People v. Renslow CA3

Filed 1/9/23 P. v. Renslow CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C094536
Plaintiff and Respondent, (Super. Ct. No. MAN-CR-FE-
2021-0001735)
v.
RICKEY LEE RENSLOW,
Defendant and Appellant.
Defendant Rickey Lee Renslow disputes the trial court’s imposition of victim
restitution and mandatory fees, and contends his trial counsel performed ineffectively at
his sentencing hearing by failing to object to these errors and failing to move to strike
defendant’s prior serious felony conviction. We conclude defendant has failed to
demonstrate error or that his trial counsel performed ineffectively. We will modify the
judgment to vacate an eliminated fee and otherwise affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
A jury found defendant guilty of driving a stolen vehicle (Veh. Code, § 10851,
subd. (a)) and possession of burglary tools (Pen. Code, § 466). Defendant admitted prior
convictions for taking a vehicle without the owner’s consent (Veh. Code, § 10851) and
first degree burglary (Pen. Code, §§ 459, 460, subd. (a)).
The trial court indicated its intent to impose the middle term of three years in state
prison for driving a stolen vehicle, elevated from two years based on defendant’s prior
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conviction for taking a vehicle (Veh. Code, § 10851, subd. (e); Pen. Code, § 666.5). As
justification for selecting the middle term, the trial court considered five aggravating
factors: (1) defendant was convicted of other crimes for which consecutive sentences
could have been imposed but for which concurrent sentences were being imposed (Cal.
Rules of Court, rule 4.421(a)(7));2 (2) the crime involved taking an item of great
monetary value (rule 4.421(a)(9)); (3) defendant had numerous prior convictions (rule
4.421(b)(2)); (4) defendant had served a prior prison term (rule 4.421(b)(3)); and (5)
defendant was on probation when he committed the crime (rule 4.421(b)(4)). The court
found no mitigating factors.
Defendant’s counsel asked the court to impose the two-year lower term, arguing
the car’s value had already been diminished by the time it came into defendant’s
possession and that defendant cooperated with the police upon his arrest. The court
rejected this request, explaining that a very important factor in selecting the middle term
was that defendant was already on probation for car theft when he committed the current
crime. Accordingly, the trial court sentenced defendant to the elevated middle term of
1 Undesignated statutory references are to the Penal Code.
2 Undesignated rule references are to the California Rules of Court.
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three years in state prison, doubled to six years due to defendant’s prior serious felony
conviction for first degree burglary (§ 1192.7, subd. (c)(18)).
The court then considered the car owner’s request for $9,568 in restitution.
Defendant’s counsel reviewed the packet of evidence accompanying the restitution
request, discussed the request with defendant, and informed the court that defendant
would not ask for a hearing on the amount of restitution. Consequently, the court ordered
defendant to pay $9,568 in restitution to the car owner.
The trial court also imposed mandatory fines and fees: a $300 restitution fine
(§ 1202.4, subd. (b)), a stayed $300 parole/postrelease community supervision revocation
restitution fine (§ 1202.45), two $40 court operations assessments (§ 1465.8), two $30
conviction assessments (Gov. Code, § 70373), and a $30 surcharge for collection costs
(former § 1202.4, subd. (l)). Defendant did not object to these fines and fees or request a
hearing on his ability to pay them.
DISCUSSION
Defendant argues the trial court imposed improper amounts as victim restitution
and improperly imposed mandatory fines and fees. Defendant also argues his trial
counsel was ineffective for failing to object to these errors, and in failing to request that
the trial court strike defendant’s prior serious felony conviction. Defendant did not object
to any of these alleged errors in the trial court, which would typically result in defendant
forfeiting the contentions on appeal. (See People v. Wall (2017) 3 Cal.5th 1048, 1074-
1075.) Recognizing this, defendant contends that his trial counsel rendered ineffective
assistance by failing to object to each error.
“ ‘[A] defense attorney who fails to adequately understand the available
sentencing alternatives, promote their proper application, or pursue the most
advantageous disposition for his client may be found incompetent.’ ” (People v.
Gonzalez (2003) 31 Cal.4th 745, 751.) But “a defendant cannot automatically transform
a forfeited claim into a cognizable one merely by asserting ineffective assistance of
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counsel.” (People v. Thompson (2010) 49 Cal.4th 79, 121, fn. 14; see People v. Riel
(2000) 22 Cal.4th 1153, 1202-1203.) Rather, “[t]o establish constitutionally inadequate
representation, a defendant must demonstrate that (1) counsel’s representation was
deficient, i.e., it fell below an objective standard of reasonableness under prevailing
professional norms; and (2) counsel’s representation subjected the defendant to prejudice,
i.e., there is a reasonable probability that, but for counsel’s failings, the result would have
been more favorable to the defendant.” (People v. Samayoa (1997) 15 Cal.4th 795, 845;
see Strickland v. Washington (1984) 466 U.S. 668, 687-696.)
“[R]arely will an appellate record establish ineffective assistance of counsel.”
(People v. Thompson, supra, 49 Cal.4th at p. 122.) “ ‘When a defendant on appeal makes
a claim that his counsel was ineffective, the appellate court must consider whether the
record contains any explanation for the challenged aspects of representation provided by
counsel. “If the record sheds no light on why counsel acted or failed to act in the manner
challenged, ‘unless counsel was asked for an explanation and failed to provide one, or
unless there simply could be no satisfactory explanation,’ [citation], the contention must
be rejected.” ’ ” (People v. Samayoa, supra, 15 Cal.4th at p. 845.) Defendant has failed
to establish that his trial counsel performed ineffectively by failing to object to any of the
three alleged errors.
I
Victim Restitution
The restitution request considered by the trial court itemized several expenses and
contained estimates or receipts for each expense. Defendant contends his trial counsel
should have objected to two portions of the $9,568 restitution award to the car owner:
$1,273 for paint and $114.38 for a security camera. We disagree.
A. Paint
Two documents supporting the restitution request refer to paint for the car: a
Maaco estimate for $1,275-$2,125 to paint the whole car to match the current color and a
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North State Autobody estimate to repair or replace significant portions of the car totaling
$5,505.11, which includes $1,326 for “Paint Labor” and $670.80 for “Paint Supplies.”
The North State Autobody estimate indicates in several places that “Clear Coat” paint
would be applied. Defendant’s trial counsel consulted with him about this evidence
immediately before telling the trial court that defendant would not challenge the
restitution amount.
Defendant contends his trial counsel should have objected on the grounds that the
$1,273 charge for “paint” in the restitution request was already accounted for in the North
State Autobody $5,505.11 estimate total, which included amounts for “Paint Labor” and
“Paint Supplies,” and the $1,273 charge was therefore redundant. Neither party
acknowledges the Maaco estimate, the lower limit of which nearly matches the $1,273
charge.
Defendant has failed to provide any evidence that the amounts are redundant
because both Maaco and North State Autobody could have contributed to the repainting
process. For example, Maaco could have provided the paint that North State Autobody
then applied; North State Autobody could have painted the replacement parts, while
Maaco painted the rest of the car; or Maaco could have applied colored paint, while
North State Autobody applied a clear coat on top. Because the record does not
demonstrate that Maaco did not contribute to repainting the damaged car, counsel could
have reasonably determined that objection would have been futile, (see People v. Bell
(2019) 7 Cal.5th 70, 127 [counsel not ineffective for failing to raise futile objections to
evidence]), and we cannot say there “simply could be no satisfactory explanation”
(People v. Samayoa, supra, 15 Cal.4th at p. 845) for not objecting to the restitution
amount for car painting. This means we cannot conclude trial counsel’s decision not to
object fell below an objective standard of reasonableness under prevailing professional
norms.
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B. Security Camera
The court also awarded $114.38 for the car owner’s purchase of a security camera.
Defendant contends that section 1202.4, subdivision (f)(3)(J), which requires trial courts
to award “[e]xpenses to install or increase residential security . . . including, but not
limited to, a home security device or system” related to a violent felony, implicitly
prohibits trial courts from awarding such expenses related to any other type of offense. If
the restitution award was unauthorized by statute, then defendant’s trial counsel had no
tactical reason for failing to object. The People concede this argument, but we decline to
accept their concession because this court has previously rejected the premise of
defendant’s argument. (People v. Henderson (2018) 20 Cal.App.5th 467, 470.)
As we explained in Henderson, section 1202.4, subdivision (f)(3) requires that a
restitution order “ ‘shall be of a dollar amount that is sufficient to fully reimburse the
victim or victims for every determined economic loss incurred as the result of the
defendant’s criminal conduct, including, but not limited to’ ” an enumerated list of
potential losses. (People v. Henderson, supra, 20 Cal.App.5th at p. 471.) “Section
1202.4, subdivision (f)(3) expressly states that the enumerated list, including
subparagraph (J), is a nonexclusive list of examples.” (Ibid.) The mandatory language of
section 1202.4, subdivision (f)(3)(J) does not apply in this case because defendant’s
offenses are not classified as violent felonies, but the provision “does not purport to
preclude restitution for such installation under other circumstances; in fact, it says
nothing about any restriction on restitution whatsoever.” (Henderson, at p. 471.) “Thus,
where a victim incurs the economic loss of installing a security system as a direct result
of a defendant’s conduct, the trial court may include that amount in a victim restitution
award regardless of the crime of conviction.” (Id. at p. 472.)
Given our interpretation in Henderson, defendant’s trial counsel could have
reasonably determined that arguing the restitution awarded for the security camera was
not authorized by the statute would have been futile. Again, we cannot conclude this
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decision not to object fell below an objective standard of reasonableness under prevailing
professional norms.
II
Prior Serious Felony Conviction
Defendant next contends his trial counsel should have moved to strike his prior
serious felony conviction. Had the trial court granted such a motion, defendant’s
sentence would not have doubled from three years in state prison to six. (See People v.
Superior Court (Romero) (1996) 13 Cal.4th 497, 508.)
Rather than asking the trial court to strike the prior conviction and reduce
defendant’s sentence by three years, defendant’s trial counsel asked the court to impose
the lower term, which would have reduced defendant’s sentence by two years. This
suggests defendant’s counsel made a tactical decision that the trial court would be more
likely to agree to a two-year reduction rather than a three-year reduction. “ ‘Reviewing
courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective
assistance of counsel [citation], and there is a “strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” ’ ” (People v.
Weaver (2001) 26 Cal.4th 876, 925.)
Given that the trial court had enumerated five aggravating circumstances and no
mitigating circumstances, counsel’s decision to seek a smaller reduction was reasonable,
even though unsuccessful. (See People v. Avena (1996) 13 Cal.4th 394, 446 [competent
counsel’s strategies may be unsuccessful].) We also note the trial court declined to
impose the lower term, suggesting the court would have been unlikely to agree to an even
greater reduction in defendant’s sentence. Because we conclude satisfactory reasons
supported counsel’s decision not to ask the trial court to strike defendant’s prior serious
felony conviction, we reject defendant’s argument that his counsel performed
ineffectively by foregoing such a motion.
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III
Mandatory Fines and Assessments
Finally, citing People v. Dueñas (2019) 30 Cal.App.5th 1157, defendant contends
that the trial court violated his rights by imposing mandatory fines and assessments
without considering his ability to pay. Alternatively, defendant contends his trial counsel
performed ineffectively by failing to object to the mandatory fines and assessments
imposed at sentencing. We agree that defendant forfeited his Dueñas argument by failing
to object in the trial court, and we reject defendant’s ineffective assistance claim.
In Dueñas, the trial court held it violated a defendant’s rights to impose court fees
and assessments without a determination of the defendant’s ability to pay, and execution
of a restitution fine must be stayed until the trial court holds a hearing and concludes the
defendant has the present ability to pay the fine. (People v. Dueñas, supra,
30 Cal.App.5th at pp. 1164, 1168, 1171, fn. 8.) Based on Dueñas, defendant argues the
trial court violated his right to due process by imposing the $300 restitution fine, the $300
stayed parole revocation fine, and the two mandatory assessments—a total of $740—
without determining whether he had the ability to pay them.
As defendant concedes, he forfeited his right to raise this issue on appeal because
he did not object to the imposition of fines and assessments in the trial court, even though
his sentencing hearing took place more than two years after the issuance of the Dueñas
decision. “Ordinarily, a criminal defendant who does not challenge an assertedly
erroneous ruling of the trial court in that court has forfeited his or her right to raise the
claim on appeal.” (In re Sheena K. (2007) 40 Cal.4th 875, 880.) This rule applies to
alleged sentencing errors, including the imposition of fines and assessments. (People v.
Trujillo (2015) 60 Cal.4th 850, 856-861 [the defendant forfeited challenge to booking fee
by failing to object in trial court]; People v. Gamache (2010) 48 Cal.4th 347, 409 [the
defendant forfeited challenge to restitution fine by failing to object in trial court].) This
rule had already been applied to the failure to raise a Dueñas argument in the trial court
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by the time of defendant’s sentencing hearing. (People v. Lowery (2020) 43 Cal.App.5th
1046, 1052-1054 [Dueñas arguments forfeited by failure to raise in trial court]; People v.
Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 [same].) By failing to raise a Dueñas
argument at his sentencing hearing, defendant forfeited the right to raise the issue on
appeal.
Defendant argues in the alternative that the failure to raise a Dueñas claim in the
trial court constituted ineffective assistance of counsel. Defendant points to nothing in
the record showing why defense counsel chose not to object to the imposition of the fines
and assessments and not to request a hearing on defendant’s ability to pay them. The
record does not affirmatively disclose that counsel had no tactical purpose for doing so.
We reiterate, “it is inappropriate for an appellate court to speculate as to the existence or
nonexistence of a tactical basis for a defense attorney’s course of conduct when the
record on appeal does not illuminate the basis for the attorney’s challenged acts or
omissions.” (People v. Wilson (1992) 3 Cal.4th 926, 936; see also People v. Mai (2013)
57 Cal.4th 986, 1009 [when record does not demonstrate counsel had no satisfactory
explanation for failing to object, ineffective assistance claim “more appropriately
resolved in a habeas corpus proceeding”].) Thus, we reject this ineffective assistance
claim as well.
IV
Eliminated Fee
The trial court imposed a $30 surcharge for county collection costs pursuant to
former section 1202.4, subdivision (l). Effective January 1, 2022, the Legislature
eliminated this fee by eliminating the authorizing provision and adding section 1465.9,
subdivision (b), which makes the balance of this fee unenforceable and uncollectible and
requires us to vacate the portion of the judgment imposing the fee. (Stats. 2021, ch. 257,
§§ 19, 20, 35.) Although neither party raised this issue, we can vacate the fee because it
“could not lawfully be imposed under any circumstance in [this] case” and “is ‘clear and
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correctable’ independent of any factual issues presented by the record at sentencing.”
(People v. Scott (1994) 9 Cal.4th 331, 354.) We will therefore vacate the fee and direct
the trial court to amend the abstract of judgment accordingly.
DISPOSITION
The judgment is modified to vacate the $30 surcharge for collection costs pursuant
to former section 1202.4, subdivision (l). The matter is remanded to the trial court with
directions to prepare an amended abstract of judgment and forward a certified copy of the
amended abstract to the Department of Corrections and Rehabilitation. The judgment is
otherwise affirmed.
/s/
EARL, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
HOCH, J.*
* Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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