People v. Cervantes ( 2020 )

Filed 3/9/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E070980
v. (Super.Ct.No. RIF1303884)
OMAR JESUS CERVANTES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed as modified.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,
Eric A. Swenson, Kristine A. Gutierrez and Junichi P. Semitsu, Deputy Attorneys
General, for Plaintiff and Respondent.
1
Omar Jesus Cervantes appeals his conviction for second degree murder, arguing it
must be reversed under the recently enacted Senate Bill No. 1437 (SB 1437) and the
changes the new law made to the natural and probable consequences doctrine. SB 1437
amended the murder statutes (Pen. Code, §§ 188 & 189; unlabeled statutory citations
refer to this code) to modify the definition of murder and created a new provision—
section 1170.95—which establishes procedures for eligible defendants to seek
resentencing under the new definition. We conclude Cervantes cannot raise his SB 1437
claim on direct appeal, but must follow the procedures in section 1170.95 and petition the
superior court for relief.
Cervantes also raises multiple challenges to his sentence. As we explain below, to
clear up confusion about the particulars of his sentence, we will direct the trial court to
correct the July 20, 2018 minute order to reflect that it did not impose a gang
enhancement on the murder count or a section 1203.1c presentence confinement fee. We
will also direct the court to correct the abstract of judgment to reflect that it did not
impose a registration requirement. In all other respects, we will affirm the judgment.
I
FACTS
The Riverside County District Attorney charged Cervantes with murder (§ 187,
subd. (a), count 1) and assault with a deadly weapon (a wooden bat) (§ 245, subd. (a)(1)),
both committed for the benefit of a gang (§ 186.22, subd. (b)(1)). As to the murder count,
2
the information alleged Cervantes was a principal who personally used a firearm causing
great bodily injury and death. (§ 12022.53, subds. (d)-(e).)
At trial, the prosecution presented evidence that Cervantes was hanging out in
Moreno Valley with members of his gang, 420 Kings, when he planned and directed the
murder of Marquez, a member of the rival gang Kush Blown Kings. The 17-year-old
Cervantes was driving his father’s car with one of his friends, when he saw the victim,
Marquez, walking down the street. Cervantes picked up his fellow gang members,
codefendants Mageo and Mariscal, at a local park. Cervantes knew Mariscal had a gun
and drove Mariscal to his house to retrieve it. Afterward, they drove around looking for
Marquez and found him walking back from Circle K with two friends, carrying soda and
snacks.
Cervantes ordered Mariscal to “rob” and “shoot” Marquez. At trial, there was
conflicting evidence about whether the other passengers in the car believed Cervantes
wanted Mariscal to shoot Marquez or simply beat him and scare him with the gun.
Cervantes remained in the driver’s seat as Mariscal and Mageo jumped out of the car,
Mariscal carrying his gun and Mageo carrying a small wooden bat. They chased Marquez
and his friends to a nearby residence where Marquez and one of his friends ran into the
open garage. Mageo caught up with the friend in the garage and began beating him with
the bat. Mariscal ran after the other friend, and when he realized he wasn’t Marquez, said,
“that’s not him,” and doubled back to the garage. Mariscal found Marquez and shot him
in the torso, killing him.
3
When Mariscal returned to the car, Cervantes was standing outside the driver’s
door. He pointed at one of Marquez’s friend’s and told Mariscal to “kill that
motherfucker too.” Instead, Mariscal climbed into the backseat and announced he “got”
Marquez. Cervantes asked whether Mariscal “really did get him,” then started “bragging
it up.” They left the scene and Cervantes drove Mariscal back to his house to get rid of
the gun.
At trial, the prosecution argued Cervantes was guilty of murder under two
alternative theories. They argued he aided and abetted Mariscal’s shooting of Marquez,
or, at the very least, aided and abetted Mariscal’s assaulting Marquez with a firearm, and
murder was a natural and probable consequence of that assault.
The jury convicted Cervantes of second degree murder and assault with a deadly
weapon, found both crimes were committed for the benefit of a gang, but did not find the
gun enhancement true. The trial court sentenced Cervantes to 15 years to life for the
murder. For the assault, it imposed a consecutive sentence of nine years, consisting of the
upper term of four years plus a five-year enhancement for the gang allegation. The trial
court also imposed the following fines and fees: a maximum of $1,095 for the costs of the
probation report; a $514.58 booking fee; a $300 restitution fine (Pen. Code, § 1202.45,
subd. (c)); an $80 court operations fee (Pen. Code, § 1465.8); and a $60 conviction fee
(Gov. Code, § 70373).1
1The court also imposed, but suspended, a $300 parole revocation fine.
(§ 1202.45.)
4
II
ANALYSIS
A. SB 1437
SB 1437 modified California’s felony murder rule and natural and probable
consequences doctrine to ensure murder liability is not imposed on someone unless they
were the actual killer, acted with the intent to kill, or acted as a major participant in the
underlying felony and with reckless indifference to human life. (Stats. 2018, ch. 1015,
§ 4; § 1170.95, subd. (a)(3).) SB 1437 became effective on January 1, 2019, after
Cervantes’s conviction but before he filed his opening brief. He argues that because the
legislation went into effect while his appeal was pending, he is entitled to a reversal of his
murder conviction in this appeal based on the retroactive application of these changes
under the rule articulated in In re Estrada (1965) 63 Cal. 2d 740 (Estrada). Under the
Estrada rule, “‘[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 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.’”
(People v. DeHoyos (2018) 4 Cal.5th 594, 600 (DeHoyos).)
We agree with the three other appellate decisions to address this issue—People v.
Martinez (2019) 31 Cal.App.5th 719 (Martinez) from Division Five of the Second
District, People v. Anthony (2019) 32 Cal.App.5th 1102 (Anthony) from Division Two of
the First District, and People v. Carter (2019) 34 Cal.App.5th 831 (Carter) from Division
5
One of the Fourth District—that the petitioning process in section 1170.95 is the
exclusive means of obtaining relief under SB 1437 for defendants in Cervantes’s
position. Relief under the new law defining murder is not automatic. Because Cervantes’s
entitlement to relief will depend on the presentation of new evidence and the resolution of
factual issues, the superior court, not the appellate court, is the proper first venue for his
claim.
Put another way, we conclude the Estrada rule is not implicated on these facts.
That rule, or more aptly, presumption, applies when the Legislature is silent as to whether
it intended an amendment or change in the law to operate only prospectively. (Estrada,
supra, 63 Cal.2d at p. 744; see also People v. Nasalga (1996) 12 Cal. 4th 784, 793
[presumption not triggered “where the Legislature clearly signals its intent to make the
amendment prospective”].) Here, the Legislature was not silent as to the class of
offenders to which SB 1437 applies. We conclude section 1170.95’s petition process
provides a clear indication of our lawmakers’ intent regarding the retroactive effect of the
new definition of murder. Those who suffered convictions for murder under the felony
murder rule or natural and probable consequences doctrine before SB 1437’s enactment
can obtain relief under the new law, but only through the petition process.
1. The new law’s provisions
SB 1437 “amend[s] the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that murder liability is not
imposed on a person who is not the actual killer, did not act with the intent to kill, or was
6
not a major participant in the underlying felony who acted with reckless indifference to
human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) To accomplish this, SB 1437 modified
section 188, which defines malice, and section 189, which defines the degrees of murder,
and now addresses felony murder liability. Under the new definition of murder, malice
may no longer be imputed to a defendant under the felony murder rule or on the sole
ground that the victim died as a natural and probable consequence of a designated crime.
SB 1437 also added section 1170.95, which allows those “convicted of felony murder or
murder under a natural and probable consequences theory . . . [to] file a petition with the
court that sentenced the petitioner to have the petitioner’s murder conviction vacated and
to be resentenced on any remaining counts.” (§ 1170.95, subd. (a).)
Such an offender may file a petition under section 1170.95 where three conditions
are met: “(1) A complaint, information, or indictment was filed against the petitioner that
allowed the prosecution to proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine[;] [¶] (2) The petitioner was convicted of first
degree or second degree murder following a trial or accepted a plea offer in lieu of a trial
at which the petitioner could be convicted for first degree or second degree murder[;] [¶]
[and] (3) The petitioner could not be convicted of first or second degree murder because
of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd.
(a)(1)-(3).)
7
The section 1170.95 petition must include, among other things, a declaration by
the petitioner stating they are eligible for relief based on all three aforementioned
requirements of subdivision (a). The trial court “shall review the petition and determine if
the petitioner has made a prima facie showing that the petitioner falls within the
provisions of this section.” (§ 1170.95, subd. (c).) If the petitioner has made such a
showing, the trial court must then hold a hearing “to determine whether to vacate the
murder conviction and to recall the sentence and resentence the petitioner on any
remaining counts in the same manner as if the petitioner had not previously been
sentenced, provided that the new sentence, if any, is not greater than the initial sentence.”
(§ 1170.95, subd. (d)(1).) “The parties may waive a resentencing hearing and stipulate
that the petitioner is eligible to have his or her murder conviction vacated and [is eligible]
for resentencing. If there was a prior finding by a court or jury that the petitioner did not
act with reckless indifference to human life or was not a major participant in the felony,
the court shall vacate the petitioner’s conviction and resentence the petitioner.”
(§ 1170.95, subd. (d)(2).)
Notably, if there is a hearing, “[t]he prosecutor and the petitioner may rely on the
record of conviction or offer new or additional evidence to meet their respective
burdens.” (§ 1170.95, subd. (d)(3), italics added.) “[T]he burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for
resentencing. If the prosecution fails to sustain its burden of proof, the prior conviction,
8
and any allegations and enhancements attached to the conviction, shall be vacated and the
petitioner shall be resentenced on the remaining charges.” (Ibid.)
2. Conley and DeHoyos
The Martinez and Anthony courts analogized the petitioning process in newly
enacted section 1170.95 to the postconviction procedures created by Propositions 36 and
47. As a result, they concluded the California Supreme Court opinions People v. Conley
(2016) 63 Cal. 4th 646 (Conley) and DeHoyos—in which the Court held those procedures
were the exclusive remedy available to defendants with nonfinal convictions and the
2
Estrada rule did not apply to Proposition 36 and Proposition 47, respectively. We agree.
In Conley, our Supreme Court articulated three reasons for holding that
Proposition 36’s postconviction procedures (codified in § 1170.126) are the exclusive
means for seeking relief under that initiative. “First, Proposition 36 was ‘not silent on the
question of retroactivity’ but instead ‘expressly addresse[d] the question in section
1170.126, the sole purpose of which is to extend the benefits of [Proposition 36]
retroactively.” (Conley, supra, 63 Cal.4th at p. 657.) “In doing so, Proposition 36 did not
distinguish between persons serving final sentences and those serving nonfinal
sentences.” (Martinez, supra, 31 Cal.App.5th at p. 726.)
“Second, Proposition 36 made resentencing contingent on a court’s evaluation of a
defendant’s dangerousness. Conferring an automatic entitlement to resentencing on
2 Carter was only partially published—and while the court did publish its holding
that the defendants “cannot raise their claims in this appeal; they must first petition the
superior court for relief under section 1170.95” (Carter, supra, 34 Cal.App.5th at p. 835)
—it did not publish its analysis of the issue.
9
defendants whose cases were still pending on direct appeal would not allow courts to
conduct that inquiry, and the court found no basis to hold the electorate intended ‘for
courts to bypass the public safety inquiry altogether in the case of defendants serving
sentences that are not yet final.’” (Martinez, supra, 31 Cal.App.5th at p. 726, quoting
Conley, supra, 63 Cal.4th at pp. 658-659.)
“Third, the changes in law worked by Proposition 36 not only reduced previously
prescribed criminal penalties but also established ‘a new set of disqualifying factors that
preclude a third strike defendant from receiving a second strike sentence,’ factors that the
prosecution was required to plead and prove. [Citation.] Because Proposition 36 did not
address the complexities involved in applying the pleading-and-proof requirements to
previously sentenced defendants, the Court concluded the electorate did not contemplate
those provisions would apply to previously sentenced defendants. [Citation] Rather, they
intended such defendants to seek relief under section 1170.126, which did not contain
pleading-and-proof requirements.” (Martinez, supra, 31 Cal.App.5th at p. 726, quoting
Conley, supra, 63 Cal.4th at pp. 659-661.)
Our Supreme Court reached a similar result in DeHoyos, holding Estrada did not
apply to Proposition 47 and the petitioning procedure in section 1170.18 was the
exclusive remedy for offenders who were convicted of felonies that are now classified as
misdemeanors. It explained that Proposition 47, like Proposition 36, is “an ameliorative
criminal law measure that is ‘not silent on the question of retroactivity,’ but instead
10
contain[ed] a detailed set of provisions designed to extend the statute’s benefits
retroactively.” (DeHoyos, supra, 4 Cal.5th at p. 603.)
“As it did in Conley when analyzing Proposition 36, the DeHoyos court found it
significant that Proposition 47’s recall of sentence petitioning mechanism drew ‘no
express distinction between persons serving final sentences and those serving nonfinal
sentences, instead entitling both categories of prisoners to petition courts for recall of
sentence’ and ‘expressly ma[king] resentencing dependent on a court’s assessment of the
likelihood that a defendant’s early release will pose a risk to public safety, undermining
the idea that voters “categorically determined that ‘imposition of a lesser punishment’
will in all cases ‘sufficiently serve the public interest.’””’ (Martinez, supra, 31
Cal.App.5th at p. 727.) In addition, DeHoyos concluded Proposition 47’s broad statement
of purpose, revealed the initiative’s petitioning procedure was meant to be the exclusive
avenue for retroactive relief for all previously sentenced defendants, whether or not their
sentences were final. (DeHoyos, supra, 4 Cal.5th at p. 603.)
The Supreme Court’s analysis in Conley and DeHoyos applies with equal force in
the context of SB 1437 and section 1170.95. Like Propositions 36 and 47, SB 1437 is not
silent regarding retroactivity. Rather, it created a detailed petitioning process for
obtaining relief, a process which does not distinguish between persons with final and
nonfinal sentences. “That the Legislature specifically created this mechanism, which
facially applies to both final and nonfinal convictions, is a significant indication Senate
Bill 1437 should not be applied retroactively to nonfinal convictions on direct appeal.”
11
(Martinez, supra, 31 Cal.App.5th at p. 727.) Section 1170.95’s allowance for the
presentation of new evidence to demonstrate whether a petitioner is eligible for relief is
further evidence the Legislature did not intend to make relief eligible on direct appeal, as
appellate courts are not equipped to accept new evidence and make factual findings. It is
clear the Legislature did not make entitlement to relief automatic. They intended it to
depend on factual findings made by trial courts.
Pointing to section 1170.95, subdivision (f), which states, “This section does not
diminish or abrogate any rights or remedies otherwise available to the petitioner,”
Cervantes argues the Legislature intended to leave the avenue of direct appeal open to
defendants in his position. Conley rejected a similar argument concerning an analogous
provision in Proposition 36, reasoning the provision “contain[ed] no indication that
automatic resentencing—as opposed to, for example, habeas corpus relief—ranks among
the ‘rights’ the electorate sought to preserve.” (Conley, supra, 63 Cal.4th at p. 661.) We
reach the same conclusion here, where there is similarly no indication in section 1170.95
that reversal of a defendant’s sentence on direct appeal without compliance with the
procedures outlined in section 1170.95 was among the rights the Legislature sought to
preserve in enacting SB 1437. (See Martinez, supra, 31 Cal.App.5th at p. 729 [accord];
Anthony, supra, 32 Cal.App.5th at p. 1157 [accord].) Put differently, Cervantes’s claim
on appeal does not rely on a different remedy otherwise available. His claim relies solely
on the remedy set forth in SB 1437, which requires him to file a section 1170.95 petition.
12
Cervantes argues we should reverse his murder conviction on the “independent”
ground that the trial court erred by instructing the jury on the natural and probable
consequences doctrine as it was defined prior to the effective date of SB 1437. This is
simply a roundabout way of rearguing that Estrada’s retroactivity rule applies to SB
1437. The natural and probable consequences instruction was correct when the trial court
gave it, and SB 1437 does not apply retroactively to make the instruction erroneous.
Instead, SB 1437 creates a procedure for Cervantes to challenge, and the People to
defend, his murder conviction in a new hearing before the trial court.
At oral argument, counsel for Cervantes argued that the recent opinion People v.
Medrano (2019) 42 Cal.App.5th 1001 supports applying the Estrada rule to his case and
allowing him to challenge his conviction on appeal. Cervantes’s reliance on Medrano is
misplaced. That case involved defendants who had been convicted of attempted murder
and argued that SB 1437’s amendment to the definition of murder applied to their
offenses as well. Our colleagues in the Fifth District agreed with the defendants that the
new law’s changes applied equally to the crime of attempted murder, but the court also
concluded that the petitioning process in section 1170.95 “is limited to certain murder
convictions and excludes all other convictions,” like attempted murder. (Medrano at p.
1018; see also § 1170.95, subd. (a) [authorizing those “convicted of felony murder or
murder under a natural and probable consequences theory” to file a petition], italics
added.) In order to avoid a result where individuals convicted of attempted murder are
treated more harshly than those convicted of murder, the court concluded the Estrada rule
13
required it to consider the defendants’ claims on direct appeal, “given that Senate Bill
1437 resulted in an ameliorative change to the criminal law applicable to their
convictions.” (Medrano, at p. 1018.) That holding has no bearing on a case like this,
which involves a murder conviction. What triggered application of the Estrada rule in
Medrano was the fact the Legislature was silent about SB 1437’s retroactive application
to attempted murder convictions. As we explained above, the Legislature was not
similarly silent about the completed offense. Section 1170.95 clearly evinces a legislative
intent to limit relief for eligible murder convictions to the petition process.
As a final point, we note, as the court did in Martinez, that our holding does not
mean a defendant must wait until they have fully exhausted their direct appeal to seek
relief under SB 1437. (See Martinez, supra, 31 Cal.App.5th at p. 729.) Although the
filing of a notice of appeal vests exclusive jurisdiction in the appellate court until the
appeal is decided on the merits and a remittitur issues (People v. Perez (1979) 23 Cal. 3d
545, 554), a defendant retains the option of seeking to stay their pending appeal to pursue
relief under SB 1437 in the trial court (Martinez, at p. 729). “A Court of Appeal
presented with such a stay request and convinced it is supported by good cause can order
the pending appeal stayed with a limited remand to the trial court for the sole purpose of
permitting the trial court to rule on a petition under section 1170.95.” (Ibid., citing People
v. Awad (2015) 238 Cal. App. 4th 215, 220 [noting in the context of Proposition 47 that
appellate courts “have the authority to issue a limited remand to the trial court, before
reaching the merits of the appeal, for the specific purpose of allowing the lower court to
14
entertain a . . . petition to recall a sentence”].) If the section 1170.95 petition is
successful, the direct appeal may be fully or partially moot. But if not, or if the petition is
unsuccessful, a defendant “may seek to augment the appellate record, as necessary, to
proceed with any issues that remain for decision.” (Martinez, at p. 729.) Cervantes has
not requested such a stay, and thus we express no opinion about whether he would be
able to demonstrate the good cause necessary for a limited remand.
B. The Gang Enhancement
Cervantes argues that the court imposed (and stayed) a 10-year gang enhancement
under section 186.22, subdivision (b)(1) on his murder count and that the enhancement is
unauthorized because the court also imposed the sentence of 15 years to life under section
186.22, subdivision (b)(5). The People agree with Cervantes that the court imposed the
enhancement and agree we should strike it as unauthorized even though the court stayed
it. We agree that an enhancement would be unauthorized in this case because the
alternative penalty provision applies. However, as we interpret the sentencing hearing
transcript, the court did not impose an enhancement to the murder count.
Section 186.22, subdivision (b) authorizes additional punishment when a felony is
committed for the benefit of a criminal street gang. The additional punishment generally
involves sentence enhancements that vary based on the nature of the underlying felony.
(Ibid.) However, the statute provides that if the underlying felony is punishable by a life
term, the court must impose a minimum parole eligibility period of 15 years (often called
the “alternative penalty provision”), rather than an enhancement. (§ 186.22, subd. (b)(5);
15
People v. Fiu (2008) 165 Cal. App. 4th 360, 390; People v. Lopez (2005) 34 Cal. 4th 1002,
1004.) In other words, when a court imposes the alternative penalty provision under
section 186.22, subdivision (b)(5), it cannot also impose an enhancement under section
186.22, subdivision (b)(1).
Here, when sentencing Cervantes for the murder, the court said: “[F]or count 1,
sir, you are sentenced to the only sentence which is available, 15 years to life. For the
allegation pursuant to 186.22, subdivision (b), subsection (1), subsection (c), that would
mandate 15 years to life, but that is already the sentence. So [the true finding on the gang
allegation] effectively does nothing to the sentence for Count 1.” The prosecutor then
asked, “Is it 654?” (meaning, is it stayed under section 654?), and the court responded,
“It’s just 15 to life. It’s just like saying 15 to life twice. What this means is if the sentence
was less, it has to be 15 calendar years to life. But it has no effect [on] the ultimate
aggregate sentence for Count 1. It is only 15 years to life.” This exchange makes clear
that the court imposed the alternative penalty of 15 years to life. At no point did the trial
court say the word enhancement or mention adding 10 years to the indeterminate
sentence. True, the court cited the 10-year enhancement provision, section 186.22,
subdivision (b)(1), but in the context of this exchange, it is obvious that was an
inadvertent mistake and the court intended to cite section 186.22, subdivision (b)(5), the
alternative penalty provision.
We believe the parties’ confusion understandably arises from the minute order,
which states “As to Enhancement 1V in count 1, the court imposes the indeterminate
16
sentence of 15 years to Life. 654 PC stay granted as to Enhancement 1V in Count 1.”
There are two errors in that statement. The 15 year to life sentence is not an enhancement
and the court did not stay any portion of the sentence for count 1 under section 654. The
errors aside, even if the minute order did state the court had imposed a 10-year
enhancement, it is the court’s oral pronouncement of judgment as reflected in the
reporter’s transcript that controls, not the minute order, and appellate courts may correct
clerical sentencing errors on appeal. (People v. Mitchell (2001) 26 Cal. 4th 181, 185.) To
clear up the confusion, we will direct the trial court to correct the minute order to delete
the reference to an enhancement for count one and the reference to a stay under section
654.
C. Section 1203.1c Costs
Cervantes argues, and the People agree, that we should strike the $1,500
presentence confinement fee because he was sentenced to prison, not granted probation.
(See People v. Dailey (1991) 235 Cal. App. Supp. 3d 13, 20-21 [“sections 1203.1b and
1203.1c provide for imposing on a probationer the costs of presentence investigation and
report, probation services, and incarceration”], italics added.) While we agree with the
parties that a section 1203.1c fee would not be proper in this case, this is another instance
of the minute order conflicting with the reporter’s transcript. At the sentencing hearing,
the court stated its intention to impose a $1,500 presentence confinement fee, but shortly
thereafter reconsidered its position and determined Cervantes could not afford it (and thus
did not impose it). The minute order reflects that the court did impose the fee, but as
17
noted above, it’s the court’s oral judgment that controls. (People v. Mitchell, supra, 26
Cal.4th at p. 185.) Thus, we conclude the court did not impose a presentence confinement
fee (which would have been unauthorized if it had been imposed) and will direct the
court to correct the sentencing minute order to so reflect.
D. Section 296 and Registration
On Cervantes’s abstract of judgment, the trial court checked the “registration
requirement” box and inserted section 296, subdivision (a) as the code section
authorizing the requirement. Cervantes argues, and the People correctly concede, that
section 296 does not authorize or provide for registration, and as a result, the reference to
registration in the abstract of judgment should be deleted.
Section 296, subdivision (a)(1) requires defendants convicted of a felony to
provide DNA samples and print impressions. In compliance with this provision, at
sentencing, the trial court ordered Cervantes to submit prints and blood and saliva
specimens. Section 296 does not, however, mandate any form of registration. It’s possible
the trial court’s mistake in ordering registration under section 296 comes from the fact
section 296 mentions registration when mandating prints and DNA samples from those
required “to register in California as a sex offender under Section 290.” Regardless of the
reason for it, the reference to registration in the abstract of judgment is incorrect and must
be deleted.
18
E. Fines and Fees (Dueñas)
Cervantes claims the trial court violated his due process rights as articulated in
People v. Dueñas (2019) 30 Cal.App.5th 1157 by imposing his fines and fees without
consideration of his ability to pay. Pointing out that Cervantes made no objections to the
fines and fees at his sentencing hearing, the People argue he forfeited his challenge.
Putting forfeiture aside, we conclude that even if there were Dueñas error in this case, the
error would be harmless because the record demonstrates, beyond a reasonable doubt,
that Cervantes will be able to pay the total amount imposed with prison wages. (See
People v. Jones (2019) 36 Cal.App.5th 1028, 1035 [Dueñas error was harmless because
record demonstrated beyond a reasonable doubt that the defendant would earn sufficient
prison wages during his six-year prison term to pay his fines and assessments of $370].)
Cervantes’s ability to pay includes “[his] ability to obtain prison wages and to earn
money after his release from custody.” (People v. Hennessey (1995) 37 Cal. App. 4th
1830, 1837; People v. Gentry (1994) 28 Cal. App. 4th 1374, 1376.) “[E]very able-bodied
prisoner” must work while imprisoned. (Pen. Code, § 2700.) Prison wages range from
$12 to $56 per month, depending on the job and skill level involved. (Cal. Code Regs.,
tit. 15, § 3041.2, subd. (a)(1).) Up to fifty percent of Cervantes’s wages and trust account
deposits will be deducted to pay any outstanding restitution fine, plus another 5 percent
for the administrative costs of this deduction. (Pen. Code, § 2085.5, subds. (a), (e); Cal.
Code Regs., tit. 15, § 3097, subd. (f).)
19
Cervantes was 21 years old at the time of sentencing, and the record contains no
indication he is either unhealthy or unable to work. If we assume the probation
department sets the cost of preparing the presentence report cost at the maximum of
3
$1,095, the total amount of Cervantes’s financial obligation will be $2,064.58.
Assuming also that Cervantes will earn the lowest wage of $12 a month for the duration
of his sentence, it will take him approximately 172 months (about 14 years) to pay off
that amount. We recognize that “[a]n inmate’s assignment to a paid position is a privilege
dependent on available funding, job performance, seniority and conduct” (Cal. Code
Regs., tit. 15, § 3040, subd. (k)), but because Cervantes is so young and his sentence far
exceeds 14 years, there is a strong likelihood he will hold a paid position long enough to
satisfy his financial obligation. We therefore conclude, as we did in Jones, that
Cervantes’s ability to pay the total amount imposed with prison wages “forecloses a
meritorious inability to pay argument.” (Jones, supra, 36 Cal.App.5th at p. 1035.)
III
DISPOSITION
We direct the trial court to correct the July 20, 2018 sentencing minute order to
reflect that it did not impose an enhancement or a stay on count 1 or a section 1203.1c
presentence confinement fee. We also direct the trial court to correct the abstract of
judgment to reflect that it did not impose a registration requirement. In all other respects,
3 That is, the sum of $300 (restitution fine), $1,095 (probation report costs), $60
(conviction fee), $80 (court operations fee), $514.58 (booking fee), plus 5 percent of the
$300 restitution fine—$15—for the administrative costs of the restitution deduction.
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we affirm the judgment. The trial court shall prepare a corrected abstract of judgment and
minute order and forward certified copies to the Department of Corrections and
Rehabilitation.
CERTIFIED FOR PUBLICATION
SLOUGH
J.
We concur:
CODRINGTON
Acting P. J.
RAPHAEL
J.
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