Opinion
B306866
09-15-2021
THE PEOPLE, Plaintiff and Respondent, v. JOE VINCENT CRUZ, Defendant and Appellant.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Colleen M. Tiedemann, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. VA127109, Larry S. Knupp (Ret.); John A. Torribio, Judge.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Colleen M. Tiedemann, Deputy Attorney General, for Plaintiff and Respondent.
MOOR, J.
In 2013, defendant and appellant Joe Vincent Cruz pleaded no contest to one count of vehicular manslaughter (Pen. Code, § 192, subd. (c)(1)) and admitted a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and one prior serious felony conviction (§ 667, subd. (a)(1)). The trial court imposed a $30 criminal conviction assessment (Gov. Code, § 70373), a $40 court operations fee (§ 1465.8, subd. (a)(1)), and a $280 restitution fine (§ 1202.4, subd. (b)), and imposed and stayed a $280 parole revocation fee (§ 1202.45). Cruz did not request an ability to pay hearing or object that he was unable to pay the fine, fees, and assessment. In 2014, Cruz stipulated to direct victim restitution in the amount of $20, 403.01. (§ 1202.4, subd. (f).)
All further statutory references are to the Penal Code unless otherwise indicated.
On February 24, 2020, Cruz filed a petition for habeas corpus, contending that his counsel was ineffective for failing to file a notice of appeal, which the court granted.
On July 20, 2020, Cruz filed a notice of appeal, as permitted by the ruling on his successful habeas petition. On appeal, he argues that, under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), imposition of the court operations and conviction assessments, restitution fine, and direct victim restitution order was unconstitutional because the trial court did not consider his ability to pay the obligations.
Rather than utilize a standard, preprinted notice of appeal form, Cruz filed a handwritten notice of appeal that does not identify the basis for his appeal. We must liberally construe the notice of appeal. (Cal. Rules of Court, rule 8.304(a)(4); see People v. Lloyd (1998) 17 Cal.4th 658, 665 [“notice of appeal must ‘be liberally construed in favor of its sufficiency'”]; People v. Davis (2014) 226 Cal.App.4th 1353, 1364 [“Rule 8.304(a)(4)... establishes that a ‘notice of appeal must be liberally construed'”].) The People do not challenge the sufficiency of Cruz's notice of appeal and have responded to Cruz's contentions that the restitution fine, assessment fees, and direct victim restitution imposed in connection with his original sentencing violated his right to due process. We construe Cruz's notice of appeal to include these grounds. We note that Cruz's challenges are to grounds that arose after entry of his plea and that do not affect the plea's validity within the meaning of California Rules of Court, rule 8.304(b)(4). Accordingly, we resolve Cruz's contentions on their merits.
On October 19, 2020, subsequent to filing the notice of appeal, Cruz filed a letter with the trial court requesting that it stay the $280 restitution fine and strike the $30 and $40 assessments pursuant to Dueñas. On October 30, 2020, he filed a second letter with the trial court requesting that it vacate the direct victim restitution order pursuant to Dueñas. The trial court denied both requests in written orders dated October 27, 2020 and October 30, 2020, of which we have taken judicial notice. In addition to challenging the fines, fees, and assessments imposed in 2013 and 2014 following Cruz's plea of no contest, Cruz alternatively frames his argument as appealing the trial court's orders denying the requests he made in October 2020. We have no jurisdiction to decide Cruz's purported challenges to rulings made after he filed his notice of appeal. (Hedwall v. PCMC, LLC (2018) 22 Cal.App.5th 564, 572, 580.).
Following our review of the record, we informed the parties that the corrected abstract of judgment, filed on October 27, 2020, does not reflect the order of $20, 403.01 in direct victim restitution, and invited them to file supplemental briefing on the issue. The parties agree that the abstract of judgment must be corrected to reflect the order of $20, 403.01 in direct victim restitution. We remand to the trial court to correct the abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186 [where oral pronouncement and abstract of judgment conflict, oral pronouncement controls].) In all other respects, the judgment is affirmed.
DISCUSSION
Ability to Pay Assessments and Restitution Fine
Cruz asserts that he should be relieved of the financial obligations imposed in connection with his sentence because he is indigent, as evidenced in the probation report, which listed his employment status as unverified, his last period of employment and gross monthly income as unknown, and no primary income source or assets. Cruz argues that even if he were to obtain a job while incarcerated, it would take him years to pay the fines and assessments because his earning capacity is limited to a range of $12 to $56 per month. We reject Cruz's contention.
In Dueñas, the record established that the defendant was a homeless, disabled, jobless mother of two children, whose husband was also frequently unemployed. Dueñas was caught in a longstanding cycle of poverty that had been exacerbated by fines she accrued by driving with a suspended license. Dueñas had repeatedly served time in jail in lieu of paying fines because of her inability to pay, and had suffered other severe adverse consequences due to nothing more than her own impoverishment. Dueñas had requested, and the trial court had granted, a hearing to determine her ability to pay a $30 court facilities assessment (Gov. Code, § 70373), a $40 court operations assessment (§ 1465.8, subd. (a)(1)), and a $150 restitution fine (§ 1202.4, subd. (b)), as well as previously imposed attorney fees. (Dueñas, supra, 30 Cal.App.5th at pp. 1161-1162.) Dueñas presented undisputed evidence of her inability to pay, and the trial court waived the attorney fees. However, the court denied her other requests, finding it was statutorily required to impose the court facilities assessment and court operations assessment, and prohibited from considering her inability to pay as a “‘compelling and extraordinary reason[ ]'” that would permit waiver of the minimum restitution fine. (Id. at p. 1163.) The court therefore imposed the assessments and fine despite its finding that Dueñas was unable to pay them. (Ibid.)
The Court of Appeal held that the consequences Dueñas faced amounted to punishment on the basis of poverty, which the state and federal constitutional rights to due process and equal protection forbid. (Dueñas, supra, 30 Cal.App.5th at pp. 1166-1172.) The appellate court reversed the trial court's order imposing the court facilities assessment and court operations assessment, and directed the trial court to stay the execution of the restitution fine unless and until the People proved that Dueñas had the present ability to pay it. (Id. at pp. 1172-1173.) The Dueñas court concluded that due process requires trial courts to determine a defendant's ability to pay before it may impose the assessments mandated by section 1465.8 and Government Code section 70373, and requires trial courts to stay execution of any restitution fine imposed under section 1202.4, subdivision (b), until it has been determined that the defendant has the ability to pay the fine. (Id. at pp. 1168-1169, 1172.)
Our Supreme Court has granted review to decide whether, as Dueñas holds, a court must consider a defendant's ability to pay before imposing or executing fines, fees, and assessments. (People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.) Even if the Supreme Court concludes consideration of ability to pay is required with respect to the criminal conviction assessment (Gov. Code, § 70373), court operations fee (§ 1465.8, subd. (a)(1)), and restitution fine (§ 1202.4, subd. (b)), that would not warrant reversal for Dueñas reasons in this case. Any error by the trial court in failing to consider, sua sponte, Cruz's ability to pay the fines and assessments is harmless in light of the long custodial sentence imposed. (People v. Johnson (2019) 35 Cal.App.5th 134, 139-140 (Johnson); People v. Jones (2019) 36 Cal.App.5th 1028, 1035.)
Not only does the record show Cruz had some past income-earning capacity, his 17-year prison term will afford him the opportunity to earn prison wages over a significant number of years. (See Johnson, supra, 35 Cal.App.5th at p. 140; see also People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [ability to pay includes a defendant's ability to obtain prison wages]; People v. Castellano (2019) 33 Cal.App.5th 485, 490 [the trial court may consider potential prison pay during a defendant's period of incarceration].) “‘Prison wages range from $12 to $56 per month, depending on the prisoner's skill level.' [Citation.]... It is illogical to conclude that [Cruz] will not have an ability to begin paying at least some of the imposed fees, fines, and assessments while [he is] incarcerated.” (People v. Lowery (2020)43 Cal.App.5th 1046, 1060; Johnson, supra, at p. 140 [“idea that [defendant] cannot afford to pay $370 while serving an eight-year prison sentence is unsustainable”].) “While it may take [Cruz] some time to pay the amounts imposed in this case, that circumstance does not support his inability to make payments on these amounts from either prison wages or monetary gifts from family and friends during his prison sentence.” (People v. Montes (2021) 59 Cal.App.5th 1107, 1126 (dis. opn. of Poochigian, J.).)
Direct Victim Restitution
Cruz next argues that Dueñas should apply to direct victim restitution orders because, like restitution fines, they are mandatory. He contends that the $20, 403.01 victim restitution order violates his due process rights because there is ample evidence that he will never have the future ability to pay such restitution. We reject Cruz's contention.
Article I, section 28, subdivision (b)(13)(A) of the California Constitution vests in “all persons who suffer losses as a result of criminal activity... the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer.” The broad constitutional right to restitution is implemented in section 1202.4, which states that “in every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court. The court shall order full restitution.” (§ 1202.4, subd. (f).) “A defendant's inability to pay shall not be a consideration in determining the amount of a restitution order.” (§ 1202.4, subd. (g); see also People v. Draut (1999) 73 Cal.App.4th 577, 582 [court abuses its discretion if it reduces restitution award to victim based on defendant's inability to pay].)
The Dueñas court specifically noted that the opinion did not address direct victim restitution imposed under section 1202.4, subdivision (f). An order of victim restitution is not analogous to the restitution fine at issue in Dueñas. Their purposes are fundamentally different. The assessments raise funds for the court, and the restitution fine paid to the state is intended to be punitive. (Dueñas, supra, 30 Cal.App.5th p. 1169.) In contrast, direct victim restitution compensates victims for economic losses they have suffered because of the defendant's crime. (Ibid.) Victims have a right to restitution under the California Constitution. (Cal. Const., art. I, § 28, subd. (b)(13)(A).) “‘[I]t cannot be bargained away or limited, nor can the prosecution waive the victim's right to receive restitution.' [Citation.]” (People v. Allen (2019) 41 Cal.App.5th 312, 321 (Allen).) In light of the competing constitutional interests of innocent victims, appellate courts have declined to extend Dueñas's application to direct victim restitution. (People v. Evans (2019) 39 Cal.App.5th 771; Allen, supra, 41 Cal.App.5th 312.) We share our sister courts' view and conclude that Dueñas is inapplicable to the direct victim restitution order imposed on Cruz.
DISPOSITION
We remand the matter to the trial court to amend the abstract of judgment to reflect the $20, 403.01 direct victim restitution order. The trial court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: BAKER, Acting P.J., KIM, J