Opinion
E071813
05-19-2020
THE PEOPLE, Plaintiff and Respondent, v. EDWARD CHRISTOPHER BRAVOT, Defendant and Appellant.
Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI18003038) OPINION APPEAL from the Superior Court of San Bernardino County. Michael A. Camber, Judge. Affirmed. Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Edward Christopher Bravot pleaded no contest to one count of arson of an inhabited structure (Pen. Code, § 451, subd. (b)) after deliberately starting a fire in his mother's garage. He also admitted that he had suffered one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). In return, the remaining allegations were dismissed and defendant was sentenced to a total term of six years in state prison with 17 days of credit for time served. Defendant was also ordered to pay a $300 restitution fine (§ 1202.4, subd. (b)), a suspended $300 revocation fine (§ 1202.45), a $40 court operations assessment (§ 1465.8), and a $30 criminal conviction assessment (Gov. Code, § 70373). On appeal, defendant contends the trial court erred in ordering him to pay the fines and assessments without determining his ability to pay in violation of his constitutional due process right. We disagree and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the police report.
On October 17, 2018, defendant's mother called law enforcement after defendant attempted to break down the door that led from her garage to the inside of her house. Defendant's mother reported that defendant was banging on the walls and other items in the garage. She also stated that she was afraid to let defendant inside her home because he was angry and appeared to be impaired. Defendant's mother placed a chair under the doorknob to secure the door so that defendant could not gain entry to the house.
After more banging, defendant yelled, "'I will show you guys and start a fire.'" Defendant's mother and her daughter then smelled gas inside the residence. Defendant's mother and other family members exited the house, opened the garage door, and saw that the garage was on fire. By the time police officers arrived on the scene, the garage was engulfed in flames. Defendant was located a few minutes later, walking down the street, and was arrested.
Later investigation revealed that defendant had lit some baseball cards on fire and then removed the dryer, causing damage to the gas line. Defendant was 54 years old at the time of the incident and resided on a couch in his mother's garage.
On October 19, 2018, a felony complaint was filed, charging defendant with one count of arson of an inhabited structure (§ 451, subd. (b)). The complaint also alleged that defendant had suffered one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), one prior serious felony conviction (§ 667, subd. (a)(1)), and one prior prison term (§ 667.5, subd. (b)).
On October 31, 2018, defendant pleaded no contest to the arson charge and admitted that he had suffered one prior strike conviction. In return, the remaining allegations were dismissed. Pursuant to defendant's request, on that same day, defendant was immediately sentenced to the low term of three years in state prison, doubled to six years due to the prior strike allegation, and awarded 17 days of credit for time served under section 2933.1.
Defendant filed a timely notice of appeal and request for certificate of probable cause on December 3, 2018, and again on December 26, 2018. On December 26, 2018, the trial court granted defendant's request for a certificate of probable cause.
On April 24, 2019, defendant filed an informal motion in the superior court pursuant to section 1237.2 requesting that the court strike the $30 assessment fee under Government Code section 70373 and the $40 assessment fee under Penal Code section 1465.8 and stay enforcement of the restitution fine until there was a showing of an ability to pay.
On April 30, 2019, defendant's "informal motion to correct fees and fines under . . . Section 1237.2" was denied. The court explained that it was "unable to recall this sentence pursuant to . . . Section 1170(d)(1) because more than 120 days have elapsed since the defendant was committed to state prison. [Citation.]" The court also stated that it did not "believe that the ability to pay hearing required by the holding in People v. Dueñas (2019) 30 Cal.App.5th 1157 [(Dueñas)], constitutes 'A new rule for the conduct of criminal prosecutions.'" The court further determined that even if it "did have the authority to recall the sentence and conduct such a hearing, [the court] would follow the holding of People v. Gentry (1994) 28 Cal.App.4th 1374 [(Gentry)] and not modify the $70 in Court Operation fees and the $300 Restitution Fund fine. Such a determination would have been made, after consideration of the due process issue raised in Dueñas based upon the defendant's ability to earn income while in prison, and the relatively small amount required to be paid and the number of years the defendant would have to satisfy this obligation."
III
DISCUSSION
Defendant contends the trial court's imposition of the restitution fine and assessments without a determination of his ability to pay violated his due process right under Dueñas, supra, 30 Cal.App.5th 1157, and therefore the restitution fine should be stayed and the assessments should be stricken unless the court finds he has an ability to pay the fine and assessments. Pointing out that defendant made no objections to the fines and assessments at his sentencing hearing, the People argue he forfeited his challenge. The People also claim remand would be an idle act since the trial court determined defendant could pay the minimal fine and assessments from his prison wages and any error was harmless beyond a reasonable doubt. We conclude that even if there was Dueñas error in this case, the error would be harmless because the record demonstrates, beyond a reasonable doubt, that defendant will be able to pay the total amount imposed with prison wages. (See People v. Jones (2019) 36 Cal.App.5th 1028, 1035 (Jones).)
The Dueñas court held: "[T]he assessment provisions of Government Code section 70373 and Penal Code section 1465.8, if imposed without a determination that the defendant is able to pay, are . . . fundamentally unfair; imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution." (Dueñas, supra, 30 Cal.App.5th at p. 1168; accord, People v. Belloso (2019) 42 Cal.App.5th 647, 654-655.) In contrast to court assessments, a restitution fine under section 1202.4, subdivision (b), "is intended to be, and is recognized as, additional punishment for a crime." (Dueñas, at p. 1169; accord, Belloso, at p. 655.) Section 1202.4, subdivision (c), expressly provides a defendant's inability to pay a restitution fine may not be considered as a "compelling and extraordinary reasons" not to impose the statutory minimum fine.
Several Courts of Appeal, including this court (Jones, supra, 36 Cal.App.5th at pp. 1030-1035) have applied the analysis in Dueñas (e.g., People v. Santos (2019) 38 Cal.App.5th 923, 929-934; People v. Kopp (2019) 38 Cal.App.5th 47, 95-96, review granted Nov. 13, 2019, S257844 [applying due process analysis to court assessments]). Others have rejected the due process analysis (e.g., People v. Kingston (2019) 41 Cal.App.5th 272, 279-281; People v. Hicks (2019) 40 Cal.App.5th 320, 326, review granted Nov. 26, 2019, S258946) or concluded the imposition of fines and fees should be analyzed under the excessive fines clause of the Eighth Amendment (e.g., People v. Aviles (2019) 39 Cal.App.5th 1055, 1061; People v. Kopp, at pp. 96-97 [applying excessive fines analysis to restitution fines]). --------
This court has addressed the claim of Dueñas error and concluded a defendant who has not objected to the imposition of a minimum restitution fine and court assessments has not forfeited the issue on appeal. (Jones, supra, 36 Cal.App.5th at pp. 1031-1034 [no forfeiture for failing to object to imposition of minimum restitution fine ($300) and court security fee ($70)].) We also found a Dueñas error may be harmless if the record shows a defendant will be able to earn the total amount imposed during imprisonment. (Jones, at pp. 1034-1035 [a defendant who was sentenced to state prison for a term of six years—with a presentence custody and conduct credit of 332 days—would earn sufficient prison wages to pay his fines and assessments of $370].)
Here, like in Jones, defendant challenges the imposition of the minimum restitution fine in the amount of $300, the court operations assessment in the amount of $40, and the criminal conviction assessment in the amount of $30 on the basis there was no determination of his ability to pay. However, the record contains sufficient evidence to support his ability to pay the amounts imposed given his sentence of six years in state prison. The trial court is presumed to know the law (People v. Thomas (2011) 52 Cal.4th 336, 361), which includes the requirement that "every able-bodied prisoner imprisoned in any state prison" must perform labor for compensation. (§ 2700.) In fact, the record here reflects that the trial court knew the law and concluded that even if it considered the due process issue raised in Dueñas, defendant would have the ability to pay "the relatively small amount" of $370 from his six-year prison wages.
Although the record indicates defendant was 54 years old at the time of the incident and that he slept on his mother's couch in her garage, in the absence of some indication that defendant has a disability precluding him from performing any type of labor in prison, it must be presumed that he is capable of earning prison wages. (See Gentry, supra, 28 Cal.App.4th at p. 1377, fn. 6.) The trial court could properly consider these wages and find, as it did here, that defendant can afford to pay the ordered fine and fees or assessments through his prison wages. (See People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [court may consider ability to earn prison wages in determining ability to pay]; Jones, supra, 36 Cal.App.5th at p. 1035 ["Wages in California prisons currently range from $12 to $56 a month. [Citations.] And half of any wages earned (along with half of any deposits made into [a prisoner's] trust account) are deducted to pay any outstanding restitution fine."].) Up to 50 percent of defendant's wages and trust account deposits will be deducted to pay any outstanding restitution fine and fees, plus another 10 percent for the administrative costs of this deduction. (§ 2085.5, subds. (a), (e); Cal. Code Regs., tit. 15, § 3097, subd. (f).) Although there is no guarantee defendant will actually obtain paid labor while serving his prison term, in the absence of contrary evidence we must assume he will become eligible for it during his six-year prison sentence.
There is no evidence defendant has any other financial obligations that would interfere with his ability to pay. Assuming that defendant will earn the lowest wage of $12 a month for the duration of his sentence, it will take him approximately 30 months (about two and a half years) to pay off $370. We recognize that "[a]n inmate's assignment to a paid position is a privilege dependent on available funding, job performance, seniority and conduct" (Cal. Code Regs., tit. 15, § 3040, subd. (k)), but because defendant is able-bodied and his sentence far exceeds two and a half years, there is a strong likelihood he will hold a paid position long enough to satisfy his financial obligation. We therefore conclude, as we did in Jones, that defendant's ability to pay the total amount imposed with prison wages "forecloses a meritorious inability to pay argument." (Jones, supra, 36 Cal.App.5th at p. 1035.)
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: SLOUGH
J. RAPHAEL
J.