise taken was significantly higher than that of the items she had stolen in the past from Target, Walmart, Safeway and JC Penney’s. The first theft from Nordstrom in 2017 was for merchandise valued at $2,100, and the theft in the case on appeal was of merchandise valued at $1,500. An objective assessment of Smith’s record leads to the conclusion that she recently has targeted retail stores with items of higher value. While she did not resort to force when confronted by law enforcement in the present theft offense, she had done so mere months before in another theft from Nordstrom. There Smith threatened the Nordstrom loss-prevention officer and drove her car towards him; she fled from the police. Her criminal history indicates that she regularly resorts to violence or threats when cornered or confronted in the course of fleeing with stolen items. There is no indication in the record that Smith’s criminal behavior was slowing down or decreasing in severity at the time the trial court issued its Romero ruling.

We find nothing in the record to suggest the court’s decision to deny Smith’s Romero motion in this case was “so irrational or arbitrary that no reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at pp. 376-377.) Nor do we find that this case presents extraordinary circumstances such that Smith falls outside the spirit of the Three Strikes law. The fact that Smith disagrees with the trial court’s decision, and argues that her motion should have been granted does not demonstrate an abuse of discretion. “ ‘[W]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, [the court] shall affirm the trial court’s ruling, even if [the court] might have ruled differently in the first instance.’ ” (Carmony, supra, 33 Cal.4th at p. 378.) Smith’s claim that the trial court abused its discretion in denying her Romero motion is without merit.

C. Imposition of Fines and Fees
D.
Citing Dueñas, Smith asserts she is entitled to a determination of whether she has the ability to pay the $40 court operations fee (§ 1465.8), the $30 court facilities fee (Gov. Code, § 70373), the $129.75 criminal justice administration fee (Gov. Code, § 29550), and $10 fine plus penalty assessment (§ 1202.5). Smith asks that we remand the matter to the trial court for such determination.

Smith also asserts pursuant to Dueñas that we should stay the execution of the $600 restitution fine (§ 1202.4, subd. (b)), until the Prosecution can establish that she has the ability to pay.

1. People v. Dueñas
2.
In Dueñas, Division Seven of the Second Appellate District considered how the “cascading consequences of imposing fines and assessments that a defendant cannot pay” can in effect punish a defendant for being poor. (Dueñas, supra, 30 Cal.App.5th at pp. 1163, 1166-1167.) The defendant in Dueñas was a homeless mother of two children, was unemployed and suffered from cerebral palsy. As a teenager, Dueñas began accruing fines for driving with a suspended license. Because of her inability to pay these fines, Dueñas would repeatedly serve time in jail in lieu of payment. (Id. at p. 161.)

When Dueñas was convicted of her fourth misdemeanor, she was placed on probation and, at her request, the trial court held a hearing on her ability to pay a court operations fee (§ 1465.8), a court facilities fee (Gov. Code, § 70373), a $150 restitution fine (§ 1202.4), and previously imposed attorney fees. (Dueñas, supra, 30 Cal.App.5th at pp. 1161-1162.) Since it was undisputed that Dueñas did not have the ability to pay, the trial court waived the attorney fees, but imposed the two fees and the restitution fine. The court found that the fees were statutorily required. Regarding the restitution fine, the trial court found that it was prohibited from considering Dueñas’s inability to pay. (Id. at p. 1163.)

The Court of Appeal reversed, noting that “ ‘[c]riminal justice debt and associated collection practices can damage credit, interfere with a defendant’s commitments, such as child support obligations, restrict employment opportunities and otherwise impede reentry and rehabilitation.’ ” (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The court concluded that section 1465.8, subdivision (a)(1), which is intended “[t]o assist in funding court operations…,” and Government Code section 70373, which is intended to “[t]o ensure and maintain adequate funding for court facilities…,” (Gov. Code, § 70373, subd. (a)(1)), effectively impose “additional punishment for a criminal conviction for those unable to pay.” (Dueñas, supra, at p. 1168.) Based on this conclusion, the court reasoned that imposing these assessments without a determination that the defendant has the ability to pay is “fundamentally unfair” and “violates due process under both the United States Constitution and the California Constitution. (U.S. Const. 14th Amend.; Cal. Const., art. I, § 7.)” (Ibid., fn. omitted.)

Regarding the restitution fine under section 1202.4, subdivision (b), which is required to be imposed “[i]n every case where a person is convicted of a crime, . . . unless [the court] finds compelling and extraordinary reasons for not doing so and states those reasons on the record” (§ 1202.4, subd. (b)), the Dueñas court noted that the statute allows the court to consider a defendant’s inability to pay only if it imposes a restitution fine in excess of the minimum (§ 1202.4, subd. (c)). As a result, the court concluded that section 1202.4 “punishes indigent defendants in a way that it does not punish wealthy defendants” because “a defendant who has successfully fulfilled the conditions of probation for the entire period of probation [generally] has an absolute statutory right to have the charges against him or her dismissed. (Pen. Code, § 1203.4, subd. (a)(1).)” (Dueñas, supra, 30 Cal.App.5th at p. 1170.) An indigent probationer who cannot afford to pay the restitution fine, and thus cannot fulfill the conditions of probation, will be denied that benefit solely because of his or her poverty. According to Dueñas, “[t]he statutory scheme thus results in a limitation of rights to those who are unable to pay,” which is fundamentally unfair and a due process violation. (Id. at p. 1171.) The court concluded that while section 1202.4 requires the imposition of a restitution fine, it permits the court to stay the execution of such fine “until and unless the People demonstrate that the defendant has the ability to pay the fine.” (Dueñas, at p. 1172.)

Smith bases her request for remand for a determination of whether she has the ability to pay the fees and her request that we stay the execution of the restitution fine on the rationale of Dueñas. She asserts that because she is unable to pay the $809.75 in fines and fees that were imposed, she is being additionally punished for being indigent.

3. Forfeiture of Challenge to Fines and Fees
4.
Smith did not object to the trial court’s imposition of the fines and fees based on an inability to pay. The general rule is that a defendant who fails to object to fines and fees in the trial court forfeits the issue on appeal. (See People v. Aguilar (2015) 60 Cal.4th 862, 864.) Here, the Attorney General argues that Smith has forfeited her challenge to the imposition of all of the fines and fees because she did not object in the trial court.

We need not reach the issue of whether Smith forfeited her challenge to the fines and fees under Dueñas. We find Smith forfeited her challenge to the $600 restitution fine, the $129.75 criminal justice administrative fee and the $10 fine because there was a statutory basis to object to these fines and fees based on her inability to pay that existed prior to the Dueñas decision. Her failure to make such an objection also implied that she was able to pay the minimal $40 court operations fee and $30 court facilities fee.

Under section 1202.4, subdivision (b)(1), the trial court is required to impose a restitution fine of not less than $300 and not more than $10,000. The statute provides that the trial court may not consider a defendant’s ability to pay when imposing the minimum fine of $300; however, if the court sets a restitution fine in excess of the minimum, it should consider “any relevant factors, including, but not limited to, the defendant’s inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, . . . [and] the extent to which any other person suffered losses as a result of the crime . . . .” (§ 1202.4, subd. (d).)

Here, the trial court imposed a restitution fine in the amount of $600. Since $600 was “in excess of the minimum fine” (§ 1202.4, subd. (c)), Smith had statutory grounds to object based on an inability to pay. “[E]ven before Dueñas a defendant had every incentive to object to imposition of a maximum restitution fine based on inability to pay because governing law as reflected in the statute (§ 1202.4, subd. (c)) expressly permitted such a challenge. [Citation.]” (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033, petn. for review pending, petn. filed July 15, 2019 (Gutierrez).) “Thus, even if Dueñas was unforeseeable . . ., under the facts of this case [defendant] forfeited any ability-to-pay argument regarding the restitution fine by failing to object.” (Ibid.)

The forfeiture analysis of Gutierrez applies with equal force to the $129.75 criminal justice administration fee (Gov. Code, § 29550), and the $10 fine plus penalty assessment (§ 1202.5), as each statute contained language that allowed Smith to assert at the sentencing hearing that she did not have the means to pay. Government Code section 29550, subdivision (d)(2) provides: “The court shall, as a condition of probation, order the convicted person, based on his or her ability to pay, to reimburse the county for the criminal justice administration fee, including applicable overhead costs.” Section 1202.5, subdivision (a) has similar language embedded within it: “In any case in which a defendant is convicted of any of the offenses enumerated in Section 211, 215, 459, 470, 484, 487, subdivision (a) of Section 487a, or Section 488, or 594, the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed. If the court determines that the defendant has the ability to pay all or part of the fine, the court shall set the amount to be reimbursed and order the defendant to pay that sum to the county in the manner in which the court believes reasonable and compatible with the defendant’s financial ability. In making a determination of whether a defendant has the ability to pay, the court shall take into account the amount of any other fine imposed upon the defendant and any amount the defendant has been ordered to pay in restitution.” Just as Smith had notice and opportunity to object to the restitution fine based on the language of the statute as described in Gutierrez, Smith had statutory grounds to object at the sentencing hearing that the trial court was failing to consider her ability to pay these amounts and that she was unable to pay them. Although she was on notice that such an objection could be raised in the trial court based on the language of the statutes, she failed to do so. She thus forfeited any ability-to-pay challenge to the $129.75 criminal justice administration fee (Gov. Code, § 29550), and the $10 fine plus penalty assessment (§ 1202.5).

Finally, we note that by failing to challenge the imposition of these fines and fees, Smith in essence did not raise an objection in the trial court that she had an inability to pay at least $739.75—the sum of the restitution fine, criminal justice administration fee and the $10 fine. Under these facts, we conclude that the trial court made an implied finding that Smith had the ability to pay the additional $70 it imposed, which is the sum of the $40 court operations fee (§ 1465.8, subd. (a)(1)), and the $30 court facilities fee (Gov. Code, § 70373). Having failed despite the language of the statutes to object to the imposition of fines and fees that, in combination, were ten times greater than court operations fee and court facilities fee, the trial court could reasonably infer that Smith had the ability to pay these significantly smaller amounts.

V. DISPOSITION
VI.
The judgment is affirmed.

_______________________________

Greenwood, P.J.

WE CONCUR:

_____________________________________

Grover, J.

______________________________________

Danner, J.

The People v. Smith

No. H046451