THE PEOPLE, Plaintiff and Respondent, v. PATTY ANN LAMOUREUX, Defendant and Appellant.
D077361
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 11/5/20
John D. Molloy, Judge
CERTIFIED FOR PUBLICATION; (Super. Ct. No. SWF1101646)
APPEAL from a judgment of the Superior Court of Riverside, John D. Molloy, Judge. Affirmed as modified.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Lynne G. McGinnis, and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant Patty Ann Lamoureux appeals a judgment of conviction entered after the trial court vacated her felony murder conviction and resentenced her under
On appeal, Lamoureux contends the trial court erred in declining to apply her excess custody credits to offset, i.e., reduce or eliminate, her three-year parole supervision period. Additionally, she claims the court failed to articulate a rational method of computation when it imposed a $560 restitution fine (
In People v. Wilson (2020) 53 Cal.App.5th 42 (Wilson), our colleagues in the First District, Division Three, concluded that a court is not required to apply excess custody credits to offset the parole supervision period of a person who is resentenced under Senate Bill No. 1437. As discussed more fully below, we agree with the Wilson decision.
As to Lamoureux‘s remaining arguments, we conclude Lamoureux forfeited her challenge to the restitution fine by failing to object in the trial court and the issue of her entitlement to additional presentence custody credits is moot. However, we conclude Lamoureux‘s excess custody credits must be applied to offset the restitution fine in its entirety.
Therefore, we modify the judgment to reflect that Lamoureux‘s $560 restitution fine is deemed satisfied in full by application of her excess custody credits. In all other respects, the judgment is affirmed.
II
BACKGROUND
A
In 2013, a jury convicted Lamoureux of conspiracy to commit robbery (
This court affirmed Lamoureux‘s murder and conspiracy convictions, but concluded the evidence was insufficient to support the jury‘s finding that she had an intent to kill or acted with reckless indifference to human life. (People v. Miller (Sept. 15, 2015, D067451) [nonpub. opn.], review den. Dec. 9, 2015.) Therefore, the court concluded Lamoureux was not eligible for a prison sentence of life without the possibility of parole. (Ibid.) The court affirmed the judgment, in part, reversed the judgment, in part, and remanded the matter for resentencing. (Ibid.) On remand, the trial court resentenced Lamoureux to a prison term of 25 years to life.
B
On January 11, 2019, after the enactment of Senate Bill No. 1437, Lamoureux filed a petition to vacate her felony murder conviction and to
On appeal, a divided panel of this court considered and rejected the People‘s constitutional challenges to Senate Bill No. 1437. (People v. Lamoureux (2019) 42 Cal.App.5th 241; see People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270 [companion case concluding Senate Bill No. 1437 is constitutional].) Because we concluded there is no constitutional infirmity with Senate Bill No. 1437, we reversed the order summarily dismissing Lamoureux‘s resentencing petition.2 (Lamoureux, at p. 246.)
Lamoureux was released on bail on January 27, 2020, and the court granted her petition on February 26, 2020. The court vacated the felony murder conviction and resentenced Lamoureux to the upper term of six years for her conspiracy conviction. It found Lamoureux was entitled to 3,590 credits for time served, consisting of 648 presentence actual time credits, 2,474 postsentence actual time credits, and 468 postsentence conduct credits. It determined the custody credits exceeded the new custodial sentence and therefore found the new custodial sentence satisfied. However, it placed Lamoureux on parole supervision for three years under
DISCUSSION
A
Parole Supervision
1
The Legislature enacted Senate Bill No. 1437, effective January 1, 2019, for the expressed purpose of “amend[ing] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) To effectuate this goal, Senate Bill No. 1437 amended sections 188 and 189, the statutory provisions pertaining to malice and the degrees of murder, respectively. (Id., §§ 2-3.)
Senate Bill No. 1437 also added
At issue here is a portion of Senate Bill No. 1437‘s resentencing provision concerning parole supervision for resentenced defendants—
Lamoureux contends a person who is resentenced under Senate Bill No. 1437 is entitled, pursuant to
The proper construction of
2
In People v. Morales (2016) 63 Cal.4th 399 (Morales), the Supreme Court considered whether excess custody credits automatically apply to reduce or eliminate a person‘s parole period when the person is resentenced under Proposition 47 (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014)). In answering this question, the Supreme Court interpreted a statutory provision that closely resembles
In Morales, a defendant pleaded guilty to a felony offense and was sentenced to 16 months in prison. (Morales, supra, 63 Cal.4th at p. 403.) Eight months into the sentence, voters enacted Proposition 47, which reduced many non-violent crimes from felonies to misdemeanors and allowed persons serving felony sentences for reclassified offenses to petition to recall their sentences and to be resentenced for misdemeanor offenses. (Ibid.) The defendant filed such a petition, which was granted, and the trial court imposed a jail sentence of time served. (Ibid.) The court placed the defendant on parole for one year, even though he had excess custody credits. (Ibid.) On appeal, the defendant argued he was entitled to have his parole period offset by his excess custody credits under a provision contained within Proposition 47—
Applying well-established principles of statutory interpretation, the Supreme Court rejected the defendant‘s argument and concluded a court is not required to apply a person‘s excess custody credits to reduce or eliminate a parole period imposed under the Proposition 47 statute. (Morales, supra, 63 Cal.4th at p. 403and shall be subject to parole.” (Id. at p. 405.) As the Morales court explained, the Proposition 47 statute establishes a “seemingly mandatory parole requirement (subject to the court‘s discretion) . . . .” (Ibid.)
Next, the Morales court emphasized what the Proposition 47 statute does “not state, namely that credit for time served could reduce the period of parole.” (Morales, supra, 63 Cal.4th at p. 406section 2900.5, “the statute concerning presentence credit in ordinary cases . . . .” (Ibid.) As the court explained, presentence credits can ordinarily be credited towards a sentence during a person‘s initial sentencing because section 2900.5 expressly provides that “(1) the person is entitled to credit for time served, and (2) the credit can reduce or eliminate the period of parole.”4 (Morales, supra, 63 Cal.4th at pp. 405-406.) The Proposition 47 statute “states the first of these but not the second.” (Ibid.) Because the Proposition 47 statute says nothing about excess credits reducing or eliminating a person‘s parole period, the court had “no reason . . . to assume the voters believed . . . credit for time served could reduce the period of parole” when they enacted Proposition 47. (Id. at p. 406.)
Further, the Morales court reasoned that a custody credit offset would in many cases “undermine” the discretion of a court to impose a parole period
For all these reasons, the Morales court “conclude[d] that credit for time served does not reduce the parole period” under the Proposition 47 statute. (Morales, supra, 63 Cal.4th at p. 403 parole for one year after completion of the reduced sentence, subject to the court‘s discretion to release the person from that parole.” (Ibid.)
3
More recently, in Wilson, the Court of Appeal for the First District, Division Three considered the issue presented here—whether a court must apply the excess custody credits of a person who is resentenced under Senate Bill No. 1437 to offset the person‘s parole supervision period pursuant to
As the Wilson court explained,
Further, the Wilson court recognized that a mandatory excess custody credit offset “would result in parole being eliminated or reduced in many cases
Based on the language of
Additionally, we believe the Morales decision is instructive for another reason not discussed in the Wilson decision. “When legislation has been judicially construed and subsequent statutes on a similar subject use identical or substantially similar language, the usual presumption is that the Legislature intended the same construction, unless a contrary intent clearly appears.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1135; see People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 199 [“[W]e must assume that, when enacting [legislation], the Legislature [is] aware of existing related laws and intend[s] to maintain a consistent body of rules.“].)
Both
Lamoureux raises four main arguments in support of her claim that the court erred in placing her on parole supervision for a period of three years.
First, Lamoureux tries to distinguish the Morales decision on grounds that the decision was based in part on Proposition 47‘s unique legislative history. In its discussion of legislative history, the Morales court assumed the voters who approved Proposition 47 “read and were guided by the ballot materials concerning the proposition.” (Morales, supra, 63 Cal.4th at p. 406.) Included in these ballot materials was a Legislative Analyst analysis, which stated as follows: “‘Offenders who are resentenced would be required to be on state parole for one year, unless the judge chooses to remove that requirement.‘” (Id. at pp. 406-407.) According to the Morales court, this analysis unambiguously “promised voters that offenders would be on parole for one year unless the judge deemed it not necessary . . . .” (Id. at p. 407.) This, in turn, suggested that the voters who approved Proposition 47 did not intend to enact an excess custody credit offset. (See ibid.)
The legislative history for Senate Bill No. 1437 is not especially robust on the topic of parole supervision for resentenced persons. But it is not silent either. An analysis of Senate Bill No. 1437 conducted by the Office of Senate Floor Analyses states that the bill “[a]llows the court to order [a] person granted relief to be subject to parole supervision for up to three years following the completion of the sentence.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 1437 (2017-2018 Reg. Sess.) Aug. 30, 2018, p. 6.) Similarly, the Department of Finance‘s enrolled bill report states that “[i]f a person is granted relief, the bill allows the court to impose a term of parole supervision up to three years.” (Dept. of Fin., Enrolled Bill Rep. on Sen. Bill No. 1437 (2017-2018 Reg. Sess.) Sept. 7, 2018, p. 2.) These legislative materials, like the official ballot pamphlet materials for Proposition 47, are “easy to understand and entirely unambiguous” in their assurance that a court will have discretion to impose parole supervision on a person who is resentenced. (Morales, supra, 63 Cal.4th at p. 407.)
Further, we acknowledge the general aim of Senate Bill No. 1437 was “‘to restore proportional responsibility in the application of California‘s murder statute’ [citation] by eliminating harsh sentences for defendants who played only a relatively minor role in a felony in which a victim was killed, while still retaining murder liability for more culpable defendants.” (People v. Galvan (2020) 52 Cal.App.5th 1134, 1143-1144.) But, as the Wilson court correctly recognized,
Moreover, Lamoureux has directed us to no legislative history supporting her construction of
Second, Lamoureux contends
Third, Lamoureux argues that
This argument raises the question: when is the sentence complete? According to Lamoureux, the sentence is complete upon the expiration of the new custodial term imposed during resentencing.6 For example, Lamoureux claims her sentence was complete upon the expiration of her new six-year custodial term—a date that took place several years prior to her resentencing. Therefore, she contends she could not be subject to parole supervision later than three years after the expiration of her new six-year custodial term—a date that also preceded her resentencing.7
Our construction of
Further, we note that Lamoureux‘s interpretation of
Having concluded that
Fourth, Lamoureux claims the Legislature rationally could limit a court‘s discretion to impose parole supervision on a defendant who has been resentenced under Senate Bill No. 1437. She contends such a limitation is consistent with Senate Bill No. 1437‘s stated purpose of ensuring “that the law of California fairly addresses the culpability of the individual . . . .” (Stats. 2018, ch. 1015, § 1, subd. (e).) We have no occasion to determine the rationality of such a limitation because
5
In sum, we conclude
B
Restitution Fine
1
At the initial sentencing on April 19, 2013, the trial court imposed a restitution fine of $560 under
In our decision affirming the judgment, in part, and reversing the judgment, in part, we noted the $560 restitution fine was “conspicuously equal to the inapplicable minimum fine in effect at the time of sentencing multiplied by the number of Lamoureux‘s convictions.” (People v. Miller, supra, D067451) However, because we were remanding the matter for purposes unrelated to the restitution fine, we did not determine whether the trial court violated ex post facto principles in setting the restitution fine. We instructed the court “to modify the restitution fine in accordance with the applicable statutory minimum if appropriate,” yet clarified that the court was “not precluded from setting the fine at the greater amount previously imposed [i.e., at $560] so long as it [did] so using a rational method of computation.” (Ibid.) The record does not indicate whether the court imposed a restitution fine at the resentencing hearing on remand and, if so, in what amount.
As noted, Lamoureux thereafter filed a Senate Bill No. 1437 petition to vacate her murder conviction and to be resentenced, which the court granted. During resentencing, the court again imposed a $560 restitution fine. Now, Lamoureux challenges the restitution fine on grounds that the court failed to employ a rational method of computation when setting the amount of the restitution fine.
The People assert Lamoureux forfeited her argument by failing to object to the restitution fine in the trial court. We agree. By not objecting to the restitution fine, Lamoureux forfeited the issue for our consideration. (People v. Pinon (2016) 6 Cal.App.5th 956, 968 (Pinon); People v. Garcia (2010) 185 Cal.App.4th 1203, 1218.) Further, the $560 restitution fine is less than the statutory maximum of $10,000. (
Lamoureux claims her trial counsel was ineffective because he did not object to the restitution fine. We disagree. “If, as here, the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate court must reject [a] claim of ineffective assistance unless there can be no satisfactory explanation for counsel‘s conduct.” (People v. Kendrick (2014) 226 Cal.App.4th 769, 778.) We believe there is a satisfactory explanation for counsel‘s conduct. During resentencing, the trial court imposed the upper term for Lamoureux‘s conspiracy conviction. Given the court‘s imposition of the harshest possible custodial penalty, Lamoureux‘s counsel reasonably could have refrained from objecting to the restitution fine for fear that an objection would have caused the court to reassess and increase the restitution fine from $560 to an amount upwards of the statutory maximum of $10,000.
2
Next, we consider whether Lamoureux‘s excess custody credits must be applied to offset her $560 restitution fine. The People concede the excess custody credits offset the restitution fine and we accept the concession.
At the time of Lamoureux‘s offense in 2011,
Under the plain terms of
Presentence Conduct Credits
When the trial court sentenced Lamoureux on April 19, 2013, it determined she had 648 presentence actual time credits and zero presentence conduct credits. Lamoureux asserts, and the People do not dispute, that the court denied her presentence conduct credits because she stood convicted of felony murder and the court therefore applied
When the court granted Lamoureux‘s Senate Bill No. 1437 petition, vacated her murder conviction, and resentenced her, the court again determined she had 648 presentence credits. As the basis for its determination, the court referenced and adopted its credit calculation from the initial sentencing. Thus, it is apparent these 648 presentence credits consist entirely of actual credits.
Lamoureux contends the court erred in denying her any presentence conduct credits because her Senate Bill No. 1437 petition resulted in her murder conviction being vacated. Thus, according to Lamoureux,
We agree with the People that the issue of Lamoureux‘s entitlement to presentence conduct credits is moot. “As a general rule, an appellate court only decides actual controversies. It is not the function of the appellate court to render opinions [‘“]upon moot questions or abstract propositions, or declare principles or rules of law which cannot affect the matter in issue in the case before it.[‘“] [Citation.] ‘[A] case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief.‘” (People v. Rish (2008) 163 Cal.App.4th 1370, 1380.)
As noted, Lamoureux has completed her new custodial term and been released from prison. She already has more than enough excess custody credits (1,400) to be applied against, and fully eliminate, her $560 restitution
As no adverse collateral consequences would be avoided or ameliorated by an award of presentence custody credits, the issue is moot.9 (People v. Petri (2020) 45 Cal.App.5th 82, 92-93 [defendant‘s entitlement to additional conduct credits was moot because defendant was released from custody and was not ordered to pay amounts against which excess custody credits may be applied]; People v. Valencia (2014) 226 Cal.App.4th 326, 327, 329 [“any contention concerning inadequate presentence credits is moot“].)
IV
DISPOSITION
The judgment is modified to reflect that Lamoureux‘s $560 restitution fine (
WE CONCUR:
BENKE, J.
HUFFMAN, J.
McCONNELL, P. J.