Opinion
E071497
04-01-2020
THE PEOPLE, Plaintiff and Respondent, v. STEVE ROMAN LOPEZ PENA, Defendant and Appellant.
Allen G. Weinberg, 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, Scott C. Taylor and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1701769) OPINION APPEAL from the Superior Court of Riverside County. Larrie R. Brainard, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions. Allen G. Weinberg, 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, Scott C. Taylor and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On January 4, 2018, in the County of Riverside, an information charged defendant and appellant Steve Roman Lopez Pena with a lewd conduct upon a child under the age of 14 under Penal Code section 288, subdivision (a) (counts 1, 2, 3, 7, 8, 9); lewd conduct upon a child by force under section 288, subdivision (b)(1) (count 4); sexual intercourse or sodomy with a child 10 years of age or younger under section 288.7, subdivision (a) (count 5); and rape of a child 14 years of age or younger under section 269, subdivision (a)(1) (count 6). As to all counts except for counts 5 and 6, the information also alleged that defendant committed a qualifying sex offense against more than one victim within the meaning of section 667.61, subdivision (e)(4).
All statutory references are to the Penal Code unless otherwise specified.
The People's motion to amend count 4 to lewd conduct upon a child under the age of 14 under section 288, subdivision (a), was granted after the presentation of evidence.
On June 8, 2018, the court denied defendant's motion to transfer counts 1, 2, 3, 7, 8 and 9 to San Bernardino County, where the offenses were alleged to have taken place.
On July 24, 2018, a jury found defendant guilty as charged on all counts. It also found true the allegations that defendant committed the offenses against multiple victims.
On October 29, 2018, the trial court sentenced defendant to an aggregate indeterminate term of 55 years to life in prison. The court also ordered defendant to pay a $10,000 restitution fine under Penal Code section 1202.4, subdivision (b), and a parole revocation fine in the same amount under Penal Code section 1202.45, stayed pending the successful completion of parole. The court also ordered $360 in court operations fees under Penal Code section 1465.8 and $270 in court facilities fees under Government Code section 70373. The court further ordered defendant to provide prints and samples under Penal Code section 296.
On October 29, 2018, defendant filed a timely notice of appeal.
B. FACTUAL HISTORY
Defendant's girlfriend had two daughters, M.S. and J.S. The daughters viewed defendant as a father figure.
Defendant, who was 32 years old, forcibly raped M.S. when she was 10 years old. Defendant molested her on several other occasions by digitally penetrating her vagina, touching her breasts, and kissing her when she was younger than 14 years old. Defendant also molested J.S. by touching her vaginal area both under and over her clothing on multiple occasions. J.S. was under the age of 14 years.
DISCUSSION
A. THE ABSTRACT OF JUDGMENT SHOULD BE CORRECTED
Defendant contends that the abstract of judgment in this case should be corrected to reflect the correct conviction. In a footnote, the People agree that "the abstract of judgment should be ordered corrected to reflect the correct disposition of the offense under count 5." We agree with the parties that the abstract of judgment should be corrected.
If an abstract of judgment fails to reflect the judgment pronounced by the trial court, the error is clerical and the record can be corrected at any time to make it reflect its true facts. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Moreover, because the oral pronouncement of judgment by the sentencing judge is the judicial act that constitutes the rendition of judgment, it controls over any conflicting written court documents. (People v. Mesa (1975) 14 Cal.3d 466, 471.)
In this case, the abstract of judgment states that defendant was convicted in count 5 of "Engage in Oral Cop or Sexual Penetration w/Child under 10." However, there is no dispute that defendant was convicted of "Unlawful Sexual Intercourse with a Child age 10 or under," in violation of section 288.7, subdivision (a), and not with a child under 10. (Italics added.)
At the jury trial in this case, there was some dispute as to the age of the victim in count 5. However, at the end, the court and jury agreed that the crime occurred when the child was 10 or under the age of 10. When the jury rendered its verdict, a juror handed the verdict sheets to the bailiff. The court then asked the clerk to read the verdicts. As to count 5, the clerk of the court stated: "We, the jury in the above-entitled action, find the defendant, Steve Lopez Pena, guilty of the Penal Code 288.7(a), unlawful sexual intercourse with a child, age ten or under, (M.S.), as charged in Count 5." After all the verdicts were read, and a sidebar was held per the request of defense counsel, the trial court stated: "Ladies and gentlemen, we've noticed that on the verdict forms we have probably a mistake on the date. And I'm going to ask you, specifically, as to Count 5—Count 5, of course is the allegation of rape of a ten-year-old, and it has the date 11/03/10 to 11/02/2011, which, in fact, would have been her tenth birthday. And, of course, the issue is that she would be ten, or, I guess, under ten—ten or under. And so, I'm assuming that if we corrected that, to say when she turned 11, which would have been November of 2012, it wouldn't be changing your decisions in any way. Is that making sense? Does anybody feel that this would make a difference to them?" The jury replied, "No." Thereafter, the trial court stated: "Count 5 states that child ten or under, and then, we gave the wrong date actually. Her 11th birthday would have been on, I believe, November 3rd of 2012. This verdict form states, all the way up to 2011. And so, I'm going to make that that doesn't make a difference to you, in terms of this decision." This time, the judge asked each individual juror for an answer and each juror responded that it did not make a difference. After the last juror replied "no," the court noted, "In light of the mistake that it seems to be clear to the Court that the decision in the verdicts would have been the same. So we will so find."
Based on the above, the abstract of judgment should be changed to correctly note that in count 5 defendant was convicted of sexual intercourse with a child 10 years old or younger.
B. THE IMPOSITION OF MANDATORY FINES AND FEES
Defendant also contends that the trial court's imposition of the mandatory fines and fees without holding a hearing to determine defendant's present ability to pay them should be stricken or stayed. The People claim that defendant's claim is barred by section 1237.2 "because he failed to raise it first in the trial court and he has raised no other substantive claims on appeal." We need not address the People's argument because (1) defendant has raised another claim on appeal, as discussed above; and (2) as will be discussed post, defendant's claim fails on the merits.
1. RESTITUTION FINE UNDER SECTION 1202.4
In this case, the trial court imposed a $10,000 section 1202.4 restitution fine. The trial court did not hold a hearing to determine defendant's ability to pay this fine.
In People v. Duenas (2019) 30 Cal.App.5th 1157, the court held, in pertinent part, that the imposition of a restitution fine, without a determination that the defendant has the present ability to pay the fine, violates a defendant's due process rights under the state and federal Constitutions. (Id. at p. 1172.) The People contend that, because defendant did not raise his claims in the trial court, his argument has been forfeited.
In People v. Gutierrez (2019) 35 Cal.App.5th 1027 (Gutierrez), Division 1 of our district addressed the emerging body of case law regarding Dueñas and forfeiture of restitution fines. The court pointed out that there exists a potential split in authority on Dueñas and forfeiture principals. At least two cases, People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano) and People v. Johnson (2019) 35 Cal.App.5th 134 (Johnson), have found that failure to object to imposition of restitution fines and other fines, fees, and assessments at the time of their imposition did not forfeit the issue because Dueñas was " 'a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial.' " (Gutierrez, at p. 1032, quoting Castellano, at p. 489.) However, in another case, People v. Frandsen (2019) 33 Cal.App.5th 1126 (Frandsen), the court found that defendant had forfeited the issue for a variety of reasons, including that "even pre-Dueñas governing law permitted a challenge to a maximum restitution fine based on ability-to-pay grounds." (Gutierrez, at p. 1032.) Nevertheless, Gutierrez held that these cases were not actually at odds. Indeed, the court in Gutierrez ultimately found "it unnecessary to address any perceived disagreement on the forfeiture issue," because both "Castellano and Johnson involved situations in which the trial court imposed the statutory minimum restitution fine," while in the case before them "as in Frandsen, the trial court imposed the statutory maximum restitution fine." (Gutierrez, at pp. 1032-1033.) This was relevant because, "as Frandsen correctly notes, even 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 [citation] expressly permitted such a challenge." (Id. at p. 1033.) According to this reading of Johnson, Castellano, and Frandsen, these cases are not contradictory, but counsel two different approaches depending on whether the challenged restitution fine was the minimum or some amount in excess of that. That is, a defendant can be found to have forfeited his right to challenge a restitution fine on ability to pay grounds only if that fine was greater than the minimum.
At the time defendant was sentenced on August 31, 2018, trial courts were statutorily authorized to consider a defendant's inability to pay a restitution fine " 'in increasing the amount of the restitution fine in excess of the minimum fine [of $300].' " (§ 1202.4, subd. (c); Frandsen, supra, 33 Cal.App.5th at pp. 1153-1154.) Hence, in this case, it would not have been futile or unsupported by the substantive law then in existence for defendant to have objected to the $5,000 fine on the ground he did not have the means or ability to pay it, at the time it was imposed. --------
In this case, we are persuaded by Gutierrez's reasoning and its reading of Johnson, Castellano, and Frandsen. Accordingly, because the trial court in this case imposed a $10,000 restitution fine—well above the $300 minimum fine, we find that defendant's failure to object to the restitution fine forfeited his ability to challenge the imposition of the restitution fine.
2. ASSESSMENTS UNDER PENAL CODE SECTION 1465 .8 AND GOVERNMENT CODE SECTION 70373
In addition to the restitution fine, the trial court imposed a $360 court operations assessment fee under Penal Code section 1465.8, and a $270 in criminal conviction assessment fee under Government Code section 70373. The court did not hold a hearing to determine defendant's ability to pay.
Penal Code section 1465.8 and Government Code section 70373, unlike Penal Code section 1202.4, do not provide a mechanism for challenging assessments on the basis of inability to pay. Therefore, this court recently held a defendant does not forfeit his right to challenge the imposition of mandatory assessments by failing to object at the trial court. (People v. Jones (2019) 36 Cal.App.5th 1028, 1033 (Jones).) In Jones, we recognized that ' "[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' " (Id. at p. 1031, quoting People v. Welch (1993) 5 Cal.4th 228, 237), and that at the time of defendant's conviction "the relevant statutes all but foreclosed any due process objections to the court facilities or court operations assessments." (Jones, at p. 1032.) In Jones, we acknowledged that in People v. Frandsen, supra, 33 Cal.App.5th 1126, the court previously held challenges to assessments could be forfeited but expressly rejected that determination. Although we agreed with Frandsen's reasoning that a defendant can forfeit an objection to a restitution fine greater than the minimum, "[w]ith regard to the court facilities and court operations assessments," Frandsen's conclusion that Dueñas was foreseeable was "[i]n our view . . . incorrect." (Jones, at p. 1033.) Accordingly, we agree with defendant he did not forfeit his right to challenge the imposed assessments by failing to object at the trial court level.
Because we find that defendant did not forfeit his right to challenge either of the assessments, we turn to whether the Dueñas error requires reversal. Error under Dueñas is not reversible per se, but instead subject to harmless error analysis. (Jones, supra, 36 Cal.App.5th at pp. 1034-1035.) Since an alleged error under Dueñas involves a violation of due process, we consider whether the error was harmless beyond a reasonable doubt. (Jones, at p. 1035; see Chapman v. California (1967) 386 U.S. 18, 24.)
In this case, the monetary assessment and fines imposed totalled $630. Any inquiry into defendant's ability to pay the assessments and fines at issue would necessarily include consideration of his future earning capacity, and specifically his ability to obtain prison wages during the course of his incarceration. (Jones, supra, 36 Cal.App.5th at p. 1035; Johnson, supra, 35 Cal.App.5th at pp. 138-139.) At the time of sentencing, defendant was 38 years old, and was in good physical and mental health, and had no physical limitations. Moreover, at the time of his arrest, defendant earned a salary of $5,600 a month as an upholsterer, and had $2,300 in monthly expenses. Defendant was sentenced to 55 years in prison. Given the length of defendant's prison sentence, we have no doubt that defendant will have the ability to pay the assessments and fines at issue here. We agree with the court in Johnson that "[t]he idea that he cannot afford to pay $370 . . . is unsustainable. Thus, even if we were to assume [defendant] is correct that he suffered a due process violation when the court imposed this rather modest financial burden on him without taking his ability to pay into account, we conclude that, on this record, because he has ample time to pay it from a readily available source of income while incarcerated, the error is harmless beyond a reasonable doubt." (Johnson, at pp. 130-140.)
We addressed a similar issue in a recent decision, People Taylor (2019) 43 Cal.App.5th 390. In that case, the trial court imposed a $10,000 restitution fine under section 1202.4, and a $840 court operations and facilities fees under 1465.8 without holding an ability to pay hearing. (Taylor, at p. 397.) The People contended that the defendant "forfeited this argument, and even if he did not, there was no Dueñas error." (Id. at p. 397.) We concluded that the defendant "forfeited the argument as to the $10,000 restitution fine but not as to the $840 in court operations and facilities fees." (Ibid.) After discussing the facts in the case, we reversed the order imposing the operations and facilities fees and remanded the case for an ability to pay hearing. (Ibid.) The facts in Taylor, however, are readily distinguishable from the facts in this case.
In Taylor, the defendant was 70 years old at the time of his sentencing, and we assumed that he would secure a minimum monthly prison wage. We stated, assuming "that the entire $10,000 restitution fine is outstanding, [the defendant] will have at least $5.40 per month available to settle $840 in fees. At that rate, he will pay off the fees in 156 months, or 13 years." (Taylor, supra, 43 Cal.App.5th at p. 402.) Because the defendant was already 70 years old at the time of sentencing, and we did not know about his health, and whether he was capable of earning wages until 83 years old, we held that the trial court could not assess $840 without a determination that the defendant had the ability to pay them. Therefore, the Taylor court found that the Dueñas error was not harmless and remanded the case for an ability to pay hearing. (Taylor, at p. 403.)
As noted previously, the facts in this case are distinguishable from the facts in Taylor because here, defendant was only 38 years old at the time of sentencing, as opposed to 70 years old like the defendant in Taylor. Not only was defendant 32 years younger, the evidence showed that defendant was in good health and able to work. With 55 years in prison, it is reasonable that defendant would be able to pay off $530 in fines and fees. Therefore, we find that any Duenas error is harmless.
DISPOSITION
The trial court is ordered to amend the abstract of judgment to correctly note that in count 5, defendant was convicted of sexual intercourse with a child 10 years old or younger, and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. RAPHAEL
J.