Opinion
A156086
06-03-2020
THE PEOPLE, Plaintiff and Respondent, v. DASON BOISE MELIUS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51814748)
Dason Boise Melius appeals from a judgment of conviction and sentence imposed after a jury found him guilty of making criminal threats (Pen. Code, § 422, subd. (a)) and found he personally used a knife in commission of one of the offenses (§§ 12022, subd. (b)(1), 1203, subd. (e)(2)). He contends a one-year sentence enhancement imposed for a prior prison term must be stricken (§ 667.5, subd. (b)) and the matter must be remanded for the trial court to determine if he has the ability to pay the fines and fees assessed by the trial court (People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas)). We will remand the matter for resentencing in accordance with this opinion and, in all other respects, affirm the judgment.
All statutory references herein are to the Penal Code.
I. FACTS AND PROCEDURAL HISTORY
Melius was charged with assault with a deadly weapon (§ 245, subd. (a)(1)), two counts of criminal threats (§ 422, subd. (a)), and exhibiting a deadly weapon (§ 415, subd. (a)(1)). As to the criminal threat counts, an enhancement was alleged for personal use of a knife (§§ 12022, subd. (b)(1), 1203, subd. (e)(2)). It was further alleged that Melius served a prior prison term for an Iowa theft conviction, which at the time would warrant a one-year sentence enhancement. (§ 667.5, subd. (b).)
The brandishing count (count four) was dismissed upon the People's motion. A jury was unable to reach a verdict on the count one assault charge, which the prosecutor dismissed, but it found Melius guilty on the two criminal threat counts (counts two and three) and found the knife use allegation true. The court found true the prior prison allegation.
In December 2018, the court sentenced Melius to the mid-term of two years on the count two criminal threat charge, a concurrent term of two years on the count three criminal threat charge, one year for the knife use enhancement, and - at issue here - one year for the prior prison term under section 667.5, subdivision (b). In addition, the court imposed fines and fees giving rise to the second issue in this appeal, as discussed post.
II. DISCUSSION
A. One Year Term for Prison Prior
At the time of Melius's sentencing, section 667.5, subdivision (b) provided for a one year sentence enhancement if the defendant previously served a prison term for an offense that is not a violent felony under section 667.5, subdivision (c). Amended effective January 1, 2020, section 667.5, subdivision (b) applies only if the prior prison term was served for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (Stats. 2019, ch. 590, § 1 [Senate Bill No. 136]; Gov. Code, § 9600, subd. (a); see People v. Camba (1996) 50 Cal.App.4th 857, 865-866.)
Melius did not serve his prior prison term for a sexually violent offense, so he would not incur a sentence enhancement if he was sentenced under current section 667.5, subdivision (b). Because Melius's case is not yet final, he contends the statutory amendment applies retroactively and the enhancement that was imposed for the prior prison term should be stricken. Respondent agrees that the statutory change applies retroactively. (See In re Estrada (1965) 63 Cal.2d 740.)
The parties differ, however, as to what we should do about it. According to respondent, we should "remand for a full resentencing so the trial court can exercise its sentencing discretion in light of the changed circumstances." (Quoting People v. Navarro (2007) 40 Cal.4th 668, 681; citing People v. Buycks (2018) 5 Cal.5th 857, 893-896, fn. 15; People v. Rodriguez (2009) 47 Cal.4th 501, 509; People v. Burbine (2003) 106 Cal.App.4th 1250, 1259.) Respondent points out that, since the court can no longer use the prison prior to enhance the sentence under section 667.5, it could use it on remand to impose the upper term rather than the mid-term. (Cal. Rules of Court, rule 4.420 (b), (c), rule 4.421(b).)
Melius counters that we should just strike the one-year enhancement, without remanding. He claims the fact situations in the cases cited by respondent are different, and there is no reason to remand for possible imposition of the upper term because the court selected the mid-term at the original sentencing hearing. Having reviewed the record, we conclude it is prudent to give the trial court an opportunity to sentence Melius anew in light of prevailing law. We will therefore remand for resentencing.
B. Fee Assessments and Restitution Fine
At sentencing, the court imposed an $80 court operations assessment, a $60 criminal conviction assessment (court facilities fee), and a $1200 restitution fine under section 1202.4, without determining Melius's ability to pay. Relying on Dueñas, supra, 30 Cal.App.5th 1157, Melius claims this was error.
1. Background
Section 1465.8 requires a $40 court operations assessment to be imposed on every criminal conviction. Government Code section 70373 requires a $30 court facilities assessment be imposed on every criminal conviction. These fines are mandatory, and neither statute has any provision allowing courts to waive the fine based on inability to pay. (People v. Woods (2010) 191 Cal.App.4th 269, 272.) (Here, Melius was convicted of two crimes, so the fines were $80 and $60, respectively.)
Section 1202.4 requires a trial court to impose a restitution fine on a person convicted of a crime unless it finds on the record a compelling and extraordinary reason not to do so. For a felony, the fine shall be not less than $300 or more than $10,000, and the amount within that range is at the discretion of the court. (§ 1202.4, subd. (b)(1).) For example, the court "may" set the fine as the product of the minimum fine (here, $300) multiplied by the number of years of imprisonment (two years), multiplied by the number of felony convictions (two). (§ 1202.4, subd. (b)(2).) A defendant's inability to pay is not a sufficient basis for waiving the minimum fine, but it "may" be considered, along with other factors, in imposing a fine above the minimum. (§ 1202.4, subd. (c), (d).)
Here, relevant to Melius's ability to pay, the probation officer's report stated that Melius had been a turbine mechanic when he was in the Marine Corps, had been steadily employed since his discharge from the Marine Corps, and had taken college courses at an aviation institute and obtained his private pilot license. He had also worked at Michaels Transportation for two years transporting special needs children. Melius intended to seek work "at BNSF Railroads" as a longshoreman and planned to purchase investment properties to rent out, but he claimed not to have any financial assets, debts, property or vehicles. The report recommended imposition of the court operations assessment and court facilities assessment, and proposed that the fine under section 1202.4, subdivision (b) be in the amount of $600.
At the sentencing hearing, the following colloquy occurred regarding fines and fees: "THE COURT: . . . There are additional fines that need to be imposed. [¶] There is an $80 court operations assessment. There's a $60 CCA fee, a $176 probation report fee, there is a $1,200 restitution fine, and a $1,200 parole fine that is stayed on condition that the defendant does not violate his parole. [¶] [DEFENSE COUNSEL]: Just for the record, I am objecting to all fines and fees that are waivable, given that Mr. Melius will be doing extensive time in prison, I don't think he has ability to pay any of the fines the Court is laying out. [¶] THE COURT: Yeah. The fines and the fees that are discretionary are ones that I can set for a hearing, if that's what you're requesting. [¶] [DEFENSE COUNSEL]: Well, I'm making the statement that I don't think Mr. Melius has the ability to pay those fines. [¶] THE COURT: Well, I understand. But ones that require an ability to pay that are not discretionary, I think the Court must impose those regardless of his financial condition. The ones that are discretionary, and there's some, the Court can set a hearing for your client to attend, where his ability to pay can be assessed and determined. If you want me to do that, I can do that. I'm just trying to pull out the list to see if I have it handy of those fees that are, in fact, discretionary. I used to have that list here. [¶] But that's what you want to do; is that right, Mr. Ross? [¶] [DEFENSE COUNSEL]: We can set a hearing at a later date if that's the course we choose to go. [¶] There is one thing -- [¶] THE COURT: · Here's what I looked at. The probation report fee, the -- that I imposed, seems to be a discretionary fee. The rest all seem to be mandatory. And so I can't set a -- what I will do is waive the probation report fee in light of what you said, but on the others those remain imposed. [¶] [DEFENSE COUNSEL]: Thank you."
2. People v . Dueñas
After Melius was sentenced, the Second Appellate District (Division Seven) issued its opinion in Dueñas, supra, 30 Cal.App.5th 1157. There, the defendant had been placed on probation and ordered to pay a $30 court facilities assessment (Gov. Code, § 70373), a $40 court operations assessment (§ 1465.8), and a $150 restitution fine (§ 1202.4). (Dueñas, at p. 1162.) According to the court of appeal, due process required the trial court to conduct an ability to pay hearing and ascertain the defendant's present ability to pay before imposing the court facilities and court operations assessments. (Id. at p. 1164.) The court further held that the trial court must stay the execution of the restitution fine under section 1202.4 until the People demonstrated that the defendant had the ability to pay the fine. (Id. at p. 1172; see People v. Santos (2019) 38 Cal.App.5th 923, 934-935; People v. Castellano (2019) 33 Cal.App.5th 485, 490 [defendant must show inability to pay].) Melius contends that Dueñas applies here.
Many courts have disagreed with Dueñas. (See, e.g., People v. Petri (2020) 45 Cal.App.5th 82, 87; People v. Adams (2020) 44 Cal.App.5th 828, 831-832; People v. Hicks (2019) 40 Cal.App.5th 320, 325-326; People v. Caceres (2019) 39 Cal.App.5th 917, 923-929; People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1069.) The issue is pending before the California Supreme Court. (See People v. Kopp (2019) 38 Cal.App.5th 47 (rev. granted Nov. 13, 2019, S257844).) --------
3. No Forfeiture
Respondent argues that Melius objected only to the "waivable" fees, and the only fee the court found to be discretionary or waivable was the probation report fee (which was not imposed). Thus, respondent urges, Melius forfeited any argument as to the other fines and fees. (Citing People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033; People v. Aviles (2019) 39 Cal.App.5th 1055, 1073-1074 (Aviles); People v. Jenkins (2019) 40 Cal.App.5th 30, 39-41; People v. Aguilar (2015) 60 Cal.4th 862, 864; People v. Avila (2009) 46 Cal.4th 680, 729 (Avila).)
We disagree. As to the court operations assessment and the court facilities assessment, any objection on the ground of inability to pay would have been futile, since Dueñas had not been decided yet. (People v. Petri (2020) 45 Cal.App.5th 82, 89; People v. Taylor (2019) 43 Cal.App.5th 390, 399 (Taylor) [no forfeiture as to court operations and facilities fees]; People v. Johnson (2019) 35 Cal.App.5th 134, 137-138; People v. Jones (2019) 36 Cal.App.5th 1028, 1032-1033.)
As to the $1200 restitution fine under section 1202.4, Melius should have objected even though Dueñas had not been decided, because the court exercised discretion in imposing an amount greater than the statutory minimum, and by statute the court could have considered his inability to pay. (§ 1202.4, subd. (c), (d); Avila, supra, 46 Cal.4th at p. 729; Taylor, supra, 43 Cal.App.5th at p. 399.) On the other hand, the reporter's transcript indicates the court's belief that it did not have discretion as to the restitution fine, suggesting that any objection to that fine on grounds of inability to pay would have been futile. Defense counsel plainly told the court, "I don't think [Melius] has ability to pay any of the fines the Court is laying out." (Italics added.) Under the circumstances, we find no forfeiture.
4. Dueñas Does Not Apply
Dueñas analyzed the defendant's restitution fine under due process principles. (Dueñas, supra, 30 Cal.App.5th at pp. 1171-1172). Respondent argues that the proper analysis is not due process, but the excessive fines clause of the Eighth Amendment. (Aviles, supra, 39 Cal.App.5th at pp. 1069-1071.) The imposition of fines and fees does not implicate due process, respondent urges, because it does not deny access to the court or result in incarceration for nonpayment due to inability to pay. (People v. Hicks (2019) 40 Cal.App.5th 320, 329; Petri, supra, 45 Cal.App.5th at p. 87; People v. Adams (2020) 44 Cal.App.5th 828, 831-832.) The Eighth Amendment addresses punitive fines, and restitution fines are a form of punishment. (People v. Hanson (2000) 23 Cal.4th 355, 361-362.)
We need not resolve this issue. To the extent respondent is correct that the fines and fees should be analyzed under the Eighth Amendment, we perform that analysis post. To the extent respondent is incorrect, we conclude Dueñas is nonetheless inapposite because it dealt with extreme facts readily distinguishable from those at hand. Dueñas involved the "cascading consequences of imposing fines and assessments that a defendant cannot pay," arising from a series of criminal proceedings that stemmed from and contributed to her poverty. (Dueñas, supra, 30 Cal.App.4th at pp. 1163-1164.) Here, by contrast, Melius's offense of criminal threats was "not a crime either 'driven by' poverty or likely to 'contribut[e] to' that poverty such that an offender is trapped in a 'cycle of repeated violations and escalating debt.' " (People v. Caceres (2019) 39 Cal.App.5th 917, 928.) The concerns in Dueñas therefore do not exist here. (See ibid.)
5. Eighth Amendment Affords No Relief
Melius did not object on Eighth Amendment grounds in the trial court, but assuming his arguments are preserved, they do him no good. A fine is excessive under the Eighth Amendment "if it is grossly disproportional to the gravity of a defendant's offense." (United States v. Bajakajian (1997) 524 U.S. 321, 334.) Four factors determine whether a fine is grossly disproportional: "(1) the defendant's culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant's ability to pay." (Id. at pp. 337-338; Aviles, supra, 39 Cal.App.5th at p. 1070.)
Here, as to the ability to pay factor, Melius told the probation officer that he had worked as a turbine mechanic, had been continuously employed, and intended to seek work as a longshoreman and invest in real estate. In evaluating ability to pay, a court may consider the defendant's future earning ability including prison wages. (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837; People v. Frye (1994) 21 Cal.App.4th 1483, 1487.) Thus, the record reflects Melius's demonstrated ability to earn wages, as well as plans to be actively employed in the future. There is no indication that he would not be able to pay the $80 court operations assessment or the $60 court facilities assessment.
Moreover, as to both the assessments and the $1200 restitution fine, Melius fails to demonstrate that the fine and fees are unconstitutionally disproportional to the gravity of his crimes in light of the four factors of the analysis. In his opening brief, Melius asserts: "To the extent appellant lacks the present ability to pay the fines, fees and assessments imposed in this case, these fines, fees and assessments violate the excessive fines clause of the Eighth Amendment." That is incorrect, because inability to pay is but one factor in the analysis. In his reply brief, Melius again confines his Eighth Amendment analysis to his ability to pay. Accordingly, no basis for reversing the fines and fees under the Eighth Amendment has been established.
6. Limited Remand Appropriate
Although the assessments and restitution fine are not constitutionally infirm, we will remand to the trial court for reconsideration of the restitution fine for another reason: the trial court did not appear to have considered Melius's claimed inability to pay in assessing more than the minimum fine under section 1202.4, even though, as set forth in the statute and explained ante, inability to pay is expressly enumerated as a factor that can be considered. We therefore remand for the court to reconsider its determination of the restitution fine under section 1202.4.
III. DISPOSITION
The matter is remanded to the trial court to resentence appellant in accordance with this opinion and prevailing law. The judgment is affirmed in all other respects.
/s/_________
NEEDHAM, J. We concur. /s/_________
SIMONS, ACTING P.J. /s/_________
BURNS, J.