Opinion
E071527
02-14-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ANTHONY GUTIERREZ, Defendant and Appellant.
Michael S. McCormick, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CR-059175) OPINION APPEAL from the Superior Court of San Bernardino County. Charles J. Umeda, Judge. Affirmed. Michael S. McCormick, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Pursuant to a negotiated disposition, defendant and appellant Michael Anthony Gutierrez pleaded guilty to second degree burglary (Pen. Code, § 459, count 1) and forgery of a check exceeding $950 (Pen. Code, §§ 476, 473, subd. (a), count 2). He also admitted that he had suffered one prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and three prior prison terms (Pen. Code, § 667.5, subd. (b)). Defendant was released on his own recognizance pursuant to People v. Vargas (1990) 223 Cal.App.3d 1107 (Vargas), execution of the sentence was suspended, and defendant was ordered to return to court. Once defendant returned to court, he was sentenced to a total term of four years on count 1 (the middle term of two years, doubled to four years due to the prior strike) with 418 days credit for time served. Defendant was also ordered to pay a $300 restitution fine (Pen. Code, § 1202.4), a $40 court operations assessment (Pen. Code, § 1465.8), and a $30 conviction assessment (Gov. Code, § 70373).
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant contends (1) the matter should be remanded so the court can correct its oversight in failing to dismiss the remaining count and allegations as required by the plea agreement; and (2) the trial court's imposition of the fine and assessments without a determination of his ability to pay violated his due process right under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), and therefore the restitution fine should be stayed and the assessments should be stricken unless the court finds he has an ability to pay. We reject these contentions and affirm the judgment.
Defendant has also filed a petition for writ of habeas corpus in case No. E073835, which will be resolved by separate order.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the police report and the preliminary hearing transcript. --------
On April 11, 2016, at about 3:00 p.m., defendant entered a bank, presented a teller with a check from Vortex Industries payable to him in the amount of $2,099, and attempted to cash the check. The teller took the check and defendant's driver's license and asked defendant to wait while he verified the check. Another bank employee contacted the account holder and was informed the check had not been made out to defendant. Law enforcement was thereafter contacted.
Shortly before police arrived, defendant asked the teller to return the check and his identification, because he had to leave. The teller replied the bank was still verifying the check. Defendant left the bank without the check and his driver's license.
The financial controller for Vortex Industries informed the police that the check had been made out to Enviroblinds and that defendant did not have permission to cash it.
On August 13, 2018, a second amended information was filed charging defendant with second degree burglary (§ 459; count 1) and forgery of a check exceeding $950 in value (§§ 476, 473, subd. (a); count 2). The second amended information also alleged that defendant had suffered one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and three prior prison terms (§ 667.5, subd. (b)).
On August 31, 2018, pursuant to a negotiated agreement that included a Vargas waiver, defendant pleaded guilty as charged to both counts and admitted the prior strike and prior prison term enhancement allegations. Defendant was immediately sentenced to a total term of 10 years four months. Thereafter, defendant was released on his own recognizance pursuant to the Vargas waiver, execution of the sentence was suspended, and he was ordered to return to court on September 14, 2018. Defendant was promised that if he returned to court as scheduled and did not incur any violations of the law in the interim, he would be resentenced to a term of four years as the doubled middle term of two years on count 1, and the remaining charges would be dismissed.
On September 14, 2018, defendant returned to court as promised. Through his appointed counsel, defendant informed the trial court he wished to withdraw his plea. The court relieved defendant's counsel and scheduled a hearing on the motion to withdraw the plea for October 12, 2018. In the meantime, defendant was remanded into custody.
On October 12, 2018, defendant's newly appointed counsel informed the court that a motion to withdraw the plea would be untimely, since defendant had already been sentenced. The trial court agreed and proceeded to resentence defendant in accordance with his plea agreement. The court sentenced defendant to the promised term of four years on count 1 with 418 days credit for time served. Although the court did not state so orally, the court clerk's minute order indicates that the remaining charge (count 2) and prior prison term enhancements were dismissed. The abstract of judgment indicates that defendant was only sentenced on the second degree burglary charge (count 1).
On November 1, 2018, defendant filed a timely notice of appeal.
III
DISCUSSION
A. Remand for Court to Orally Dismiss Remaining Charges
Defendant argues the matter should be remanded so the trial court can orally dismiss count 2 and the prior prison term enhancements pursuant to the plea agreement. He also claims that neither the court clerk's minute order nor the abstract of judgment can add or modify the orders pronounced by a trial court. The People assert the plea agreement contemplated the dismissal of count 2 and the prior prison terms and that the record contains an "implicit" dismissal of these allegations. The People therefore believe a remand is not warranted in the interest of judicial economy. We agree with the People.
A reversal and remand for the trial court to orally dismiss count 2 and the prior prison terms would achieve the same result and would not change the outcome indicated in the court clerk's minute order of the October 12, 2018 resentencing hearing. The law does not require the performance of idle acts. (Civ. Code, § 3532; see also People v. Coelho (2001) 89 Cal.App.4th 861, 889 ["[R]eviewing courts have consistently declined to remand cases where doing so would be an idle act that exalts form over substance."].) Here, a reversal and remand would result only in an exercise in futility and would not alter the outcome of the judgment and sentencing in any respect.
B. Ability to Pay Fine and Assessments
Relying on Dueñas, supra, 30 Cal.App.5th 1157, defendant asserts that imposition of the $300 restitution fine and assessments in the amount of $70 without a determination of his ability to pay violated his due process right. He thus contends the restitution fine should be stayed and the fees and assessments should be stricken unless the People prove he has an ability to pay.
Dueñas involved the plight of a married mother with cerebral palsy, whose family—which included two young children—was demonstrably unable to afford even basic necessities due to poverty and an inability to work. (Dueñas, supra, 30 Cal.App.5th at pp. 1060-1161.) Dueñas's inability to pay several juvenile citations had resulted in suspension of her driver's license, which then led to a series of misdemeanor convictions over the years for driving with a suspended license and additional court fees she was also unable to pay. (Id. at p. 1161.) Dueñas routinely served time in jail in lieu of paying the fines she owed, but nevertheless was sent to collections on other fees related to her court appearances. (Ibid.)
After pleading no contest to yet another misdemeanor charge of driving with a suspended license, the trial court imposed on Dueñas certain assessments and a $150 restitution fine—the minimum amount required under Penal Code former section 1202.4, subdivision (b). The trial court rejected Dueñas's argument that the imposition of the assessments and the fine without consideration of her ability to pay them violated her constitutional rights to due process and equal protection. (Dueñas, supra, 30 Cal.App.5th at pp. 1162-1163.) The Court of Appeal reversed, holding that "the 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[, and] 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, at p. 1168.) The imposition of a minimum restitution fine without consideration of the defendant's ability to pay also violated due process. (Id. at pp. 1169-1172.) The appellate court reversed the order imposing the assessments and directed the trial court to stay the execution of the restitution fine "unless and until the People prove that [the defendant] has the present ability to pay it." (Id. at pp. 1172-1173.)
Here, the People contend that defendant forfeited any challenge to the restitution fine, fees and assessments by failing to object or raise the issue below. This general rule is well-settled. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864; People v. Avila (2009) 46 Cal.4th 680, 729.) Defendant argues, however, that the forfeiture rule should not apply because he can raise a constitutional right violation claim for the first time on appeal and his sentencing occurred prior to Dueñas and therefore any objection would have been futile.
We acknowledge that courts have addressed similar arguments with different results. (See, e.g., People v. Castellano (2019) 33 Cal.App.5th 485, 489 (Castellano) [Division Seven of the Second District held that the forfeiture rule did not apply to a defendant sentenced prior to Dueñas because no court had previously "held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant's ability to pay."]; accord, People v. Johnson (2019) 35 Cal.App.5th 134, 138 (Johnson); contra, People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 [Division Eight of the Second District applied the forfeiture rule and disagreed with the defendant's assertion that Dueñas constituted " 'a dramatic and unforeseen change in the law.' "]; accord, People v. Bipialaka (2019) 34 Cal.App.5th 455, 464.)
However, recently this court in People v. Jones (2019) 36 Cal.App.5th 1028 (Jones), addressing the forfeiture argument, concluded that the defendant had not forfeited his right to raise an inability-to-pay argument on appeal by failing to raise the argument below where the trial court had imposed a $70 court operations fee and a $300 restitution fine. (Id. at p. 1030.) We explained: "Because a due process objection would have been 'futile or wholly unsupported by substantive law then in existence' had it been raised to the trial court, Jones has not forfeited the argument by failing to raise it below. (People v. Brooks [(2017)] 3 Cal.5th [1,] 92.) 'The circumstance that some attorneys may have had the foresight to raise this issue [in Dueñas] does not mean that competent and knowledgeable counsel reasonably could have been expected to have anticipated' Dueñas. ([People v.] Black [(2007)] 41 Cal.4th [799,] 812.) Given the substantive law in existence at the time of [the defendant's] sentencing, Dueñas was unforeseeable. We therefore agree with and follow other courts that have similarly declined to find forfeiture on an alleged Dueñas error." (Jones, at p. 1033, citing Castellano, supra, 33 Cal.App.5th at p. 489 and Johnson, supra, 35 Cal.App.5th at pp. 137-138.)
Here, we adhere to our reasoning in Jones and decline to find defendant forfeited his right to raise an inability-to-pay argument on appeal by failing to raise the argument below. At the time of defendant's plea and sentencing, controlling case law on point effectively foreclosed any objection that imposing the $300 restitution fine without conducting an ability-to-pay hearing violated his due process rights. Section 1202.4, subdivision (b)(1), states that "[i]f the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300)," which was the amount imposed here. Subdivision (c) of that section, moreover, states that "[i]nability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of subdivision (b)." (Italics added.) Because only the minimum amount was imposed, the statute supports the conclusion that the trial court had no discretion to take ability to pay into account.
Similarly, the relevant statutes all but foreclosed any due process objections to the court facilities or court operations assessments. As Dueñas noted, neither Government Code section 70373 nor Penal Code section 1465.8 expressly requires that the pertinent assessment be premised on an ability to pay. (See Dueñas, supra, 30 Cal.App.5th at p. 1166 [both sections are "silent as to the consideration of a defendant's ability to pay in imposing the assessments"].) "Without language in those sections instructing courts to condition the assessments on an ability to pay, [defendant]'s failure to object is excusable." (Jones, supra, 36 Cal.App.5th at p. 1032, citing People v. Ellis (2019) 31 Cal.App.5th 1090, 1094 ["[T]here is no language in the statute that provides the restriction that [defendant] asks us to impose. Moreover, it is not the province of this court to insert words or add provisions to an unambiguous statute."].)
However, as we concluded in Jones, we find the trial court's imposition of the statutory minimum restitution fine in the amount of $300 and total assessments in the amount of $70 without conducting an ability-to-pay hearing was harmless. We review federal constitutional errors under the harmless-beyond-a-reasonable-doubt test for prejudice set forth in Chapman v. California (1967) 386 U.S. 18, 24. (See Jones, supra, 36 Cal.App.5th at pp. 1030-1031 [we found Dueñas error harmless under Chapman]; Johnson, supra, 35 Cal.App.5th 134 [same].) Any error was harmless if the record demonstrates that defendant could not have established an inability to pay.
"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 defendant's] trust account) are deducted to pay any outstanding restitution fine. [Citations.]" (Jones, supra, 36 Cal.App.5th at p. 1035.) We believe defendant can earn enough in prison to pay the $300 restitution fine plus the $70 in assessments. In our view, this forecloses a meritorious inability-to-pay argument. Numerous cases have held that courts may consider future earning capacity, including the ability to earn prison wages, in determining ability to pay. (See People v. DeFrance (2008) 167 Cal.App.4th 486, 505 [defendant sentenced to prison did not show absolute inability to pay $10,000 restitution fine even though prison wages would make it difficult for him to pay the fine, it would take a very long time, and the fine might never be paid]; People v. Ramirez (1995) 39 Cal.App.4th 1369, 1377 [a trial court may consider the defendant's future ability to pay, including his ability to earn wages while in prison]; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 ["defendant's ability to obtain prison wages and to earn money after his release from custody" are properly considered when determining whether a defendant has the ability to pay]; People v. Gentry (1994) 28 Cal.App.4th 1374, 1377, fn. 6 [even where defendant had a claimed back injury, absent indication at the time of sentencing that it precluded him from performing any type of labor, it could not be assumed he was ineligible for prison work].) Accordingly, on this record, we conclude that any error was harmless. (Jones, supra, 36 Cal.App.5th at p. 1035; Johnson, supra, 35 Cal.App.5th at p. 139.)
Moreover, defendant can earn sufficient funds once he is released from prison, and there is no evidence defendant was indigent, unlike in Dueñas. The harm that caused Dueñas's situation to rise to the level of a constitutional violation was the application of the statutes imposing fines, fees and assessments in the face of undisputed evidence that she was unable to pay, unable to work, and would undoubtedly suffer further penalties based solely on her indigence. (Dueñas, supra, 30 Cal.App.5th at pp. 1161-1163.) The record here does not show that defendant had a past history of being unable to pay assessments and fees or that he was unable to work. According to the police report, defendant was 38 years old at the time he committed his offenses and had a home and an "operator license." "These are hardly indications of wealth, but there is enough evidence in the trial record to conclude that the total amount involved here did not saddle [defendant] with a financial burden anything like the inescapable, government-imposed debt-trap Velia Dueñas faced." (Johnson, supra, 35 Cal.App.5th at p. 139 [defendant not "similarly situated" to Dueñas].)
" '[A]bility to pay' . . . does not require existing employment or cash on hand. Rather, a determination of ability to pay may be made based on the person's ability to earn where the person has no physical, mental or emotional impediment which precludes the person from finding and maintaining employment once his or her sentence is completed." (People v. Staley (1992) 10 Cal.App.4th 782, 783.) Unlike in Dueñas, defendant provides no indication the $300 restitution fine and $70 assessments at issue will saddle him with "anything like the inescapable, government-imposed debt trap" faced by the defendant in that case. (See Johnson, supra, 35 Cal.App.5th at p. 139.) The factual differences between the instant case and Dueñas are significant. Based on this record, any reasonable court would still have imposed the fine and assessments even if it had separately considered defendant's ability to pay them under Dueñas.
Furthermore, because defendant's case lacks the exceptional circumstances that defined Dueñas, we decline to apply its reasoning to the facts before us. "Dueñas is distinguishable. That case involved a homeless probationer, Velia Dueñas, who suffered from cerebral palsy and was unable to work. [Citation.]" (Johnson, supra, 35 Cal.App.5th at p. 138.) Defendant, who was sentenced to four years in state prison, "is not similarly situated to the misdemeanor probationer in Dueñas. He was ordered to pay mandatory fees and a fine under the same constellation of statutes that were at issue in Dueñas, but there the similarity ends." (Id. at p. 139.) Any due process violation arising from the trial court's failure to consider defendant's ability to pay the restitution fine and assessments was thus harmless beyond a reasonable doubt. (Id. at pp. 139-140 citing Chapman v. California, supra, 386 U.S. at p. 24.)
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. MILLER
J.