Filed 11/16/18 P. v. Reyes CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kings County. Robert S. Burns, Judge.

Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant/defendant Jason James Reyes pleaded no contest to two counts of murder and three counts of attempted murder and was sentenced to 51 years to life pursuant to a negotiated disposition, in Kings County Superior Court case No. 12CM0820BHTA. The court also imposed a $10,000 restitution fine.

In a separate and unrelated case, defendant pleaded no contest to assault by means of force likely to produce great bodily injury on an inmate while they were housed in the Kings County Jail (Pen. Code, § 245, subd. (a)(4))[1] in case No. 14CM2655HTA (People v. Reyes (Nov. 6, 2018, F076120) [nonpub. opn.]). He was sentenced to four years, to be served concurrently with the indeterminate life term imposed for the murder and attempted murder convictions.

Defendant filed notices of appeal in both cases.

This appeal is from defendant’s convictions and sentences for the murder and attempted murder offenses.[2] He contends the court erroneously imposed the $10,000 restitution fine because the order violated the terms of the negotiated disposition. He further argues that his defense attorney was prejudicially ineffective for failing to object to the restitution fine. We affirm.

FACTUAL BACKGROUND[3]

Count 1 – Murder (Kings County)

On March 5, 2012, defendant was in a car with his teenage daughter and two other people. Defendant talked to his daughter about Armando Ramirez, Jr., her former stepfather who had been married to her mother. Ramirez had been convicted of sexually molesting defendant’s daughter, served eight to 10 years in prison, and released from custody. Defendant told his daughter that “he was going to get that fool.”

They continued driving around and defendant saw Ramirez’s car. Defendant told the driver of his car to follow Ramirez’s car. Both cars entered a parking lot.

Ramirez got out of his car with his wife, and he was holding the hand of their eight-year-old child. Defendant got out of his car, pulled a handgun, and shot Ramirez four times and killed him. Defendant got back into his car and left the scene.

When defendant was subsequently arrested, he said that he shot Ramirez because of what he had done to defendant’s daughter, and he had thought about doing it for ten years.

Count 2 – Murder (Alameda County)

On or about February 13, 2012, defendant shot and killed Anthony Cano while the victim was leaving his apartment in Hayward.

Count 3 – Attempted murder (Alameda County)

On or about March 2, 2012, defendant fired multiple shots and attempted to kill Matthew Maddox, Vasquinho Bettencourt, and Patricia Knecht. Maddox was hit by at least one of the shots.

Count 4 – Attempted murder (Ventura County)

On or about March 13, 2012, defendant fired shots at Roberto Cervantes and attempted to kill him. Cervantes was wounded in the hand.

Count 5 – Attempted murder (Kings County)

On or about August 20, 2016, defendant was in prison when he attempted to kill Rogelio Rodriguez. He used a razor blade and thrust it through the prison’s food port, and sliced Rodriguez’s throat and arms. Rodriguez suffered extensive damage to his arm and a large amount of blood loss.

PROCEDURAL HISTORY

Murder/special circumstance charges (case No. 12CM0820BHTA)

On May 30, 2013, an information was filed in Kings County that charged defendant with count 1, first degree murder of Ramirez (§ 187, subd. (a)), with a special circumstance for lying in wait (§ 190.2, subd. (a)(15)).

The information also alleged firearm enhancements, and that defendant had one prior serious felony conviction and one prior strike conviction. Defendant pleaded not guilty and denied the special allegations.

On June 27, 2013, the district attorney’s office declared that it would seek the death penalty based on the lying-in-wait special circumstance.

Assault charge and plea (case No. 14CM2655HTA)

On or about April 7, 2014, defendant punched and assaulted Michael Landis while they were both inmates at the Kings County Jail. Landis suffered a bloody nose, lumps on his head and forehead, and bruises on his face.

On December 8, 2014, an amended information was filed in Kings County Superior Court case No. 14CM2655HTA, charging defendant with assault by means of force likely to produce great bodily injury on Landis (§ 245, subd. (a)(4)), with prior conviction allegations.

On January 16, 2015, defendant pleaded no contest to the charged offense of the assault on Landis by means of force likely to produce great bodily injury and admitted a prior strike conviction. The parties stipulated to the preliminary hearing transcript for the factual basis. The court granted the People’s motion to dismiss the prior prison term enhancements.

At the plea hearing on the assault charge, the court advised defendant of his constitutional rights and the consequences of his plea and also addressed restitution:

“THE COURT: … I can impose a penal fine and that can be anywhere from zero dollars up to $10,000. And if the Court imposes a penal fine, then the State adds penalty assessments ….

“THE DEFENDANT: Okay, your Honor. I’m an indigent. And there’s—

“[DEFENSE COUNSEL]: We’ll deal with that. We’ll deal with that, I got you.

“THE COURT: The ordering of the fines and the paying of them are two different things.” (Italics added.)

The court advised defendant that it was required to order restitution to the victim for any actual losses suffered. “And in addition to any actual losses I have to impose a state restitution fine and that is a minimum of $300, it can be as much as $10,000”

The sentencing hearing was trailed pending resolution of his other pending cases.

Consolidated/amended information (case No. 12CM0820BHTA)

On February 15, 2017, the parties agreed to the filing of a consolidated and amended information in Kings County Superior Court case No. 12CM0820BHTA, which had originally been limited to the special circumstance murder of Rodriguez. The parties also agreed for the superior court to take jurisdiction of charges that were pending in other counties (§ 790, subd. (b)).

The consolidated/amended information charged defendant with count 1, second degree murder of Ramirez; it no longer alleged first degree murder or a special circumstance for that offense.

The consolidated/amended information also alleged count 2, second degree murder of Cano; count 3, attempted premeditated murders of Maddox, Bettencourt, and Knecht; and counts 4 and 5, the attempted premeditated murders of Cervantes; and Rodriguez (§§ 664/187).

Defendant’s pleas to the consolidated/amended information

On the same day the consolidated/amended information was filed, defendant pleaded no contest to counts 1 through 5 pursuant to a negotiated disposition that he would be sentenced to an aggregate term of 51 years to life, based on consecutive terms of 15 years to life each for counts 1 and 2, second degree murder; and consecutive terms of life in prison with a minimum parole eligibility of seven years each for counts 3, 4, and 5, attempted premeditated murder.

The parties stipulated to the preliminary hearing transcript as the factual basis for count 1. The district attorney recited the factual basis for counts 2, 3, 4, and 5.

As part of the negotiated disposition, the court granted the People’s motion to dismiss several pending cases against defendant.

The court’s advisement of possible restitution

During the plea hearing on the consolidated/amended information, the court advised defendant of his constitutional rights and the consequences of his plea. The court also addressed the potential restitution order:

“THE COURT: In addition to the custodial period I can impose a penal fine on each count. That fine can be up to $10,000. And if I impose a penal fine, then the State adds assessments, fees and surcharges that significantly increase the amount that you have to pay. Do you understand that?

“THE DEFENDANT: Yes.

“THE COURT: In addition to the penal fine the law requires I order you to pay restitution to any victim that suffered any actual losses. And in addition to any actual losses the law requires I impose a restitution fine. The restitution fine is a minimum of $300, it can be as much as $10,000. And if you’re ever released from prison on parole, there’s a second restitution fine in the same amount, but that will be stayed pending successful completion of your parole period. Do you understand how restitution and the restitution fines work?

“THE DEFENDANT: Yeah, I was going to ask if it was possible if I could stay the restitution pending parole?

“THE COURT: No, actual restitution or the restitution fine?

“THE DEFENDANT: Both.

“THE COURT: Both? The law does not allow for that. On the actual restitution it requires that CDCR garnish, for lack of a better term, a certain amount of the funds that you have on your books to pay off restitution. It’s limited to how much they can take, but they’re required to take some to pay back the victim. [¶] As far as the restitution fine goes, the law requires that I impose it. Now, to set it above the minimum of $300, I have to make findings that you have the ability to pay above that, and to be honest with you those findings aren’t going to be made so it’s probably going to be that minimum of $300.

“THE DEFENDANT: Okay.

“THE COURT: But the law doesn’t allow me to stay that. It’s something that they require that I impose, and then you’ll have to pay that as you are able to when you make money on your books; does that make sense to you?

“THE DEFENDANT: Yes, your Honor.

“THE COURT: So even if I wanted to, I can’t stay them is what I’m trying to say.

“THE DEFENDANT: So the restitution would be $300 and then upon completion of parole I pay the rest that was left over towards the victim’s families?

“THE COURT: The actual restitution?

“THE DEFENDANT: Uhm-uhm.

“THE COURT: Those are two different things. The $300 is a restitution fine.

“THE DEFENDANT: Okay.

“THE COURT: Even if the victim’s family suffered no loss—

“THE DEFENDANT: Right.

“THE COURT: —I have to impose at least 300 and up to 10,000.

“THE DEFENDANT: Okay.

“THE COURT: Okay? That is separate from whatever they actually lost. So paying for funerals, doctor’s bills, those sort of things, the law says you have to pay those back. And CDCR is going to take that money out at a limited portion, and I forgot what it is off the top of my head.

“THE DEFENDANT: 55.

“THE COURT: Is that what it is?

“[DEFENSE COUNSEL]: Percent, yeah.

“THE COURT: Yeah, they’ll take that out of your books until that’s paid or until you’re paroled. And then once you are paroled, you will go on a separate payment plan.

“THE DEFENDANT: Okay.

“THE COURT: Does that make sense? They’re actually two separate issues. The $300 is the minimum of the restitution fine. It can be up to $10,000. I can tell you right now I don’t intend to impose the 10,000, but it has to be at least 300. Okay, does that make sense now?

“THE DEFENDANT: That’s fine, your Honor.

“THE COURT: Well, I want to make sure you understand; do you understand the difference?

“THE DEFENDANT: Yeah, we have to separate restitutions.

“THE COURT: It’s three.

“THE DEFENDANT: Three.

“THE COURT: There’s the actual restitution.

“THE DEFENDANT: Okay.

“THE COURT: There’s the restitution fine that I impose.

“THE DEFENDANT: Okay.

“THE COURT: And then there’s a second restitution fine which is stayed pending successful completion of parole. Does that make sense now?

“THE DEFENDANT: Okay.

“THE COURT: Okay. I want to make sure you understand that. I know you’re telling me okay, but I need to know do you understand the difference between the three?

“THE DEFENDANT: Yeah, I’m understanding.

“THE COURT: Okay.

“THE DEFENDANT: I didn’t catch the amount yet, I don’t know if you imposed that yet.

“THE COURT: No, I will impose that at sentencing when that comes out.

“THE DEFENDANT: Okay.

“THE COURT: But right now I have to advise you of the minimum and the maximum.

“THE DEFENDANT: Okay.

“THE COURT: So that’s 300 and 10,000 on the fines, actual restitution would depend on what medical bills, receipts, those sort of things show. Does that make sense?

“THE DEFENDANT: Okay.” (Italics added.)

The probation report

In case No. 12CM0820BHTA, based on the murder and attempted murder convictions, the probation report recommended the court sentence defendant to 51 years to life. It also recommended the court order defendant to pay a $10,000 restitution fine to the State Restitution Fund pursuant to section 1202.4, subdivision (b); impose and suspend a $10,000 restitution fine pending successful completion of probation pursuant to section 1202.45; and specific amounts for victim restitution.

The probation report recommended a restitution fine of $300 in case No. 14CM2655HTA, the assault on Landis, and impose and suspend a $300 fine pending successful completion of probation.

Sentencing hearing

On July 24, 2017, the court conducted the sentencing hearing on all of defendant’s pending cases, and stated it was going to impose the sentence based on the negotiated disposition.

In case No. 12CM0820BHTA based on the consolidated/amended information, the court sentenced defendant to an aggregate term of 51 years to life, based on 15 years to life for count 1, second degree murder of Ramirez; a consecutive term of 15 years to life for count 2, second degree murder of Cano; and consecutive terms of life in prison with a minimum parole eligible of seven years for count 3, attempted murders of Maddox, Bettencourt, and Knecht; count 4, attempted murder of Cervantes; and count 5, attempted murder of Rodriguez.

In case No. 14CM2655HTA, the assault on Landis, the court sentenced defendant to a concurrent lower term of two years, doubled to four years for the second strike term.

The court’s restitution orders

Also, at the sentencing hearing, the court ordered defendant to pay a $10,000 restitution fine in case No. 12CM0820BHTA, for the two convictions for murder and three convictions for attempted murder (§ 1202.4, subd. (b)(2)) and suspended the imposition of a $10,000 parole revocation restitution fine (§ 1202.45).

The court ordered defendant to pay restitution to the Victims Compensation Claim Board for a total of $11,033.92, based on $10,615 to Vasquinho Bettencourt, Sr., apparently the father of the victim in count 3, attempted murder; and $5,284.17 to Rodriguez, the victim in count 5, attempted murder. The court reserved restitution as to the other victims.

As to case No. 14CM2655HTA, the assault on Landis, the court order defendant to pay a $300 restitution fine and suspended the imposition of a $300 parole revocation restitution fine. The court reserved victim restitution for Landis.

At the conclusion of the sentencing hearing, the court asked defendant if he had any questions.

“THE DEFENDANT: [M]y only question concern is I’m an indigent inmate, your Honor, and I don’t know how the Court expects me to pay such a fine, the restitution and all these fines?

“THE COURT: Yeah I didn’t impose a fine, a penal fine. I just imposed restitution amounts. And I don’t necessarily expect you to pay those because obviously you’re going to prison, but the law says I have to impose them.

“THE DEFENDANT: Okay.

“THE COURT: And what will happen, I think we actually talked about it during the plea, if you recall.

“THE DEFENDANT: Right.

“THE COURT: There’s a limitation on how much CDCR can take. So if you did have money on the books, they can take a portion of it to pay off those restitution fines, but they can’t take all of it…. Does that make sense?

“THE DEFENDANT: Yes….” (Italics added.)

Notices of appeal

On August 9, 2017, defendant filed notices of appeal in case No. 12CM0820BHTA, for the murder and attempted murder convictions, and case No. 14CM2655HTA (People v. Reyes, supra, F076120), for the assault conviction. Defendant declared that he intended to challenge the validity of his pleas; he did not request or receive a certificate of probable cause.

DISCUSSION

Defendant raises several challenges to the court’s imposition of the $10,000 restitution fine for his two convictions for second degree murder and three convictions for attempted murder and resulting sentence of 51 years to life.

1. Section 1202.4

We begin with the provisions of section 1202.4, which states that the court “shall” order the defendant to pay a restitution fine in accordance with subdivision (b). (§ 1202.4, subd. (a)(3)(A).)

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.”

“The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000)….” (§ 1202.4, subd. (b)(1).)

“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) 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).)

“The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of subdivision (b)….” (§ 1202.4, subd. (c).)

“In setting the amount of the fine pursuant to subdivision (b) in excess of the minimum fine pursuant to paragraph (1) of subdivision (b), 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 crime, and the number of victims involved in the crime. Those losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime. Consideration of a defendant's inability to pay may include his or her future earning capacity. A defendant shall bear the burden of demonstrating his or her inability to pay. Express findings by the court as to the factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be required.” (§ 1202.4, subd. (d).)

In this case, defendant was convicted of two counts of second degree murder and three counts of attempted premeditated murder and sentenced to an aggregate term of 51 years to life. The court was legally authorized to impose a restitution fine between the minimum of $300 and the maximum of $10,000. Based on the formula set forth in section 1202.4, subdivision (b)(2), the calculation of the felony restitution fine in this case would have exceeded the statutory maximum amount. The court thus acted within its discretion to impose the statutory maximum restitution fine of $10,000.[4]

2. The Terms of the Negotiated Disposition

Defendant contends the court violated the terms of the negotiated disposition by imposing the $10,000 restitution fine. Defendant relies on the court’s statements at the February 15, 2017, hearing, where he pleaded no contest to the five counts in the consolidated/amended information pursuant to the negotiated disposition. As set forth above, the court answered defendant’s questions about the differences between the restitution fine, the suspended parole restitution fine, and restitution to the victims.

Defendant asserts that based on this exchange, the imposition of a $300 restitution fine was part of the negotiated disposition to his no contest pleas to the murder and attempted murder charges.

“oth parties, including the state, must abide by the terms of [a plea] agreement,” the punishment may not “significantly exceed that which the parties agreed upon,” and a restitution fine “qualifies as punishment for this purpose.” (People v. Walker (1991) 54 Cal.3d 1013, 1024.) “[O]ur cases have made clear that ‘defendants are free to negotiate the amount of restitution fines as part of their plea bargains.’ [Citations.] The parties to a criminal proceeding may choose to agree on a specific amount between the statutory minimum and maximum, or they may leave it up to the sentencing court’s discretion. [Citation.]” (People v. Villalobos (2012) 54 Cal.4th 177, 181.)

3. [b]Ineffective Assistance

Next, defendant argues the court’s statements at the plea hearing amounted to a finding that he lacked the ability to pay anything other than the $300 minimum restitution fine. Defendant has forfeited this claim by failing to object to the court’s restitution order at the sentencing hearing. (People v. Nelson (2011) 51 Cal.4th 198, 227.)

Defendant asserts his challenge involves a pure question of law which may be raised despite counsel’s failure to object. However, the restitution fine that was imposed in this case was within the statutory limits and did not constitute an unauthorized sentence. (Cf. People v. Smith (2001) 24 Cal.4th 849, 852.)

Defendant acknowledges his attorney failed to object to the $10,000 restitution fine and argues counsel was prejudicially ineffective in failing to do so. “In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Second, he must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 214–215.)

“[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance. [Citation.]” (People v. Hillhouse (2002) 27 Cal.4th 469, 502.) “An attorney may well have a reasonable tactical reason for declining to object, and ‘ “[i]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation.” ’ [Citation.]” (People v. Seumanu (2015) 61 Cal.4th 1293, 1312–1313.)

Defendant argues that based on the court’s statements at the plea hearing, it had already found that he did not have the ability to pay a $10,000 restitution fine and it would instead impose the $300 minimum fine. In the midst of the court’s lengthy restitution advisement at the plea hearing, the court explained the difference between the restitution fine and victim restitution and stated: “The $300 is the minimum of the restitution fine. I can be up to $10,000. I can tell you right now I don’t intend to impose the 10,000, but it has to be at least 300.”

However, the court continued to explain restitution to defendant and differentiated between the restitution fine, the parole revocation fine, and victim restitution. The court concluded its exchange with defendant as follows:

“THE DEFENDANT: I didn’t catch the amount yet, I don’t know if you imposed that yet.

“THE COURT: No, I will impose that at sentencing when that comes out.

“THE DEFENDANT: Okay.

“THE COURT: But right now I have to advise you of the minimum and the maximum.

“THE DEFENDANT: Okay.

“THE COURT: So that’s 300 and 10,000 on the fines, actual restitution would depend on what medical bills, receipts, those sort of things show. Does that make sense?

“THE DEFENDANT: Okay.” (Italics added.)

The entirety of the court’s statements at the plea hearing demonstrate that it was advising defendant of the minimum and maximum possible restitution fines. While it stated that it was inclined not to impose a $10,000 fine, it also clarified that it had not made any decision on the amount at that point.

At the sentencing hearing, the court followed the probation report’s recommendations and imposed the maximum restitution fine of $10,000 and victim restitution of over $11,000 for the murder and attempted murder convictions, and the minimum fine of $300 for the single assault conviction for which he was separately sentenced. Defendant asked how he was supposed to pay these amounts since he was indigent. The court acknowledged that defendant might not be able to pay the entire amounts, “but the law says I have to impose them.”

The court’s statements at the sentencing hearing show that it imposed the maximum restitution fine of $10,000, particularly since the statutory formula exceeded that amount. We cannot say the court abused its discretion. As noted above, section 1202.4 provides that the court shall consider the defendant’s ability to pay, the seriousness of the offense, economic gain to the defendant, and the number of victims when imposing a restitution fine above the statutory minimum. (§ 1202.4, subd. (d).) “Ability to pay does not necessarily require existing employment or cash on hand.” (People v. Staley (1992) 10 Cal.App.4th 782, 785.) The court is not limited to considering defendant’s present ability to pay, but may consider the defendant’s future ability to earn prison wages. (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837.) Defendant pleaded no contest to two counts of second degree murder and three counts of attempted premeditated murder. These violent offenses were committed at different times and places throughout the state, against a series of apparently unrelated victims. Defense counsel did not object to the court’s order, even though the amount was recommended in the probation report, most likely because the amount was not unreasonable in light of defendant’s convictions and indeterminate sentence of 51 years to life.

Defendant “points to no evidence in the record supporting his inability to pay, beyond the bare fact of his impending incarceration. Nor does he identify anything in the record indicating the trial court breached its duty to consider his ability to pay; as the trial court was not obligated to make express findings concerning his ability to pay, the absence of any findings does not demonstrate it failed to consider this factor. Thus, we cannot say on this record that the trial court abused its discretion.” (People v. Gamache (2010) 48 Cal.4th 347, 409; People v. Nelson, supra, 51 Cal.4th at p. 227.)

DISPOSITION

The judgment is affirmed.