Filed 11/25/20 P. v. Smith CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C089836
Plaintiff and Respondent, (Super. Ct. No. 18FE020878)
v.
KENNY LYNN SMITH,
Defendant and Appellant.
Defendant Kenny Lynn Smith timely appeals his judgment of conviction
requesting remand (1) so that the superior court may strike his two prior prison term
enhancements pursuant to Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136),
and (2) for an ability to pay determination on certain fines and fees in light of People v.
Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). The People concede that defendant is
entitled to relief under Senate Bill 136, but disagree that he is entitled to an ability to pay
hearing.
1
We will strike the prior prison term enhancements as requested, but find that
defendant has forfeited his Dueñas argument. We will affirm the judgment as modified.
BACKGROUND
The People’s April 4, 2019 amended information charged defendant with unlawful
driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); count one) and receiving a
stolen motor vehicle valued at more than $950 (Veh. Code, § 496d, subd. (a); count two).
It also was alleged that defendant was subject to enhancements for a prior Vehicle Code
section 10851, subdivision (a) conviction (Pen. Code, § 666.5, subd. (a)),1 a prior strike
(§§ 667, subds. (b)-(i), 1170.12), and two prior prison terms (§ 667.5, subd. (b)).
Defendant was tried by a jury who found him guilty as charged. In a bifurcated
proceeding, the trial court determined the enhancement allegations were true.
Defendant’s motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th
497 was denied.
On May 10, 2019, the trial court sentenced defendant to six years for count one
(the midterm doubled because of the strike prior). The court also imposed six years for
count two, but stayed that sentence pursuant to section 654, and stayed the two one-year
prior prison term enhancements. Finally, the court imposed a $400 restitution fine
(§ 1202.4, subd. (b)), a $400 parole revocation restitution fine (§ 1202.45),2 two $30
criminal conviction assessments (Gov. Code, § 70373), and two $40 court operations
assessments (§ 1465.8). Defendant timely appealed.
1 Undesignated statutory references are to the Penal Code.
2 The trial court failed to suspend this fine pending successful completion of parole
as required (§ 1202.45, subd. (c)). We will correct this omission. (People v. Smith
(2001) 24 Cal.4th 849, 853-854 [errors concerning parole revocation restitution fine
correctable on appeal without the need to remand for further proceedings].)
2
DISCUSSION
I
Effective January 1, 2020, Senate Bill 136 (2019-2020 Reg. Sess.) (Stats. 2019,
ch. 590, § 1) narrowed eligibility for the one-year prior prison term enhancement to those
who have served a prison sentence for a sexually violent offense, as defined in Welfare
and Institutions Code section 6600, subdivision (b). (§ 667.5, subd. (b).)
We agree with the parties that Senate Bill 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,3 an inference arises
under In re Estrada (1965) 63 Cal.2d 740 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.’ ” (Lara, supra, 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 savings clause or its equivalent.’ ” (People v.
Floyd (2003) 31 Cal.4th 179, 185, italics omitted.)
Here, Senate Bill 136 (2019-2020 Reg. Sess.) narrowed the scope of offenders
who are eligible for a section 667.5, subdivision (b) prior prison term enhancement, thus
rendering ineligible many individuals, including defendant, who served prison sentences
3 “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.)
3
for nonsexually violent offenses.4 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 § 12022.6, subd. (a) & (b) enhancements].) Accordingly, we will amend the judgment
to strike defendant’s two one-year prior prison term enhancements.
II
Defendant challenges the court’s imposition of a $400 restitution fine (§ 1202.4,
subd. (b)), two $30 criminal conviction assessments (Gov. Code, § 70373), and two $40
court operation assessments (§ 1465.8), citing Dueñas, supra, 30 Cal.App.5th 1157,
requesting remand for an ability to pay determination. Without reaching the merits, we
agree with the People that defendant forfeited this challenge.
Defendant was sentenced on May 10, 2019, over four months after issuance of the
Dueñas decision. (Dueñas, supra, 30 Cal.App.5th 1157 [decided Jan. 8, 2019].)
Therefore, his failure to raise Dueñas at sentencing forfeits this argument by operation of
normal rules of appellate review. (People v. Scott (1994) 9 Cal.4th 331, 351-354 [to
preserve a sentencing issue for review, it must be raised in the trial court].)
Further, defendant was ordered to pay a restitution fine of $400, which is $100
above the statutory minimum (§ 1202.4, subd. (b)(1)). Thus, defendant’s ability to pay
was already at issue by virtue of section 1202.4, subdivisions (c) and (d), and defendant
bore the burden of demonstrating any inability to pay (§ 1202.4, subd. (d)). His failure to
object and demonstrate an inability to pay further operates to forfeit this argument. (See,
e.g., People v. Nelson (2011) 51 Cal.4th 198, 227 [defendant’s claim that the court
4 Defendant had served prior prison terms for possession of a controlled substance
for sale (Health & Saf. Code, § 11351) and corporal injury on a spouse (§ 273.5).
4
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]; see also People v.
Gutierrez (2019) 35 Cal.App.5th 1027, 1033 [defendant’s failure to challenge restitution
fine was a classic example of circumstance appropriate for forfeiture rule].)
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 related to prophylactic advisements
concerning significant rights 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.” ’ ”].)
Defendant’s reliance on People v. Jenkins (2019) 40 Cal.App.5th 30 is misplaced.
Like the defendant in Jenkins, here, defendant failed to object to a restitution fine that
was above the statutory minimum of $300. (Id. at p. 40; see § 1202.4, subd. (b)(1).)
Nothing in Jenkins requires affirmative acquiescence to imposition of a fine for the
forfeiture doctrine to apply.
DISPOSITION
We modify the judgment to strike defendant’s two one-year prior prison term
enhancements imposed under section 667.5, subdivision (b). The judgment is further
modified to suspend the $400 parole revocation restitution fine pending defendant’s
successful completion of parole (§ 1202.45). The superior court is directed to prepare an
5
amended abstract of judgment and forward a certified copy thereof to the California
Department of Corrections and Rehabilitation. The judgment is affirmed as modified.
KRAUSE , J.
We concur:
ROBIE , Acting P. J.
MURRAY , J.
6