Opinion
F078498
07-06-2020
THE PEOPLE, Plaintiff and Respondent, v. TODD MARTIN PANKEY, Defendant and Appellant.
Kristine Koo, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF54641)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tuolumne County. Donald I. Segerstrom, Jr., Judge. Kristine Koo, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Meehan, J. and DeSantos, J.
-ooOoo-
INTRODUCTION
Appellant/defendant Todd Martin Pankey was convicted after a bench trial of felony receiving stolen property (Pen. Code, § 496, subd. (a)) and placed on probation. On appeal, he contends the court improperly ordered him to pay a restitution fine and other fees in violation of his due process rights pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
All further statutory citations are to the Penal Code unless otherwise indicated.
We will remand for the court to clarify and correct its calculation of the "base fine," and recalculate fees and penalties that are derived as a percentage of that amount, and other appropriate proceedings.
FACTS
John and Myrna Moyle owned 20 acres near Rawhide Road in Tuolumne County. They kept a trailer and a storage container on the property. They visited the property once or twice a month and kept the two structures locked, but someone could get into the trailer through the adjacent storage container. They had tenants who lived in trailers on another part of the property.
Mr. Moyle stored a 2000 red Honda generator inside the trailer; every time he changed the oil, he wrote the date on the machine. There were also two 10-gallon oversized propane tanks and other property in the trailer. Discovery of the stolen property
Sometime between November 2015 and December 31, 2015, Mr. and Mrs. Moyle visited their property and discovered the generator, the propane tanks, a spotting scope, and two batteries were missing. The storage container's lock was broken. A yellow cap from one of the propane tanks, along with drag marks, led from their property's dirt road to the public road.
The Moyles talked to their tenants about the missing property. Based on the tenants' information, they went to their neighbor's parcel across the public road and talked to defendant, who lived in a trailer on the neighbor's property.
The Moyles contacted defendant at his trailer. Mrs. Moyle thought she saw some of their missing items, and asked defendant if she could look around a nearby rock wall. Defendant said yes. Mrs. Moyle walked to the area and saw the two propane tanks, a battery, and their generator, which was running and connected to the trailer.
Mrs. Moyle told Mr. Moyle that she found their stolen property. They again asked permission to walk to the rock wall area, and defendant again said yes. Mr. Moyle immediately recognized the generator because of his notes about the oil changes, and also saw his oversized propane tanks. The tanks were covered in mud and defendant's last name was written on them. Mr. Moyle recognized the batteries because he had written the purchase date on them. There was also a regulator but that had not been taken from their property.
The Moyles confronted defendant about the stolen property. Defendant said he bought the items at a yard sale. The investigation
On or about December 31, 2015, Mr. and Mrs. Moyle reported the property theft to the Tuolumne County Sheriff's Department.
On January 3, 2016, Deputies Paul Speers and Ashley Boujikian went to defendant's trailer. Mr. Moyle was present with the two deputies. When they arrived, the generator and propane tanks were no longer connected to the trailer, and instead stacked up in the driveway.
The deputies asked defendant about the equipment. Defendant said he purchased the items out of the back of a truck from a man known as "Gabe," and the sale happened three or four days earlier, around New Year's Day. Defendant said Gabe was always selling "cold weather gear" at the nearby Whistle Stop gas station. Both deputies lived in the area and had never seen anyone matching that description at the gas station.
Mr. Moyle reminded defendant that he previously claimed that he bought the property at a yard sale. Defendant then said he met Gabe at the gas station and told him that he did not need a cold weather suit but he was looking for a generator. Defendant said he followed Gabe to a home in Peppermint Creek, and purchased the generator for $300 and the two tanks for $100.
Upon further questioning, defendant could not remember where Gabe lived or what kind of truck he drove. Boujikian offered to drive defendant to Peppermint Creek to look for Gabe's house. The area was about a half-mile away from defendant's trailer. Defendant said he could not do that.
The deputies saw footprints in the dirt between the two properties, and a divot in the ground that led from the Mr. Moyle's property to the public road, consistent with someone dragging an object toward defendant's trailer. The spotting scope was never recovered.
Mr. Moyle testified the generator had cost more than $950, and thought he paid $1,200 to $1,400 for it. The two propane tanks were worth between $200 and $300 together; both were nearly full of propane, which would have cost between $50 to $100. The batteries were worth less than $100, and the spotting scope was also worth less than $100. Mrs. Moyle thought the tanks and generator were worth $2,000 to $3,000. Defense evidence
Defendant testified he bought the tanks and generator around Christmas 2015 from "Gabe" after meeting him at the Whistle Stop gas station. Gabe was trying to sell cold weather suits in the parking lot. Defendant told Gabe that he needed a generator because he did not have any power at his trailer. Defendant followed Gabe to his home in Peppermint Creek and bought the generator. Defendant admitted he told Mr. Moyle that he bought the items at a yard sale. Defendant claimed that Gabe had the equipment for sale in his front yard.
Defendant testified that he paid $400 for the generator and $100 for the tanks. Gabe gave him the batteries for free. He did not purchase a spotting scope. Defendant wrote his name on the equipment in case anyone stole them. After talking with Mr. Moyle, defendant realized the property belonged to him. Defendant tried to find Gabe but he had moved.
Defendant conceded he had prior convictions, and had received stolen property before. At the time of trial, he was no longer living on the property where the stolen items were found. He was living either in his truck or with friends.
PROCEDURAL HISTORY
On March 7, 2018, a felony complaint deemed an information was filed in the Superior Court of Tuolumne County charging defendant with count 1, felony receiving stolen property with a value exceeding $950, consisting of a generator, two tanks, two batteries, and a Barska scope.
On September 26, 2018, defendant waived his right to a jury trial and a bench trial was held. On September 27, 2018, defendant was convicted as charged. The court found defendant's trial testimony was not credible and there was "no question" he was knowingly in possession of stolen property.
On the same day, defendant pleaded guilty in an unrelated case to misdemeanor possession of a controlled substance without a prescription (Bus. & Prof. Code, § 4060). Sentencing hearing
On November 26, 2018, the court suspended sentence for five years, and placed defendant on probation subject to certain terms and conditions including serving six months in the county jail.
The fines and fees
The court imposed a restitution fine of $300 (§ 1202.4, subd. (b)) and suspended the probation termination fine of $300 (§ 1202.44).
Defendant was separately ordered to pay a total amount of $931, consisting of fines, fees, and penalty assessments as set forth in the probation report, payable through the county's Office of Revenue Recovery. The total of $931 was calculated by adding the following amounts:
(1) A court operations assessment of $40 (§ 1465.8);
(2) A criminal conviction assessment of $30 (Gov. Code, § 70373);
(3) A "base fine" of $210, consisting of a $10 crime prevention fee (§ 1202.5), and a "fine" of $200;
(4) A state penalty assessment of $210 (§ 1464; 100 percent of the base fine);
(5) A county penalty assessment of $147 (Gov. Code, § 76000; 70 percent of the base fine);
(6) A state surcharge of $42 (§ 1465.7; 20 percent of the base fine);
(7) A court construction penalty of $105 (Gov. Code, § 70372; 50 percent of the base fine);
(8) A DNA fund penalty of $105 (Gov. Code, §§ 76104.6, 76104.7; 50 percent of the base fine); and
(9) A county emergency medical services fine of $42 (Gov. Code, § 76000.5, subd. (a)(1); 20 percent of the base fine).
As we will explain below, the record infers the $200 "fine" was imposed pursuant to section 672.
The court further ordered defendant to pay for probation supervision services in the amount of $50 per month, and $578.75 for the presentence report, effective 30 days following his release into the community on probation, again paid through the Office of Revenue Recovery, which could recommend waiver of these fees or any portion thereof upon assessment of his financial circumstances. (§ 1203.1, subd. (b).) The court also imposed a criminal justice administration screening fee of $183. (Gov. Code, § 29550, subds. (b), (c).)
Defendant did not object to any of the fines and fees.
On November 29, 2018, defendant filed a timely notice of appeal. Postjudgment orders
On February 7, 2019, appellate counsel sent a letter to the superior court, and requested it to strike the section 1202.5 crime prevention fee of $10, which was calculated as part of the $931 fine, as set forth above. Counsel noted that defendant's conviction for felony receiving stolen property in violation of section 496, subdivision (a) was not one of the offenses enumerated in section 1202.5 that would trigger this fee. Counsel requested the court transmit a corrected record to the appellate court.
On April 10, 2019, the superior court granted the request and ordered the $10 crime prevention fee stricken. The court reduced the total fine from $931 to $921.
On April 15, 2019, appellate counsel sent another letter to the superior court pursuant to section 1237.2, and moved for a hearing based on the newly-filed opinion in Dueñas. Defendant argued the court had to conduct a hearing to determine his ability to pay the fines and fees imposed in this case. On April 25, 2019, the court denied the request for a hearing.
DISCUSSION
I. The Court's Decision to Strike the $10 Crime Prevention Fee.
In reviewing the court's calculation and imposition of the fines, fees, and assessments in this case, we requested supplemental briefing from the parties about how the court calculated the $210 "base fine." The court used the "base fine" to calculate additional fees and penalties as a percentage of that amount to reach a total fine of $931, later reduced to $921.
As we will explain, the matter must be remanded for the court to correct these amounts. As noted above, the court granted defendant's postjudgment motion to strike the $10 crime prevention fee that had been imposed pursuant to section 1202.5. The fee had been part of the larger amount of $931 in fines, as set forth in the probation report and explained above. In striking the $10 crime prevention fee, the court reduced the total fine from $931 to $921. However, the court should have further corrected the calculation of the total fine. A. Section 672
We begin with the court's calculation of the "base fine" of $210. In order to reach the "base fine" of $210, the court began with a $200 "fine" but did not specify the statutory basis for that amount. The record infers the $200 "fine" was imposed pursuant to section 672, which states:
"Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed."
Since there is no other statutory authority to impose a fine for defendant's conviction in this case, it is reasonably likely the court relied on section 672 to set the "fine" at $200. B. Section 1202.5
The second part of the "base fine" was the $10 crime prevention fee imposed pursuant to section 1202.5, subdivision (a), which provides for an additional $10 fine for certain theft-related offenses, defined as "... any of the offenses enumerated in Section 211, 215, 459, 470, 484, 487, subdivision (a) of Section 487a, or Section 488, or 594 ...." When a section 1202.5 fine is statutorily authorized, the court may impose it along with the section 672 fine, and treat the total amount as the "base fine" to calculate additional penalty assessments. (People v. Uffelman (2015) 240 Cal.App.4th 195, 198-200.)
As explained above, however, defendant's conviction for receiving stolen property in violation of section 496, subdivision (a) was not an offense that triggered the imposition of the section 1202.5 crime prevention fee. The superior court properly ordered the $10 fine stricken in response to defense counsel's postjudgment motion. The court further reduced the total fine from $931 to $921. C. Calculation of the other fees and penalties
In striking the $10 crime prevention fee, however, the court failed to recalculate the "base fine," which had been calculated as $210 by adding the $200 "fine" under section 672 and the $10 crime prevention fee. As also explained above, most of the additional fees and penalties were calculated as a statutorily mandated percentage of that "base fine" of $210.
In response to this court's request for further briefing, both parties agree that once the court ordered the $10 fee stricken, it also should have reduced the "base fine" from $210 to $200, and then recalculated the fees and penalties that are derived as a percentage of the "base fine." The parties further agree the matter must be remanded for the court to correct the calculation of the total amount of fines.
We thus remand the matter for the court to (1) clarify the statutory basis for the $200 fine; (2) correct the amount of the "base fine;" (3) recalculate the other fees and penalties that are derived as a percentage of the "base fine;" and (4) correct the record accordingly. II. The Restitution Fine and Fees.
As a separate matter from the "base fine" and the fees and penalties imposed as a percentage of that amount, the court ordered defendant to pay a restitution fine of $300 (§ 1202.4, subd. (a)) and suspended the probation termination fine of $300 (§ 1202.44). It also imposed a court operations assessment of $40 under section 1465.8, and a criminal conviction assessment of $30 under Government Code section 70373.
While the assessments under section 1465.8 and Government Code section 70373 were included in the total fine of $931 (later reduced to $921), the court imposed these two assessments pursuant to separate statutory authorities and not as a percentage of the "base fine" discussed in issue I, above.
Defendant contends the court's imposition of these fines and assessments violated his due process pursuant to Dueñas because the court failed to conduct a hearing to determine if he had the ability to pay these amounts. Defendant asserts he did not forfeit review of the Dueñas issues because the case had not yet been decided at the time of his sentencing hearing, defense counsel could not have anticipated it, and any objection would have been futile since the court imposed the statutory minimum restitution fine.
The California Supreme Court is currently considering whether trial courts must consider a defendant's ability to pay before imposing or executing fines, fees, and assessments; and if so, which party bears the applicable burden of proof. (See People v. Kopp (2019) 38 Cal.App.5th 47, 94-98, review granted Nov. 13, 2019, S257844.) --------
Defendant requests this court stay the fines, vacate the assessments, and remand for the trial court to conduct a hearing on his ability to pay these amounts. The People disagree.
In Dueñas, the court held the assessments under section 1465.8 and Government Code section 70373 may be "imposed only on those with the means to pay them" (Dueñas, supra, 30 Cal.App.5th at pp. 1168-1169), and "that although the trial court is required by ... section 1202.4 to impose a restitution fine, the court must stay the execution of the fine until and unless the People demonstrate that the defendant has the ability to pay" (id. at p. 1172; accord, People v. Castellano (2019) 33 Cal.App.5th 485, 489-490 [following Dueñas but clarifying that "a defendant must in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court"]; contra, People v. Allen (2019) 41 Cal.App.5th 312, 325-330 [rejecting the defendant's Dueñas-based due process claim and her equal protection claim]; People v. Hicks (2019) 40 Cal.App.5th 320, 326-329, review granted Nov. 26, 2019, S258946 [rejecting Dueñas's due process analysis]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1061 [disagreeing with Dueñas's due process analysis and concluding constitutional challenges to fines, fees and assessments should be made under the Eighth Amendment's excessive fines clause]).
We conclude it is unnecessary to reach defendant's Dueñas arguments given remand of this matter for the court to recalculate the "base fine" and the other fees and penalties that are based on a percentage of that amount, as explained in issue I. To the extent that defendant believes Dueñas entitles him to any relief, he may, if he so chooses, request such relief on this issue in the trial court in the first instance. (People v. Castellano, supra, 33 Cal.App.5th at pp. 489-491.)
DISPOSITION
The matter is remanded to the trial court to clarify the statutory basis for the "base fine" of $200, recalculate the "base fine," and also recalculate the fees and penalties that are derived as a percentage of the "base fine" and correct the record accordingly. In all other respects, the judgment is affirmed.