People v. Acuna CA4/1

Filed 2/28/22 P. v. Acuna CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078365, D078885
Plaintiff and Respondent,
v. (Super. Ct. No. SCD279161)
EDSON ACUNA,
Defendant and Appellant.
CONSOLIDATED APPEALS from a judgment and a postjudgment
order of the Superior Court of San Diego County, Charles G. Rogers and
Eugenia A. Eyherabide, Judges. Remanded for resentencing with directions;
postjudgment order vacated.
Aaron J. Schechter, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C.
Ragland, Acting Assistant Attorney General, Arlene A. Sevidal, Andrew S.
Mestman and Susan Elizabeth Miller, Deputy Attorneys General, for
Plaintiff and Respondent.
A jury found Edson Acuna guilty of one count of first degree murder
(Pen. Code, § 187, subd. (a)),1 with the special circumstance that it was
committed during a burglary (§ 190.2, subd. (a)(17)); one count of robbery
(§ 211); one count of burglary (§ 459); one count of possession of a firearm by
a felon (§ 29800, subd. (a)(1)); one count of transporting an assault weapon
(§ 30600, subd. (a)); one count of possessing an assault weapon (§ 30605,
subd. (a)); one count of illegally possessing ammunition (§ 30305, subd.
(a)(1)); and one count of carrying a loaded firearm in a vehicle (§ 25850, subd.
(a)). The jury also made true findings on certain firearm enhancements for
the murder, robbery and burglary counts, including that Acuna intentionally
and personally discharged a firearm during the murder, causing great bodily
injury and death (§ 12022.53, subd. (d)). The trial court sentenced Acuna to
an indeterminate sentence of life without parole (LWOP), plus 26 years to
life, in addition to a determinate sentence of 26 years, eight months.
Acuna contends (1) the trial court prejudicially erred by refusing a
proposed pinpoint instruction on the duration of the crime of burglary for the
purpose of the escape rule as it relates to felony murder; (2) the trial court
prejudicially erred by allowing the People to present evidence that the
murder victim was a member of the United States Navy; (3) because he was a
youthful offender at the time of the murder, Acuna’s constitutional right to
equal protection was violated by the imposition of an LWOP sentence; (4) the
order requiring Acuna to pay certain fines and fees should be vacated because
he does not have the ability to pay them; (5) due to the recent enactment of
Government Code section 6111, we should order that the $154 criminal
justice administration fee imposed pursuant to former Government Code
1 Unless otherwise indicated, all further statutory references are to the
Penal Code.
2
section 29550.1 be stricken; (6) due to a recent statutory amendment giving a
trial court the discretion to choose which count should be punished when
multiple counts are eligible to be stayed under section 654 (rather than the
former law which required that the count with the longest term be selected
for punishment), we should remand to allow the trial court to exercise its
discretion on that issue; and (7) due to a recent statutory amendment to
section 1170 impacting the conditions under which a trial court may impose
an upper term sentence on any offender or a middle or upper term sentence
on a youth who commits the crime when under 26 years of age, we should
remand for resentencing. As to the last two points, the People concede that a
remand is warranted.
After Acuna filed an appeal, the trial court issued an order addressing
its failure to pronounce sentence on the count of carrying a loaded firearm in
a vehicle (§ 25850, subd. (a)) (count 9). Specifically, the trial court (through a
different superior court judge) issued an ex parte minute order stating that
the sentencing minute order would be corrected to reflect a sentence of 365
days custody with credit for time served for count 9. In an appeal that we
have consolidated with Acuna’s appeal from the judgment, Acuna contends
that the trial court improperly issued the ex parte minute order and that we
should vacate it. The People agree that the trial court exceeded its
jurisdiction in issuing the ex parte minute order.
We conclude that based on the recent enactment of Government Code
section 6111, the $154 criminal justice administration fee imposed under
Government Code section 29550.1 should be vacated insofar as any amounts
remain unpaid as of July 1, 2021. As to Acuna’s remaining contentions, the
only meritorious arguments are those that the People concede have merit.
Accordingly, we order that the trial court’s ex parte minute order imposing
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sentence on count 9 is vacated and this matter is remanded for resentencing
to allow the trial court to (1) exercise its discretion to determine which of the
counts subject to section 654 should be punished, and (2) apply the amended
version of section 1170. On remand the trial court shall specify a sentence for
count 9.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On October 27, 2018, at approximately 2:00 a.m., Acuna and three
passengers drove to a residential area where Acuna participated in
burglarizing J.D.’s vehicle that was parked on the street in front of J.D.’s
house. During the burglary, various tools and equipment were taken out of
J.D.’s vehicle and put into Acuna’s car. J.D. became aware of the burglary as
it was occurring and confronted the perpetrators. An exchange of gunfire
ensued, during which J.D. shot and damaged at least one of the front tires of
the vehicle that Acuna was driving.
Acuna and his companions drove away from the scene with the
damaged tire. Acuna was able to drive approximately 1.8 miles when he was
forced to pull over at a freeway median because of a flat tire. According to
one occupant of Acuna’s car, as he drove to the freeway Acuna indicated that
he thought he was being followed, saying “Oh, they’re coming in back of us.”
A short time after Acuna’s car came to rest at the freeway median,
21-year-old Curtis Adams drove by Acuna’s stranded vehicle and decided to
stop and offer assistance. One of the occupants of Acuna’s car was standing
outside the car. Acuna was still in the driver’s seat. Adams parked his car
directly in front of Acuna’s car. After Adams exited his car and took
approximately two steps toward Acuna’s car, Acuna shot Adams in the chest,
killing him.
4
Immediately after the killing, Acuna attempted to drive away from the
scene, but his damaged car was able to drive only about a quarter mile before
Acuna was forced to abandon it on the shoulder of the freeway. Although
police apprehended two of the occupants of Acuna’s car a short time later in
the vicinity of the abandoned car, Acuna was able to flee from the scene and
was eventually located in Mexico.
Acuna was charged with murder (§ 187, subd. (a)); robbery (§ 211);
burglary (§ 459); shooting at an occupied dwelling (§ 246); possession of a
firearm by a felon (§ 29800, subd. (a)(1)); transporting an assault weapon
(§ 30600, subd. (a)); possessing an assault weapon (§ 30605, subd. (a));
illegally possessing ammunition (§ 30305, subd. (a)(1)); and carrying a loaded
firearm in a vehicle (§ 25850, subd. (a)). The information further alleged
certain firearm enhancements, and with respect to the murder count, alleged
the special circumstance that the murder was committed during a burglary
(§ 190.2, subd. (a)(17)).
At trial, on the murder count, the People proceeded exclusively on the
theory of felony murder. (§ 189, subd. (e).)2 Specifically, the People argued
that the killing was felony murder because it took place during Acuna’s
commission of a burglary, which was not yet complete at the time that
2 Acuna’s trial took place after the felony-murder provision in section
189, subdivision (e) was amended to state: “A participant in the perpetration
or attempted perpetration of a felony listed in subdivision (a) in which a
death occurs is liable for murder only if one of the following is proven: [¶]
(1) The person was the actual killer. [¶] (2) The person was not the actual
killer, but, with the intent to kill, aided, abetted, counseled, commanded,
induced, solicited, requested, or assisted the actual killer in the commission
of murder in the first degree. [¶] (3) The person was a major participant in
the underlying felony and acted with reckless indifference to human life . . . .”
5
Acuna’s car was disabled on the freeway.3 Defense counsel, in contrast,
argued that the killing did not qualify as felony murder because the burglary
was already complete by the time Acuna reached the freeway.
The jury returned a verdict of guilt on the count of first degree murder
and on all of the other counts except for the count charging Acuna with
shooting at an occupied dwelling. The jury also made true findings on the
firearm enhancements, including that Acuna intentionally and personally
discharged a firearm during the murder, causing great bodily injury and
death (§ 12022.53, subd. (d)), and on the special circumstance that the
murder was committed during a burglary (§ 190.2, subd. (a)(17)).
The trial court sentenced Acuna to an indeterminate sentence of
LWOP, a consecutive indeterminate term of 25 years to life, to which was
attached a one-year enhancement, and a determinate sentence of 26 years,
eight months. The trial court also imposed certain fines and fees, including a
restitution fine of $10,000. Acuna appeals from the judgment.
In this consolidated appeal, we also consider Acuna’s appeal from a
postjudgment order in which the trial court amended the minute order from
the sentencing hearing. Specifically, after it was brought to the trial court’s
attention that it failed during the sentencing hearing to pronounce sentence
on count 9 for the conviction of carrying a loaded firearm in a vehicle
(§ 25850, subd. (a)), the trial court issued an ex parte minute order on April
20, 2021, which specified a sentence of 365 days in custody with credit for
time served for count 9.
3 As the jury was instructed, under the theory of felony murder Acuna
could be convicted of murder regardless of whether he was the person who
shot and killed Adams. Here, however, the jury made a true finding that
Acuna was the shooter.
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II.
DISCUSSION
A. The Trial Court Did Not Prejudicially Err by Refusing a Proposed
Modification to the Jury Instructions Describing the Duration of the
Crime of Burglary
We first consider Acuna’s contention that the trial court prejudicially
erred in refusing defense counsel’s proposed modification to the instructions
that explained the duration of the crime of burglary for the purpose of the
felony-murder escape rule.
A felony murder occurs when “ ‘the felony and murder were part of one
continuous transaction.’ ” (People v. Wilkins (2013) 56 Cal.4th 333, 340.)
Thus, to obtain a murder conviction under a felony-murder theory, the People
were required to establish that the killing and Acuna’s burglary of J.D.’s
vehicle were part of the same transaction. For the purpose of felony-murder
liability, “ ‘[f]light following a felony is considered part of the same
transaction as long as the felon has not reached a “place of temporary
safety.” ’ ” (Id. at p. 345.) More specifically, in the context of a burglary,
“felony-murder liability continues during the escape of a burglar from the
scene of the burglary until the burglar reaches a place of temporary safety.”
(People v. Bodely (1995) 32 Cal.App.4th 311, 314.)
With respect to felony murder, the trial court instructed the jury with
modified versions of CALCRIM Nos. 540A and 540B. As relevant here, the
jury was instructed that to find Acuna guilty under a felony-murder theory it
was required to find, among other things, that “[w]hile committing [a]
burglary” either Acuna or another perpetrator caused the death of another
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person. (Italics added.)4 Moreover, those instructions stated that “[t]he
crime of burglary continues until a defendant has reached a place of
temporary safety. A place of temporary safety will be defined in another
instruction.”
The trial court relied on CALCRIM No. 3261 to define “a place of
temporary safety”:
“The crime of burglary continues until the perpetrator has
actually reached a place of temporary safety.
“The perpetrators has [sic] reached a place of temporary safety if:
“• He has successfully escaped from the scene; and
“• He is not or is no longer being chased; and
“• He has unchallenged possession of the property.”
During the conference on jury instructions, defense counsel proposed
that the jury be instructed that a burglary “is complete when the perpetrator
has eluded any pursuers and, even momentarily[,] reached a place of
temporary safety, and is in unchallenged possession of the stolen property
after having effected an escape with such property.”5 (Italics added.) As
4 CALCRIM No. 540A applied if the jury determined that Acuna was the
killer; CALCRIM No. 540B applied if the jury determined that a
coparticipant was the killer.
5 Specifically, defense counsel proposed that this language be added to
CALCRIM No. 540A. The trial court declined to add the proposed language
to CALCRIM No. 540A, but it did add to CALCRIM No. 540A a statement
that “[a] place of temporary safety will be defined in another instruction,”
namely CALCRIM No. 3261. In formulating the version of CALCRIM No.
3261 that would be given to the jury, the trial court did not include the “even
momentarily” language proposed by defense counsel for CALCRIM No. 540A.
We note that defense counsel did not renew his request that the phrase “even
8
defense counsel argued, the reference to “even momentarily” reaching a place
of temporary safety was necessary because the instructions did not explain
that “[i]f a person reaches a place of temporary safety, that’s it. Even if
they’re put into jeopardy thereafter.” The trial court declined to incorporate
defense counsel’s specific proposed language.
Acuna contends that the trial court prejudicially erred by not including
defense counsel’s proposed language that a burglary is complete if a place of
temporary safety is reached “even momentarily.” According to Acuna, the
trial court erred in refusing the requested language because “the requested
pinpoint instruction on momentary safety was a legally correct statement of
black letter law that was directly relevant to the very essence of the defense
case.” Acuna explains that “the ‘defense theory of the case’ was that the four
people in [Acuna’s] car had reached a place of temporary safety for a
‘moment’ at some point after their car stalled out on the freeway and prior to
the murder of Adams.” Specifically, “as [defense counsel] argued at closing,
there was a brief period of time where the four people were in the clear from
the car burglary: the time when they stalled out and pulled over, when [they]
did not see the car burglary victim pull up behind them, and when [one of the
occupants of Acuna’s car] got out of the car. . . . [Defense counsel’s] argument
was that this was a place of temporary safety – for whatever momentary
period of time it was when thought they were in the clear from the car
burglary . . . .”
“A proper pinpoint instruction must be given at a defendant’s request.”
(People v. Mora and Rangel (2018) 5 Cal.5th 442, 498.) “The court may,
however, ‘properly refuse an instruction offered by the defendant if it
momentarily” be inserted in CALCRIM No. 3261 after the trial court rejected
his request that it be inserted in CALCRIM No. 540A.
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incorrectly states the law, is argumentative, duplicative, or potentially
confusing [citation], or if it is not supported by substantial evidence.’ ”
(People v. Hovarter (2008) 44 Cal.4th 983, 1021.)
Acuna relies on People v. Boss (1930) 210 Cal. 245, 250 (Boss) and the
subsequent opinions quoting it, for the proposition that “even momentarily”
should have been included in the jury instructions. (See, e.g., People v. Salas
(1972) 7 Cal.3d 812, 822; People v. Johnson (1992) 5 Cal.App.4th 552, 559.)
Our Supreme court in Boss stated, “It is a sound principle of law which
inheres in common reason that where two or more persons engage in a
conspiracy to commit robbery and an officer or citizen is murdered while in
immediate pursuit of one of their number who is fleeing from the scene of the
crime with the fruits thereof in his possession, or in the possession of a co-
conspirator, the crime is not complete in the purview of the law, inasmuch as
said conspirators have not won their way even momentarily to a place of
temporary safety and the possession of the plunder is nothing more than a
scrambling possession. In such a case the continuation of the use of arms
which was necessary to aid the felon in reducing the property to possession is
necessary to protect him in its possession and in making good his escape.”
(Boss, at pp. 250-251, italics added.)
We need not, and do not, determine whether, as Acuna contends
(1) Boss, supra, 210 Cal. at page 250, stands for the proposition that a crime
is complete when a place of temporary safety is reached only for a moment;
and (2) the trial court therefore should have relied on Boss to instruct on that
principle. Instead, we reject Acuna’s argument because, even assuming the
trial court erred, Acuna has not established that any error was prejudicial.
“We apply the ‘reasonable probability’ test of prejudice to the court’s failure to
10
give a legally correct pinpoint instruction.” (People v. Pearson (2012) 53
Cal.4th 306, 325.)
Here, regardless of whether the phrase “even momentarily” was
included in the jury instructions, defense counsel was still able to make an
effective argument to the jury that Acuna had reached a place of temporary
safety at the time of the killing, if only for a short time. Relying on the jury
instructions that referred to “a place of temporary safety,” defense counsel
argued to the jury, “Once you reach that place of temporary safety, even if it’s
just for a little bit, the burglary is over. Even if it’s not safe at some later
point—and it could be for a short time that you’re at a place of temporary
safety—the burglary is still over. . . . [T]hat’s why it says temporary safety.
That’s why it doesn’t say permanent safety. Once you’re safe, you’re safe.
The burglary is over.” (Italics added.) Defense counsel explained, “What it
means is you have to be at a place, at least for a moment, that nobody is
chasing you.” (Italics added.) According to defense counsel, Acuna and his
companions “all had reached, at least for a moment, a place of safety. Didn’t
last long, but they were there for that moment.” (Italics added.) No
additional instructional language was needed for defense counsel to make
those arguments.
Moreover, based on our review of the evidence presented at trial, the
central issue for the jury in determining whether the burglary was over at
the time of the killing was whether a person stranded on the freeway with a
flat tire in a car full of items stolen in a recent and nearby burglary could be
described as having reached a place of safety for any length of time. Acuna
was in a vulnerable and exposed position after the burglary because he was
forced to pull over on the side of the freeway due to a flat tire. Indeed, the
most logical inference from the evidence is that Acuna killed Adams precisely
11
because of that vulnerable and exposed position, either because he thought
Adams was someone pursuing him after the burglary or because he didn’t
want Adams to act as a witness to the fact that he was fleeing from the scene
of a burglary.
In sum, based on the evidence presented at trial and counsel’s closing
argument, there is no reasonable probability that Acuna would have obtained
a more favorable result at trial had the jury been instructed that a burglary
is over when a defendant reaches a place of temporary safety “even
momentarily.”
B. The Trial Court Did Not Prejudicially Abuse Its Discretion with Respect
to Its Ruling Allowing the People to Show the Jury a Photograph of
Adams and to Present Testimony That Adams Was in the Navy
We next consider Acuna’s contention that the trial court prejudicially
erred as to its rulings regarding the admissibility of a photograph depicting
Adams when he was alive and testimony that Adams was in the Navy.
The People filed a motion in limine for permission to show the jury a
photograph of Adams while he was alive, possibly including a photo of Adams
in his military uniform. Acuna filed an opposition to the motion. During the
hearing on motions in limine, the People indicated that despite the statement
in their written motion, they were not planning to use a photograph of Adams
in his military uniform. The prosecutor stated, “I had a couple ones that
were given by the family, but . . . I was actually going to possibly ask them for
a different one because there were a few where he’s in his military uniform,
which I believe he was not wearing a military uniform at the time. But the
. . . one that I would use would be just showing his stature, his build, what he
looks like, a single photograph of it.” The trial court ruled that it was
“inclined” to allow the People to show the jury a single photograph of Adams
to show his “build and size” and to demonstrate whether Adams resembled
12
the burglary victim J.D. The trial court reserved making a final ruling,
stating that it would hear further argument on the issue, if necessary, after
the People decided which photo they would use.
At trial, the People showed the jury a photo of Adams in civilian
clothing. Specifically, People’s exhibit 39 depicts Adams wearing a black
sweatshirt and sweatpants while he poses in front of a white car. Defense
counsel did not object to the specific photograph.
During motions in limine, defense counsel also asked that the trial
court limit the evidence the People could present about the fact that Adams
was in the military.6 The trial court ruled, “As far as I’m concerned, the
People can present evidence that he was in the military and that he was with
his girlfriend and how they were driving and where they were going that
night. In terms of the wonderful stuff about his life and other regards,
probably not. So I guess the watery ruling I’m making is, I’ll allow some but
not too much, and I’ll know it when I see it. So make objections at the time if
you think it’s gone too far.”
At trial, the jury heard about Adams’s military service only through a
brief statement during the testimony of Adams’s girlfriend, who was with
Adams in the car when Adams stopped on the freeway to offer help to Acuna.
Adams’s girlfriend explained that she and Adams were driving on the
freeway because Adams had picked her up from a friend’s house and they
were heading back to the Navy base in Coronado. Specifically, the following
exchange took place:
6 The motion in limine was originally filed by Acuna’s co-defendant, who
did not end up being tried together with Acuna. Acuna orally joined in the
motion. As counsel for Acuna’s co-defendant argued, evidence that Adams
was in the military should be excluded because it might prejudice the jury
against the defendants and make the jury want to punish someone.
13
“Q. All right. And when he picked you up, where were you
going?
“A. We were going back to Coronado base.
“Q. And why were you going back to Coronado base?
“A. Because he’s in the Navy and that’s where he stayed.”
Defense counsel made no objection to this testimony during trial.
On appeal, Acuna argues that “the trial court abused its discretion by
allowing irrelevant evidence – that Adams was an active military member
and a photo of him in his military uniform.” Acuna argues, “the murder of
Adams had absolutely nothing to do with his active military service, and
there was no reason why the jury needed to hear evidence that Adams was in
the military and see a photo of him in his military uniform.” Acuna contends
that the trial court should have excluded the evidence as irrelevant under
Evidence Code section 210 or as unduly prejudicial under Evidence Code
section 352.
Evidence Code section 210 defines relevant evidence as “having any
tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.” (Id.) Although only relevant
evidence is admissible (Evid. Code, § 350), “[t]he trial court has broad
discretion . . . in determining the relevance of evidence” (People v. Horning
(2004) 34 Cal.4th 871, 900). Further, under Evidence Code section 352, “[t]he
court in its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create substantial danger of
undue prejudice, of confusing the issues, or of misleading the jury.” (Evid.
Code, § 352.) “ ‘ “A trial court’s exercise of discretion in admitting or
excluding evidence is reviewable for abuse [citation] and will not be disturbed
14
except on a showing the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice.” ’ ” (People v. Case (2018) 5 Cal.5th 1, 46.)
We reject Acuna’s contention that the trial court prejudicially erred by
allowing the People to show the jury a photo of Adams in his military uniform
because that is simply not what occurred at trial. The jury was shown a
photo of Adams in civilian clothing with no indication in the photo of Adams’s
military service.
To the extent that Acuna intends to argue that it was prejudicial error
for the trial court to allow the People to show the jury any photograph of
Adams while alive, the argument lacks merit. The photograph of Adams was
relevant to the issues presented at trial because, among other things, it
allowed the jury to assess whether Acuna may have shot at Adams either
(1) because he looked physically imposing or (2) because he thought that
Adams looked like the burglary victim J.D. Although our Supreme Court has
stated that a trial court should be cautious about admitting a photograph of a
murder victim when alive if the photograph has no relevance (see People v.
DeSantis (1992) 2 Cal.4th 1198, 1230 [collecting cases]), our Supreme Court
has generally approved a trial court’s exercise of discretion to admit such a
photograph when its admission does have some independent relevance. (See,
e.g., ibid; People v. Osband (1996) 13 Cal.4th 622, 677; People v. Smithey
(1999) 20 Cal.4th 936, 974-975; People v. Harris (2005) 37 Cal.4th 310, 331-
332 [“the possibility that a photograph will generate sympathy does not
compel its exclusion if it is otherwise relevant” and “[t]he decision to admit
victim photographs falls within the trial court’s discretion”].) Moreover, the
trial court could reasonably conclude that the photograph of Adams was not
unduly prejudicial because it is an ordinary and neutral photograph showing
15
a man in front of a car. (Cf. People v. Hovey (1988) 44 Cal.3d 543, 571
[murder victim’s photo, “though perhaps ‘charming,’ was nonetheless an
‘ordinary’ one not likely to produce a prejudicial impact”]; Harris, at p. 332
[video of murder victim was not unduly prejudicial for purposes of Evid.
Code, § 352 analysis because it was “neutral and unremarkable”].) The trial
court did not abuse its discretion by allowing the People to show Adams’s
photograph to the jury.
Moreover, the trial court was well within its discretion to allow the
brief testimony by Adams’s girlfriend that Adams was in the Navy. The trial
court could reasonably conclude the evidence was relevant because it
explained why Adams was on the freeway when he encountered Acuna’s
stranded vehicle, and it served to emphasize that Adams was in no way
connected with Acuna or with the burglary that Acuna had just perpetrated.
Further, because the testimony was exceedingly brief, the trial court could
reasonably conclude that it did not warrant exclusion as unduly prejudicial
under Evidence Code section 352.
C. Acuna’s Equal Protection Challenge to His Sentence of Life Without
Parole
We next consider Acuna’s equal protection challenge to his sentence of
life without the possibility of parole.
For the murder count, Acuna was given an LWOP sentence based on
the special circumstance finding that the murder was committed in the
course of a burglary. (§ 190.2, subd. (a)(17).) Acuna was 24 years old when
he committed the murder. The Legislature has provided in section 3051 for
youthful offender parole hearings after 15, 20, or 25 years for young adults
sentenced to indeterminate life terms with the possibility of parole (§ 3051,
subd. (b)(1)-(3)). Acuna’s LWOP sentence makes him statutorily ineligible
under section 3051 for a youth offender parole hearing. (Id., subd. (h) [“This
16
section shall not apply to cases . . . in which an individual is sentenced to life
in prison without the possibility of parole for a controlling offense that was
committed after the person had attained 18 years of age.”].)
Acuna contends that section 3051 violates his constitutional right to
equal protection because it grants future parole consideration to young adults
with extremely lengthy indeterminate sentences (§ 3051, subd. (b)(1)-(3)), but
denies it to young adults with LWOP sentences (id., subd. (h)). Acuna
argues, “The Legislature has classified two similarly situated groups in an
unequal manner: (1) young adults who receive extremely lengthy
indeterminate sentences (i.e., X years to life, where X is so great that the
defendant will surely take his last breath in prison), who are entitled to
youthful offender parole hearings; and (2) young adults sentenced to LWOP,
who are not. There is no rational basis for this disparate treatment of these
two similarly situated groups, as there was no legitimate reason for the
Legislature to distinguish between young adults sentenced to LWOP versus
those sentenced extremely lengthy indeterminate sentences that are
functionally equivalent to LWOP.”7
We independently review Acuna’s equal protection challenge to
section 3051. (People v. Jackson (2021) 61 Cal.App.5th 189, 195 (Jackson).)
1. The Statutory Background
The Legislature enacted section 3051 in 2013 in response to judicial
decisions establishing constitutional limits on the length of sentences for
juvenile offenders. (See Stats. 2013, ch. 312, § 1; People v. Franklin (2016) 63
7 The People argue that Acuna’s equal protection challenge is forfeited
because he did not raise it in the trial court. The argument lacks merit.
Because Acuna makes a facial constitutional challenge to his sentence,
raising a pure question of law, the challenge may be raised for the first time
on appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 885-886, 889.)
17
Cal.4th 261, 277.) The statute gives eligible young offenders the opportunity
for parole in their 15th, 20th, or 25th year of incarceration depending on the
length of sentence they are serving for their “controlling offense” (i.e., the
offense for which the longest sentence was imposed). (§ 3051, subds. (b)(1)-
(4), (a)(2)(B); see Franklin, at p. 277.) When enacting section 3051, the
Legislature recognized “that youthfulness both lessens a juvenile’s moral
culpability and enhances the prospect that, as a youth matures into an adult
and neurological development occurs, these individuals can become
contributing members of society.” (Stats. 2013, ch. 312, § 1.)
As originally enacted, section 3051 applied only to offenders who were
under 18 when they committed their crimes. (Stats. 2013, ch. 312, § 4; In re
Jenson (2018) 24 Cal.App.5th 266, 277.) The Legislature later extended its
operation to offenders who were under 23, and then to those who were under
26, at the time of their crimes. (Stats. 2015, ch. 471, § 1; Stats. 2017, ch. 675,
§ 1; see Jenson, at p. 277.) These amendments reflected the Legislature’s
recognition that young adults are not yet fully matured and, thus, have a
lower degree of culpability and an increased potential for rehabilitation when
compared with fully matured adult offenders. (Assem. Com. on Pub. Safety,
Analysis of Assem. Bill No. 1308 (2017-2018 Reg. Sess.), as amended Mar. 30,
2017, p. 2.)
The current version of section 3051 excludes several categories of youth
offenders: young adult (but not juvenile) offenders sentenced to LWOP;
recidivist offenders sentenced under the Three Strikes law (§§ 667, subds. (b)-
(i), 1170.12); sex offenders sentenced under the One Strike law (§ 667.61);
and offenders “to whom [the statute] would otherwise apply, but who,
subsequent to attaining 26 years of age, commit[ ] an additional crime for
18
which malice aforethought is a necessary element of the crime or for which
the individual is sentenced to life in prison.” (§ 3051, subd. (h).)8
2. Legal Standards Governing an Equal Protection Challenge
“Both the Fourteenth Amendment to the United States Constitution
and article I, section 7 of the California Constitution guarantee to all persons
the equal protection of the laws. The right to equal protection of the laws is
violated when ‘the government . . . treat[s] a [similarly situated] group of
people unequally without some justification.’ [Citations.] ‘The California
equal protection clause offers substantially similar protection to the federal
equal protection clause.’ ” (Jackson, supra, 61 Cal.App.5th at p. 195.)
Where, as here, no suspect class or fundamental right is involved, we
assess an equal protection challenge by determining “whether a statutory
distinction is so devoid of even minimal rationality that it is unconstitutional
as a matter of equal protection.” (People v. Chatman (2018) 4 Cal.5th 277,
289.) To conduct that inquiry, “we typically ask two questions. We first ask
whether the state adopted a classification affecting two or more groups that
are similarly situated in an unequal manner. . . . If we deem the groups at
issue similarly situated in all material respects, we consider whether the
challenged classification ultimately bears a rational relationship to a
legitimate state purpose. . . . A classification in a statute is presumed
rational until the challenger shows that no rational basis for the unequal
treatment is reasonably conceivable.” (Ibid., citations omitted.) “ ‘This so-
8 Our Supreme Court is currently considering whether section 3051
violates the right to equal protection by excluding young adults convicted and
sentenced for serious sex crimes under the One Strike law (§ 667.61) from
youth offender parole consideration, while young adults convicted of first
degree murder are entitled to such consideration. (People v. Williams (2020)
47 Cal.App.5th 475, review granted July 22, 2020, S262229.)
19
called “rational basis” scrutiny is exceedingly deferential: A law will be
upheld as long as a court can “speculat[e]” any rational reason for the
resulting differential treatment, regardless of whether the “speculation has ‘a
foundation in the record,’ ” regardless of whether it can be “empirically
substantiated,” and regardless of whether the Legislature ever “articulated”
that reason when enacting the law.’ ” (Jackson, supra, 61 Cal.App.5th at
p. 196.)
3. There Is a Rational Basis for Treating Young Adult Offenders
Sentenced to LWOP Differently Than Young Adult Offenders
Sentenced to Long Indeterminate Sentences with the Possibility of
Parole
Here, we need not, and do not, decide whether the two groups that
Acuna compares are similarly situated. Even assuming, without deciding,
that young adults who receive extremely lengthy indeterminate sentences are
similarly situated to young adults who receive LWOP sentences, Acuna’s
equal protection claim fails because “[t]here is . . . a rational basis for
distinguishing between a young adult LWOP offender and a young adult
offender serving a non-LWOP sentence: the severity of the crime committed.”
(People v. Acosta (2021) 60 Cal.App.5th 769, 780 (Acosta).)
“The Legislature has prescribed an LWOP sentence for only a small
number of crimes. These are the crimes the Legislature deems so morally
depraved and so injurious as to warrant a sentence that carries no hope of
release for the criminal and no threat of recidivism for society. In excluding
LWOP inmates from youth offender parole hearings, the Legislature
reasonably could have decided that youthful offenders who have committed
such crimes—even with diminished culpability and increased potential for
rehabilitation—are nonetheless still sufficiently culpable and sufficiently
dangerous to justify lifetime incarceration.” (In re Williams (2020) 57
Cal.App.5th 427, 436.)
20
“[T]here is a rational basis for distinguishing . . . young adult offenders
sentenced to de facto life without parole. The Legislature may rationally
treat offenders in this group less harshly because it deems their underlying
crimes, such as first degree murder, less grave than special circumstance
murder. . . . Most people sentenced to life without parole . . . have committed
both first degree murder and been found to have committed that murder
under one of the aggravating circumstances specified in the special
circumstance murder statute.” (People v. Sands (2021) 70 Cal.App.5th 193,
204.) Here, Acuna’s LWOP sentence was based on his commission of a
special circumstance murder, which “ ‘carries a mandatory sentence of LWOP
or death (§ 190.2, subd. (a)), which are the harshest penalties available under
our penal system and are reserved for crimes of the most heinous nature.’
[Citation.] ‘The Legislature rationally judged this crime to be more severe
and more deserving of lifetime punishment than nonspecial circumstance
first degree murder. This judgment is “both the prerogative and the duty of
the Legislature” and “[e]qual protection analysis does not entitle the judiciary
to second-guess the wisdom, fairness, or logic” of that judgment.’ [Citation.]
Thus, the statute, on its face, does not violate equal protection.” (Acosta,
supra, 60 Cal.App.5th at p. 780.)
Therefore, as this court explained in Jackson, “[g]iven the deferential
standard we apply in determining rationality for equal protection purposes,
we conclude public safety, and the desire to punish those persons who commit
first degree special circumstance murder more harshly than persons who
commit first degree murder without aggravating circumstances, provide a
plausible basis for our Legislature to treat these two classifications
differently for purposes of section 3051.” (Jackson, supra, 61 Cal.App.5th at
p. 200; see also People v. Morales (2021) 67 Cal.App.5th 326, 349 (Morales)
21
[citing the same considerations as Jackson in concluding “there is a rational
basis for the Legislature’s decision to treat youthful offenders sentenced to
LWOP differently than youthful first degree murderers not sentenced to
LWOP”].)
We acknowledge that several of our colleagues on this and other courts,
including Justice Liu of our Supreme Court, have expressed concerns about
the Legislature’s decision to treat young adult LWOP offenders differently
from other youthful offenders in enacting section 3051, and they have urged
the Legislature to reconsider its approach. (See Jackson, supra, 61
Cal.App.5th at p. ___ [2021 Cal.App. Lexis 152 at p. *22] (conc. statement of
Liu, J.) [stating that “[a]s of this writing, at least 11 justices of the Court of
Appeal have called for legislative reconsideration of section 3051,” and
“echo[ing]” those comments]; Morales, supra, 67 Cal.App.5th at p. 350.)9
While acknowledging these concerns, we echo what the court stated in
Acosta, “In the end, however, we cannot insert our own policy concerns into
the analysis. . . . ‘[E]qual protection analysis does not entitle [us] to second-
guess the wisdom, fairness, or logic of the law.’ . . . Having concluded there is
a rational basis for treating young adult LWOP offenders differently, we
must reject [the] equal protection challenge.” (Acosta, supra, 60 Cal.App.5th
at p. 781, citations omitted.)
9 In Morales, one justice filed a concurrence and dissent, urging the
Legislature to reconsider the matter, but also concluding that the exclusion of
young adult LWOP offenders from section 3051 “is fundamentally irrational
and denies youthful offenders sentenced to LWOP equal protection of the
law.” (Morales, supra, 67 Cal.App.5th at p. 350 (conc. & dis. opn. of Pollak,
P.J.).)
22
D. The Trial Court Did Not Abuse Its Discretion or Violate Acuna’s Right
to Due Process by Imposing Certain Fines and Fees
When sentencing Acuna, the trial court imposed the following fines and
fees totaling $10,685: a $10,000 restitution fine (§ 1202.4); a $280 court
operations assessment fee (§ 1465.8); a $210 criminal conviction assessment
fee (Gov. Code, § 70373); a $154 criminal justice administration fee (former
Gov. Code, § 29550.1); and a $41 theft fine (§ 1202.5). Acuna contends that
he does not have the ability to pay the fines and fees, and accordingly, the
trial court erred in imposing them.
Acuna’s sentencing took place after the issuance of People v. Dueñas
(2019) 30 Cal.App.5th 1157 (Dueñas), which held that “due process of law
requires the trial court to conduct an ability to pay hearing and ascertain a
defendant’s present ability to pay before it imposes court facilities and court
operations assessments under . . . section 1465.8 and Government Code
section 70373” and that, “although . . . section 1202.4 bars consideration of a
defendant’s ability to pay unless the judge is considering increasing the fee
over the statutory minimum, the execution of any restitution fine imposed
under this statute must be stayed unless and until the trial court holds an
ability to pay hearing and concludes that the defendant has the present
ability to pay the restitution fine.” (Dueñas, at p. 1164.)10
10 Numerous subsequent cases have addressed the issue presented in
Dueñas, supra, 30 Cal.App.5th 1157, including case law expressing the view
that the appropriate analysis for punitive fines should be based on the
excessive fines clause of the Eighth Amendment and its counterpart in the
California Constitution (Cal. Const., art. I, § 17), rather than on principles of
due process. (See, e.g., People v. Kopp (2019) 38 Cal.App.5th 47, 94, review
granted Nov. 13, 2019, S257844 (Kopp); People v. Cowan (2020) 47
Cal.App.5th 32, 43, review granted June 17, 2020, S261952.) The validity
of Dueñas is unsettled and will be decided by our Supreme Court in currently
pending cases. (E.g., Kopp.)
23
Here, when turning to the issue of fines and fees, the trial court stated
that it was aware that the issues in Dueñas, supra, 30 Cal.App.5th 1157,
were pending before our Supreme Court. The trial court then observed, “The
Dueñas case held that imposing fines, fees, and costs, and a restitution fine
on someone who is indigent or lacks the ability to pay is a violation of due
process. The Court of Appeal that we answer to, the 4th District Division 1,
disagrees that it is a due process analysis, and instead says that it must be
analyzed under the excessive fines clause of the Eighth Amendment, at least
this has to do with the restitution fine.” The trial court stated that it
assumed defense counsel intended to object to the imposition of the fines
under Dueñas based on Acuna’s inability to pay. Defense counsel confirmed
that he intended that objection.
The trial court then made the following findings and orders:
“In view of the fact that this is a life without parole
sentence, I am going to impose . . . the maximum restitution fine
of $10,000. I choose the maximum given the seriousness of the
offense. . . .
“I do impose the Court security fee in the amount of $40 per
count for seven counts for $280, the 70373 fee in the amount of
$30 per count for seven counts for a total of $210[.] [T]he
criminal justice administration fee in the amount of $154, and
the theft fine are both imposed.
“In making these impositions I note that I am mindful of a
footnote in one of the cases under the Duenas decision that points
out that prison wages should be adequate to pay these expenses,
given the length of the sentence in this case. And, therefore, I do
find ability to pay, even though he has no assets and no other
way of support. But he is going to be in prison for the rest of his
life until he draws his last breath, and I think that will give him
time to pay these from prison wages.”
24
Acuna argues that the trial court erred in making these orders and
violated his right to due process by doing so because he is indigent and will
not be able to earn enough in prison wages over his lifetime to pay fines and
fees totaling $10,685. Citing regulations setting forth the pay schedule for
prison inmates and a Legislative Analyst’s Report, which Acuna interprets as
showing a high unemployment rate in California prisons, Acuna argues that
“the mere fact that an inmate is serving a life sentence does not in any way
equate to an ability to pay $10,685 in fines and fees.” Acuna seeks an order
vacating all of the fines and fees imposed by the trial court.
We review the trial court’s ruling imposing fines and fees in a certain
amount under an abuse of discretion standard. (People v. Lewis (2009) 46
Cal.4th 1255, 1321 (Lewis); People v. Potts (2019) 6 Cal.5th 1012, 1057
(Potts).)
1. The $10,000 Restitution Fine
We begin with the $10,000 restitution fine. Section 1202.4,
subdivision (b) states, “In every case where a person is convicted of a crime,
the court shall impose a separate and additional restitution fine, unless it
finds compelling and extraordinary reasons for not doing so and states those
reasons on the record.” (§ 1202.4, subd. (b).) For felony convictions, the
amount of the fine is set at the discretion of the court in an amount between
$300 and $10,000 and “shall be . . . commensurate with the seriousness of the
offense.” (Id., subd. (b)(1).) The statute directs that “[i]n setting the amount
of the fine . . . in excess of the minimum fine . . . , the court shall consider any
relevant factors, including, but not limited to, the defendant’s inability to
pay, the seriousness and gravity of the offense and the circumstances of its
commission, any economic gain derived by the defendant as a result of the
crime, the extent to which any other person suffered losses as a result of the
25
crime, and the number of victims involved in the crime. Those losses may
include pecuniary losses to the victim or the victim’s dependents as well as
intangible losses, such as psychological harm caused by the crime.
Consideration of a defendant’s inability to pay may include the defendant’s
future earning capacity. A defendant shall bear the burden of demonstrating
the defendant’s inability to pay.” (Id., subd. (d).)11
Here, Acuna was convicted of special circumstance murder along with
robbery and burglary, among others. No one disputes that those are serious
crimes. Therefore, the trial court was well within its discretion to conclude
that the seriousness of Acuna’s offenses supported the maximum restitution
fine of $10,000, regardless of Acuna’s financial resources. (Lewis, supra, 46
Cal.4th at p. 1321 [“defendant’s assertion that he was unable to pay the
[restitution] fine did not compel the court to impose a lesser fine. In light of
the offenses committed by defendant and the harm he caused to the victim
and her children, we find no abuse of discretion in the trial court’s
determination that a fine in the amount of $10,000 was appropriate.”].)
Implicit in Acuna’s argument that the trial court abused its discretion
in selecting a $10,000 restitution fine is the premise that the trial court
identified Acuna’s ability to pay a fine of $10,000 as one of the grounds for
choosing that amount. Acuna argues that if the trial court’s ability-to-pay
determination is flawed, then the trial court’s decision to impose a fine of
$10,000 was an abuse of discretion. We do not agree with the premise of
11 The statute also gives a formula that the trial court may elect to use in
its discretion when determining the amount of the restitution fine: “In
setting a felony restitution fine, the court may determine the amount of the
fine as the product of the minimum fine pursuant to paragraph (1) [i.e., $300]
multiplied by the number of years of imprisonment the defendant is ordered
to serve, multiplied by the number of felony counts of which the defendant is
convicted.” (§ 1202.4, subd. (b)(2).)
26
Acuna’s argument. The trial court did not cite Acuna’s ability to earn prison
wages as a factor that led it to choose the maximum $10,000 restitution fine.
Indeed, the trial court was clear in stating that “I choose the maximum given
the seriousness of the offense.” Only after selecting a maximum restitution
fine of $10,000, based on the seriousness of Acuna’s offense, did the trial
court make a finding regarding Acuna’s ability to pay. The trial court plainly
made that finding for the separate reason of satisfying the constitutional
requirements identified in the Dueñas line of cases, which hold that a trial
court should make a finding regarding ability to pay when imposing fines and
fees. (Dueñas, supra, 30 Cal.App.5th at p. 1164.)
The law is clear that the trial court was not required to limit the
restitution fine to an amount that Acuna was able to pay. A restitution fine
is not “automatically invalid if a defendant is unable to pay it. . . . Inability
to pay is a factor for the court to consider in setting the amount of a
restitution fine, alongside ‘any relevant factors . . . .’ ” (Potts, supra, 6 Cal.5th
at p. 1056.) A court may properly “conclude that the monetary burden the
restitution fine imposed on defendant [is] outweighed by other
considerations.” (Id. at p. 1057.) Here, by stating that the amount of the
restitution fine was based on the seriousness of Acuna’s offense, the trial
court properly exercised its discretion to elevate that consideration over any
other factor, even if Acuna may not end up having the ability to pay the
$10,000 fine.
Aside from arguing that the trial court abused its discretion in
selecting a $10,000 restitution fine, Acuna argues that the trial court violated
his right to due process by imposing the fine because he had no ability to pay
it. To support his argument, Acuna relies on Dueñas for the principle that a
defendant has a due process right to be free from the imposition of fines and
27
fees that the defendant cannot pay. (Dueñas, supra, 30 Cal.App.5th at
p. 1164.) According to Acuna, if the trial court was incorrect in determining
he had the ability to pay the restitution fine, then that fine was imposed in
violation of Acuna’s right to due process.
We reject Acuna’s due process argument as applied to the restitution
fine. As this court held in Kopp, a restitution fine is intended “to punish
defendants.” (Kopp, supra, 38 Cal.App.5th at p. 96, review granted.)
Accordingly, “a defendant should challenge such fines under the excessive
fines clause of the Eighth Amendment of the federal constitution and
article I, section 17 of the California Constitution. Put differently, there is no
due process requirement that the court hold an ability to pay hearing before
imposing a punitive fine and only impose the fine if it determines the
defendant can afford to pay it.” (Kopp, at pp. 96-97.) Acuna has asserted
only a due process challenge to the restitution fine, not a challenge under the
excessive fines clause of the Eighth Amendment (or the California
counterpart). Therefore, his constitutional challenge to the restitution fine
lacks merit.
2. The Remaining $685 in Fees
Turning to the remaining fees, they amount to $685. Acuna does not
separately address the $685 in fees. Instead, he groups them together with
the $10,000 restitution fine to argue that the trial court abused its discretion
and violated his right to due process in imposing them.
Assuming without deciding that Dueñas, supra, 30 Cal.App.5th 1157,
and subsequent case law correctly hold that principles of due process (rather
than the constitutional prohibition on excessive fines) preclude a court from
28
imposing non-punitive fees when a defendant lacks the ability to pay, 12
Acuna has not established that the trial court incorrectly imposed the $685 in
fees. Even if, as Acuna contends, prisoners earn wages at a slow and
inconsistent rate, and that there is a high unemployment rate in prison, the
trial court was well within its discretion to find that Acuna’s ability to earn
prison wages over an entire lifetime of incarceration would nevertheless be
sufficient to pay fees totaling only $685. (See People v. Aviles (2019) 39
Cal.App.5th 1055, 1076 [in determining ability to pay, the court may consider
the defendant’s ability to obtain prison wages]; People v. Lopez-Vinck (2021)
68 Cal.App.5th 945, 950 (Lopez-Vinck) [same]; People v. Johnson (2019) 35
Cal.App.5th 134, 139 [“The idea that [defendant] cannot afford to pay $370
while serving an eight-year prison sentence is unsustainable”]; People v.
Jones (2019) 36 Cal.App.5th 1028, 1035 [“Given that the restitution fine is
$300 and the assessments are $70, [defendant] will have sufficient time
to earn these amounts during his [six-year] sentence, even assuming
[defendant] earns nothing more than the minimum”].)
E. Due to the Enactment of Government Code Section 6111, Any Balance of
the Criminal Justice Administration Fee Imposed Pursuant to
Government Code Section 29550.1 That Remains Unpaid as of July 1,
2021 Must Be Vacated
Part of the fines and fees that the trial court imposed during sentencing
was a $154 criminal justice administration fee (former Gov. Code, § 29550.1).
12 There is some disagreement in the case law as to whether, when non-
punitive fees are at issue, the proper constitutional analysis (if any) is also
under the Eighth Amendment’s excessive fines clause rather than under
principles of due process as set forth in Dueñas, supra, 30 Cal.App.5th 1157.
(See, e.g., Kopp, supra, 38 Cal.App.5th at p. 99, review granted, Benke, J.,
conc. in part.)
29
As of July 1, 2021, the statutory provision pursuant to which the trial
court ordered Acuna to pay a $154 criminal justice administration fee was
repealed (see former Gov. Code, § 29550.1) and newly enacted Government
Code section 6111 became effective. The newly enacted provision states:
“(a) On and after July 1, 2021, the unpaid balance of any court-imposed costs
pursuant to [Government Code] Section 27712, subdivision (c) or (f) of
[Government Code] Section 29550, and [Government Code] Sections
29550.1, 29550.2, and 29550.3, as those sections read on June 30, 2021, is
unenforceable and uncollectible and any portion of a judgment imposing
those costs shall be vacated. [¶] (b) This section shall become operative on
July 1, 2021.” (Gov. Code, § 6111, italics added.)
Acuna argues that we should strike the entire $154 criminal justice
administration fee because the newly enacted law applies retroactively to
cases that are not yet final on appeal under the principles set forth in In re
Estrada (1965) 63 Cal.2d 740 (Estrada).
This court’s recent opinion in Lopez-Vinck, supra, 68 Cal.App.5th 945,
resolves the issue of whether Government Code section 6111 applies
retroactively to afford relief to defendants, such as Acuna, whose convictions
are not yet final. As we explained, “Because [Government Code] section 6111
indicates a legislative intent to extend the ameliorative changes in the law
regarding the imposition of administrative fees to individuals serving both
final and nonfinal sentences, but only to the extent of relieving those
individuals of the burden of any debt that remains unpaid on and after July 1,
2021, the Estrada rule does not apply, and [a defendant] is not entitled to
have the fee imposed pursuant to Government Code section 29550.1 vacated
in its entirety as a result of the repeal of section 29550.1.” (Lopez-Vinck, at
p. 953, italics added.)
30
As stated in Lopez-Vinck, however, under the terms of the statute, a
defendant in Acuna’s position is nevertheless “entitled to the vacatur of that
portion of the criminal justice administration fee imposed pursuant to
Government Code section 29550.1 that remains unpaid as of July 1, 2021,
and to the modification of his judgment consistent with such vacatur.”
(Lopez-Vinck, supra, 68 Cal.App.5th at p. 953.) We therefore vacate any
balance of the $154 imposed by the trial court pursuant to Government Code
section 29550.1 that remains unpaid as of July 1, 2021. 13
F. Remand Is Required to Allow the Trial Court to Decide Whether to
Exercise Its Discretion Under Section 654 to Choose a Different Count
on Which to Impose Punishment
At sentencing, the trial court determined that several of the counts
were subject to section 654 because they arose from a single act or omission.
At the time of Acuna’s sentencing, section 654 provided that “[a]n act or
omission that is punishable in different ways by different provisions of law
shall be punished under the provision that provides for the longest potential
term of imprisonment, but in no case shall the act or omission be punished
under more than one provision.” (Former § 654, subd. (a), italics added.)
Accordingly, the trial court imposed punishment on the robbery count (§ 211)
(count 2), which had the longest potential term of imprisonment, and it
stayed punishment on the remaining counts that were subject to section 654.
13 As we explained in Lopez-Vinck, “[A]ny individual whose sentence is
final will not be required to pay the remaining balance of such fees,
regardless of whether that remaining balance is formally vacated by a court.
However, given the language of [Government Code] section 6111, a defendant
whose judgment is on appeal and who requests the vacatur of any remaining
unpaid fees is entitled to have vacated any portion of the fees imposed
pursuant to any of the statutes identified in [Government Code] section 6111
that remain unpaid as of July 1, 2021, rather than having his sentence
affirmed.” (Lopez-Vinck, supra, 68 Cal.App.5th at p. 953, fn. 8.)
31
Effective January 1, 2022, section 654 was amended pursuant to
Assembly Bill No. 518 (Stats. 2021, ch. 441, § 1) to provide the trial court
with the discretion to choose the count for which it will impose punishment
rather than requiring the trial court to select the count with the longest
potential term of imprisonment. Specifically, section 654 now provides in
relevant part, “An act or omission that is punishable in different ways by
different provisions of law may be punished under either of such provisions.”
(§ 654, subd. (a).)
Acuna contends that because his case is not yet final on appeal, he is
entitled to the benefits of the amended version of section 654 pursuant to the
principles of retroactivity set forth in Estrada, supra, 63 Cal.2d 740. The
People agree. As the People explain, “In an analogous situation, appellate
courts held that the recent statutory amendments to sections 12022.5 and
12022.53, which granted trial courts discretion to strike firearm
enhancements in the interest of justice pursuant to section 1385, were
retroactive to non-final judgments. (See, e.g., People v. Valenzuela (2018) 23
Cal.App.5th 82, 87-88; People v. Woods (2018) 19 Cal.App.5th 1080, 1090-
1091; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679.) The reasoning
of those cases applies in this case to Assembly Bill No. 518, which grants the
trial court discretion to select any of the charges to impose sentence rather
than only the offense with the longest potential term.”
We accept the People’s concession. The parties have identified a sound
basis for concluding that Acuna is entitled to have the trial court apply the
amended version of section 654 to his case because it is an ameliorative
change to the law and his conviction is not yet final. (See, e.g., People v.
Superior Court (Lara) (2018) 4 Cal.5th 299, 308 [“ ‘in the absence of contrary
indications, a legislative body ordinarily intends for ameliorative changes to
32
the criminal law to extend as broadly as possible, distinguishing only as
necessary between sentences that are final and sentences that are not’ ”].)
We accordingly remand this matter for the trial court to decide whether to
exercise its discretion to choose a different count on which to impose
punishment as among those subject to section 654.
G. Remand Is Required for the Trial Court to Apply the Newly Amended
Section 1170
Effective January 1, 2022, section 1170 was amended. (See Sen. Bill
No. 567 (2021-2022 Reg. Sess.); Stats. 2021, ch. 731, § 1.3; Assem. Bill No.
124 (2021-2022 Reg. Sess.); Stats. 2021, ch. 695, § 5.) Those amendments are
relevant here in two respects.
First, under the amended statute, a court must “order imposition of a
sentence not to exceed the middle term,” except under narrow circumstances.
(§ 1170, subd. (b)(1).) An upper term may be imposed “only when there are
circumstances in aggravation of the crime that justify the imposition of a
term of imprisonment exceeding the middle term, and the facts underlying
those circumstances have been stipulated to by the defendant, or have been
found true beyond a reasonable doubt at trial by the jury or by the judge in a
court trial.” (Id., subd. (b)(2).) Nevertheless, “the court may consider the
defendant’s prior convictions in determining sentencing based on a certified
record of conviction without submitting the prior convictions to a jury.” (Id.,
subd. (b)(3).) Here, Acuna was sentenced to the upper term on the principal
count of his determinate term (robbery). The trial court imposed the upper
term based on Acuna’s criminal history and on the circumstances of the
robbery, which included shooting into a house. Thus, at least in part, the
upper term sentence was not based on “facts . . . stipulated to by the
defendant, or . . . found true beyond a reasonable doubt at trial by the jury or
33
by the judge in a court trial” as required under the amended statute. (Id.,
subd. (b)(2).)
Second, the amended statute now includes a presumption in favor of
the lower term sentence when a defendant is under 26 years of age at the
time of the offense. (§ 1170, subd. (b)(6)(B).) “[U]nless the court finds that
the aggravating circumstances outweigh the mitigating circumstances that
imposition of the lower term would be contrary to the interests of justice, the
court shall order imposition of the lower term if any of the following was a
contributing factor in the commission of the offense: [¶] . . . [¶] (B) The
person is a youth, or was a youth as defined under subdivision (b) of Section
1016.7 at the time of the commission of the offense.” (§ 1170, subd. (b)(6); see
§ 1016.7, subd. (b) [“A ‘youth’ for purposes of this section includes any person
under 26 years of age on the date the offense was committed”].) Here, as we
have explained, Acuna was under 26 years of age when he committed the
offenses.
Acuna contends that he is entitled to have the newly amended law
applied to his case because it is not yet final on appeal. (Estrada, supra, 63
Cal.2d at p. 742.) The People concede that the amended statute should be
applied retroactively and that Acuna should be resentenced. We accept the
People’s concession. (People v. Flores (Jan. 13, 2022, A160578, A161643) 73
Cal.App.5th 1032 [“The People correctly concede the amended version of
section 1170, subdivision (b) that became effective on January 1, 2022,
applies retroactively in this case as an ameliorative change in the law
applicable to all nonfinal convictions on appeal.”].) We accordingly vacate the
sentence and remand for the trial court to apply the amended version of
section 1170, subdivision (b) to Acuna’s case.
34
H. The Trial Court Improperly Entered a Postjudgment Minute Order
Pronouncing Sentence on Count 9
During sentencing, the trial court neglected to pronounce sentence on
count 9, under which Acuna was convicted of carrying a loaded firearm in a
vehicle (§ 25850, subd. (a)). The November 16, 2020 minute order for the
sentencing hearing also did not specify a sentence for count 9.
However, during the sentencing hearing, the trial court made
comments that indicated it would likely have ordered that the punishment on
count 9 be stayed pursuant to section 654 had it not failed to do so because of
an apparent oversight. Specifically, the trial court collectively discussed
several of the counts that all arose from the fact that Acuna had a firearm in
his car while committing the robbery, namely the convictions for possession of
a firearm by a felon (§ 29800, subd. (a)(1)) (count 5); transporting an assault
weapon (§ 30600, subd. (a)) (count 6); possessing an assault weapon (§ 30605,
subd. (a)) (count 7); and carrying a loaded firearm in a vehicle (§ 25850,
subd. (a)) (count 9). The trial court stated, “It seems to me that the
transportation of the weapon in this case was for the purpose of committing
the burglary, which then escalated into a robbery. In other words, I don’t see
any evidence—even though he sold other illegal weapons over the Internet—I
don’t see any evidence that he was, for example, transporting this particular
weapon to sell it to somebody. I think he had it to use for the crime.
[Defense counsel], I am not asking you to admit that or not, but if that is the
case, then isn’t that the question of 654 is implicated [sic]? If a person
possesses a weapon with the intent of committing a robbery or burglary or
ends up killing somebody, isn’t that charge subject to Section 654 such that
any punishment would have to be stayed?” After hearing further argument
from counsel, the trial court then returned to the issue, stating “I think that
we need to address with respect to Counts 2 through 9 the impact of Section
35
654.” The court said, “[g]iven that we have the transportation of the gun and
the robbery, he cannot be punished for both. He can only be punished for
one.” However, when the trial court pronounced sentence, it stayed the
punishment on counts 3, 5, 6, and 7, but it neglected to mention count 9
whatsoever.
On March 9, 2021, Acuna’s appellate counsel wrote a letter to the trial
court after noticing that the court had neglected to pronounce sentence on
count 9. Specifically, counsel’s letter brought the issue to the trial court’s
attention and stated that “the November 16, 2020 [sentencing] minute order
should be corrected to indicate the court’s disposition on count nine,
presumably that the count was stayed under section 654.” On April 20, 2021,
the trial court issued an ex parte minute order. The order, which was by a
judge who did not handle Acuna’s sentencing, stated: “The minute order
dated November 16, 2020 is corrected to reflect the disposition on Count nine
as follows: Count 9-PC25850(a)- 365 days custody with credit for time
served.”
On April 30, 2021, Acuna filed a notice of appeal from the April 20,
2021 ex parte minute order.14 Acuna sets forth several grounds on which he
contends that the ex parte minute order should be vacated.
The People concede that the ex parte minute order should be vacated
based on one of the grounds identified by Acuna. Specifically, the People
agree with Acuna that the trial court exceeded its jurisdiction by issuing the
ex parte minute order because it “did more than clarify, fix technical defects,
or correct a clerical error to express the court’s intent at the time of the
14 We have consolidated Acuna’s appeals from the judgment and the
postjudgment order. We grant Acuna’s request to take judicial notice of the
appellate record and court file in Case No. D078365 when considering the
appeal in Case No. D078885.
36
decree.” (See, e.g., Hamilton v. Laine (1997) 57 Cal.App.4th 885, 890 [“nunc
pro tunc orders may not be made to ‘make the judgment express anything not
embraced in the court’s decision, even though the proposed amendment
contains matters which ought to have been so pronounced’ ”]; In re
Candelario (1970) 3 Cal.3d 702, 705 [“Any attempt by a court, under the
guise of correcting clerical error, to ‘revise its deliberately exercised judicial
discretion’ is not permitted”].)
We accept the People’s concession that the trial court exceeded its
jurisdiction. In issuing the ex parte minute order, the trial court did more
than correct a clerical error; it improperly attempted to remedy a judicial
error in failing to pronounce sentence. We accordingly order that the April
20, 2021 ex parte minute order be vacated to the extent it orders that “[t]he
minute order dated November 16, 2020 is corrected to reflect the disposition
on Count nine as follows: Count 9-PC25850(a)- 365 days custody with credit
for time served.”15 On remand the trial court shall specify a sentence for
count 9.
15 The April 20, 2021 ex parte minute order also corrected certain clerical
errors that are not at issue here. Those portions of the April 20, 2021
ex parte minute order are not vacated and remain in force.
37
DISPOSITION
The ex parte minute order dated April 20, 2021 is vacated to the extent
it orders that “[t]he minute order dated November 16, 2020 is corrected to
reflect the disposition on Count nine as follows: Count 9-PC25850(a)- 365
days custody with credit for time served.” The sentence is vacated and this
matter is remanded for resentencing with directions that the trial court
(1) decide whether to exercise its discretion under section 654 to impose
punishment on a count other than count 2; (2) impose sentence based on the
amended version of section 1170, subdivision (b); (3) vacate any portion of the
$154 criminal justice administration fee imposed under Government Code
section 29550.1 that is unpaid as of July 1, 2021; and (4) specify a sentence
for count 9. In all other respects, the judgment is affirmed.
IRION, J.
WE CONCUR:
O’ROURKE, Acting P. J.
AARON, J.
38