Filed 10/26/20 P. v. Quiroga CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F077916
Plaintiff and Respondent,
(Super. Ct. No. BF171595A)
v.
GONZALO QUIROGA, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. John R.
Brownlee, Judge.
Jacquelyn Larson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief
Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Daniel B.
Bernstein, Kathleen A. McKenna, Darren K. Indermill and F. Matt Chen, Deputy
Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant Gonzalo Quiroga was arrested after an undercover detective observed
him getting into and driving away in a van reported stolen a week earlier. Defendant was
charged with one count of unlawfully driving or taking a vehicle (Veh. Code, § 10851,
subd. (a); count 1), one count of receiving a stolen vehicle (Pen. Code, § 496d, subd. (a);
count 2),1 one misdemeanor count of possession of burglary tools (§ 466; count 3), two
misdemeanor counts of driving on a suspended license (Veh. Code, §§ 14601.2, subd. (a),
14601.1, subd. (a); counts 4 & 5), and one misdemeanor count of driving without a valid
license (Veh. Code, § 12500, subd. (a); count 6). Defendant pled no contest to counts 4
through 6, and a jury convicted him in count 1 of taking a vehicle and in count 3 of
possessing burglary tools.2 In a bifurcated proceeding, the trial court found that
defendant suffered one prior serious or violent felony conviction within the meaning of
the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), and served two
prior prison terms (§ 667.5, former subd. (b)).
The trial court sentenced defendant on count 1 to the middle term of two years,
doubled to four under the Three Strikes law, plus an additional two years for the two
prior prison term enhancements, for a total determinate term of six years in prison. On
counts 3 and 4, the court sentenced defendant to concurrent terms of 180 days in jail; and
on counts 5 and 6, the court imposed concurrent terms of 180 days in jail, stayed under
section 654. Relevant to defendant’s claims, the trial court imposed a restitution fine of
$300 under section 1202.4, subdivision (b)(1); a parole revocation restitution fine of $300
under section 1202.45, subdivision (a), stayed; a total court operations assessment of
$200 under section 1465.8; and a total court facilities assessment of $150 under
1 All further statutory references are to the Penal Code unless otherwise specified.
2 The jury did not return a verdict on count 2, consistent with its determination that
defendant took the vehicle. (People v. Bullard (2020) 9 Cal.5th 94, 102–103; People v. Ceja
(2010) 49 Cal.4th 1, 4–5.)
2.
Government Code section 70373. Pursuant to section 1202.4, subdivision (f), the court
ordered restitution in the amount of $2,763 to the victim for tools stolen from the van.
Defendant claims that the trial court abused its discretion by ordering restitution in
the absence of sufficient evidence that he was responsible for the victim’s loss. He also
claims that pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the court
erred in imposing fines and assessments without determining his ability to pay. In
supplemental briefing, defendant requests that we strike the two 1-year prior prison term
enhancements in accordance with Senate Bill No. 136, which amended section 667.5,
subdivision (b), effective January 1, 2020. (Stats. 2019, ch. 590, § 1, pp. 1–4 (Senate Bill
No. 136).)
The People concede that the prior prison term enhancements must be stricken
under Senate Bill No. 136, but they otherwise dispute defendant’s entitlement to any
relief.
We agree with the parties that defendant is entitled to relief from the prior prison
term enhancements under Senate Bill No. 136. Therefore, we strike the two 1-year prior
prison term enhancements imposed by the trial court and remand the matter under the full
resentencing rule, which renders defendant’s claim of error under Dueñas moot. (People
v. Buycks (2018) 5 Cal.5th 857, 893, 896, fn. 15; People v. Lopez (2019) 42 Cal.App.5th
337, 342.) We otherwise affirm the judgment.
FACTUAL SUMMARY
In February 2018, Adolph G. parked his 2014 Ford “[S]uper [D]uty” van, which
he used for his work as a general contractor, in front of his house in Selma. The next
morning, the van was missing and Adolph’s wife reported the theft to the Selma Police
Department. One week later, Detective Coleman, who was assigned to the Bakersfield
Police Department’s Auto Theft Task Force, located the unoccupied van parked on a
residential street in Kern County and placed it under surveillance. Approximately one
hour later, defendant and another man entered the van, and defendant drove away.
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Coleman followed them and after defendant parked on another residential street to let his
passenger out, Coleman detained defendant and arrested him.
Defendant told Coleman he pulled over because he knew he was being followed.
He had three shaved keys in his pocket but said he found them in the van. Defendant also
said he borrowed the van from a friend before asking, “‘Is it about the van?’” After
Coleman responded yes, defendant said he knew the van was stolen because the ignition
was so messed up he could start it with his finger. Defendant then asked if Coleman
would let him go if he gave up his friend, but he declined to discuss his friend further
after Coleman would not make any guarantees.
Adolph testified that he did not know defendant and did not give him permission
to drive the van. Adolph purchased the van in 2017 for $29,000 and he estimated it was
worth $25,000 at the time it was stolen. When the van was recovered, the driver’s side
door lock was damaged, the ignition was hollowed out, and the steering column was
damaged. Further, Adolph stated that the ladder rack, mirrors and radio were missing;
the dashboard was beat up; a tire was damaged; and the side of the van was scratched up.
DISCUSSION
I. Restitution Order
A. Background
Subject to exceptions not relevant here, section 1202.4, subdivision (f), provides
that “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.…” Restitution “shall
be of a dollar amount that is sufficient to fully reimburse the victim or victims for every
determined economic loss incurred as the result of the defendant’s criminal conduct,
including, but not limited to … [¶] … [f]ull or partial payment for the value of stolen or
damaged property. The value of stolen or damaged property shall be the replacement
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cost of like property, or the actual cost of repairing the property when repair is possible.”
(Id., subd. (f)(3)(A).) In this case, the trial court ordered defendant to pay restitution in
the amount of $2,763 for tools that were stolen from Adolph’s van.
Relying on People v. Scroggins (1987) 191 Cal.App.3d 502, defendant claims that
the trial court’s restitution order was erroneous because “there was insufficient evidence
that [defendant] had any knowledge of or was the legal cause of the missing tools.”
Defendant also claims that the court “appeared to improperly order the restitution … to
compensate for the damage to the stolen van .…” The People disagree. For the reasons
set forth below, we reject defendant’s claim and affirm the trial court’s restitution order.
B. Standard of Review
“[W]e review the trial court’s restitution order for abuse of discretion. [Citations.]
The abuse of discretion 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].’” (People v. Giordano (2007)
42 Cal.4th 644, 663, fn. omitted; accord, People v. Grundfor (2019) 39 Cal.App.5th 22,
27.) “[W]e presume that a judgment or order of the trial court is correct, ‘“[a]ll
intendments and presumptions are indulged to support it on matters as to which the
record is silent, and error must be affirmatively shown.”’” (People v. Giordano, supra, at
p. 666; accord, People v. Grundfor, supra, at p. 27.)
C. Analysis
1. Theft Conviction on Count 1
The linchpin in defendant’s claim that there is insufficient evidence linking him to
the stolen tools is his contention that the jury convicted him of posttheft driving rather
than theft of the van. This assertion does not find support in the record, however.
Defendant was charged with driving or taking the van and the jury was instructed as
such, but it returned a verdict specifically convicting defendant “of stealing a motor
vehicle.” Moreover, the jury was instructed that they must consider count 1 first and if
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they convicted defendant of vehicle theft, they must return the verdict form unsigned for
count 2, receiving a stolen vehicle. Consistent with their finding that defendant stole the
vehicle, the jury did not return a verdict on count 2.3
Defendant does not advance a claim that his conviction is unsupported by
substantial evidence or raise any other claim pertaining to trial error.4 We acknowledge
the evidence of posttheft driving is stronger than the evidence of theft, but it is well
established that “[w]hile the mere possession of stolen property is not alone sufficient to
sustain a conviction of grand theft [citation], such possession plus ‘slight corroborative
evidence of other inculpatory circumstances’ will suffice.” (People v. Wissenfeld (1951)
36 Cal.2d 758, 763; accord, People v. Anderson (2007) 152 Cal.App.4th 919, 948–949;
People v. Clifton (1985) 171 Cal.App.3d 195, 199–200; People v. Miles (1969) 272
Cal.App.2d 212, 218.) Here, defendant was in possession of the stolen vehicle, he
admitted he knew it was stolen, he had shaved keys in his pocket, he claimed he
borrowed it from a friend he declined to identify and he stated he knew how to start the
vehicle with just his finger, which evidenced his familiarity with the means by which the
van was stolen. The fact that the vehicle was stolen a week earlier in a different city is
not dispositive of the matter, but, in any event, the verdict form returned by the jury
specified theft and, consistent with a finding of theft, the jury did not return a verdict for
receiving stolen property. (People v. Wissenfeld, supra, at p. 764 [evidence sufficient to
3 Under the law, defendant could have been convicted of both posttheft driving in count 1
and receiving stolen property in count 2, but in light of “the common law rule forbidding dual
convictions for both stealing and receiving the same property[,]” it would have been improper to
convict him of both taking the vehicle and receiving the stolen vehicle. (People v. Bullard,
supra, 9 Cal.5th at pp. 102–103; accord, People v. Ceja, supra, 49 Cal.4th at pp. 4–5.)
4 “‘[E]very brief should contain a legal argument with citation of authorities on the points
made. If none is furnished on a particular point, the court may treat it as waived, and pass it
without consideration. [Citations.]’” (People v. Stanley (1995) 10 Cal.4th 764, 793; accord,
People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363–364.)
6.
support theft conviction where the defendant was in possession of a vehicle stolen
25 days earlier].)
2. No Error
Our rejection of defendant’s argument that he was convicted of posttheft driving is
fatal to his claim that there is insufficient evidence linking him to the theft of the tools
from the van and his reliance on People v. Scroggins is of no assistance. (People v.
Scroggins, supra, 191 Cal.App.3d at p. 506 [concluding restitution order based on
burglary losses had no relationship to conviction for receiving stolen property].) “‘[T]he
court’s discretion in setting the amount of restitution is broad, and it may use any rational
method of fixing the amount of restitution as long as it is reasonably calculated to make
the victim whole. [Citations.]’” (People v. Millard (2009) 175 Cal.App.4th 7, 26,
quoting People v. Baker (2005) 126 Cal.App.4th 463, 470.) The victim was a general
contractor who used his van exclusively for work and he submitted evidence supporting
his claimed loss for tools that were stolen from the van. Under these circumstances, the
trial court did not abuse its discretion in ordering restitution in the amount of $2,763 and
we reject defendant’s claim to the contrary.5 (People v. Millard, supra, at p. 26; accord,
People v. Baker, supra, at p. 470.)
5 Defendant also argues, “[N]either the trial court nor the prosecutor appeared to believe
that it was established by a preponderance of the evidence that [defendant’s] conduct resulted in
the tools being stolen[,]” but they “appeared to maintain that some restitution was necessary
based on the damage to the van.” We need not decide whether this is a persuasive
characterization of the record, because even if we accept it for the sake of argument, “‘“a ruling
or decision, itself correct in law, will not be disturbed on appeal merely because given for a
wrong reason. If right upon any theory of the law applicable to the case, it must be sustained
regardless of the considerations which may have moved the trial court to its conclusion.”
[Citation.]’” (People v. Zapien (1993) 4 Cal.4th 929, 976.) Here, defendant was convicted of
vehicle theft, the parties do not dispute either the fact that tools were stolen from the van or the
amount claimed by the victim, and the restitution order was limited to the amount sought by the
victim for his missing tools. (People v. Millard, supra, 175 Cal.App.4th at p. 26; accord, People
v. Baker, supra, 126 Cal.App.4th at p. 470.)
7.
II. Dueñas Claim
As previously stated, the trial court imposed a restitution fine of $300 under
section 1202.4, subdivision (b)(1); a parole revocation restitution fine of $300 under
section 1202.45, subdivision (a), stayed; a total court operations assessment of $200
under section 1465.8; and a total court facilities assessment of $150 under Government
Code section 70373. Relying on the Court of Appeal’s decision in Dueñas, defendant
claims he is entitled to relief from the fines and assessments imposed by the trial court
until and unless the People prove he has the ability to pay them.
Citing due process and equal protection principles, the court held in Dueñas that
assessments pursuant to Government Code section 70373 and Penal Code section 1465.8
may be “imposed only on those with the means to pay them[]” (Dueñas, supra, 30
Cal.App.5th at pp. 1168–1169), and “that although the trial court is required by Penal
Code section 1202.4 to impose a restitution fine, the court must stay the execution of the
fine until and unless the People demonstrate that the defendant has the ability to pay the
fine[]” (id. at p. 1172). Courts of Appeal have subsequently split regarding if and under
what circumstances the constitutional concerns underpinning Dueñas apply. (E.g.,
People v. Son (2020) 49 Cal.App.5th 565, 592–596 & fn. 20 [restitution fines are punitive
and imposition without ability-to-pay hearing does not implicate right of access to courts
or violate substantive due process or equal protection rights, but limited remand
appropriate to allow the defendant an opportunity to show inability to pay court
assessments and to raise 8th Amend. excessive fines clause argument regarding
restitution fine];6 People v. Cowan (2020) 47 Cal.App.5th 32, 42–49, review granted
6 The analysis of the defendant’s Dueñas-based challenge to the imposition of the fines and
court assessments was authored by Justice Smith. (Son, supra, 49 Cal.App.5th at pp. 592–598.)
While Justice Snauffer concurred in the disposition, he did not join in or express an opinion on
whether, in all cases, restitution fines are punitive in nature and not subject to an ability-to-pay
challenge. (Id. at pp. 598–599 (conc. opn. of Snauffer, J.).) Justice Franson dissented on the
grounds that the defendant’s constitutional rights were not violated and any error was harmless.
(Id. at p. 599 (dis. opn. of Franson, J.).)
8.
June 17, 2020, S261952 [concluding challenge to fines and fees should be analyzed under
excessive fines clause of federal and state Constitutions, under which ability to pay is a
factor, and remanding matter for ability-to-pay hearing]; People v. Lowery (2020) 43
Cal.App.5th 1046, 1053–1061 [finding Dueñas claim forfeited as to restitution fine,
assessments and fees where court imposed restitution fine above the statutory minimum,
but also concluding Dueñas factually distinguishable; the defendants failed to show a
violation under due process, equal protection or excessive fines clause; and any error
harmless given ability to earn wages in prison]; People v. Belloso (2019) 42 Cal.App.5th
647, 662–663, review granted Mar. 11, 2020, S259755 [following Dueñas]; People v.
Allen (2019) 41 Cal.App.5th 312, 325–330 [rejecting the defendant’s Dueñas-based due
process and equal protection claims]; People v. Hicks (2019) 40 Cal.App.5th 320, 326–
329, review granted Nov. 26, 2019, S258946 [rejecting Dueñas’s due process analysis];
People v. Aviles (2019) 39 Cal.App.5th 1055, 1061 [disagreeing with Dueñas’s due
process analysis and concluding constitutional challenge to fines, fees and assessments
should be made under the 8th Amend.’s excessive fines clause]; People v. Kopp (2019)
38 Cal.App.5th 47, 95–96, review granted Nov. 13, 2019, S257844 [following Dueñas as
to assessments, but not restitution fines] (Kopp); People v. Castellano (2019) 33
Cal.App.5th 485, 489–490 [extending Dueñas holding to claim raised by a defendant
serving a sentence following felony conviction].)
The California Supreme Court is now poised to address issues raised by Dueñas,
having granted review in Kopp, a case in which the Court of Appeal found that as to
assessments, the defendants were entitled to remand for an ability-to-pay hearing under
Dueñas, but they bore the burden of demonstrating their inability to pay. (Kopp, supra,
38 Cal.App.5th at p. 96, review granted.) With respect to fines, the Kopp court declined
to follow Dueñas’s due process approach and concluded that a constitutional challenge to
a punitive fine must be raised under the excessive fines clause of the Eighth Amendment
of the federal Constitution and article I, section 7 of the California Constitution. (Kopp,
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supra, at pp. 96–98, review granted.) The California Supreme Court limited review in
Kopp to whether courts must consider a defendant’s ability to pay in imposing fines, fees
and assessments; and, if so, which party bears the burden of proof. The court has
deferred briefing in Cowan, Belloso and Hicks pending its decision in Kopp.
In this case, we need not reach the merits of defendant’s Dueñas claim. Our
resolution of defendant’s claim for relief under Senate Bill No. 136, discussed next,
requires remand under the full resentencing rule and therefore, defendant may, if he so
chooses, raise this issue in the trial court in the first instance.
III. Senate Bill No. 136
Finally, as previously set forth, the trial court imposed two 1-year prior prison
term enhancements. (§ 667.5, former subd. (b).) In supplemental briefing, defendant
requests that the enhancements be stricken in light of Senate Bill No. 136, which
amended section 667.5, subdivision (b), effective January 1, 2020. The People concede
defendant is entitled to the relief he seeks.
Pursuant to section 667.5, subdivision (a), and subject to an exception not relevant
here, trial courts are required to impose a three-year sentence for each prior, separate
prison term served by the defendant for a violent felony where the current offense is also
a violent felony, as defined in subdivision (c) of the statute. For other felonies, pursuant
to former subdivision (b), and subject to exceptions not relevant here, trial courts are
required to impose an additional one-year term for each prior, separate prison term or
county jail felony term. As amended by Senate Bill No. 136, subdivision (b) of
section 667.5 limits imposition of the additional one-year term to each prior, separate
prison term served for a conviction of a sexually violent offense as defined in Welfare
and Institutions Code section 6600, subdivision (b).
In accordance with the California Supreme Court’s decision in In re Estrada
(1965) 63 Cal.2d 740, 744, “‘“[a]n amendatory statute lessening punishment is presumed
to apply in all cases not yet reduced to final judgment as of the amendatory statute’s
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effective date” [citation], unless the enacting body “clearly signals its intent to make the
amendment prospective, by the inclusion of either an express saving clause or its
equivalent” [citations].’” (People v. Lara (2019) 6 Cal.5th 1128, 1134, quoting People v.
DeHoyos (2018) 4 Cal.5th 594, 600; accord, People v. Frahs (2020) 9 Cal.5th 618, 634
([“[I]n order to rebut Estrada’s inference of retroactivity concerning ameliorative
statutes, the Legislature must ‘demonstrate its intention with sufficient clarity that a
reviewing court can discern and effectuate it.’”].) The parties agree that Senate Bill
No. 136 is retroactive under Estrada and, therefore, the amendment to section 667.5,
subdivision (b), applies in this case.
The parties also agree that defendant’s prior felony convictions for assault with a
deadly weapon or instrument other than a firearm under section 245, subdivision (a)(1),
and for receiving a stolen vehicle under section 496d, subdivision (a), are not qualifying
offenses under section 667.5, subdivision (b), as amended. We accept the People’s
concessions on aforementioned points and order the two 1-year prior prison term
enhancements stricken.
The trial court imposed the middle term of two years on count 1 for violation of
Vehicle Code section 10851, subdivision (a). Because the court exercised discretion in
selecting the middle term, remand for resentencing is appropriate. (People v. Buycks,
supra, 5 Cal.5th at pp. 893, 896, fn. 15; People v. Lopez, supra, 42 Cal.App.5th at
p. 342.)
DISPOSITION
Pursuant to Senate Bill No. 136, the two 1-year prior prison term enhancements
imposed under section 667.5, former subdivision (b), are stricken and this matter is
remanded for resentencing. Following resentencing, the trial court shall forward the
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amended abstract of judgment to the appropriate authorities. Except as modified, the
judgment is affirmed.
MEEHAN, J.
WE CONCUR:
HILL, P.J.
SMITH, J.
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