Opinion
E073025
03-19-2021
THE PEOPLE, Plaintiff and Respondent, v. HERNAN ORTEGA, Defendant and Appellant.
Shella Sadovnik and Siri Shetty, under appointments by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Genevieve Herbert, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF1601229) OPINION APPEAL from the Superior Court of Riverside County. Harold W. Hopp, Judge. Affirmed. Shella Sadovnik and Siri Shetty, under appointments by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant and appellant Hernan Ortega was charged by felony complaint with carjacking (Pen. Code, § 215, count 1), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), counts 2 & 3), attempted unlawful driving or taking of a vehicle (Pen. Code, § 664; Veh. Code, § 10851, subd. (a), count 4), vandalism (Pen. Code, § 594, subd. (a)(2) & (3), count 5), and falsely representing himself to a peace officer (Pen. Code, § 148.9, subd. (a), count 6). The complaint also alleged that he violated the terms of his probation in another case by reason of these violations of law. Defendant pled guilty to all counts pursuant to a written plea form that reflected the maximum possible punishment was 13 years and described the disposition as a "plea to court." On November 6, 2018, a trial court sentenced him to a total term of seven years four months in state prison, with credit for time served, and imposed various fines and fees.
All further statutory references will be to the Penal Code unless otherwise noted.
On appeal, defendant contends the trial court's imposition of a $240 court operations fee, a $180 court facilities assessment, and a $300 restitution fine violated his right to due process absent a hearing on his ability to pay pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because defendant pled guilty pursuant to a plea to the court, this factual background is taken from the probation officer's report.
On August 24, 2016, defendant forced his way through a gate and attempted to stab an 83-year-old man (the victim) with a metal pot fork twice. Defendant then tried to take the victim's car. A United States postal worker arrived in a mail truck, and the victim pleaded with him to call the police. Defendant got out of the victim's car, walked toward the gate, removed a metal rod from the gate, and began swinging it around. He approached the postal worker and lifted the rod over his shoulder in a threatening manner. Fearing that defendant was going to attack him, the postal worker got out of his mail truck. Defendant drove off in the mail truck. When he was later detained by the police, defendant provided a fictitious name and date of birth.
Defendant pled guilty to carjacking (Pen. Code, § 215), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), attempted unlawful driving or taking of a vehicle (Pen. Code, § 664; Veh. Code, § 10851, subd. (a)), vandalism (Pen. Code, § 594, subd. (a)(2) & (3)), and falsely representing himself to a peace officer (Pen. Code, § 148.9, subd. (a)). On November 6, 2018, the court sentenced him to seven years four months in state prison, minus credit for time served. It also imposed various fines and fees, including a $240 court operations fee (Pen. Code, § 1465.8, subd. (a)(1) [$40 per conviction]), a $180 court facilities assessment (Gov. Code, § 70373 [$30 per conviction]), and a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)).
On January 10, 2019, defendant filed a notice of appeal and a request for certificate of probable cause, alleging that his public defender asked him to "sign something that was suppose[d] to let [him] out [a] long time ago from [his] county jail," and that he was misled. The court denied the request.
This court granted defendant's petition for writ of habeas corpus to allow him to file a late notice of appeal from the November 6, 2018 judgment and to deem it constructively filed within the 60-day period.
On September 11, 2019, appointed appellate counsel filed an informal letter motion for correction of fines and fees with the superior court, noting that an attempt to correct errors in the imposition of fines and fees must be made to the sentencing court before the issue can be raised in the appellate court. Counsel argued defendant did not have the ability to pay, citing Dueñas, supra, 30 Cal.App.5th 1157. The court rejected the letter as an improper communication. Appellate counsel filed a second letter, which the court also rejected. However, the court noted the rejection did "not prevent counsel . . . from bringing a properly noticed motion for the relief requested."
On November 19, 2019, appellate counsel filed a motion for correction of the fines and fees imposed, alleging that the court imposed fines and fees without having the prosecution prove defendant's ability to pay. She argued that Dueñas, supra, 30 Cal.App.5th 1157 held that imposing fees under Penal Code section 1465.8 and Government Code section 70373, without any determination of a defendant's ability to pay, violated due process. She further contended Dueñas held that due process also required mandatory restitution fines under Penal Code section 1202.4 must be imposed but stayed, unless the prosecution proves a defendant's ability to pay. She also asserted that the United States Supreme Court issued an opinion incorporating the Eighth Amendment Excessive Fines Clause into the Due Process Clause of the Fourteenth Amendment in Timbs v. Indiana (2019) 139 S.Ct. 682. She claimed defendant had no ability to pay and pointed to the probation officer's sentencing recommendation report, which stated that defendant's only known source of income was a disability payment of $476 a month and that he was unemployed and/or disabled. Counsel did not attach any evidence of his income or disability to the motion.
The court held a hearing on defendant's motion on January 22, 2020. Counsel argued there was currently a split in the courts on whether to vacate the fine and fees at issue. The court asked whether defendant's statement to the probation officer, which did not appear to be under oath, carried his burden of proof. Counsel replied, "Well, right, Your Honor," and then asserted that defendant was incarcerated and had no current ability to pay. The court found the reasoning in People v. Hicks and People v. Kingston to be more persuasive than Dueñas, noting that Dueñas had very unusual facts. Citing People v. Lowery, the court then "declin[ed] to grant the motion to stay, suspend, or dismiss" the challenged fine and fees.
The court did not give a citation, but we assume it was referring to People v. Hicks (2019) 40 Cal.App.5th 320 (Hicks), review granted November 26, 2019, S258946, which disagreed with the analysis in Dueñas.
The court did not give a citation, but we assume it was referring to People v. Kingston (2019) 41 Cal.App.5th 272, which agreed with the reasoning of Hicks, supra, 40 Cal.App.5th 320.
The court did not give a citation, but we assume it was referring to People v. Lowery (2020) 43 Cal.App.5th 1046, which found the defendant's Dueñas claim unavailing.
DISCUSSION
Remand is Not Required
Defendant argues that the trial court violated his due process rights pursuant to Dueñas when it imposed the $300 restitution fine (Pen. Code, § 1202.4, subd. (b)), the $240 court operations fee (Pen. Code, § 1465.8), and the $180 court facilities assessment (Gov. Code, § 70373), without making a finding on his ability to pay. Although Penal Code section 1202.4 requires trial courts to impose restitution fines, he contends the court was required to stay that fine unless the People demonstrated he was able to pay it. He further asserts that the record clearly indicates his inability to pay, since he is incarcerated and unemployed, and he was found to have cognitive disorder due to a traumatic brain injury and was on disability.
The People argue that defendant's claim should be dismissed because he agreed to pay restitution fines and other fees on his plea form, waived any right to appeal, and failed to obtain a certificate of probable cause. They also contend his claim is moot since the trial court considered his ability to pay when it denied his motion for correction of fees and fines, and he cannot show the court's denial was an abuse of discretion. The People further argue that the restitution fine should be analyzed under the Excessive Fines Clause of the Eighth Amendment and contend the amount was not constitutionally excessive. Finally, the People contend that any error in imposing the court operations assessment and the court facilities assessment was harmless since defendant is able-bodied and can earn prison wages.
In his reply brief, defendant emphasizes that he is disabled due to a brain injury, which caused a seizure disorder and some cognitive impairment. He concludes the record establishes he has no present or future ability to pay as a result of his brain injury and, therefore, this court should strike the challenged fine and fees. In the alternative, he requests the matter to be remanded for the trial court to hold an ability to pay hearing.
Assuming arguendo a certificate of probable cause is not required here, we conclude that any error in the court's imposition of the restitution fine and fees without an ability to pay hearing was harmless beyond a reasonable doubt. Thus, no remand is required. In light of this conclusion, we find it unnecessary to address the People's additional arguments.
A. Dueñas
In Dueñas, the defendant was a probationer who suffered from cerebral palsy, was indigent, homeless, and the mother of young children. She requested and received a full hearing on her ability to pay the court facilities assessment, court operations fee, and the mandatory minimum restitution fine. Despite her clear inability to pay these fees and fines, the trial court imposed them. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1163.)
The appellate court held that the trial court violated the defendant's right to due process under both the United States and California Constitutions by imposing court operations and facilities assessments pursuant to Government Code section 70373 and Penal Code section 1465.8, without making a determination as to her ability to pay, even though such determination was not required by the statute. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) Further, the court concluded that although the imposition of restitution fines pursuant to Penal Code section 1202.4, subdivision (b), is punishment, unlike the other fees, it raised similar constitutional concerns; therefore, the Duenas court held that while the trial court must impose the minimum restitution fine even if the defendant demonstrates an inability to pay, "the court must stay the execution of the fine until and unless the People demonstrate that the defendant has the ability to pay the fine." (Dueñas, at p. 1172.)
B. Any Error Was Harmless
Any error in failing to conduct an ability to pay hearing was harmless. "A ' "very limited class" ' of federal constitutional errors are 'subject to per se reversal'; all others are 'amenable to harmless error analysis.' [Citations.] Dueñas did not address whether Dueñas error requires an automatic reversal." (People v. Jones (2019) 36 Cal.App.5th 1028, 1035 (Jones).) "We therefore consider whether the error here was harmless beyond a reasonable doubt." (Ibid.; see Chapman v. California (1967) 386 U.S. 18, 24.)
Defendant claims he is indigent and lacks the ability to pay the challenged fees and fine. In support of this claim, he points to the fact that he had appointed counsel at trial and on appeal. However, just because he could not pay the costs of appointed counsel does not mean he was indigent or lacked the ability to pay. (People v. Douglas (1995) 39 Cal.App.4th 1385, 1397 ["[A] defendant may lack the 'ability to pay' the costs of court-appointed counsel yet have the 'ability to pay' a restitution fine."].)
Furthermore, the trial court imposed the challenged fine and fees in the total amount of $720 and sentenced defendant to seven years four months in state prison, reduced by 918 days of credit for time served. Had the court conducted an ability to pay hearing in accordance with Dueñas, it would have considered defendant's future earning capacity, including whether he would be able to earn wages in prison and upon his release from custody. (Jones, supra, 36 Cal.App.5th at p. 1035; People v. Johnson (2019) 35 Cal.App.5th 134, 139; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837.) Every able-bodied person committed to the custody of the Department of Corrections and Rehabilitation is obligated to work. (Cal. Code Regs., tit. 15, § 3040, subd. (a).) As we explained in Jones, wages in California prisons currently range from $12 to $56 a month. (Jones, at p. 1035; Cal. Code Regs., tit. 15, § 3041.2, subd. (a)(1).) Defendant will have sufficient time to earn $720 during his sentence, even assuming he earns nothing more than the minimum. (See Jones, at p. 1035.) He was 34 years old when he was sentenced and has pointed to nothing in the record to suggest he is not able-bodied. We note the circumstances of his current offenses indicate he was physically able. During the instant crimes, defendant showed the ability to walk, lift, swing, and drive.
We note that the trial court did consider defendant's ability to pay at the hearing on his motion pursuant to section 1237.2 held on January 22, 2020. --------
Defendant claims he is disabled due to a "serious head injury which left him with cognitive deficits and made him prone to seizures." He points to evidence from a 2017 competency report, which indicated that "testing showed impairment in memory, language comprehension, and attending to information that is complex or conveyed rapidly." However, the report also indicated that defendant's mental status did not impair his ability to understand the nature of the criminal proceedings and that he was able to assist his counsel with his defense. Thus, the doctors evaluating him found him competent to stand trial. We further note that prison inmates are assigned to work that is appropriate for them. (Cal. Code Regs., tit. 15, § 3040, subd. (c).)
We conclude that given the minimum nature of the fines imposed, the medical evidence, the length of defendant's sentence and the circumstances of the crimes, the failure to conduct a hearing to determine defendant's ability to pay $720 in fines and fees was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: McKINSTER
Acting P. J. MILLER
J.