Opinion
H046884
05-05-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSE FARIAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1806884)
Appellant Jose Farias appeals from a judgment sentencing him to 32 months imprisonment. Farias contends the trial court's finding at sentencing that he has the ability to pay fines and fees lacks substantial evidence. For the reasons explained below, we affirm the judgment.
I. FACTS AND PROCEDURAL BACKGROUND
The facts of Farias's crime are not relevant to the issues in this appeal. Farias was charged by complaint with attempted arson of a structure or forest land (Pen. Code, § 455). The complaint also alleged that Farias had suffered a prior or serious felony. (§§ 667, subd. (b)-(i), 1170.12.) Farias was approximately 35 years old during the pendency of this case.
Unspecified statutory references are to the Penal Code.
Pursuant to a negotiated disposition, the prosecution amended the crime charged in the complaint to a violation of section 452, subdivision (c). Farias pleaded no contest to that crime and admitted the allegation that he had suffered a prior "strike" conviction. The negotiated disposition provided that Farias would be sentenced to a term of imprisonment of 32 months.
At sentencing, the trial court denied probation, sentenced Farias to a term of 32 months imprisonment to be followed by a three-year term of parole or community supervision, and awarded him 224 days of custody credits. The trial court imposed the following fines and fees: a $600 restitution fine (§ 1202.4, subd. (b)), a suspended $600 parole revocation fine (§ 1202.45), a $40 court operations assessment (§ 1465.8), a $30 court facilities funding assessment (Gov. Code, § 70373), and a $129.75 criminal justice administration fee (Gov. Code, §§ 29500.1, 29500.2). The trial court also and entered a general order of restitution (§ 1202.4, subd. (f)).
With respect to Farias's ability to pay, the trial court stated, "The defendant has indicated in his Statement of Assets that he has no assets and no employment. I have no reason to doubt that. However, I know he will be in prison and will have the opportunity for inmate wages, so I will find he has the ability to pay and will not stay them pursuant to [People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas)]." Farias's counsel requested that the fines and fees be stayed "pursuant to Dueñas" based on Farias's "[l]ack of job and lack of assets and the very small amount of money they get paid as inmates." The trial court "[n]oted and overruled" the request.
II. DISCUSSION
A. Farias's Contentions on Appeal
On appeal, Farias argues substantial evidence does not support the trial court's finding that he had the ability to pay the court security fee, criminal conviction assessment, criminal justice administration fee, or restitution fine. Farias contends that the trial court's imposition of these fees violated his due process rights under the authority of Dueñas, supra, 30 Cal.App.5th 1157, and cases following its reasoning.
Farias states that the trial court's finding that he had the ability to pay the fees based on his wages in state prison lacks substantial evidence because Farias is serving a "very short term sentence." In addition, Farias relies on a number of prison regulations to argue he will be housed in a "reception center" for a significant period of time during his custodial term where he will likely not have the opportunity to work. Farias contends it is not clear whether he will obtain a job in prison because he was housed in the mental health facility of the county jail, suggesting he may struggle with mental health difficulties.
Farias also cites a number of statistics—never presented to the trial court—that indicate a significant number of inmates in the state prison system do not hold prison jobs. Again relying on figures never presented to the trial court, Farias asserts it would take him "19,993.75 hours" of work in prison to pay the $799.75 in court-ordered fees. To remedy the trial court's alleged violation of Farias's due process rights, Farias requests we strike the fines and fees imposed.
B. Analysis
Farias's challenge to the trial court's findings with respect to the court security fee, criminal conviction assessment, and criminal justice administration fee relies upon Dueñas, supra, 30 Cal.App.5th 1157 and opinions adopting its reasoning. For the reasons set out in opinions by other panels of this court, we conclude that Dueñas was wrongly decided. (See, e.g., People v. Adams (2020) 44 Cal.App.5th 828, 831-832; People v. Petri (2020) 45 Cal.App.5th 82, 92.) Farias does not identify any other error with the fines and fees assessed at his sentencing. Therefore the trial court's imposition of the fines and fees at sentencing did not violate Farias's due process rights.
According to the terms of the statutes providing for imposition of these fines and fees, the trial court must assess them without determining whether the defendant has the ability to pay. (See People v. Jones (2019) 36 Cal.App.5th 1028, 1032.) However, the trial court imposed a restitution fine of $600, which was in excess of the minimum of $300. (§ 1202.4, subd. (b)(1).) Therefore, the trial court had the statutory authority to consider Farias's ability to pay when setting the amount of the restitution fine. (§ 1202.4, subd. (c); People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154.) For the reasons explained below, we conclude substantial evidence supports the trial court's determination that Farias had the ability to pay the fees and fines imposed, including the restitution fine. --------
Even accepting arguendo that Dueñas was correctly decided, Farias has not persuaded us that the trial court's finding that he had the ability to pay the fines and fees lacked substantial evidence. "Under substantial evidence review, we 'interpret the facts in the light most favorable to the [order], indulge . . . all reasonable inferences in support of the trial court's order,' and do not reweigh the evidence." (In re E.F. (2020) 45 Cal.App.5th 216, 222, petn. for review pending, petn. filed Mar. 17, 2020.) In reviewing the trial court's decision, we may not consider evidence that was not presented to the trial court. (Brodie v. Barnes (1942) 56 Cal.App.2d 315, 319.)
Farias bore the burden in the trial court of demonstrating his inability to pay. (People v. Castellano (2019) 33 Cal.App.5th 485, 490.) Farias's argument on appeal challenging the trial court's finding with respect to his ability to pay rests on the assumption that Farias would be limited to paying the fines and fees from his prison wages. However, the due process principles of Dueñas require that Farias have the ability to pay them from "probable future wages, including prison wages." (People v. Aviles (2019) 39 Cal.App.5th 1055, 1076.) Farias's "ability to pay includes '[his] ability to obtain prison wages and to earn money after his release from custody.' " (People v. Cervantes (2020) 46 Cal.App.5th 213, 229, italics added.) This observation applies equally to the restitution fine (which exceeded the statutory minimum) and to the other fines and fees imposed by the trial court.
Farias presented no evidence to the trial court why he, a relatively young man with no demonstrated physical disabilities, would not have the ability to pay the fines and fees, either while in prison or during the three years he would serve on parole or post-release community supervision. (See People v. Hicks (2019) 40 Cal.App.5th 320, 329.) Although the trial court accepted that Farias—who was in custody during the trial court proceedings—was not currently employed, the trial court expressly found that Farias could work in prison. The trial court did not make explicit findings that Farias would not be able to work after his release from custody. Drawing all inferences in favor of the court order, we may infer from the trial court's imposition of the fines and fees that it believed Farias could work during this post-release period.
In the trial court, Farias confined his arguments challenging the fines and fees to the low wages paid to prisoners and his current lack of job and assets. Farias presented no evidence that he would be unable to work in the future. (See People v. Lowery (2020) 43 Cal.App.5th 1046, 1060.) Farias notes in his briefing in this court that he had continued to commit crimes while on supervision in a prior case and suggests this was "likely because of drug use and mental health issues," but this statement is speculative. Farias also points out that he was represented by the public defender, suggesting he is indigent. The trial court was aware of Farias's financial situation, accepting that Farias had no assets. But this finding does not preclude the possibility of Farias's future employment. The probation report submitted in conjunction with Farias's sentencing does not contain any information supporting the contention that Farias would be unable to work either in prison or while on parole or post-release supervision.
We cannot conclude based on the evidence Farias presented to the trial court that the court's finding that he would have the ability to pay approximately $800 over a period of at least four years lacked substantial evidence. Therefore, Farias has not demonstrated error in the trial court's consideration of his financial circumstances or in its imposition of fines and fees on him.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Danner, J. WE CONCUR: /s/_________
Elia, Acting P.J. /s/_________
Bamattre-Manoukian, J.