Opinion
C085456
02-03-2020
THE PEOPLE, Plaintiff and Respondent, v. MELVIN BLOUNT, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCCRCRBF2016889)
Defendant Melvin Blount appeals a judgment entered after his guilty plea to theft from an elder (Pen. Code, § 368, subd. (d)) and the trial court's bifurcated determination that he had been convicted of five previous serious or violent felonies and had served three prior prison terms. Defendant argues: (1) the trial court's restitution order must be stricken because it is not supported by substantial evidence and (2) the abstract of judgment must be corrected to conform to the trial court's oral pronouncement of judgment, eliminating one year from his aggregated prison term. He further argues in two sets of supplemental briefing that (1) under People v. Dueñas (2019) 30 Cal.App.5th 1157 certain assessments and fines imposed on him must be stayed pending his receipt of an ability to pay determination and (2) due to the passage of Senate Bill No. 136, his 3 prison prior enhancements must be stricken. We will modify the judgment and affirm that judgment as modified.
Undesignated statutory references are to the Penal Code.
I
BACKGROUND
The factual basis of defendant's guilty plea included testimony from the partial jury trial that occurred before that plea, the pertinent portion of which we summarize here. Defendant lived on the property of Clifford Faulkner (the victim) for a period of time and helped the victim take care of the property. The victim testified defendant left his property (on either April or May 1st) and moved to live with Hector Rodriguez. The victim was concerned about defendant's well-being and went to check on him at the Rodriguez property. There was a yard sale going on, and the victim discovered numerous pieces of his property were for sale, which had been sold to Rodriguez by defendant without the victim's permission. The victim searched the yard sale for his personal belongings, and defendant returned those items to him the following morning at a prearranged public location. When asked why he had taken the victim's things, defendant said he was mad at him. Defendant was arrested by a deputy who was at the exchange at the victim's request.
The victim testified extensively about the identity, value, and original location of the items defendant took from him that were recovered. Not recovered, but identified by the victim to law enforcement as missing, were two wood lathes and a laptop computer. The victim last saw the laptop (which he kept in his home on the piano) two to three months before the yard sale. It was pretty new, and he had purchased it for $300. The victim conceded he had no proof defendant took the laptop, but logically assumed he had taken it. The victim discovered his wood lathes were missing in early spring and estimated they were worth $150 a piece. This was two to three months before defendant moved.
The victim testified to previously selling, through defendant, two trailers to Rodriguez that the victim no longer needed. This occurred a few months before defendant moved, and these were the only things the victim gave defendant permission to sell for him.
Rodriguez testified that defendant brought him things from the victim to sell between five and seven times. Defendant told him the victim's wife had just died, the victim intended to move to Washington, and defendant was selling items for the victim that he no longer wanted. Defendant started bringing items to Rodriguez about three months before the yard sale. Rodriguez understood defendant was also selling items in Yreka. The victim was angry when he confronted Rodriguez at the yard sale, which surprised Rodriguez. The yard sale had been going on for two days before the victim came.
Deputy Ben Whetstine testified that on June 4th, he helped the victim retrieve his property from defendant. Before Whetstine detained defendant, he overheard the victim ask, "Why did you steal my stuff?" and the defendant answered, "Because I was mad at you for not helping me." Whetstine photographed and inventoried the property recovered from defendant. The victim reported he was also missing two wood lathes and a laptop computer. Whetstine also interviewed Rodriguez, who stated that defendant began bringing him items two to four months before his interview on June 23. Rodriguez also reported defendant was selling items in Yreka, although he did not know the locations or the specific items sold.
Before the People rested, but after argument concerning conforming the second amended information to proof, defendant pleaded guilty to felony theft from an elder (§ 368, subd. (d)) with a maximum prison term of four years (subject to impact of the priors), and in exchange, the People agreed to strike the super strike and dismiss the two remaining substantive offenses.
The substantive charges before the jury were theft from an elder (§ 368, subd. (d); count one), grand theft (§ 487, subd. (a); count two); and receiving stolen property (§ 496, subd. (a); count three).
The bifurcated alleged priors were tried by the trial court, which found true that defendant had suffered five prior convictions (§ 667, subds. (b)-(i)) and that defendant had served three prior prison terms (§ 667.5, subd. (b)). Thereafter, the trial court denied defendant's Romero motion to strike his prior strikes and sentenced him to a total aggregate term of 11 years as follows: "You are hereby committed to the Department of Corrections and Rehabilitation for the upper term of four years, for the violation of Penal Code 368(d), a felony, which was doubled to eight under [section] 668(b)(2)(I) of California Penal Code, two consecutive one-year terms pursuant to Penal Code [section] 667.5(b), for a total aggregate term of 11 years."
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
The trial court ordered defendant pay a restitution fine of $3,300 (§ 1202.4, subd. (b)(2)), a corresponding suspended parole revocation fine of $3,300 (§ 1202.45), a court operations assessment of $40 (§ 1465.8), a court facilities assessment of $30 (Gov. Code, § 70373), and victim restitution in the amount of $600. Defendant did not request a contested hearing on the amount of restitution or object to his ability to pay the fines and assessments.
II
DISCUSSION
A. The Restitution Order
Defendant argues the $600 victim restitution must be stricken because it is not supported by substantial evidence. Defendant's argument ignores that the victim testified at trial concerning stolen items that were not returned and their value, which equaled $600. Thus, for the reasons explained herein, we uphold the trial court's award.
"Restitution is constitutionally and statutorily mandated in California. ([Citation]; Cal. Const., art. I, § 28, subd. (b).) The constitutional mandate for restitution is carried out through Penal Code section 1202.4. . . ." (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045, fn. omitted (Keichler).) Section 1202.4, subdivision (f) provides in part: "Except as provided in subdivisions (q) and (r), in every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. . . . The court shall order full restitution." (§ 1202.4, subd. (f).) Restitution may include the "[f]ull or partial payment for the value of stolen or damaged property," which "shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible." (§ 1202.4, subd. (f)(3)(A).)
"[S]tatements by the victims of the crimes about the value of the property stolen constitute 'prima facie evidence of value for purposes of restitution.' [Citations.]" (Keichler, supra, 129 Cal.App.4th at p. 1048.) This includes a victim's trial testimony that supports the restitution award. (People v. Lehman (2016) 247 Cal.App.4th 795, 801-805 [upholding restitution award based upon both victims' trial testimony, one victim's sentencing statement, and the probation report].) "Once the victim has made a prima facie showing of his or her loss, the burden shifts to the defendant to demonstrate that the amount of the loss is other than that claimed by the victim. [Citations.]" (People v. Prosser (2007) 157 Cal.App.4th 682, 691.) "The defendant has the burden of rebutting the victim's statement of losses, and to do so, may submit evidence to prove the amount claimed exceeds the repair or replacement cost of damaged or stolen property." (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543.)
We review a restitution order for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.) That "standard is 'deferential,' but it 'is not empty.' [Citation.] '[I]t asks in substance whether the ruling in question "falls outside the bounds of reason" under the applicable law and the relevant facts [citations].' [Citation.]" (Ibid.) "Absent a challenge by the defendant, an award of the amount specified in the probation report is not an abuse of discretion. [Citation.]" (Keichler, supra, 129 Cal.App.4th at p. 1048.)
Here, the trial court ordered $600 restitution to the victim after asking the parties to confirm the basis of that request. Defendant's attorney believed all the stolen items had been returned to the victim, and thus, that there was no basis for restitution. The People, who had not completed a sentencing memorandum, did not recall where the $600 request came from, but stated that "much of the property was returned." Nonetheless and even though the probation department's presentence report did not recommend a specific amount of restitution, the probation report did note the relevant police report identified the victim's financial loss at $600. This was consistent with the victim's trial testimony that he did not recover a computer he purchased for $300 and two wood lathes valued at $150 each, all of which he reported stolen to the responding officer the day of defendant's arrest after return of the other stolen items. The timing of the loss of these items fits within the timeline of the theft of other items recovered. Further, defendant had access to the home and the locked garage where these items were kept before they went missing. Thus, we reject defendant's argument that the loss of these items cannot support the restitution award because they are unrelated to his guilty plea for theft of an elder.
That the victim suffered at least $600 in losses at the hands of defendant is also supported by the victim's impact statement, which recounted the lost items worth several thousand dollars for which he had received a 50 percent payment from his insurance company.
The victim's statements that he had no direct proof defendant took the items does not invalidate the restitution award where the circumstances reasonably supported that award. (See People v. Phu (2009) 179 Cal.App.4th 280, 284-285 [upholding restitution award despite lack of personal knowledge regarding start of illegal diversion where the start date chosen was reasonable given the circumstances].)
Thus, because there was a prima facie showing that the victim lost $600 in property as a result of defendant's elder theft, and defendant did not request a restitution hearing (§ 1202.4 , subd. (f)(1)) or otherwise rebut that showing, we find substantial evidence supports the trial court's $600 restitution award. B. Defendant's Sentence on the Prior Prison Enhancements
Defendant argues the abstract of judgment must be corrected to conform to the trial court's oral pronouncement of judgment, eliminating one year from his aggregated prison term. The People counter that the record strongly supports that the trial court intended to impose three consecutive one-year terms for the prison priors. Given the passage of Senate Bill No. 136 and its implications as discussed infra, we need not decide this issue. However, because our review of the record has disclosed another clerical error in the oral pronouncement of judgment as transcribed, we will correct that error.
" 'It is not open to question that a court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts. [Citations.] The power exists independently of statute and may be exercised in criminal as well as in civil cases. [Citation.] The power is unaffected by the pendency of an appeal or a habeas corpus proceeding. [Citation.] The court may correct such errors on its own motion or upon the application of the parties.' [Citation.] Courts may correct clerical errors at any time, and appellate courts (including this one) that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts. [Citations.] [¶] It is, of course, important that courts correct errors and omissions in abstracts of judgment. An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment and may not add to or modify the judgment it purports to digest or summarize. [Citation.]" (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
Just before pronouncing sentence, the trial court denied defendant's Romero motion to strike his strikes after determining that doing so would not be in the interests of justice. It then moved on to sentencing defendant, agreeing with the probation report that there were many factors in aggravation, none in mitigation, and that defendant did not show remorse for his actions. After entertaining argument, the trial court sentenced defendant to a total aggregate term of 11 years as follows: "You are hereby committed to the Department of Corrections and Rehabilitation for the upper term of four years, for the violation of Penal Code 368(d), a felony, which was doubled to eight under [section] 668(b)(2)(I) of California Penal Code, two consecutive one-year terms pursuant to Penal Code [section] 667.5(b), for a total aggregate term of 11 years." (Italics added.)
The court misspoke in the recitation of the relevant provision of the Penal Code resulting in the doubling of defendant's sentence for the section 368, subdivision (d) violation, which the trial court previously determined applied. Section 667, subdivisions (b)-(i) results in that doubling, not section 668, subdivision (b)(2)(I). We can and will correct this error. C. Defendant's Challenge to His Fines and Assessments
Defendant argues the $3,300 restitution fine (§ 1202.4, subd. (b)(2)), $40 court operations assessment (§ 1465.8), and $30 court facilities assessment (Gov. Code, § 70373) must be stayed unless and until the lower court determines he has the ability to pay them, relying primarily on People v. Dueñas, supra, 30 Cal.App.5th 1157. He argues imposition without an ability to pay determination violates due process, the prohibition on cruel and unusual punishment, and equal protection.
Defendant, however, failed to object and request an ability to pay determination. Thus, under a normal application of appellate procedures, this failure has doomed his challenges to those assessments and fines on appeal. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153 [failure to object to assessments or restitution fine in trial court forfeited defendant's due process challenge thereto] (Frandsen); see also People v. Nelson (2011) 51 Cal.4th 198, 227 [defendant's claim that court erroneously failed to consider ability to pay a $10,000 restitution fine is forfeited by the failure to object]; People v. Gamache (2010) 48 Cal.4th 347, 409 [challenge to $10,000 restitution fine forfeited by failure to object to alleged inadequate consideration of defendant's ability to pay]; People v. Avila (2009) 46 Cal.4th 680, 729 [rejecting argument that defendant was exempted from forfeiture because his restitution fine amounted to an unauthorized sentence based upon his inability to pay].)
That defendant's ability to pay claims are constitutional in character does not alter the application of the forfeiture doctrine. (See People v. Trujillo (2015) 60 Cal.4th 850, 859 [constitutional exception to forfeiture rule did not apply to claim concerning failure to obtain express waiver of an ability to pay hearing]; In re Sheena K. (2007) 40 Cal.4th 875, 880-881 [noting longstanding rule that a constitutional right may be forfeited in criminal proceedings by " ' "failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." ' [Citation.]"]; (Frandsen, supra, 33 Cal.App.5th at p. 1153 [due process challenge forfeited].)
We concur with Frandsen that where a defendant has had the opportunity to object to the imposition of a restitution fine that was over the statutory minimum on the basis of inability to pay, that defendant forfeits his challenges requesting remand for an ability to pay determination on that restitution fine, as well as on the assessments imposed by the court. (Frandsen, supra, 33 Cal.App.5th at p. 1153.) Here, the court imposed a restitution fine that was $3,000 over the statutory minimum. (§ 1202.4, subd. (b)(1).) Defendant had an express right to object to the extra $3,000 imposed based upon his alleged inability to pay (§ 1202.4, subds. (c) & (d)), but he failed to do so. Thus, defendant's forfeiture is not forgiven by an application of the futility doctrine. D. Defendant's Challenge to His Three Prison Prior Enhancements
We need not, and thus do not, decide whether remand for an ability to pay hearing would be required if the trial court had merely imposed the mandatory minimum restitution fine from which there was not previously recognized right to request an ability to pay determination. (See People v. Castellano (2019) 33 Cal.App.5th 485 [concluding defendant's challenge was based upon a new constitutional principle not reasonably anticipated at the time of trial and remanding for an ability to pay determination].)
Defendant requests we strike his three prison prior enhancements imposed pursuant to Penal Code section 667.5, subdivision (b) in light of Senate Bill No. 136. The People concur.
On October 8, 2019, the Governor signed Senate Bill No. 136 (2019-2020 Reg. Sess.), which amended Penal Code section 667.5, effective January 1, 2020 (Stats. 2019, ch. 590, § 1). This bill narrowed the eligibility for the one-year prison prior enhancement to those who have served a prior prison sentence for a sexually violent offense, as defined. The amended provision states in pertinent part: "Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code, provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody or the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or any felony sentence that is not suspended." (§ 667.5, subd. (b).)
We agree with the parties that Senate Bill No. 136's amendment should be applied retroactively in this case. Whether a particular statute is intended to apply retroactively is a matter of statutory interpretation. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307 [noting "the role of a court is to determine the intent of the Legislature"].) Generally speaking, new criminal legislation is presumed to apply prospectively unless the statute expressly declares a contrary intent. (§ 3.) However, where the Legislature has reduced punishment for criminal conduct, an inference arises under In re Estrada (1965) 63 Cal.2d 740 (Estrada) " 'that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.' [Citations.]" (Lara, at p. 308.) Conversely, the Estrada rule " 'is not implicated where the Legislature clearly signals its intent to make the amendment prospective, by the inclusion of an express saving clause or its equivalent.' [Citation.]" (People v. Floyd (2003) 31 Cal.4th 179, 185, italics omitted.)
"A new law mitigates or lessens punishment when it either mandates reduction of a sentence or grants a trial court the discretion to do so. (People v. Francis (1969) 71 Cal.2d 66, 75-78.)" (People v. Hurlic (2018) 25 Cal.App.5th 50, 56.)
Here, Senate Bill No. 136 narrowed who was eligible for a section 667.5, subdivision (b) prison prior enhancement, thus rendering ineligible many individuals, including defendant who served prior prison sentences for non-sexually violent offenses. There is nothing in the bill or its associated legislative history that indicates an intent that the court not apply this amendment to all individuals whose sentences are not yet final. Under these circumstances, we find that Estrada's inference of retroactive application applies. (See, e.g., People v. Nasalga (1996) 12 Cal.4th 784, 797-798 [applying Estrada inference of retroactivity to legislative changes to section 12022.6, subds. (a) and (b) enhancements].) Accordingly, we will amend the judgment to strike defendant's three one-year prison prior enhancements.
DISPOSITION
The judgment is modified to reflect the doubling of defendant's section 368, subdivision (d) sentence by operation of section 667, subdivisions (b)-(i). It is further modified to strike defendant's three one-year prison prior enhancements. (§ 667.5, subd. (b).) The superior court is directed to prepare an amended abstract of judgment and forward a certified copy thereof to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
/s/_________
BLEASE, Acting P. J. We concur: /s/_________
BUTZ, J. /s/_________
DUARTE, J.