Filed 5/31/22 P. v. Martinez CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E077120
v. (Super. Ct. No. RIF1605825)
DANIEL MARTINEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Charles J. Koosed and
Helios J. Hernandez, Judges. Affirmed in part as modified, and remanded with
directions.
Nicholas Seymour, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and
Respondent.
1 I.
INTRODUCTION
Following a probation revocation hearing, the trial court found that defendant and
appellant Daniel Martinez had violated five of his probationary terms and sentenced him
to six years in state prison, which included the upper term of three years, plus three years
for the great bodily injury enhancement. The court also imposed a restitution fine in the
amount of $300. On appeal, defendant contends the trial court erred in imposing the
restitution fine and that the matter should be remanded for a new sentencing hearing in
light of Senate Bill No. 567 (2021-2022 Reg. Sess.). We conclude that the restitution
fine must be stricken, and remand the matter for a new sentencing hearing in light of
Senate Bill No. 567.
II.
FACTUAL AND PROCEDURAL BACKGROUND
On October 3, 2016, while intoxicated, defendant drove an on off-road, four
wheeler vehicle with his 14-year-old nephew in the vehicle and collided with a car. As a
result, the car sustained major damage, and defendant’s nephew suffered a fractured leg
and abrasions to his face.
On May 31, 2017, in a plea to the court, defendant pleaded guilty to driving under
the influence (Veh. Code, § 23153, subd. (a); count 1), driving with a blood alcohol
concentration of .08 or more (Veh. Code, § 23153, subd. (b); count 2), child abuse likely
2 1 to produce great bodily injury (Pen. Code, § 273a, subd, (a); count 3), and using a
vehicle with the presence of blood alcohol concentration while on probation (Veh. Code,
§ 23154, subd. (a); count 4). As to counts 1 and 2, defendant also admitted that he had
caused great bodily injury (§ 12022.7, subd. (a)) and had a blood alcohol concentration of
.20 or more (Veh. Code, § 23538, subd. (b)(2)). In exchange for his plea, defendant
agreed to be placed on formal probation for a period of five years in lieu of a six-year
suspended prison sentence.
On June 14, 2017, the trial court placed defendant on probation for a period of five
years on various terms and conditions, including serving 365 days in county jail and
completing a 52-week driving under the influence (DUI) program and parenting classes.
The court also ordered defendant to pay a restitution fine in the amount of $300, among
other fines and fees.
At a probation hearing on April 17, 2019, the trial court expressed sympathy for
defendant’s financial situation, noting defendant had difficulty paying for his programs
and that he had completed 18 out of 52 classes. Thus, to free up money for the programs
his probation required him to complete, the court found that defendant lacked the ability
to pay pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 and struck the $300
restitution fine. The court also struck the $160 operations and security fee and $125
conviction assessment fee.
1 All future statutory references are to the Penal Code unless otherwise stated.
3 On July 16, 2020, the probation department filed a petition alleging defendant had
violated six of his probationary terms and conditions. On that same day, the trial court
revoked defendant’s probation.
A formal probation revocation hearing was held on February 23, 2021. Following
testimony by defendant’s probation officer and admission of evidence, the trial court
found that defendant had violated five of his probation conditions and set the matter for a
sentencing hearing. As to sentencing, the court noted that the issue of sentencing was a
different analysis and depending on what the probation department reports, the court
explained that it could reinstate defendant on probation, sentence him to six years in
prison, or sentence him to the upper term of seven years or more. The court also stated
that there was no “hard evidence” that defendant had agreed to a specific sentence. 2 After numerous continuances, the sentencing hearing was held on May 14, 2021.
Defense counsel requested that defendant be reinstated on probation. The prosecutor
argued that defendant should be sentenced to six years in prison, which was “the original
agreed upon disposition” when defendant had pleaded guilty to the sheet. The trial court
did not find that there was an “agreed” sentence, but nonetheless sentenced defendant to a
term of six years in prison as follows: the upper term of three years for count 1, plus
2 On this date, defendant was represented by private counsel rather than the public defender who had previously appeared at other hearings. The prosecutor was also different than the prior hearings. We also note that three different judges had heard the relevant proceedings in this case: Judge Hernandez at the change of plea hearing and at the time defendant was placed on probation; Judge Keen at the time the restitution fine was struck; and Judge Koosed at the time defendant was sentenced to prison.
4 three years for the great bodily injury enhancement. In imposing the upper term, the
court stated, “The upper term is selected as I do believe the aggravating circumstances
outweigh the mitigating circumstances for the reasons I just indicated.” The reasons the
court had indicated were that defendant continued to violate probation, the case was
“serious,” and “[i]t’s a fourth DUI in a relatively short period of time wherein there was a
GBI and child endangerment.” The probation officer listed the following circumstances
in aggravation: (1) the crime involved great violence, great bodily harm, threat of great
bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness;
(2) defendant’s prior convictions were numerous or of increasing seriousness; (3)
defendant was on probation when the crime was committed; and (4) defendant’s prior
performance on probation was unsatisfactory. The probation officer found no
circumstances in mitigation.
When the court inquired as to any fines and fees, defense counsel requested that
the court “delete any fines and fees that the Court has the authority to do” based on
defendant’s inability to pay and lengthy period of incarceration. The court also asked
whether defense counsel was appointed, and counsel replied, “Private case.” The
prosecutor submitted on the issue. The court struck the presentence probation report fee,
the booking fee, and pre-incarceration cost. The court, however, ordered defendant to
5 pay the restitution fine, reducing it “to the mandatory minimum of $300.”3 Defendant
timely appealed.
III.
DISCUSSION
A. Imposition of Restitution Fine at May 2021 Sentencing Hearing
Defendant contends the trial court erred in imposing the second restitution fine at 4 the May 2021 sentencing hearing because it was unauthorized. We agree.
Section 1202.4 provides that a restitution fine must be imposed absent compelling
and extraordinary reasons whenever a defendant is convicted of a crime. (§ 1202.4, subd.
(b).) The “triggering event for imposition of the restitution fine is . . . [a] conviction.”
(People v. Chambers (1998) 65 Cal.App.4th 819, 822 (Chambers).) The restitution
amount is set at the discretion of the court within a statutory range. (§ 1202.4, subd.
(b)(1).)
Although defendant did not object below to the imposition of the second
restitution fine, defendant did not forfeit the claim of error. (Chambers, supra, 65
Cal.App.4th at p. 823 [failure to object at sentencing did not forfeit challenge on appeal
because trial court exceeded its statutory authority in imposing the second restitution
3 The probation officer had recommended that defendant be ordered to pay a restitution fine in the amount of $8,100. 4 Alternatively, defendant asserts the trial court abused its discretion in imposing the restitution fine at the May 2021 hearing. We need not address this issue as we find the second imposition of the fine was unauthorized.
6 fine]; see also People v. Andrade (2002) 100 Cal.App.4th 351, 354 [failure to object to
imposition of allegedly unauthorized parole revocation restitution fine did not forfeit
challenge on appeal].)
In Chambers, supra, 65 Cal.App.4th 819, “the trial court imposed two separate
restitution fines for the same conviction: a $200 restitution fine at the time probation was
granted and a $500 restitution fine at the time probation was revoked.” (Id. at p. 823.)
The issue on appeal was whether the trial court was authorized to impose the higher
restitution fine. The Chambers court concluded it was not and held “a restitution fine
imposed at the time probation is granted survives the revocation of probation.” (Id. at p.
820; see People v. Guillen (2013) 218 Cal.App.4th 975, 985-988.) Thus, a trial court
may not impose a restitution fine as a condition of probation and impose another fine
when the defendant is sentenced. (Chambers, supra, at pp. 821-822; accord, People v.
Urke (2011) 197 Cal.App.4th 766, 779 [when a defendant’s probation is revoked, the
mandatory restitution fine imposed as a condition of probation survives the revocation of
probation, so that it is improper and beyond the trial court’s authority to impose another
restitution fine upon sentencing the defendant to state prison].) The Chambers court
accordingly modified the judgment by striking the $500 restitution fine. (Chambers,
supra, at p. 823.)
Likewise, in this case, we conclude the second restitution fine of $300 imposed at
the time of the May 2021 sentencing hearing was in error. At the time defendant was
placed on probation in June 2017, the trial court imposed various fines and fees,
7 including a $300 restitution fine pursuant to section 1202.4, subdivision (b). However, in
April 2019, a different court, struck various fines and fees, including the $300 restitution
fine, pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157, based on defendant’s
inability to pay. The $300 restitution fine imposed when the first court granted defendant
probation, and subsequently stricken based on defendant’s inability to pay by the second
court, survived the third court’s subsequent revocation of defendant’s probation and
sentence. Thus, the third court lacked authority to impose the restitution fine.
Relying on People v. Cropsey (2010) 184 Cal.App.4th 961 (Cropsey), the People
argue that the court’s imposition of the $300 restitution fine at the sentencing hearing
“does not appear to have been a new fine,” “[i]instead the third judge merely reimposed
the original $300 fine carried through from the initial grant of probation to the final
prison sentencing.” We find this argument unpersuasive.
In Cropsey, supra, 184 Cal.App.4th 961, the trial court purported to “‘reimpose’”
a $200 restitution fine when it revoked and reinstated the defendant’s probation. (Id. at p.
964.) On the defendant’s contention that the trial court had erred in imposing two
restitution fines under sections 1202.4, subdivision (b) and 1202.44, the Court of Appeal
found Chambers inapposite and held that the trial court had not erred, because it had not
imposed a second restitution fine; rather, it had effectively confirmed the same restitution
fine originally imposed. (Cropsey, supra, at pp. 964-965.) The Cropsey court explained
that the trial court was attempting to comply with Chambers by stating the fines were
“‘reimposed’” (id. at p. 965) and thus it was apparent the trial court was not imposing a
8 “new, prohibited second fine.” (Ibid.) The trial court’s statement was confirmed by the
fact the clerk wrote “‘previously imposed’” in the minutes adjacent to the restitution
fines. (Ibid.) The Cropsey court therefore rejected the defendant’s suggestion that all
references to the restitution fines should be deleted from the minutes as “infeasible
because it sets the stage for an extant but unpaid fine to be overlooked.” (Ibid.)
The Cropsey court noted, however, the trial court’s words “‘reimpose the
restitution amounts’” was “inconsistent with the principle upon which Chambers was
decided.” (Cropsey, supra, 184 Cal.App.4th at p. 965.) The court explained the
“survival” of the restitution “made it unnecessary to ‘reimpose’ those still extant
‘restitution amounts.’” (Id. at p. 966.) “Where a restitution fine(s) has been previously
imposed, the trial court should simply say, ‘The abstract of judgment should reflect the
restitution fine(s) previously imposed.’” (Ibid.)
At the May 2021 sentencing hearing, the trial court did not use the term
“reimpose” when ordering imposition of the restitution fine. Nor did the sentencing
minutes include any notation the fine had been “previously” imposed. Moreover, even if
the third court had merely “reimposed” the fine, the record is clear that the restitution fine
was stricken in April 2019 by the second court, and it does not appear that the third court
and the parties were aware of this action. Additionally, the People never objected to the
striking of the restitution fine and other fees at either the April 2019 hearing or the May
2021 hearing.
9 We reject the People’s claim that “the second court’s decision to strike the $300
fine was improper” because it was contrary to the plea agreement and “the stated reason
for striking the fine was also improper.” The People speculate that “[p]erhaps [the third]
judge realized the second judge’s mistakes and decided to carry through the original
fine.” The prosecutor did not object to the striking of the fine on any basis, and thus
forfeited the argument. (People v. Lowery (2020) 43 Cal.App.5th 1046, 1054 [“We stand
by the traditional rule that a party must raise an issue in the trial court if they would like
appellate review.”].) Furthermore, the restitution fine and fees are generally not subject 5 to an ability to pay finding. Consequently, the plea agreement in this case did not
include an express waiver provision relating to an ability to pay finding. We thus reject
the People’s contention that defendant gave up his right to contest the fine by initialing
the paragraph stating that he would “be ordered to pay a restitution fine of at least $240
and not more than $10,000.”
B. Senate Bill No. 567
Defendant contends the trial court’s sentence to the upper term on count 1 should
be vacated and remanded in light of Senate Bill No. 567, which became effective on
January 1, 2022 and modified section 1170, subdivision (b), to require imposition of the
middle term of imprisonment unless circumstances in aggravation justify imposition of a
greater sentence. (Stats. 2021, ch. 731, § 1.3.) He also asserts that under In re Estrada
5 The trial court must consider ability to pay before imposing a restitution fine in excess of the statutory minimum. (§ 1202.4, subd. (d).)
10 (1965) 63 Cal.2d 740 (Estrada), Senate Bill No. 567 applies retroactively to his case.
The People argue that even though Senate Bill No. 567’s amendments to section 1170,
subdivision (b), may apply here, vacating defendant’s sentence and remanding the case
for resentencing is unnecessary because the trial court relied on factors that defendant
admitted during his guilty plea in imposing the upper term and any error was harmless.
Generally, statutes are presumed to operate prospectively. (People v. Brown
(2012) 54 Cal.4th 314, 323.) Estrada, supra, 63 Cal.2d 740 established an exception and
governs retroactive application for ameliorative changes in the law. Under Estrada,
“[n]ewly enacted legislation lessening criminal punishment or reducing criminal liability
presumptively applies to all cases not yet final on appeal at the time of the legislation’s
effective date. [Citation.] This presumption ‘rests on an inference 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.’” (People v. Gentile (2020) 10 Cal.5th
830, 852.) Statutes can apply retroactively to plea agreements through Estrada even
when the contested legislation lacks discussion of pleas specifically. (People v. Stamps
(2020) 9 Cal.5th 685, 698-699.)
11 Senate Bill No. 567 is ameliorative as it limits the trial court’s ability to impose a
sentence beyond the middle term. The bill lacks language indicating a savings clause or
some other signal that it should only apply prospectively. The legislative history
similarly lacks an intention for the bill to only apply prospectively. As Senate Bill No.
567’s amendments to section 1170, subdivision (b), lessen punishment, and there is no
indication that the Legislature intended it to apply prospectively only, the new law must
be retroactively applied. Therefore, we agree with the parties that the amendment to
section 1170, subdivision (b), applies to all cases not final when Senate Bill No. 567
became effective date. (Estrada, supra, 63 Cal.2d at pp. 744-745; People v. Flores
(2022) 73 Cal.App.5th 1032, 1039 [“the amended version of section 1170, subdivision
(b) . . . applies retroactively in this case as an ameliorative change in the law applicable to
all nonfinal convictions on appeal”].) As the parties agree, defendant’s case was not final
on January 1, 2022, and he was sentenced to the upper term on count 1 under former
section 1170. Defendant is therefore entitled to the benefit of Senate Bill No. 567.
Senate Bill No. 567 amends the determinate sentencing law, section 1170,
subdivision (b), which delineates the trial court’s authority to impose one of three
statutory terms of imprisonment (the lower, middle, or upper terms), by making the
middle term the presumptive sentence for a term of imprisonment, unless certain
circumstances exist. (See Stats. 2021, ch. 731, § 1.3, adding § 1170, subd. (b)(1), (2).)
Effective January 1, 2022, under the newly amended law, the trial court may impose an
upper term sentence only where there are circumstances in aggravation, and the facts
12 underlying all of the aggravating circumstances have been stipulated by the defendant or 6 found true beyond a reasonable doubt by a jury or court trial. (§ 1170, subd. (b)(2).)
Under section 1170, subdivision (b)(3), however, the trial court, “may consider the
defendant’s prior convictions in determining sentencing based on a certified record of
conviction without submitting the prior convictions to a jury.” (§ 1170, subd. (b)(3).)
Under the amended section 1170, subdivision (b)(5), the trial court must “set forth
on the record the facts and reasons for choosing the sentence imposed. The court may
not impose an upper term by using the fact of any enhancement upon which sentence is
imposed under any provision of law.” (§ 1170, subd. (b)(5).) In addition, “unless the
court finds that the aggravating circumstances outweigh the mitigating circumstances that
imposition of the lower term would be contrary to the interests of justice, the court shall
order imposition of the lower term if any of the following was a contributing factor in the
commission of the offense: [¶] (A) The person has experienced psychological, physical,
or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual
violence [¶] . . . [¶] . . . .” (§ 1170, subd. (b)(6)(A), (C).)
6 Under former section 1170, subdivision (b), “[w]hen a judgment of imprisonment [was] to be imposed and the statute specifie[d] three possible terms, the choice of the appropriate term . . . rest[ed] within the sound discretion of the court.” Furthermore, prior to the enactment of section 1170, subdivision (b)(2), the People only had to prove an aggravating fact by a preponderance of the evidence. (See People v. Towne (2008) 44 Cal.4th 63, 86; People v. Hicks (2017) 17 Cal.App.5th 496, 512.)
13 Defendant argues that he did not admit or stipulate to any circumstances in
aggravation, the fact finder did not make any findings beyond a reasonable doubt as to
the circumstances in aggravation, the court could not rely on great bodily injury as a
factor in aggravation since it would constitute an impermissible dual use, and no certified
record of his prior convictions were provided. The People argue defendant “[a]s part of
his guilty plea, . . . admitted it was true that during the accident ‘[a]nother person in [his]
car suffered great bodily injury.’ He also admitted that he ‘had a minor who was a
relative in the car with [him] and that’s the person that got hurt.’ Further, he admitted
that he was then currently on probation for two DUIs . . . .”
However, we agree with defendant that use of the great bodily injury circumstance
as a factor in aggravation is not a permitted reason to impose an upper term if it is the
same as an enhancement or an element of a crime. (See § 1170, subd. (b)(5); Cal. Rules
of Court, rule 4.420(d); People v. Clark (1992) 12 Cal.App.4th 663, 666.) Moreover, as
our Supreme Court held, “by entering into a plea agreement that included the upper term
as the maximum sentence,” the defendant “did not implicitly admit that his conduct could
support that term.” (People v. French (2008) 43 Cal.4th 36, 48.) The court reasoned that
a “defendant who enters into an agreement to plead guilty or no contest, with a sentence
to be imposed within a specified maximum, reasonably expects to have the opportunity to
litigate any matters related to the trial court’s choice of sentence—including the existence
of aggravating and mitigating circumstances—at the sentencing hearing.” (Id. at p. 49.)
The Supreme Court also concluded that a defendant’s plea constitutes “an admission to
14 the elements of the charged offenses only, and not to any additional aggravating
circumstances.” (Id. at p. 50.) This is because “[b]efore accepting a guilty or no contest
plea pursuant to a plea agreement in a felony case, the trial court is required to determine
that a factual basis for the plea exists. [Citations.]” (Ibid.) Hence, a defendant’s
stipulation to a factual basis does not constitute a binding admission for all purposes. (Id.
at p. 52.)
Citing People v. Sandoval (2007) 41 Cal.4th 825, 839 (Sandoval), the People
contend that, any error in imposing the upper term was harmless beyond a reasonable
doubt because the trial court “only relied on factors in aggravation based on facts that he
previously admitted in open court.” Initially, we reject this contention for the reasons
stated in People v. French, supra, 43 Cal.4th 36. Second, the record does not support the
People’s argument. The court did not definitively cite to specific factors in aggravation,
but in imposing the upper term, stated, “[t]he upper term is selected as I do believe the
aggravating circumstances outweigh the mitigating circumstances for the reasons I just
indicated.” The court had previously indicated that defendant continued to violate
probation, the case was “serious,” and “[i]t’s a fourth DUI in a relatively short period of
time wherein there was a GBI and child endangerment.”
Furthermore, in Sandoval, supra, 41 Cal.4th 825 our Supreme Court held: “The
denial of the right to a jury trial on aggravating circumstances is reviewed under the
harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18. . . .” (Id.
at p. 838.) In that context, “‘[i]f a reviewing court concludes, beyond a reasonable doubt,
15 that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would
have found true at least a single aggravating circumstance had it been submitted to the
jury,’ the error is harmless.” (People v. Flores (2022) 75 Cal.App.5th 495, 500, quoting
Sandoval, supra, at p. 839.) The Supreme Court, however, cautioned that “the reviewing
court cannot necessarily assume that the record reflects all of the evidence that would
have been presented had aggravating circumstances been submitted to the jury.”
(Sandoval, supra, at p. 839.) The court observed that the defendant’s incentive and
opportunity at the sentencing hearing to contest any aggravating circumstance “were not
necessarily the same as they would have been had the aggravating circumstances been
tried to a jury” and that, “to the extent a potential aggravating circumstance at issue in a
particular case rests on a somewhat vague or subjective standard, it may be difficult for a
reviewing court to conclude with confidence that, had the issue been submitted to the
jury, the jury would have assessed the facts in the same manner as did the trial court.”
(Sandoval, supra, at pp. 839-840.)
The concerns noted by the Supreme Court weigh against finding the error
harmless here. In addition, the amendments to section 1170, subdivision (b) changed the
framework within which the trial court exercises its discretion by specifying a
legislatively determined presumptive sentence. Further, a different standard of proof is
now applicable and may have affected how defense counsel proceeded with sentencing.
For example, had the standard of proof been beyond a reasonable doubt under section
1170, subdivision (b)(2), rather than by a preponderance of the evidence, defendant’s trial
16 counsel may have chosen to contest the facts relevant to the aggravating factors described
by the court and noted in the probation report.
Moreover, we observe that “‘[d]efendants are entitled to sentencing decisions
made in the exercise of the “informed discretion” of the sentencing court. [Citations.] A
court which is unaware of the scope of its discretionary powers can no more exercise that
“informed discretion” than one whose sentence is or may have been based on
misinformation regarding a material aspect of a defendant’s record.’ [Citation.]” (People
v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) In such circumstances, the Supreme Court
has held that “the appropriate remedy is to remand for resentencing unless the record
‘clearly indicate[s]’ that the trial court would have reached the same conclusion ‘even if it
had been aware that it had such discretion.’ [Citations.]” (Ibid.) Senate Bill No. 567
altered the scope of the trial court’s sentencing discretion under section 1170, subdivision
(b). Thus, because the record does not “‘clearly indicate[]’” that the court would have
imposed the upper term despite the amendment to section 1170, subdivision (b), we will
remand the matter for resentencing. (People v. Gutierrez, supra, 58 Cal.4th at p. 1391.)
IV.
DISPOSITION
The judgment is modified to strike the section 1202.4, subdivision (b) restitution
fine in the amount of $300. The sentence imposed by the trial court is vacated and the
matter is remanded to the trial court for resentencing pursuant to section 1170,
subdivision (b) as amended by Senate Bill No. 567. Upon resentencing, the clerk of the
17 superior court is directed shall prepare an amended abstract of judgment and forward a
certified copy to the Department of Corrections and Rehabilitation. In all other respects,
the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RAMIREZ P. J.
SLOUGH J.