Filed 1/3/20 P. v. Kirkland 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

TREVON RAY KIRKLAND,

Defendant and Appellant.

C085785

(Super. Ct. No. 17FE007068)

A jury found defendant Trevon Ray Kirkland guilty of, inter alia, two counts of robbery and found two firearm use enhancements (Pen. Code § 12022.53, subd. (b)) true. He was sentenced to an aggregate term of 21 years — 13 years 4 months of which was for the firearm use enhancements. On appeal, defendant contends (1) remand is required in light of Senate Bill No. 620, which permits the trial court to strike or dismiss a firearm enhancement in the interest of justice. In supplemental briefing, defendant also contends (2) his trial counsel rendered ineffective assistance in failing to present, at sentencing, information that might address defendant’s parole suitability at a future youth offender parole hearing, under section 3051; (3) the imposition of fines and fees violated his right to due process and freedom from excessive fines under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas); and (4) his one-year prior prison term enhancement should be stricken pursuant to Senate Bill No. 136, which limits the circumstances under which such enhancements may be imposed.

We will strike the one-year prior prison term enhancement and remand to allow the trial court to consider exercising its discretion under Senate Bill No. 620. In all other respects, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The victims were a boyfriend and girlfriend, both around 14 years old. They were hanging out at an elementary school park when someone walked past them. Concerned, they started to leave. As they did, defendant appeared in front of them, stopping them.

Defendant pulled out a gun and told the victims to empty their pockets. The girlfriend tossed their two phones to the ground along with $10. Defendant took the property and told the victims to get going. Defendant was 19 years old at the time.

A jury found defendant guilty of two counts of second degree robbery (§ 211 (counts one and two)) and found he had personally used a firearm in the commission (§ 12022.53, subd. (b)). It also found him guilty of possessing a firearm as a felon (§ 29800, subd. (a)(1) (count three)). Defendant admitted to serving a prior prison term (§ 667.5, subd. (b)) for assault by means likely to produce great bodily injury (§ 245, subd (a)(4)).

The trial court sentenced defendant to a 21-year aggregate term, calculated as follows: on count one, a five-year upper term for robbery, along with a 10-year firearm use enhancement pursuant to section 12022.53, subdivision (b); on count two, a one-year term (one-third the middle term) for the second robbery, along with a three-year four-month firearm use enhancement (one-third the middle term); on count three, an eight-month term (one-third the middle term) for felon in possession of a firearm; and a one-year prior prison term enhancement.

In selecting the upper term on count one, the court noted the victims’ vulnerability; the indication of planning, sophistication, and professionalism; the indication defendant is a serious danger to society; and defendant’s numerous adult convictions and sustained juvenile proceedings.

Just prior to sentencing, defense counsel noted defendant is a youthful offender: “Given my client’s age, he was born in 1997, . . . the legislature has now decided that someone of [defendant’s] age is still considered a youthful offender.”

DISCUSSION

I. Senate Bill No. 620

Defendant first contends his case must be remanded in light of Senate Bill No. 620, which amended section 12022.53 to afford the trial court discretion to strike or dismiss a firearm enhancement in the interest of justice pursuant to section 1385. We agree.

Prior to January 1, 2018, an enhancement under section 12022.53 was mandatory and could not be dismissed or stricken in the interests of justice. (See former § 12022.53, subd. (h), (Stats. 2010, ch. 711, § 5); People v. Felix (2003) 108 Cal.App.4th 994, 999.) Senate Bill No. 620 amended section 12022.53, subdivision (h) to permit the trial court to strike firearm enhancements imposed under section 12022.53: “The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.” (Stats. 2017, ch. 682, §§ 1 & 2.) Senate Bill No. 620 applies retroactively. (People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091 [remanding pursuant to the amended § 12022.53]; see also In re Estrada (1965) 63 Cal.2d 740, 744.)

The People, however, maintain that remand is not appropriate because there is no reason to believe the sentencing court would strike or dismiss defendant’s firearm enhancements. In support, the People note the trial court imposed the upper term along with a consecutive subordinate term for the second robbery count. We disagree.

The fact that the trial court imposed an upper term and consecutive terms on the robbery counts does not foreclose the possibility it would apply its newly authorized discretion to strike a heretofore mandatory firearm enhancement. (See People v. McDaniels (2018) 22 Cal.App.5th 420, 427–428 [“remand is proper because the record contains no clear indication of an intent by the trial court not to strike one or more of the firearm enhancements”].) We will therefore remand in light of Senate Bill No. 620.

II. Youth Offender Parole Hearing

In a supplemental brief, defendant contends his trial counsel rendered ineffective assistance in mentioning only that defendant was a youthful offender and failing to present any information that might address defendant’s parole suitability at a future youth offender parole hearing, under section 3051. He argues the case must be remanded for a hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261, 278 (Franklin). We disagree.

To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692 [80 L.Ed.2d 674, 693-694, 696] (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-218 (Ledesma).) “ ‘Surmounting Strickland’s high bar is never an easy task.’ ” (Harrington v. Richter (2011) 562 U.S. 86, 105 [178 L.Ed.2d 624, 642] (Richter), quoting Padilla v. Kentucky (2010) 559 U.S. 356, 371 [176 L.Ed.2d 284, 297].)

To establish prejudice, “[i]t is not enough ‘to show that the errors had some conceivable effect on the outcome of the proceeding,’ ” a defendant must show a reasonable probability that he would have received a more favorable result had counsel’s performance not been deficient. (Richter, supra, 562 U.S. at p. 104 [178 L.Ed.2d at p. 642]; Strickland, supra, 466 U.S. at p. 693; Ledesma, supra, 43 Cal.3d 171, at pp. 217-218.) “The likelihood of a different result must be substantial, not just conceivable.” (Richter, supra, 562 U.S. at p. 112.)

Section 3051 establishes a parole eligibility mechanism for those serving sentences for crimes committed as a juvenile. (Franklin, supra, 63 Cal.4th at p. 277.) It affords the opportunity for release during the 15th, 20th, or 25th year of incarceration (depending on the controlling offense) by showing rehabilitation and gained maturity. (Ibid.) Defendant was sentenced to a determinate term, so he is entitled to a parole hearing during his 15th year of incarceration. (§ 3051, subd. (b)(1).)

In Franklin, where the defendant was sentenced prior to section 3051’s enactment, the cause was remanded to allow the trial court to determine whether the defendant was afforded a sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing. (Franklin, supra, 63 Cal.4th at pp. 282, 284.) The court noted “[a]ssembling such statements ‘about the individual before the crime’ is typically a task more easily done at or near the time of the juvenile’s offense rather than decades later when memories have faded, records may have been lost or destroyed, or family or community members may have relocated or passed away.” (Id. at pp. 283-284.)

Here, unlike in Franklin, nothing indicates defendant was not afforded a sufficient opportunity to present information relevant to an eventual youth offender parole hearing. Defendant was 19 at the time of sentencing, and the statute then provided for a youthful parole hearing for people 23 or younger at the time of the offense. Defense counsel was plainly aware of section 3051, having pointed out to the trial court that the Legislature had deemed defendant a “youthful offender” at the time of the robbery.

Thus, it appears from the record that defense counsel may have concluded that no helpful information relative to defendant’s maturity level or other youth-related factors existed that was not already before the court. (See People v. Hung Thanh Mai (2013) 57 Cal.4th 986, 1009 [“a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation”].) Indeed, nothing in the record before us indicates the existence of information helpful to defendant such that counsel rendered ineffective assistance in failing to present it. That such evidence exists is pure speculation. Accordingly, defendant has failed to establish both deficient performance and prejudice. (See People v. Maury (2003) 30 Cal.4th 342, 389 [to establish prejudice for purposes of a claim of ineffective assistance “the record must demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different’ ”].)

Defendant’s claim of ineffective assistance must fail.

III. Fines and Fees

Defendant contends, in supplemental briefing, that remand is warranted in light of Dueñas, supra, 30 Cal.App.5th 1157, which held that due process requires the trial court to stay execution of restitution fines, as well as court operation and conviction assessments, until it has held a hearing and determined the defendant has the present ability to pay. He argues the trial court erred in imposing fines and fees without first determining his ability to pay. We disagree.

At sentencing, defense counsel noted that the probation department had recommended a $6,300 restitution fine and asked the court to impose the “minimum fines and fees.” The court responded that it would reduce the restitution fine to $2,000, adding defendant “can pay that through prison earnings.” The court struck a jail booking and classification fee, as well as the cost of the investigation and presentence report. It then imposed the $2,000 restitution fine (§ 1202.4, subd. (b)(1)), along with a stayed $2,000 parole revocation fine (1202.45), a $20 crime prevention fee (§ 1202.5), a $120 operations assessment (§ 1465.8), and a $90 conviction assessment (Gov. Code, § 70373, subd. (a)(1)). Counsel made no other mention of fines and fees.

Here, defendant proceeds from the assumption that the trial court imposed fines without determining his ability to pay. Not so. Defense counsel, citing the fines and fees recommended by the probation department, asked the trial court to impose only the minimum fines and fees. The request implied an ability to pay objection, and it is apparent the trial court understood it as such because it responded by reducing the restitution fine to $2,000, striking other fees, and expressly finding that defendant had the ability to pay through prison earnings. Defense counsel challenged neither the court’s interpretation of her request nor the resulting ability to pay finding.

Moreover, defendant does not challenge that ability to pay finding on appeal. Indeed, where a prison term affords sufficient time to pay the fines through prison earnings, courts considering Dueñas have found a failure to conduct an ability to pay hearing harmless. (See People v. Jones (2019) 36 Cal.App.5th 1028, 1035 [“Given that the restitution fine is $300 and the assessments are $70, Jones will have sufficient time to earn these amounts during his sentence, even assuming Jones earns nothing more than the minimum”]; People v. Johnson (2019) 35 Cal.App.5th 134 [“The idea that he could not afford to pay $370 while serving an eight-year prison sentence was unsustainable”].) And as discussed, defendant will serve 15 years before becoming parole eligible.

Defendant notes, however, that when he was sentenced, the trial court was not permitted to consider his ability to pay in imposing crime prevention, conviction and operations assessments, or where imposing only the minimum restitution fine. That brings us to Dueñas. We join the courts that have concluded Dueñas was wrongly decided and hold that defendant was not entitled to an ability to pay hearing for the crime prevention, conviction and operation assessments. (People v. Kingston (2019) 41 Cal.App.5th 272; People v. Hicks (2019) 40 Cal.App.5th 320, review granted, November 26, 2019; People v. Aviles (2019) 39 Cal.App.5th 1055; People v. Caceres (2019) 39 Cal.App.5th 917, 923-929.)

IV. Senate Bill No. 136

Finally, defendant contends in supplemental briefing that his one-year prior prison term enhancement should be stricken in light of Senate Bill No. 136. The People agree, and so do we.

Senate Bill No. 136 (Stats. 2019, ch. 590, § 1) amends section 667.5 to limit the circumstances under which a one-year prior prison term enhancement may be imposed. Effective January 1, 2020, such enhancements are authorized only for sexually violent offenses.

Here, the parties agree that because defendant’s sentence will not become final until after Senate Bill No. 136 takes effect, and because his prior offense (assault by means likely to produce great bodily injury) was not a sexually violent felony, he is entitled to the ameliorative benefit of the amendment. (See People v. Vieira (2005) 35 Cal.4th 264, 306 [“for the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed”]; In re Estrada, supra, 63 Cal.2d at p. 748 [for a non-final conviction, “where the amendatory statute mitigates punishment and there is no savings clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed”].)

We agree and will strike the one-year prior prison term.

 

DISPOSITION

The judgment is modified to strike the one-year prior prison term enhancement (§ 667.5, subd. (b)). The matter is remanded to the trial court to consider exercising its discretion under Senate Bill No. 620. In all other respects, the judgment is affirmed.

/s/

MURRAY, J.

We concur:

/s/

HULL, Acting P. J.

/s/

BUTZ, J.