California Cases May 05, 2020: People v. Aiyebo-Skinner

Case Description

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Fresno Super. Ct. Nos. F18901857 & F18902283)

OPINION

THE COURT

APPEAL from a judgment of the Superior Court of Fresno County. Don Penner, Judge.

Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant/defendant Brandon Delmar Aiyebo-Skinner pleaded no contest in two separate cases to several felony offenses and was sentenced to four years in county jail. On appeal, defendant argues the court abused its discretion when it declined to impose a split sentence and instead sentenced him to four years in county jail. Defendant further argues the court improperly ordered him to pay restitution fines, fees, and assessments in the two cases without determining whether he had the ability to pay those amounts pursuant to People v . Dueñas (2019) 30 Cal.App.5th 1157 ( Dueñas ). We affirm.

Case No. F18901857

On January 26, 2018, Pa Tao Moua started her 2004 Honda Civic to warm it up and defrost the windows. She left the vehicle unattended. The vehicle, valued at $1,000, was not locked because the door locks did not work. A few minutes later, she discovered the vehicle was gone and contacted law enforcement.

On February 8, 2018, officers found Pa Tao Moua's stolen vehicle in an alley. Defendant's fingerprint was found on the interior rearview mirror.

On March 3, 2018, Fabian parked his vehicle at his family's business. He locked the doors, but the window on the driver's door was partially open. His wife, Sagrario Valderrama Moreno parked her 2012 Honda CR-V, valued at $18,000, in the same lot, and locked the doors. The vehicle was owned by her father, Jose Moreno. Later that night, Fabian discovered the door to his vehicle was ajar and some documents were on the ground. His wallet was taken from his car; it contained his driver's license, debit card, and about $200. The spare key to Sagrario Moreno's vehicle had also been taken from his car, and her vehicle was gone.

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Fabian reported the thefts to the police. A video surveillance camera showed an unknown person using the spare key taken from his car to start his wife's vehicle and drive away.

On March 4, 2018, at approximately 11:35 p.m., officers were contacted regarding a disturbance at a residence. When they arrived at the house, they found Sagrario Moreno's stolen Honda parked in front. The license plates were gone and replaced with paper plates. The exterior had been partially spray-painted white.

The officers found defendant sleeping in the reclined driver's seat of stolen Honda. The officers woke him up and detained him. Fabian's wallet was in defendant's pocket. Cell phones, cutting shears, a can of white spray paint, the vehicle's original license plates, and a screwdriver were found inside the car.

Fabian and his wife were contacted, and they reported there were additional items missing from the Honda: a car seat worth $100, a stroller worth $170, a smaller stroller worth $100, and the vehicle's registration.

While defendant was being detained, he began to have a seizure and was taken to the hospital. When he was at the hospital, defendant said a woman drove him to the residence; he thought he was going to get "lucky," but he fell asleep in the car.

The charges

On March 16, 2018, a complaint was filed in case No. F18901857, charging defendant with count 1, felony receiving stolen property, a motor vehicle belonging to Pa Tao Moua on February 8, 2018 (Pen. Code, § 496d, subd. (a)); count 2, felony receiving stolen property, a motor vehicle belonging to Sagrario Moreno and Jose Moreno on March 4, 2018 ( ibid . ) ; and count 3, misdemeanor receiving stolen property belonging to Fabian Pedraza Guerrero (§ 496, subd. (a)). As to counts 1 and 2, it was alleged

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defendant had two prior convictions for taking or driving a vehicle (§ 10851, subd. (a), § 666.5), and three prior prison term enhancements (§ 667.5, subd. (b)).

Case No. F18902283

On March 20, 2018, Josue Lopez-Garcia left his 2009 Honda Civic, valued at $3,000, in a parking lot. The car was unlocked, running, and the keys in the ignition. He returned within 15 minutes and discovered his car was gone. He reported it to the police.

Later that day, police officers received a LoJack "hit" and found the stolen Honda being driven in a neighborhood. Both license plates had been removed. Defendant was driving the car and a female was with him. Defendant parked the car, and officers blocked their paths and detained them.

Defendant was advised of the warnings pursuant to Miranda v . Arizona (1966) 384 U.S. 436 and said he stole cars for a man named " 'Sinaloa' " but refused to give any more information about this person. Defendant said he received " 'meth and weed' " from Sinaloa in exchange for stolen vehicles, and Sinaloa took off the license plates. Defendant said he found the Honda parked in front of a residence, it was running and no one was present, so he jumped in and drove away. Defendant apologized and said he knew it was wrong to steal cars, but he did it for drugs and just wanted to be left alone.

The officers determined defendant had a felony warrant for his arrest. The Honda was searched, and a methamphetamine pipe was found inside. Defendant started to have a seizure and was taken to the hospital.

The woman who was in the car with defendant was also advised of the Miranda warnings. She said they were just friends, and defendant arrived at her residence that morning and asked for her. She had never seen him with a car and figured he borrowed it. She saw a key in the ignition, so she did not think anything was wrong with the car.

Charges

On April 4, 2018, a complaint was filed in case No. F18902283, charging defendant with three offenses committed on March 20, 2018: count 1, unlawfully taking

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or driving a vehicle belonging to Josue Lopez-Garcia (Veh. Code, § 10851, subd. (a)); count 2, receiving stolen property, a motor vehicle belonging to Lopez-Garcia; and count 3, misdemeanor possession of a smoking device (Health & Saf. Code, § 11364). As to counts 1 and 2, it was again alleged defendant had two prior convictions for unlawfully taking or driving a vehicle (§ 666.5), and three prior prison term enhancements.

Defendant was on jail release when he committed the instant offenses. After the second complaint was filed, the court revoked defendant's jail release and issued a bench warrant for his arrest. Defendant appeared, pleaded not guilty to all the charges, and moved to be reinstated on jail release. The court denied the motion for release and remanded him into custody for the entirety of the proceedings.

On June 13, 2018, defense counsel declared a doubt about defendant's competence. The court suspended proceedings and appointed a doctor to examine defendant pursuant to section 1368.

On July 11, 2018, the court reviewed the doctor's report, found defendant was competent, and reinstated criminal proceedings.

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Plea proceedings

On August 29, 2018, defendant entered into a negotiated disposition and pleaded no contest to all charges alleged in both complaints. He admitted all the prior conviction allegations, for a maximum term of four years in county jail in both cases and dismissal of a third pending case.

Defendant asked the court to impose a "split" sentence. The court said it would address that issue at the sentencing hearing.

"THE COURT: So I want to make sure you understand there is a presumption for a split term but I have not given an indication that I would split that term.Sometimes I do not split the term, sometimes I do.So I haven't given any indication about how - if I would split that term or how I would split it.Do you understand?

"THE DEFENDANT: Yes, sir.

"THE COURT:So you could end up doing the whole four-year sentence in custody; do you understand that?

"THE DEFENDANT: I get half time?

"THE COURT:With time credits, yes.Do you understand that? I'm not saying necessarily that that's what I would do but I'm going to make that decision at the next hearing.

"THE DEFENDANT: Yes, sir.

"THE COURT:Do you understand?

"THE DEFENDANT: Yes, sir.

"THE COURT:If at that hearing I decided for any reason that four years was not enough time of a sentence, you should be sentenced to more than that, you'd then be allowed to withdraw these pleas and you'd be back

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here where you are today with the right to a Preliminary Hearing in these matters and a trial; do you understand that?

"THE DEFENDANT:Yes, sir.

"THE COURT:Because of your previous record, there is a presumption that you're not going to be eligible for probation in this case; do you understand that?

"THE DEFENDANT:Yes.

"THE COURT:In other words, unless the court were to make a finding of unusual circumstances, you cannot get probation on this sentence, you have to be sentenced to prison; do you understand that?

"THE DEFENDANT: Yes, sir.

"THE COURT:A Fresno County jail prison - I'm sorry, not a State Prison.

"THE DEFENDANT:Yes, sir."

The court asked defendant if he understood the terms of his plea, and he said yes.

Sentencing hearing

On September 27, 2018, the court held the sentencing hearing. The court stated it had read the probation report that recommended a split sentence. The court stated its tentative decision was to impose a four-year jail term without a split.

Defense counsel requested either probation or a split sentence, where defendant would be released under supervision after serving half of the sentence. Counsel said defendant needed drug treatment for his methamphetamine addiction and medical treatment for his seizure disorder. Counsel further stated defendant had not received his medication while in jail and argued his medical condition would deteriorate if he were incarcerated.

The prosecutor argued defendant should not receive a split sentence. The prosecutor acknowledged defendant had a medical condition, but that did not stop him

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from continuing to regularly commit criminal offenses since 2004, and there were multiple violations of postrelease community supervision parole.

The court noted the probation report recommended a split sentence. The court extensively reviewed the facts of the charged offenses as stated in the probation report, and defendant's criminal record, which included a juvenile adjudication for assault with a deadly weapon (§ 245, subd. (a)(1)) in 2003 and violating probation twice; burglary (§ 459) in 2005; and taking or driving a vehicle (Veh. Code, § 10851) in 2017.

The court found defendant was statutorily ineligible for probation except in unusual circumstances, and there were none. The court found aggravating factors that defendant had multiple prior convictions in addition to the section 666.5 enhancements that he admitted. There were mitigating circumstances in that defendant admitted guilt at an early stage, and he had medical conditions of psychiatric issues and seizures. The court found the aggravating factors outweighed the mitigating factors.

The court stated:

"The court is aware there is a presumption for a split term in California. I'm not splitting the term in this case for the reasons that the defendant has 11 violations of parole or probation in his background, primarily parole violations, he has been on MS [mandatory supervision] and was violated on MS in 2017 on a 3-year LPO term. He's had repeated opportunities at treatment with only one 12-day program completed and the court makes a finding that there is no benefit to placing him on MS and I'm denying that request."

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In case No. F18901857, the court imposed the upper term of four years for count 1, to be served in county jail in lieu of prison, a concurrent term of four years for count 2, and time served for misdemeanor count 3.

In case No. F18902283, the court imposed a concurrent upper term of four years for count 1, stayed the term for count 2, and time served for misdemeanor count 3. The court ordered the prior prison term enhancements stricken in both cases.

As to each case, the court imposed the following fines and fees: a restitution fine of $1,200 (§ 1202.4, subd. (b)), and stayed the parole revocation fine (§ 1202.45, subd. (b)); a $120 court security fee (§ 1465.8); a $90 criminal conviction assessment fee (Gov. Code, § 70373); and victim restitution in an amount to be determined (§ 1202.4, subd. (f)).

The total amount imposed for both cases was $2,400 in restitution fines, $240 in court security fees, and $180 in criminal conviction assessment fees. Defendant did not object to the orders.

On November 1, 2018, defendant filed a timely notice of appeal.

I. The Court did not Abuse its Discretion Ordering a Custodial Term

Defendant contends the court abused its discretion when it denied his request for a split sentence with mandatory supervised release, and instead imposed a four-year term in jail. Defendant argues a split sentence was more appropriate given his medical condition, history of seizures, and the jail's failure to administer the correct medication to him.

"Under the Realignment Act, qualified persons convicted of nonserious and nonviolent felonies are sentenced to county jail instead of state prison. [Citation.] Trial courts have discretion to commit the defendant to county jail for a full term in custody, or to impose a hybrid or split sentence consisting of county jail followed by a period of mandatory supervision. [Citations.]" ( People v . Catalan (2014) 228 Cal.App.4th 173, 178.)

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When a defendant is sentenced under section 1170, subdivision (h)(1), the sentencing court "shall" impose a split sentence "[u]nless the court finds that, in the interests of justice, it is not appropriate in a particular case." (§ 1170, subd. (h)(5)(A).) California Rules of Court, Rule 4.415 provides guidance regarding the requirements of section 1170:

"Except where the defendant is statutorily ineligible for suspension of any part of the sentence, when imposing a term of imprisonment in county jail under section 1170(h), the court must suspend execution of a concluding portion of the term to be served as a period of mandatory supervision unless the court finds, in the interests of justice, that mandatory supervision is not appropriate in a particular case. Because section 1170(h)(5)(A) establishes a statutory presumption in favor of the imposition of a period of mandatory supervision in all applicable cases, denials of a period of mandatory supervision should be limited." (Rule 4.415(a).)

Rule 4.415(b) further states that in determining mandatory supervision "is not appropriate in the interests of justice under section 1170(h)(5)(A), the court's determination must be based on factors that are specific to a particular case or defendant." The factors the court may consider include: "(1) Consideration of the balance of custody exposure available after imposition of presentence custody credits; (2) The defendant's present status on probation, mandatory supervision, postrelease community supervision [PRCS], or parole; (3) Specific factors related to the defendant that indicate a lack of need for treatment or supervision upon release from custody; and (4) Whether the nature, seriousness, or circumstances of the case or the defendant's past performance on supervision substantially outweigh the benefits of supervision in promoting public safety and the defendant's successful reentry into the community upon release from custody." (Rule 4.415(b)(1)-(b)(4).)

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When the court denies a split sentence in the interests of justice, the court must state the reasons for the denial on the record. (Rule 4.415(d).) The court's decision is discretionary and reviewed for an abuse of discretion. ( People v . Catalan , supra , 228 Cal.App.4th at p. 178.)

The trial court did not abuse its discretion in this case. The court was clearly aware that a split sentence was mandatory under section 1170.1, subdivision (h)(1), and complied with the statute and explained why in the interests of justice, it was not appropriate in this case. (§ 1170, subd. (h)(5)(A); Rule 4.415(a) & (d).) The court's reasons to instead impose a custodial term in jail were within those contemplated by the statute. The court reviewed the facts of the underlying offenses and defendant's lengthy prior record, and decided not to impose a split sentence because "the defendant has 11 violations of parole or probation in his background, primarily parole violations, he has been on MS [mandatory supervision] and was violated on MS in 2017 .... He's had repeated opportunities at treatment with only one 12-day program completed and the court makes a finding that there is no benefit to placing him on MS and I'm denying that request."

Defendant complains that the court abused its discretion because it failed to consider his medical condition, his seizures, and the jail's failure to administer the correct medication to him while he was in custody. Defendant argues that mandatory supervision was more appropriate for defendant to take advantage of medical services, because otherwise his reentry into the community will be "exceedingly difficult upon his release from jail."

The court was well aware of defendant's seizure issues, repeatedly contacted the jail because of the medication problems, and defendant was moved to the jail's medical wing. As pointed out by the prosecutor, however, defendant's seizure issues had not interfered with his lengthy history of repeatedly committing vehicle thefts and driving stolen vehicles. The court did not abuse its discretion in finding that defendant's repeated

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criminal offenses, many of which were committed while he was on mandatory supervision or parole, supported a custodial term in jail instead of a split sentence and release on mandatory supervision.

II. The Court's Imposition of the Restitution Fines and Fees

Defendant asserts this court must stay the restitution fines and strike the other fees imposed in his two cases based on Dueñas because the trial court imposed these amounts without determining whether he had the ability to pay in violation of his due process rights.

A . Section 1237 . 2

We first note that in defendant's appellate brief, appellate counsel states that after Dueñas was decided, and while this case was pending on appeal, she wrote to the trial court and requested an order to stay the restitution fines, and for the other fees to be stricken pursuant to Dueñas . This letter is not part of the appellate record. In addition, appellate counsel advises this court that at the time of briefing in June 2019, she had not received a response from the trial court.

"Section 1237.2 requires a defendant to first file a motion for correction in the trial court before appealing 'the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs.' This section, however, applies only to cases where the issues of 'fines, penalty assessments, surcharges, fees, or costs are the sole issue on appeal.' (§ 1237.2) Thus, when a defendant raises at least one other issue on appeal, he or she need not first file a motion in the trial court to correct the imposition or calculation of penalty assessments or fines. Instead, he or she can include those claims with the other contentions raised in the appeal." ( People v . Jordan (2018) 21 Cal.App.5th 1136, 1140-1141.)

The record does not clarify whether the trial court responded to appellate counsel's letter. Here, the defendant raised another issue on appeal besides his Dueñas assertions, and defendant was not required to first seek relief under section 1237.2. Therefore, even

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assuming the trial court did not act on defendant's request, we still have the ability to consider his claim. Section 1237.2 merely requires that the defendant "first present[] the claim in the trial court."

B . Dueñas , Frandsen , and Aviles

In People v . Dueñas , supra , 30 Cal.App.5th 1157, the court held that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay" before it imposes any fines or fees. ( Id . at pp. 1164, 1167; see also People v . Castellano (2019) 33 Cal.App.5th 485 ( Castellano ).) We disagree and find the matter need not be remanded.

First, as we explained in People v . Aviles (2019) 39 Cal.App.5th 1055 ( Aviles ), we believe Dueñas was wrongly decided and an Eighth Amendment analysis is more appropriate to determine whether restitution fines, fees, and assessments in a particular case are grossly disproportionate and thus excessive. ( Aviles , supra , 39 Cal.App.5th at pp. 1068-1072.) Under that standard, the fines and fees imposed in this case are not grossly disproportionate to defendant's level of culpability, and thus not excessive under the Eighth Amendment. ( Aviles , at p. 1072; see also People v . Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946.)

More importantly, even if Dueñas applied to this case, defendant forfeited any challenge to his alleged inability to pay the fines and fees. As to each case, the court ordered him to pay restitution fines of $1,200 under section 1202.4, subdivision (b). When the court imposes a restitution fine greater than the statutory minimum amount of $300, "[s]ection 1202.4 expressly contemplates an objection based on inability to pay."

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( People v . Frandsen (2019) 33 Cal.App.5th 1126, 1153 ( Frandsen ); Aviles , supra , 39 Cal.App.5th at p. 1073.)

The probation report recommended the imposition of the restitution fines. While Dueñas had not been decided at the time of defendant's sentencing hearing, defendant had the statutory right to object to the $1,200 restitution fines in each case and demonstrate his inability to pay when the court imposed the orders. Such an objection "would not have been futile under governing law at the time of his sentencing hearing." ( Frandsen , supra , 33 Cal.App.5th at p. 1154; Aviles , supra , 39 Cal.App.5th at pp. 1073-1074.)

In addition, any objections to the assessments imposed under section 1465.8 and Government Code section 70373 would not have been futile. "Although both statutory provisions mandate the assessments be imposed, nothing in the record of the sentencing hearing indicates that [the defendant] was foreclosed from making the same request that the defendant in Dueñas made in the face of those same mandatory assessments. [The defendant] plainly could have made a record had his ability to pay actually been an issue. Indeed, [he] was obligated to create a record showing his inability to pay the ... restitution fine, which would have served to also address his ability to pay the assessments." ( Frandsen , supra , 33 Cal.App.5th at p. 1154; Aviles , supra , 39 Cal.App.5th at p. 1074.)

Finally, even if we agreed with Dueñas and Castellano , we would still reject defendant's constitutional claims and find any error arising from the court's failure to make an ability to pay finding was harmless beyond a reasonable doubt. ( Chapman v . California (1967) 386 U.S. 18, 24; People v . Jones (2019) 36 Cal.App.5th 1028, 1030-1031; People v . Johnson (2019) 35 Cal.App.5th 134, 139-140.)

" ' "Ability to pay does not necessarily require existing employment or cash on hand." [Citation.] "[I]n determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendant's present ability but may consider a defendant's ability to pay in

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the future." [Citation.] This include[s] the defendant's ability to obtain prison wages and to earn money after his release from custody. [Citation.]' [Citations.]" ( Aviles , supra , 39 Cal.App.5th at p. 1076.)

We can infer from the instant record that defendant has the ability to pay the fines and fees imposed in this case from probable future wages, including wages earned while in custody. ( Aviles , supra , 39 Cal.App.5th at p. 1076; People v . Douglas (1995) 39 Cal.App.4th 1385, 1397; People v . Ellis (2019) 31 Cal.App.5th 1090, 1094.)

Since the record is silent as to whether there are programs available to jail inmates in Fresno County, we do not know if the defendant could earn wages. We also acknowledge defendant's argument that such a finding is undermined by his history of seizures and the jail's failure to provide appropriate medical care and the proper medication. As noted above, however, defendant's history of seizures did not interfere with his long history of criminal activity.

Even if defendant is unable to obtain a job while in custody, that circumstance does not negate his ability to make payments on these amounts from monetary gifts from family and friends during his prison sentence. (See, e.g., People v . Lewis (2009) 46 Cal.4th 1255, 1321; People v . DeFrance (2008) 167 Cal.App.4th 486, 505.) In People v . Potts (2019) 6 Cal.5th 1012, the trial court ordered a defendant convicted of capital murder to pay the statutory maximum restitution fine of $10,000, partially based on the probation officer's erroneous statement that a condemned inmate would be assigned a job in prison. Potts clarified that a defendant sentenced to death would not be permitted to work, but found the court's error was harmless beyond a reasonable doubt and the court's restitution order was otherwise lawful. ( Id . at pp. 1055-1056.) The defendant's alleged inability to pay because he lacked a prison job would be "blunted by the fact that he would retain at least some of the money sent to him" by family and friends. ( Id . at p. 1056.) Potts held the trial court was "permitted to conclude that the monetary burden the restitution fine imposed on defendant was outweighed by other considerations," such

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as the seriousness and gravity of the offense, and the circumstances of its commission. ( Id . at pp. 1056-1057.)

We thus conclude that based on the record before this court, defendant has the potential ability to pay the restitution fines and the mandatory fees and assessments he was ordered to pay in these two cases.

The judgment is affirmed.