Filed 11/2/21 P. v. Sanders CA3
Opinion following rehearing
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C082454
Plaintiff and Respondent, (Super. Ct. No. 15F06246)
v.
EDUARDO SANDERS,
Defendant and Appellant.
A jury convicted defendant Eduardo Sanders of robbery (Pen. Code, § 211;
count 1)1 and battery with infliction of serious bodily injury (§ 243, subd. (d); count 2),
and found that defendant personally inflicted great bodily injury during the commission
of the robbery (§ 12022.7, subd. (a)). The trial court then found that defendant had
1 Undesignated statutory references are to the Penal Code in effect at the time of the
charged offenses.
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suffered three prior convictions, including one strike and sentenced defendant to an
aggregate prison term of 20 years.
Defendant contends: (1) the trial court violated due process in deducting five days
of presentence conduct credits for misconduct in the jail and (2) failed to make clear
exactly what fines and fees it was imposing. After we filed our opinion in this case,
defendant requested rehearing and an opportunity to file supplemental briefing on the
retroactive application of Senate Bill No. 136 (2019-2020 Reg. Sess.) (S.B. 136),
pertaining to his sentences on his prior prison term enhancements (§ 667.5, subd. (b)) and
Senate Bill No. 1393 (2017-2018 Reg. Sess.) (S.B. 1393), pertaining to the sentence on
his serious felony conviction enhancement (§ 667, subd. (a)). We vacated our opinion
and allowed the supplemental briefing.
We strike defendant’s prior prison term enhancements and vacate the sentences
related thereto. We otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of October 5, 2015, defendant left a Save Mart store in Sacramento
with candy and soda he had not paid for. When the store manager went outside to call
911, defendant attacked him and punched him repeatedly, inflicting injuries to his mouth
that required up to a dozen stitches at the emergency room.
The trial court imposed a 20-year aggregate state prison term, calculated as
follows: the upper term of five years on count one, robbery, doubled to 10 years for the
prior strike; three years consecutive for the great bodily injury enhancement; five years
consecutive for the section 667, subdivision (a) serious felony enhancement; and two
years consecutive for two prior prison term enhancements. 2
2 As to count two, battery with serious bodily injury, the court imposed the middle term
of four years and stayed execution of that sentence pursuant to section 654.
2
DISCUSSION
I. Conduct Credits
Section 4019, subdivision (c) in effect at the time of defendant’s sentencing
provided that a court shall award conduct credits “unless it appears by the record that the
prisoner has not satisfactorily complied with the reasonable rules and regulations
established by the sheriff, chief of police, or superintendent of an industrial farm or road
camp.” Defendant contends the trial court violated state and federal due process
guarantees by deducting five days of local conduct credits without prior written notice
and an evidentiary hearing. He argues that a remand to recalculate those credits is
therefore required. The Attorney General agrees, but we disagree and conclude the
contention is forfeited.
According to the probation report, defendant had earned 261 actual days of
presentence custody credit. It noted that because defendant was convicted of a violent
felony, he would be entitled to only 15 percent conduct credits (§ 2933.1, subd. (c)). The
report also noted that while in jail, defendant had participated in a fight, but did not
suggest reducing conduct credits for that behavior.
At sentencing, the trial court stated: “I note in the probation report the probation
officer indicates the defendant has had at least--and that’s the way they phrase it--at least
one additional write-up in the county jail for engaging in a mutual fight.” The court then
asked the bailiff whether he knew if defendant had “any other additional write-ups.” The
bailiff replied that defendant had one other, for “fail[ing] to rise for count.” Defendant
was placed “on restriction” for the two incidents.
The court asked defense counsel his understanding of “restriction” and counsel
responded, “That means that he may lose the good time for that day.” Thereafter, defense
counsel told the court, “because of the nature of the offense it’s a 15 percent. So it’s not
like he gets day-for-day credit. So we can’t calculate it that way anyways, which would
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make the math easier for me.” In response to the court’s question, the bailiff informed
the court that defendant had been on restriction for five days.
The trial court stated: “Well, I’m going to deduct five days of good time because
it’s just I think fraudulent to give a defendant full good time work time when he is not
respecting the rules of the system and has engaged in additional behavior that does not
warrant that grant. [¶] So, madam clerk, are you able to indicate to me now what the
defendant is entitled to with respect to credit for time served?” The clerk replied: “Yes.
He would have 261 days actual. He would have 40 days good time work time minus the
five that you’re deducting would be 35 good time work time for a total of 296 days.” The
court awarded 35 days of conduct credit. Defendant offered no objection to the
deduction of conduct credit or to any lack of notice.
In People v. Duesler (1988) 203 Cal.App.3d 273 (Duesler), the court addressed
the deduction of presentence conduct credits. A probation report stated that the defendant
had violated jail rules, but did not make any recommendation as to credits. (Id. at
pp. 275, 277.) At sentencing, the trial court credited defendant with 76 days of “work
time” but ruled he was not entitled to any work time credit based on a statement in the
probation report that defendant had four rules violations. The court’s withholding of the
conduct credit was made without any discussion by the parties. (Id. at p. 275.) And there
was no discussion how those rules violations would correlate to the deduction of all 76
days credit.3 The defendant did not object. (Ibid.) On appeal, the defendant contended
that he was deprived of due process as to credits because he did not receive notice and a
hearing before the trial court ruled. (Duesler, at p. 276.) In an apparent case of first
3 The Duesler court noted that defendant had been “cited for being out of bed after lights
out, tearing a sheet into strips, fighting over another inmate’s newspaper, and cooking
inside the ‘tank.’” The defendant was punished by jail authorities for three of these
infractions by loss of roof and visitation privileges. (Duesler, supra, 203 Cal.App.3d at
p. 275, fn. 2.)
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impression, the Duesler court held that before a court withholds conduct credits, due
process requires that the defendant receive “prior notice and an opportunity to (1) rebut
the findings of his jail violations, and (2) present any mitigating factors.” (Id. at p. 277.)
As noted, here no objection was made to the deduction of credits. Nor was there
an objection to lack of notice and indeed, it is not at all clear that defense counsel did not
have notice of the potential for reduction because no objection was made.4 And unlike in
Duesler, where there was no correlation between the loss of 76 credits and defendant’s
misconduct, here there was a correlation to the defendant’s days of restriction to the
deduction of conduct credits discussed by the court and counsel. Also unlike Duesler,
where there was no discussion with the parties about deducting conduct credits, here the
trial court not only discussed it with counsel, but consulted with counsel about the
meaning of restriction. “In order to encourage prompt detection and correction of error,
and to reduce the number of unnecessary appellate claims, reviewing courts have
required parties to raise certain issues at the time of sentencing. In such cases, lack of a
timely and meaningful objection forfeits or waives the claim.” (People v. Scott (1994) 9
Cal.4th 331, 351.) After Duesler, the procedure for deducting conduct credits was made
clear. In our view, where there is no objection to the failure to afford that procedure to a
defendant, the contention is forfeited. (See People v. Trujillo (2015) 60 Cal.4th 850, 856,
857-858 [failure to object to imposition of probation costs imposed without complying
with the procedural protections in section 1203.1b forfeits the claim on appeal]; see also
Scott, at p. 354 [“claims deemed waived on appeal involve sentences which, though
4 The court in Duesler stated that “[t]he presentence report is an appropriate vehicle for
alerting the defendant that his conduct credits are in jeopardy where it suggests or
recommends such action.” (Duesler, supra, 203 Cal.App.3d at p. 277.) But the court did
not state the presentence report is the only mechanism to provide notice.
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otherwise permitted by law, were imposed in a procedurally or factually flawed
manner”].)
Defendant argues the forfeiture rule does not apply, citing People v. Goldman
(2014) 225 Cal.App.4th 950, an opinion from this court. In Goldman, the probation
report noted defendant had been the subject of fifteen institution rule violation incident
reports. (Id. at p. 960.) The trial court awarded defendant his custody credits for the days
he had been detained pretrial, but did not award presentence conduct credits. (Id. at
p. 961.) Although at sentencing there was discussion between the court and the
prosecution about the conduct credits, the Goldman court’s opinion provides no
indication that defense counsel had anything to say about it; the opinion only states that
the defendant did not object. (Ibid.) The Goldman panel rejected the Attorney General’s
forfeiture contention, reasoning that only challenges to discretionary sentencing choices
are forfeited by failure to object, relying on People v. Aguirre (1997) 56 Cal.App.4th
1135 (Aguirre).
But in Aguirre, there was no question the defendant was entitled to some amount
of credits; the issue was what formula should be used to calculate those credits. The trial
court had applied the 15 percent limitation in section 2933.1, and the Aguirre court held
that the defendant’s contention on appeal that the trial court erroneously applied the
wrong formula was not forfeited for failure to object in the trial court. (Aguirre, supra,
56 Cal.App.4th at p. 1139.) The Aguirre court held that “because the calculation of
credits is purely mathematical, and because Aguirre’s argument involves a statutory
interpretation of first impression, we hold his failure to object at trial does not waive the
issue on appeal.” (Ibid., italics added.)
Here, unlike the issue in Aguirre, the procedure trial courts should follow is not a
matter of first impression. As noted, it was spelled out in Duesler, supra,
203 Cal.App.3d at page 276. This circumstance was not considered in Goldman.
Additionally, the notion that the forfeiture rule applies only to discretionary decisions is
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not correct. Goldman predates Trujillo, supra, 60 Cal.4th 850, where our high court
applied the forfeiture rule to a nondiscretionary decision. The Trujillo court concluded
the failure to object on the grounds that the procedural protections designed to afford due
process in section 1203.1b related to the ability to pay probation costs forfeits the claim
on appeal. (Id. at pp. 856, 857-858.) An order that defendant has the ability to pay the
costs of probation does not involve the exercise of discretion. (§ 1203.1b, subd. (a) and
(b) [“the court shall make a determination of the defendant’s ability to pay and the
payment amount”; “The court shall order the defendant to pay the reasonable costs if it
determines that the defendant has the ability to pay those costs based on the report of the
probation officer, or the officer’s authorized representative.” (Italics added; see also
People v. McCullough (2013) 56 Cal.4th 589, failure to object on lack of finding of
ability to pay jail booking fees forfeited]).) And in any event, unlike where courts are
directed to do something by a statute specifying the court “shall” do that thing, we
consider the decisions to deduct conduct credits and the number of days to be deducted to
be discretionary choices and thus the forfeiture rule clearly applies.
Suggesting his attorney did not have notice, defendant argues that “trial counsel
was clearly caught ‘flat footed.’ He was obviously unprepared to present any evidence in
appellant’s favor or rebut the material provided by the bailiff.” We do not read the record
this way. Indeed, as we have noted, it was trial counsel who explained that restriction
meant defendant would lose conduct credit. And for all we know from the record, trial
counsel may have known there was no favorable evidence to present to avoid the five-day
reduction. If there was, it should have been brought to the court’s attention.
We conclude the contention is forfeited.
II. Fees and Fines
Defendant contends that the trial court needs to make clear exactly what fines and
fees it intended to impose and to direct the preparation of an amended abstract of
judgment that reflects all of those fines and fees. We conclude the record is clear as to
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what fines and fees were ordered. However, we further conclude one mandatory fee was
not ordered and agree that the abstract must be amended.
At sentencing, instead of stating the fines and fees it was imposing, the court used
a shorthand method, cross-referencing the probation report recommendations. The court
stated: “[O]n page ten of the probation officer’s report I’m going to impose paragraphs
two and three.” Paragraphs two and three recommended a restitution fine (§ 1202.4) and
parole revocation restitution fine of $6,000 (§ 1202.45). The court continued: “In
addition, I will impose paragraphs five, six and seven.” Paragraph five recommended a
$10 crime prevention program fee (§ 1202.5). Paragraph six recommended a $367.81 jail
booking fee (Gov. Code, § 29550.2). Paragraph seven recommended a $67.03 jail
classification fee (Gov. Code, § 29550.2). Finally, the court stated: “On page 11,
paragraph eight.[5] On page 12 the two paragraphs on that page as well.” The two
paragraphs on page twelve recommended a $60 court facility fee (Gov. Code, § 70373),
and a criminal impact fee equal to 20 percent of the base fine amount (§ 1465.7, subd.
(a)).
A trial court may use a shorthand method of articulating imposition of the fines.
(See People v. Hamed (2013) 221 Cal.App.4th 928, 939 [approving of cross-referencing
to the probation report]; People v. Sharret (2011) 191 Cal.App.4th 859, 865 [approving a
shorthand method of imposing penalty assessments].) We see nothing wrong with the
court’s oral imposition of the fines we just mentioned. The record is clear what fines and
fees the court imposed. However, the trial court missed a mandatory fee -- it did not
cross-reference or otherwise mention the mandatory court operations assessment
(§ 1465.8, subd. (a)(1)) set out as $80 in the last paragraph on page 11 of the probation
report. Also, the abstract does not show the $60 court facility fee (Gov. Code, § 70373),
5 Paragraph eight on page 11 is the firearm possession prohibition advisement.
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the $10 crime prevention program fee (§ 1202.5), or the $367.81 main jail booking fee
(Gov. Code, § 29550.2) orally imposed by the court.
The $80 court operations assessment (§ 1465.8, subd. (a)(1)) is mandatory, and we
may correct the court’s error in failing to impose it. (People v. Smith (2001) 24 Cal.4th
849, 854 [Court of Appeal may impose mandatory probation restitution fine not imposed
by the trial court]; People v. Turner (2002) 96 Cal.App.4th 1409, 1413-1414, 1416-1417
[trial court’s failure to impose mandatory drug laboratory fee and associated penalty
assessments was an unauthorized sentence and appellate court is empowered to order
defendant to pay].) We shall also direct correction of the abstract to show the fees orally
imposed by the court.
III. S.B. 136
Effective January 2019, S.B. 136, eliminated the enhancement for prior prison
terms except for sexually violent offenses. (§ 667.5, subd. (b), as amended by Stats.
2019, ch. 590, § 1.) The parties agree that S.B. 136 should be applied retroactively to
defendant and so do we. (People v. Gastelum (2020) 45 Cal.App.5th 757, 761, 772;
People v. Winn (2020) 44 Cal.App.5th 859, 872-873; People v. Lopez (2019) 42
Cal.App.5th 337, 341.) We will therefore strike the prior prison term enhancements and
vacate the corresponding sentences.
IV. S.B. 1393
Effective January 2019, S.B. 1393 authorized trial courts to strike or dismiss
section 667, subdivision (a) prior serious felony enhancements under section 1385,
subdivision (a). (§ 667, subd. (a), as amended by Stats. 2018, ch. 1013, §§ 1 & 2.) The
parties agree that S.B. 1393 applies retroactively to all matters that were pending appeal
at the time it became effective. So do we. (People v. Stamps (2020) 9 Cal.5th 685, 699.)
Were it not for statements made by the trial court at sentencing, we would remand
this matter back to the trial court to allow the trial court to determine whether to strike or
dismiss the enhancement “in furtherance of justice” under section 1385, subdivision (a).
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But we need not do so “if ‘the record shows that the trial court clearly indicated when it
originally sentenced the defendant that it would not in any event have stricken [the] ...
enhancement’ even if it had the discretion.” (People v. Jones (2019) 32 Cal.App.5th 267,
273 (Jones), quoting People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) “The trial
court need not have specifically stated at sentencing it would not strike the enhancement
if it had the discretion to do so. Rather, we review the trial court’s statements and
sentencing decisions to infer what its intent would have been.” (Jones, at p. 273.)
At sentencing, defendant told the court he had been “railroaded” and what the
witnesses said did not happen. And he said he did not mean to hit anyone. The trial
court responded by saying defendant had sucker punched the victim. The court
continued: “I heard the evidence . . . and the evidence was overwhelming to convict
you.” The court added: “I take a look at your criminal history, and you have been quite
the consumer of the criminal justice system. Virtually every — each and every year since
you’ve been a young man starting back in 1991 you have been mainly in custody or on
probation or on parole.” The court then stated: “[M]oreover, you are a very angry
person. Because when people – law abiding people who are just doing their jobs . . . and
they come into contact with you and tell you you can’t steal from their store, you have a
reaction. And that reaction appears to this Court to be engaged in violent behavior
towards . . . law abiding citizens. [¶] And at some point in time the community is
entitled to some protection from your inability to maintain your composure. And it
would be an absolute travesty in this Court’s opinion to give you anything other than the
upper term.”
In explaining its upper term sentencing choice, the trial court expressly excluded
the fact that defendant had served prior prison terms as an aggravating factor to avoid the
dual use rule. It then found that the crime showed “planning, sophistication, and
professionalism.” The court made this finding based on the evidence showing defendant
entered a store, picked up a bag, “loaded up the bag up with items he intended to steal,”
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walked out of the store and “when he saw the manager on the phone apparently calling
law enforcement, the next thing the manager knows is he’s waking up on the ground with
significant injuries.” The court further found that defendant had “engaged in other acts of
violent conduct which indicates a serious danger to society.” And the court noted
defendant was on probation at the time of the offense and that his prior performance on
probation and parole had been unsatisfactory.
The trial court mentioned no circumstances in mitigation. Likewise, in his
supplemental briefing, defendant points to no circumstances on which the court could
have relied in exercising its discretion to strike or dismiss the serious felony conviction
enhancement in the furtherance of justice under section 1385, subdivision (a) if it had had
the authority to do so, and we see nothing in the record before us. Moreover, as noted,
the trial court even deducted conduct credits because of defendant’s conduct at the jail.
Under these circumstances, we are confident the court would not have stricken the
serious felony prior enhancement and its resulting sentence out of leniency toward
defendant. (See Jones, supra, 32 Cal.App.5th at p. 275.) Therefore, we decline to
remand the matter for resentencing on the enhancement imposed under section 667,
subdivision (a) because to do so would be a clear exercise in futility.
DISPOSITION
We strike defendant’s two section 667.5, subdivision (b) prior prison term
enhancements and vacate the two one-year sentences. We order imposition of an $80
court operations assessment (§ 1465.8, subd. (a)(1)) and direct the court to include it on
the abstract of judgment. We further direct the court to correct the abstract of judgment
to include the $60 court facility fee (Gov. Code, § 70373), the $10 crime prevention
program fee (§ 1202.5), the $367.81 main jail booking fee (Gov. Code, § 29550.2), and
the $67.03 main jail classification fee (Gov. Code, § 29550.2), all of which were imposed
by the trial court. We further direct that a certified copy of the corrected abstract of
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judgment be forwarded to the California Department of Corrections and Rehabilitation.
As so modified, the judgment is affirmed.
/s/
MURRAY, Acting P. J.
We concur:
/s/
RENNER, J.
/s/
KRAUSE, J.
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