Filed 2/22/21 P. v. Swain CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B303582
(Super. Ct. No. BA458771)
Plaintiff and Respondent, (Los Angeles County)
v.
MYLES MICHAEL SWAIN,
Defendant and Appellant.
This is the second appeal in this matter. Myles Michael
Swain appeals from the judgment entered after the trial court
had resentenced him pursuant to our remand in the first appeal,
(People v. Swain (Sept. 3, 2019, B286106) [nonpub. opn.]). In the
first appeal we affirmed appellant’s judgment of conviction but
remanded the matter to the trial court with directions to exercise
its discretion whether to strike one or both Penal Code section
667, subdivision (a)(1) prior serious felony convictions.1 The trial
court struck one prior conviction but not the other.
Appellant contends that the trial court abused its
discretion in refusing to strike both prior convictions. In
addition, appellant claims that the court violated his
constitutional rights by imposing fines and assessments without
determining his ability to pay them. The People correctly note
that the trial court failed to impose the mandatory amount of
assessments. We modify the judgment to impose the mandatory
amount and affirm the judgment as modified.
Procedural Background
In the first appeal appellant appealed from the judgment
entered after a jury had convicted him of inflicting corporal injury
upon his spouse with personal use of a deadly or dangerous
weapon – a broomstick (§§ 273.5, subd. (a), 12022.1, subd. (b)(1));
stalking (§ 646.9, subd. (b)); two counts of felony violation of a
protective court order (§ 166, subd. (c)(4)); first degree residential
burglary (§§ 459, 460); and assault with a deadly weapon (§ 245,
subd. (a)(1)). The trial court found true two prior serious felony
convictions (§ 667, subd. (a)(1)) and two prior “strikes” within the
meaning of California’s “Three Strikes” law. (§§ 667, subds. (b)-
(j), 1170.12, subds. (a)-(d).) The court dismissed the two strikes
and sentenced appellant to prison for 17 years. The sentence
included a consecutive five-year term for each of the two prior
serious felony convictions. Thus, 10 years of the 17-year sentence
were attributable to these prior convictions.
At the time of sentencing, the trial court did not have the
power to strike prior serious felony convictions within the
1Unless otherwise stated, all statutory references are to
the Penal Code.
2
meaning of section 667, subdivision (a)(1). (Former §§ 667, subd.
(a)(1), 1385, subd. (b).) Effective January 1, 2019, Senate Bill No.
1393 amended subdivision (a)(1) of section 667 and subdivision
(b) of section 1385 to authorize the striking of these prior
convictions. (Stats. 2018, ch. 1013 § 1.)
In the first appeal we accepted the People’s concession that
the matter should be remanded so that the trial court can
exercise its discretion whether to strike the prior serious felony
convictions pursuant to Senate Bill No. 1393. We affirmed the
judgment in all other respects. We directed the court to
resentence appellant if it decided to strike one or both prior
convictions.
The trial court struck one of the two prior serious felony
convictions. It imposed the same sentence that it had originally
imposed less five years for the prior conviction that it had struck.
Thus, appellant’s aggregate sentence upon resentencing was 12
years.
Facts
Appellant’s wife was living apart from appellant. They
were “going through a marital disagreement.” In May 2017 wife
obtained a civil restraining order against him. One week later,
appellant entered wife’s apartment without her permission when
she was not there. He wrote messages on the walls accusing her
of adultery. Wife obtained a criminal protective order prohibiting
appellant from coming to her apartment and from harassing her.
On June 19, 2017, when the criminal protective order was
in effect, appellant entered wife’s apartment. She had left the
front door open while she was cleaning. Appellant “brought
[wife] down to the floor,” sat on top of her, and choked her with
his hands. Wife “somewhat” lost consciousness. Appellant
3
grabbed a broomstick, put it on her chest near her collarbone,
and pressed down on it.
Appellant ordered wife to go to the bedroom and remove
her clothes. Wife complied with the order. Wife told appellant
that she did not want to have sex with him, but he had sex with
her. Wife “submitted” to his sexual advances. She was
“somewhat” crying during sexual intercourse. Appellant “slapped
[wife] multiple times on the face with both his hands before
fleeing the apartment.”
After the incident, wife called 911. She told the operator,
“[M]y husband broke into my house. . . . He start[ed] choking me,
he start[ed] telling me how he was going to kill me. He been
torturing me about a good two and a half hours. And he took
some money from me . . . .” Wife’s neck was swollen and bruised.
Seven days later wife was inside her apartment and the
front door was locked. Appellant “kicked the door down.” Wife
fled to the bathroom and locked the door. Appellant broke down
the bathroom door and entered the bathroom. He punched wife
in the stomach and eye and choked her. Wife walked to a fire
station to get help.
Appellant’s Criminal Record
In 1987 appellant was convicted of misdemeanor burglary.
In 1988 he was convicted of residential burglary and attempted
residential burglary. (These convictions are the two serious
felonies.) The felonies were committed while he was on probation
for the 1987 misdemeanor burglary conviction. Appellant was
placed on probation for the felony convictions. He violated
probation and was sentenced to prison for four years. In 1996
appellant was convicted of felony petty theft with a prior (§ 666)
and sentenced to prison. In 2001 he violated parole and was
4
convicted of possession of a controlled substance. He was
sentenced to prison for 32 months. After his release from prison,
he violated parole several times. In 2010 appellant was again
convicted of petty theft with a prior and sentenced to prison. In
2013 and 2014 he was convicted of possession of a narcotic
controlled substance. In May 2017 he sustained a misdemeanor
conviction for violating a domestic violence protective order. He
was on probation for this conviction when he committed the
present offenses.
Trial Court’s Ruling on Remand
The judge who presided at the remand hearing was the
same judge who had presided at the trial. She remembered “the
rather terrifying picture that was painted by . . . [wife’s] prior
testimony.” The court noted that “this was a very serious
domestic violence case” and that appellant had “created . . . an
environment of terror.” On the other hand, the serious felony
offenses had occurred “many years before . . . [the present] series
of incidents took place.” The court concluded that “12 years
would be an appropriate sentence.” It therefore struck one of the
two prior serious felony convictions and resentenced appellant to
prison for an aggregate term of 12 years.
No Abuse of Discretion in Striking Only
One of the Two Prior Serious Felony Convictions
We review for abuse of discretion the trial court’s refusal to
strike both prior serious felony convictions. (People v. Carmony
(2004) 33 Cal.4th 367, 376.) “In reviewing for abuse of discretion,
we are guided by two fundamental precepts. First, ‘“[t]he burden
is on the party attacking the sentence to clearly show that the
sentencing decision was irrational or arbitrary. [Citation.] In the
absence of such a showing, the trial court is presumed to
5
have acted to achieve legitimate sentencing objectives, and its
discretionary determination to impose a particular sentence will
not be set aside on review.”’ [Citations.] Second, a ‘“decision will
not be reversed merely because reasonable people might disagree.
‘An appellate tribunal is neither authorized nor warranted in
substituting its judgment for the judgment of the trial judge.’”’
[Citations.] Taken together, these precepts establish that a trial
court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree with
it.” (Id. at pp. 376-377.)
Appellant argues that the trial court abused its discretion
because it “failed to consider a number of . . . mitigating factors.”
We disagree. Although the prior serious felony convictions
occurred 30 years earlier, appellant’s subsequent criminal record
is lengthy and includes many violations of probation and parole.
There has been no “crime-free cleansing period of rehabilitation
after a defendant has had the opportunity to reflect upon the
error of his or her ways. . . . Phrased otherwise, [appellant] has
not [led] a ‘legally blameless life’ since the [1988] prior[s].”
(People v. Humphrey (1997) 58 Cal.App.4th 809, 813.)
Appellant’s prior criminal record does not include
convictions for crimes of violence, but his present offenses were
extremely violent. They show a troubling contempt for protective
orders directing him to stay away from wife. The probation
report states: “Before the court is a 50-year-old male who
continues to display a disrespect for the rule of law. In this
instance, his violent conduct could have easily resulted in the loss
of life. His refusal to comply with the court’s orders with regard
to domestic violence puts the victim at risk of serious harm.”
6
Imposition of Erroneous Assessments
When appellant was originally sentenced, the trial court
ordered him to pay a restitution fine of $300 (the minimum fine –
see § 1202.4, subd. (b)(1)), a court operations assessment of $40,
and a court facilities assessment of $30. At the resentencing
hearing, the court did not mention the fine and assessments. But
the court’s minute order shows that appellant was ordered to pay
a restitution fine of $300, a court operations assessment of $40,
and a court facilities assessment of $30.
The People note that the calculation of the two assessments
is erroneous. Section 1465.8, subdivision (a)(1) provides, “To
assist in funding court operations, an assessment of forty dollars
($40) shall be imposed on every conviction for a criminal
offense . . . .” (Italics added.) Since appellant was convicted of six
criminal offenses, the total court operations assessment should be
$240, not $40.
Government Code section 70373, subdivision (a)(1)
provides: “To ensure and maintain adequate funding for court
facilities, an assessment shall be imposed on every conviction for
a criminal offense . . . . The assessment shall be imposed in the
amount of thirty dollars ($30) for each misdemeanor or
felony . . . .” (Italics added.) Thus, the total court facilities
assessment should be $180 ($30 x 6 convictions = $180), not $30.
The assessments are mandatory. (See People v. Crabtree
(2009) 169 Cal.App.4th 1293, 1328.) “Because the . . .
assessments are mandatory, this court is empowered to order
defendant to pay them even though the People made no objection
in the trial court.” (People v. Turner (2002) 96 Cal.App.4th 1409,
1413; see also People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6
[“A claim that a sentence is unauthorized . . . may be raised for
7
the first time on appeal, and is subject to judicial correction
whenever the error comes to the attention of the reviewing
court”].) We therefore modify the judgment to impose a court
operations assessment of $240 and a court facilities assessment
of $180.
Imposition of Assessments and Restitution Fine Absent
Hearing to Determine Appellant’s Ability to Pay
Appellant claims: “The record does not support a
reasonable inference that Appellant had, or would have in the
foreseeable future, the ability to pay fines, fees, and assessments.
Therefore, the imposition of these violate due process, or in the
alternative, the excess fines clause of the Eighth Amendment,
and should be stricken unless and until the trial court holds an
ability to pay hearing and finds Appellant has the present ability
to pay.”
Appellant relies on People v. Dueñas (2019) 30 Cal.App.5th
1157. There, the “court held it violated due process . . . to impose
a court operations assessment as required by Penal Code section
1465.8 or the court facilities assessment mandated by
Government Code section 70373 . . . without first determining the
convicted defendant’s ability to pay.”2 (People v. Castellano
(2019) 33 Cal.App.5th 485, 488-489.)
2 “Since Dueñas, some courts have criticized Dueñas’s due
process analysis and have declined to follow it. . . . [¶] The
California Supreme Court will resolve the split in authority,
having granted review of the issues presented by Dueñas in
[People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13,
2019, S257844]. The [Supreme] [C]ourt will decide whether
courts must ‘consider a defendant’s ability to pay before imposing
or executing fines, fees, and assessments,’ and if so, ‘which party
8
“‘“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 the future.”
[Citation.] This include[s] the defendant’s ability to obtain prison
wages . . . . [Citation.]’ [Citations.]” (People v. Aviles (2019) 39
Cal.App.5th 1055, 1076.) “‘Prison wages range from $12 to $56
per month, depending on the prisoner’s skill level.’ [Citations.]”
(People v. Lowery (2020) 43 Cal.App.5th 1046, 1060.)
In view of appellant’s 12-year prison sentence, it is
reasonable to infer that he will earn sufficient prison wages to
pay the restitution fine of $300 and the total assessments of $420.
There is no evidence that appellant is disabled or otherwise
unable to perform prison work. Accordingly, the omission of a
hearing on appellant’s ability to pay did not violate his
constitutional rights.
Domestic Violence Fund Fee
Pursuant to Penal Code section 1203.097, the trial court
imposed a $400 domestic violence fund fee. In a letter to the trial
court, appellant’s counsel noted that the fee is authorized only “if
the defendant is granted probation.” (§ 1203.097, subd. (a).)
Since appellant had been sentenced to prison, counsel requested
that the court strike the fee.
In a minute order the trial court responded as follows:
“The court declines to [strike the fee]. While counsel is correct
that Penal Code §1203.097 authorizes a $400 domestic violence
bears the burden of proof regarding defendant’s inability to pay.’”
(People v. Taylor (2019) 43 Cal.App.5th 390, 398.)
9
fund fee in cases of probation, counsel fails to note that the Penal
Code section which defendant was found to have violated, Penal
Code §273.5, authorizes a fine of up to $6,000 in addition to any
prison or jail time imposed. [¶] . . . [T]he clerk is directed to
amend the judgment to reflect a fine of $400 pursuant to Penal
Code §273.5(a).”
Appellant discusses the trial court’s order in a
supplemental brief. His argument consists of a single sentence:
“If this court finds the trial court was authorized to do [sic]
convert the fee to a fine, appellant asserts the court failed to
determine his ability to pay as required by due process or in the
alternative the Eighth Amendment as set forth in section I of
appellant’s opening brief which is hereby incorporated by
reference.”
Appellant does not contend that the conversion of the fee to
a fine was unauthorized. Nor does he present any analysis or cite
authorities concerning the trial court’s power to make the
conversion. Accordingly, this issue is forfeited. The “court’s
judgment is presumed to be correct, and it is appellant’s burden
to affirmatively show error. [Citation.] To demonstrate error,
appellant must present meaningful legal analysis supported by
citations to authority . . . . [Citations.] When a point is asserted
without argument and authority for the proposition, ‘it is deemed
to be without foundation and requires no discussion by the
reviewing court.’” (In re S.C. (2006) 138 Cal.App.4th 396, 408.)
For the reasons discussed in the preceding section of this
opinion, the imposition of the $400 fine without a determination
of appellant’s ability to pay did not violate due process or the
Eighth amendment.
10
Disposition
The judgment imposed upon resentencing, as amended by
the trial court, is modified to show a total court facilities
assessment of $180 (Gov. Code § 70373, subd. (a)(1)) and a total
court operations assessment of $240 (§ 1465.8, subd. (a)(1)). As
modified, the judgment is affirmed. The trial court shall prepare
a corrected abstract of judgment and send a certified copy to the
Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
TANGEMAN, J.
11
Leslie A. Swain, Judge
Superior Court County of Los Angeles
______________________________
Ferrentino & Associates and Correen Ferrentino, under
appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, Rene Judkiewicz, Deputy Attorney General,
for Plaintiff and Respondent.