Filed 12/4/19 P. v. White 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(San Joaquin)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIE D. WHITE, JR.,

Defendant and Appellant.

C087212

(Super. Ct. No. STK-

CR-FE-2016-0015110)

A jury found defendant Willie D. White, Jr., guilty of multiple offenses, including kidnapping for robbery and three counts of residential robbery. On appeal, defendant contends there was insufficient evidence to support the conviction for kidnapping for robbery, as the forced movement of the victim was incidental to the robbery. In supplemental briefing, defendant asks that we remand the case to permit the trial court to exercise its discretion to strike his serious felony enhancement, pursuant to Senate Bill No. 1393 (2017-2018 Reg. Sess.; Stats. 2018, ch. 1013, §§ 1, 2 (Senate Bill 1393)). In further supplemental briefing, defendant claims that pursuant to the holding in People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168-1169, 1172 (Dueñas), the trial court’s order directing him to pay a restitution fine, a court operations assessment, and a court facilities assessment should be vacated or stayed pending a hearing on his ability to pay. We will remand the matter to permit the trial court to exercise its new discretion under Senate Bill 1393 and modify the judgment to correct an error in the trial court’s calculation of assessments. We otherwise affirm the judgment.

BACKGROUND

Ariana Vaughn and Johnnisha Hunter engaged in criminal activities, including prostitution and robbery, in an effort to get money to add to Quimane Battle’s jail account. Vaughn recruited others to join in the criminal activities.

One night, defendant, who is Battle’s uncle, accompanied Vaughn, Hunter, Lyric Wilson, and Jamal McKenzie to pick up some marijuana. Defendant and McKenzie had guns with them. On the way, they saw a stranger, Ronnie R., walking down the street. Defendant told Vaughn to stop the car, and he and McKenzie got out. The two men approached Ronnie with bandanas covering their faces and semiautomatic pistols drawn and demanded that he give them “all you got.” Ronnie refused and the men fired three to four shots, hitting him in the chest. Emergency medical personnel treated Ronnie and took him to the hospital where he remained for a week.

The next day, Vaughn and Wilson saw pictures on social media of their high school friend, Patrick C., displaying cash and expensive shoes. Vaughn, Wilson, and Hunter devised a plan with defendant and another individual, Calvin Willis, to rob Patrick at a liquor store. The women contacted Patrick C. and he agreed to pick them up. After Patrick picked the women up, however, he stopped at a bank and deposited the money that was depicted in the social media post. Since the money was beyond their reach, Vaughn and Willis decided to rob Patrick for only his shoes. Unaware of their nefarious plan, Patrick drove the women to his home, where he lived with his mother and her boyfriend. Patrick and the women were drinking alcohol in his bedroom; meanwhile, Vaughn texted Willis their location. Defendant, Willis, McKenzie, and another man, Jamarea Spivey, arrived at Patrick’s home; Willis sent Vaughn a text message informing her of their arrival. Defendant and Willis were armed. Vaughn went outside, and told the men who was in the house and where Patrick’s bedroom was located. Patrick, Wilson, and Hunter soon emerged from the house as well.

Once outside, Patrick saw what appeared to be someone holding Vaughn at gunpoint. He turned to run back toward the house, but the four men—defendant, Willis, Spivey, and McKenzie—grabbed and hit him, demanding his wallet and keys. One of the men hit Patrick in the head with a gun. Patrick gave the men his wallet and keys. The men then picked Patrick up and took him to the front door of the house, about 60 feet away. The men returned Patrick’s keys to him, ordered him to open the door, forced him into the home, and demanded to know where the money and shoes were. Instead of taking the men to his bedroom, Patrick took the men to his mother’s room. They put a gun to Patrick’s head, again demanded the money and shoes, and threatened to shoot Patrick if he moved. Patrick could see people running from his room to the front of the house. The men ordered Patrick’s mother to remove her jewelry, and took cash and several firearms from the bedroom. As they left, Patrick heard a man say, “Shoot ‘em up.” One of them then sprayed Patrick, his mother, and her boyfriend with pepper spray. The men had taken several pairs of shoes from Patrick’s bedroom.

PROCEDURAL HISTORY

A jury found defendant guilty of attempted second degree robbery (Pen. Code, §§ 211, 664—count 2), assault with a semiautomatic firearm (§ 245, subd. (b)—count 3), kidnapping to commit robbery (§ 209, subd. (b)(1)—count 6), two counts of being a felon in possession of a firearm (§ 29800, subd. (a)(1)—counts 4 & 10), and three counts of first degree robbery in concert (§ 213, subd. (a)(1)(A)—counts 7, 8 & 9). The jury also found true the allegation as to count 2 that defendant personally and intentionally discharged a firearm in the commission of the offense (§ 12022.53, subds. (b), (c)); as to count 3 that defendant personally used a firearm in the commission of the offense (§§ 12022.5, subd. (a), 1203.06, subd. (a)(1)); as to counts 6, 7, 8, and 9, that defendant personally used a firearm in the commission of the offenses (§ 12022.53, subd. (b)) and committed the charged crimes for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)). In a bifurcated proceeding, the trial court found true the allegation that defendant had previously been convicted of a “serious” or “violent” felony, that is, a “strike” (§§ 667, subds. (a), (d), 1170.12, subd. (b)).

The trial court sentenced defendant to an aggregate term of 43 years eight months, plus 154 years to life. The trial court also ordered defendant to pay a $300 restitution fine (§ 1202.4, subd. (b)), a $360 court operations assessment ($40 each count; § 1465.8) and a $270 court facilities assessment ($30 each count; Gov. Code, § 70373). (As explained, post in fn. 5, the court operations and facilities assessments were miscalculated.)

DISCUSSION

I

Substantial Evidence of Aggravated Kidnapping

Defendant contends the movement of Patrick from the yard to the home was insufficient to support the aggravated kidnapping conviction. He argues the movement was incidental to the robbery and did not substantially increase the risk of harm to the victim. We disagree.

On a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the judgment to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Young (2005) 34 Cal.4th 1149, 1175.) We “ ‘ “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” ’ ” (Ibid.)

Aggravated kidnapping for the purpose of robbery “requires movement of the victim that is not merely incidental to the commission of the underlying crime and that increases the risk of harm to the victim over and above that necessarily present in the underlying crime itself. (§ 209[, subd.] (b)(2).)” (People v. Martinez (1999) 20 Cal.4th 225, 236, overruled on another matter in People v. Fontenot (2019) 2 Cal.5th 57, 70.) These two elements are interrelated. (Martinez, supra, at p. 236.)

“ ‘[I]ncidental’ ” means “that the asportation play no significant or substantial part in the planned [offense], or that it be a more or less ‘ “trivial change[ ] of location having no bearing on the evil at hand.” ’ ” (People v. Ellis (1971) 15 Cal.App.3d 66, 70.) In assessing whether movement is incidental to the underlying crime, the jury considers the scope and nature of the movement, including the distance a victim is moved, as well as the necessity for movement for completion of the crime. (People v. James (2007) 148 Cal.App.4th 446, 455.) “Lack of necessity is a sufficient basis to conclude a movement is not merely incidental.” (Ibid.)

As to whether movement increased the risk of harm, the jury considers “ ‘ “ ‘such factors as the decreased likelihood of detection, the danger inherent in a victim’s foreseeable attempts to escape, and the attacker’s enhanced opportunity to commit additional crimes. [Citations.] The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased.’ ” ’ ” (People v. Simmons (2015) 233 Cal.App.4th 1458, 1471.) The increased risk of harm may be physical injury or psychological terror. (People v. Nguyen (2000) 22 Cal.4th 872, 885.)

After they had the keys to his home and information about the location of his room, defendant and the other robbers moved Patrick approximately 60 feet from where they had grabbed him to his front door, and then from the front door inside the home, to his mother’s room. This is not an insignificant distance. Notably, the robbers did not need Patrick to open the door to the home; they had his keys. Nor did they need Patrick to show them where the shoes were. In fact, they eventually stole the shoes without Patrick telling them where they were. In addition, Vaughn, Wilson, and Hunter had been in the house, and in Patrick’s room, and could have provided information on where the shoes were located. The movement was not necessary to the commission of the robbery and was not incidental to it.

The movement from outside to inside the home also increased the risk of harm. It reduced the possibility that Patrick could escape, and allowed the defendants to engage in additional crimes, by providing access to additional victims. The movement inside the home also “increased the possibility of something going awry and somebody getting hurt.” (People v. Simmons, supra, 233 Cal.App.4th at p. 1472.) And, moving Patrick into the home, occupied by his family members, substantially increased Patrick’s harm and risk of being further harmed, including the heightened fear of witnessing his mother and her boyfriend also being robbed at gunpoint under threat of being shot. (See id. at p. 1473.)

It was reasonable for the jury to conclude that the movement of Patrick was more than incidental and increased the risk of both physical and psychological harm to him. Accordingly, there was substantial evidence supporting defendant’s conviction for aggravated kidnapping.

II

Senate Bill 1393

In supplemental briefing, defendant contends the matter must be remanded to the trial court to allow it to exercise its discretion to strike the five-year felony enhancement under Senate Bill 1393 (2017-2018 Reg. Sess.; Stats. 2018, ch. 1013, §§ 1, 2). The People concede the Senate Bill 1393 amendments apply retroactively, but contend remand is not necessary in this case, because the trial court’s statements at sentencing, and its sentencing choices, clearly indicate that it would not have dismissed the prior serious felony enhancement.

When the trial court sentenced defendant in this case, it imposed one five-year enhancement for prior serious felony convictions. The enhancement was mandatory at the time. But Senate Bill 1393 amended section 667, subdivision (a), and section 1385, effective January 1, 2019, to grant trial courts discretion to strike or dismiss such enhancements. We agree with the parties that this change in law applies to defendant retroactively. (People v. Garcia (2018) 28 Cal.App.5th 961, 973.)

Where a trial court is unaware of its sentencing choices, remand 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. Almanza (2018) 24 Cal.App.5th 1104, 1110.)

At the sentencing hearing, in deciding to impose the upper term sentences, the trial court noted the victims of both offenses were particularly vulnerable, defendant had induced others to participate in the crimes and was at least 10 years older than the other participants and, as to the second offense, involved taking of property worth a great deal of money and showed planning and sophistication. The trial court also observed that the nature of the crimes indicated defendant created a serious danger to society, that the crimes were committed the same year defendant was released from parole after serving a lengthy prison term, and defendant’s criminal conduct was increasing in seriousness. The trial court expressly chose to impose the upper term sentence, a term 12 years longer than the middle term. The trial court also noted it was aware it had the discretion to strike the firearm enhancements under Senate Bill No. 620 (2017-2018 Reg. Sess.) and it did not intend to strike those enhancements. The trial court imposed one five-year felony enhancement under section 667, subdivision (a). The five-year felony enhancements alleged as to counts 6 through 9 were stricken by operation of law.

We recognize the factors delineated by the trial court explaining the imposition of the upper term and consecutive sentences suggest the trial court was not inclined to leniency in sentencing defendant; but neither do they clearly indicate that the trial court would not have dismissed the five-year enhancement. Speculation founded on a consideration of the original sentence alone does not provide a clear indication of what the trial court would do. (People v. Almanza, supra, 24 Cal.App.5th at pp. 1110-1111.) Remand is the general rule in this context and, on this record, we decline to deviate from the general rule. (See, e.g., People v. Garcia, supra, 28 Cal.App.5th at p. 973, fn. 3.) Accordingly, we remand the matter to allow the trial court to exercise its newly granted discretion.

III

Imposition of Fines and Fees

In further supplemental briefing, defendant relies on Dueñas, supra, 30 Cal.App.5th 1157 to argue that the trial court imposed an unauthorized sentence by levying $930 in restitution, court operations assessments, and court facility assessments without first determining his ability to pay. (See id. at pp. 1168, 1172.) Defendant contends that the fine and fees should be vacated or stayed pending a hearing on his ability to pay. The Attorney General asserts this contention is forfeited because defendant failed to raise it in the trial court, and that any alleged error was harmless. We find Dueñas distinguishable on its facts and disagree with its reasoning. We therefore will not disturb this aspect of the judgment.

In Dueñas, an unemployed mother with cerebral palsy, surviving on public assistance, lost her driver’s license because she was unable to pay $1,088 assessed against her for three juvenile citations. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) Thereafter, she received multiple convictions related to driving with a suspended license, each accompanied by jail time and additional fees that she could not pay. (Id. at p. 1161.) After a fourth conviction of driving with a suspended license, the court placed Dueñas on probation and ordered her to pay mandatory fines and assessments under section 1465.8, section 1202.4, and Government Code section 70373. (Dueñas, at pp. 1161-1162.) Dueñas asked the trial court to hold a hearing to determine her ability to pay those costs. (Id. at p. 1162.) Despite Dueñas’s uncontested declaration establishing her indigence, the trial court ruled that the assessments were mandatory and that Dueñas had not shown “ ‘compelling and extraordinary reasons’ ” to waive the restitution fine. (Id. at p. 1163.)

The Court of Appeal reversed, holding that due process requires the trial court to ascertain a defendant’s present ability to pay before imposing the court assessments and fines. (Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1172-1173.) In support of its due process rationale, the court analogized the assessments imposed on Dueñas to court fees imposed on civil litigants, which indigents are not required to pay. (Id. at pp. 1168-1169.) The court further reasoned that, although the Legislature did not intend the assessments to be punitive, imposing unpayable assessments has “devastating consequences” on indigent defendants by subjecting them to a civil judgment for nonpayment and the associated consequences that flow therefrom. (Id. at pp. 1168, 1169.) These additional consequences suffered only by indigent persons in effect transform the assessments into “additional punishment” based solely on the defendant’s inability to pay, which the court found to be “fundamentally unfair.” (Id. at p. 1168.)

As for the restitution fine, the court held that it too requires an ability to pay determination. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) Although restitution fines are intended to be additional punishment, the court held that such fines, when imposed on a probationer, punish indigent defendants in a way they do not punish wealthy defendants, namely, by limiting their rights to mandatory expungement under section 1203.4, subdivision (a)(1). (Dueñas, at pp. 1170-1171.) The court noted that probationers who pay their fines are entitled to have their charges dismissed under section 1203.4, subdivision (a)(1), whereas defendants who cannot pay, “[a]t best, . . . can try to persuade a trial court to exercise its discretion to grant them relief.” (Dueñas, at pp. 1170-1171.) This too, the court held, is “ ‘fundamentally unfair.’ ” (Id. at p. 1171.)

Reactions to Dueñas have been mixed. Although some courts have followed its reasoning, others have strictly limited it to its facts or simply found that it was wrongly decided. Having reviewed these opinions, we agree with those opinions that have disagreed with Dueñas and therefore declined to follow it. (See People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1068 (Aviles); People v. Hicks (2019) 40 Cal.App.5th 320, 329; People v. Caceres (2019) 39 Cal.App.5th 917, 926-929; see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1034-1041 (conc. opn. of Benke, J.); People v. Santos (2019) 38 Cal.App.5th 923, 935-940 (dis. opn. of Elia, J.).)

We first observe that the facts in this case bear no similarity to the unique factual circumstances in Dueñas. Dueñas faced hardship because she was caught in a cycle of repeated criminal violations stemming from the loss of her driver’s license. (Dueñas, supra, 30 Cal.App.5th at pp. 1161-1162.) Her license was suspended because she was too poor to pay her juvenile citations. She then continued to offend because the escalating assessments and fines prevented her from recovering her license. (Ibid.) On these facts, the court concluded that Dueñas was being punished solely because of her poverty. (Id. at pp. 1163, 1166-1167, 1171.)

There is no similar harm to defendant here. Defendant is suffering fines and assessments because he kidnapped, assaulted, and robbed several people, not because he is trapped in a vicious cycle of debt due to poverty. Even if defendant does not pay the assessments and fines imposed by the trial court, he will suffer none of the “ ‘cascading consequences’ ” faced by Dueñas. (People v. Caceres, supra, 39 Cal.App.5th at pp. 928-929; Dueñas, supra, 30 Cal.App.5th at p. 1163.)

In any event, we do not find the reasoning of Dueñas persuasive. We agree with the courts in Hicks and Aviles, and the concurring and dissenting opinions in Gutierrez and Santos, that the Dueñas approach is fundamentally flawed in concluding that the due process doctrine of “ ‘fundamental fairness’ ” requires courts to conduct a “preassessment ability-to-pay” determination before imposing fines and fees on a criminal defendant. (Aviles, supra, 39 Cal.App.5th at pp. 1067-1068; People v. Hicks, supra, 40 Cal.App.5th at p. 329; People v. Gutierrez, supra, 35 Cal.App.5th at pp. 1034-1041 (conc. opn. of Benke, J.); People v. Santos, supra, 38 Cal.App.5th at pp. 935-940 (dis. opn. of Elia, J.).) Whether or not it is fundamentally unfair in a constitutional sense for a state to deprive a person of a driver’s license because of that person’s inability to pay a fine or fee, we are not persuaded that the mere potential an indigent defendant might be unable to pay a debt (and therefore suffer associated collection practices) rises to the level of a due process violation, especially where the defendant has not yet failed to pay or suffered any sanctions for doing so.

To the extent imposing potentially unpayable fees or fines on indigent defendants raises constitutional concerns, we agree that such challenges are properly analyzed under the excessive fines clause, which limits the government’s power to extract payments as punishment for an offense. (Aviles, supra, 39 Cal.App.5th at pp. 1069-1070.) Here, because defendant has not raised an excessive fines clause challenge, we do not address whether the fines, fees, and assessments imposed on him are unconstitutionally excessive. We simply conclude that defendant’s reliance on Dueñas is misplaced. Therefore, we affirm this aspect of the judgment.

DISPOSITION

The matter is remanded to allow the trial court to exercise its sentencing discretion under Senate Bill 1393 concerning whether to strike the five-year enhancement. The judgment is modified to reduce the court operations assessment and court facilities assessment to $320 and $240, respectively. The trial court is directed to amend the abstract of judgment to reflect these modifications and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.

KRAUSE , J.

I concur:

RAYE , P. J.
ROBIE, J., Concurring and Dissenting.

I concur in parts I and II of the Discussion of the majority opinion, but respectfully dissent to part III of the Discussion regarding the imposition of the challenged fine and assessments. I agree with Dueñas that principles of due process would preclude a trial court from imposing the challenged mandatory fine and assessments at issue here if the defendant demonstrates he or she is unable to pay them. (People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168.) As explained in Castellano, however, a trial court is required to determine a defendant’s ability to pay only if the defendant raises the issue, and the defendant bears the burden of proving an inability to pay. (People v. Castellano (2019) 33 Cal.App.5th 485, 490.) In the absence of authority invalidating the challenged fine and assessments on inability to pay at the time the trial court imposed them, defendant could not have reasonably been expected to challenge the trial court’s imposition thereof. (People v. Welch (1993) 5 Cal.4th 228, 237 [“[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”].) As such, because defendant’s conviction and sentence are not yet final, I believe a limited remand under Dueñas is appropriate to permit a hearing on defendant’s ability to pay. (See Castellano, at pp. 490-491.)

ROBIE , J.