P. v. Alonzo

Filed 6/23/20 P. v. Alonzo CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE RAFAEL ALONZO,
Defendant and Appellant.
G057141
(Super. Ct. No. 13NF1047)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, John
Conley, Judge. Affirmed.
Patricia A. Scott, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney
General, Wyatt E. Bloomfield and Charles J. Sarosy, Deputy Attorneys General, for
Plaintiff and Respondent.
* * *

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A jury convicted defendant Jose Rafael Alonzo of one count of murder
(Pen. Code, § 187, subd. (a); count 1)1 and one count of street terrorism (§ 186.22, subd.
(a); count 2). The jury also found true allegations that count 1 was committed for the
benefit of or to promote a criminal street gang. (§§ 190.2, subd. (a)(22), 186.22, subd.
(b).) The jury further found true allegations that defendant personally used and
discharged a firearm in the commission of count 1. (§§ 12022.5, subd. (a), 12022.53,
subd. (d).)
The court sentenced defendant to 50 years to life in state prison as follows:
(1) 25 years to life on count 1; (2) a consecutive term of 25 years to life for the firearm
enhancement under section 12022.53, subdivision (d) on count 1; (3) four years for the
firearm enhancement under section 12022.5, subdivision (a) on count 1, which was
stayed pursuant to section 654; (4) 10 years for the gang enhancement on count 1, which
was stayed pursuant to section 654; and (5) 2 years on count 2, which was stayed
pursuant to section 654. The court also imposed a $300 restitution fine (§ 1202.4), a $40
court operations fee for each of the two counts (§ 1465.8), and a $30 criminal conviction
assessment fee for each of the two counts (Gov. Code, § 70373, subd. (a)(1)). The court
further imposed and stayed a $300 parole revocation restitution fine. (§ 1202.45.)
Defendant raises two sentencing issues on appeal. First, he contends the
court was not aware of its discretion to modify the firearm enhancement imposed under
section 12022.53, subdivision (d) to a lesser-included firearm enhancement. He
accordingly requests we remand the matter for resentencing. We disagree. The court did
not have the power to substitute the firearm enhancement with a lesser-included
enhancement. Second, defendant argues the court erred by imposing restitution fines and
court fees without conducting a hearing on his ability to pay in violation of the holding in
1 All further statutory references are to the Penal Code unless otherwise
stated.

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People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We conclude any error was
harmless.
FACTS
Defendant and Arturo Baltazar were members of the Anaheim Travelers
City gang (Travelers City), and Alexis Solis, the victim, was a member of a rival gang
called Pauline Street gang. Baltazar had threatened Solis in the past and had problems
with him. One evening in March 2013, Solis was in the rear passenger seat of a car with
his friend, her son, and two others. He told the driver to pull over into an alley so he
could spray graffiti on a wall in territory claimed by Travelers City. After Solis and the
driver walked out of the car together, they ran back a few minutes later and appeared to
be panicked. As they drove away, defendant, who had been with Baltazar that evening,
fired a gun shattering the car’s windshield and injuring Solis who died from a gunshot
wound to the back of his head. A passenger in the car heard defendant yell “Travelers
City” as he fired the gun.
After defendant was arrested, he admitted to the shooting and to disposing
the gun in a recorded jailhouse conversation with another Travelers City gang member
who was in custody.
DISCUSSION
Defendant contends the case should be remanded for resentencing because
the court did not understand the full scope of its discretion to strike or dismiss the firearm
enhancement imposed under section 12022.53, subdivision (d). According to defendant,
the court’s discretion to “strike or dismiss” the firearm enhancement under section 1385
allowed the court to reduce it to a lesser enhancement. Defendant also argues the court

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erred by imposing restitution fines and court fees without conducting a hearing on his
ability to pay them. He requests we stay imposition of those fines and fees and remand
the matter for the court to determine his ability to pay. For the reasons below, we
disagree with defendant’s contentions and affirm the judgment.
Remand for a new hearing on whether to modify the firearm enhancement to a lesser-
included enhancement is unnecessary.
Signed into law in 2017, Senate Bill No. 620 (2017-2018 Reg. Sess.)
amended section 12022.53 to give the trial court authority to strike or dismiss firearm
enhancements, including the one imposed in this case, in the interest of justice. Effective
January 1, 2018, subdivision (h) of the amended statute provides: “The court may, in the
interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss
an enhancement otherwise required to be imposed by this section. The authority
provided by this subdivision applies to any resentencing that may occur pursuant to any
other law.” (Id., subd. (h).)
Relying on People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison),
which was decided after his sentencing, defendant contends the court’s authority under
section 12022.53, subdivision (h) “includes the discretion to strike or dismiss a firearm
enhancement and impose a prison term under a lesser-included enhancement, even if the
lesser enhancement was not formally alleged.” He argues remand is required because the
court was unaware of this discretion to substitute the section 12022.53, subdivision (d)
enhancement with a lesser-included firearm enhancement under section 12022.53,
subdivision (b) or (c).
In Morrison, the jury convicted the defendant of first degree murder with
an enhancement for personally and intentionally discharging a firearm causing death
under section 12022.53, subdivision (d). (Morrison, 34 Cal.App.5th at p. 220.) The
defendant argued the trial court misunderstood the scope of its discretion under section

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1385, which included the discretion to impose a lesser firearm enhancement. (Morrison,
at p. 221.) Division Five of the First District Court of Appeal agreed and held that trial
courts have “discretion to impose an enhancement under section 12022.53, subdivision
(b) or (c) as a middle ground to a lifetime enhancement under section 12022.53,
subdivision (d), if such an outcome [is] found to be in the interests of justice under
section 1385.” (Id. at p. 223.) In reaching this conclusion, Morrison relied on cases
where courts “impose[d] a ‘lesser included’ enhancement that was not charged in the
information when a greater enhancement found true by the trier of fact is either legally
inapplicable or unsupported by sufficient evidence.” (Id. at p. 222.) The court explained
it saw “no reason a court could not also impose one of these enhancements after striking
an enhancement under section 12022.53, subdivision (d), under section 1385.” (Id. at pp.
222-223.)
The Fifth District Court of Appeal considered the same issue
as Morrison but came to the opposite conclusion in People v. Tirado (2019) 38
Cal.App.5th 637, review granted November 13, 2019, S257658. In Tirado, the jury
found the defendant was guilty of robbery and that he personally and intentionally
discharged a firearm under section 12022.53, subdivision (d). (Tirado, at p. 639.) The
defendant argued the trial court was unaware of its discretion to substitute a different
enhancement. (Ibid.) Disagreeing with Morrison, the Fifth District Court found
“[n]othing in the plain language of sections 1385 and 12022.53, subdivision (h)
authorizes a trial court to substitute one enhancement for another.” (Tirado, at p. 643.)
The court focused on statutory construction and legislative intent: “Section 12022.53,
subdivision (h) uses the verbs ‘strike’ and ‘dismiss,’ and section 1385, subdivision (a)
states the court may ‘order an action to be dismissed.’ This language indicates the court’s
power pursuant to these sections is binary: The court can choose to dismiss a charge or
enhancement in the interest of justice, or it can choose to take no action. There is nothing
in either statute that conveys the power to change, modify, or substitute a charge or

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enhancement.” (Ibid.) “Had the Legislature intended the trial court’s power to be
broader than what is proscribed by section 1385, it would have said so.” (Ibid.) The
court also emphasized that the language in section 1385 differs from other statutes that
expressly allow a court to modify a charge or enhancement. (Ibid. [citing §§ 1260 &
1181, subd. (6)].)
Pending further guidance from our Supreme Court, we subscribe to the
view expressed in Tirado and decline to follow Morrison. We accordingly decline to
remand the matter for resentencing.
Any failure to determine defendant’s ability to pay was harmless error.
Relying on Dueñas, supra, 30 Cal.App.5th 1157, defendant contends we
should remand the matter for the court to determine if he has the ability to pay the
restitution fines and court fees. As noted, ante, the court imposed a $300 restitution fine
(§ 1202.4), a $40 court operations fee for each of the two counts (§ 1465.8), and a $30
criminal conviction assessment fee for each of the two counts (Gov. Code, § 70373, subd.
(a)(1)). The court also imposed and stayed a $300 parole revocation restitution fine.
(§ 1202.45.)
The Attorney General presents several arguments in response, including
that: (1) defendant’s contention challenging the restitution fines should be reviewed
under the Eighth Amendment’s excessive fines clause rather than the due process clause
of the Fourteenth Amendment and his claim fails under this rubric because the restitution
fines were not grossly disproportionate to his offense; and (2) any due process violation is
harmless beyond a reasonable doubt because defendant has the capacity to work and earn
prison wages to pay the fees. The Attorney General’s last argument is compelling.

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Assuming, without deciding, that the court violated defendant’s right to due
process by imposing the restitution fines and fees without conducting an ability to pay
hearing, the error was harmless beyond a reasonable doubt. The restitution fines and fees
at issue here total $740, which includes the $300 parole revocation restitution fine the
court stayed. At the time of his sentencing hearing, defendant was 22 years old, and the
probation report indicated he had no employment history or valuable assets and was
financially supported by his parents. Regardless, defendant “will have the ability to earn
prison wages over a sustained period” (People v. Johnson (2019) 35 Cal.App.5th 134,
139 (Johnson)) as he was sentenced to prison for 50 years to life.
In Johnson, supra, 35 Cal.App.5th 134, the appellate court indicated that
even if it was to assume the defendant suffered a due process violation when the trial
court imposed $370 in fees and a fine (id. at p. 139) “without taking his ability to pay into
account,” the error was harmless beyond a reasonable doubt because the defendant had
“ample time to pay it from a readily available source of income while incarcerated” (id. at
p. 140; see People v. Aviles (2019) 39 Cal.App.5th 1055, 1076 [court inferring the
defendant has the ability to pay fines and fees from his probable future prison wages,
which range between $12 to $56 per month]). The Johnson court explained, “The idea
that [the defendant] cannot afford to pay $370 while serving an eight-year prison
sentence is unsustainable.” (Johnson, at p. 139) Here, defendant was ordered to pay
$740 over the span of a lengthier sentence – 50 years to life. The idea that he cannot pay
this amount is all the more unsustainable. Defendant notes he was represented in the trial
court and on appeal by appointed counsel, but this fact does not necessarily demonstrate
an inability to pay. “[A] defendant may lack the ‘ability to pay’ the costs of court-
appointed counsel yet have the ‘ability to pay’ a restitution fine” or other fees imposed by
the trial court. (People v. Douglas (1995) 39 Cal.App.4th 1385, 1397.) Any error by the
court in imposing the fines and fees without conducting a hearing on defendant’s ability

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to pay was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386
U.S. 18, 24.)
DISPOSITION
The judgment is affirmed.
IKOLA, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
MOORE, J.

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