Opinion
A156664
04-22-2020
THE PEOPLE, Plaintiff and Respondent, v. JAMES MARTIN PAWLYK, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR1702638)
James Pawlyk pled guilty to assault with a deadly weapon and was sentenced to a three-year prison term. On appeal, he contends the trial court erred by (1) miscalculating his conduct credits under Penal Code section 1040, and (2) imposing fines and fees without conducting an ability-to-pay hearing. We will increase Pawlyk's conduct credits but otherwise affirm the judgment.
Statutory references are to the Penal Code, unless otherwise indicated. --------
BACKGROUND
Pawlyk was charged with felony assault and three counts of vandalism arising out of an incident that occurred over two days in June 2017. On July 11, 2017, the trial court found that Pawlyk was mentally incompetent to stand trial and suspended criminal proceedings. Pawlyk was admitted to Metropolitan State Hospital on November 9.
On January 24, 2018, the medical director of Metropolitan State Hospital signed a "Certification of Mental Competency," which stated that Pawlyk's treatment providers had determined that he was "now able" to understand the nature of the charges against him and to cooperate with his attorney. (See § 1372.) On January 31, Pawlyk was returned to jail and on February 5 the court reinstated criminal proceedings. Thereafter, Pawlyk pleaded guilty to assault with a deadly weapon in exchange for dismissal of other charges and a stipulated three-year prison sentence.
DISCUSSION
I. Conduct Credits
At sentencing, Pawlyk received 83 days of actual custody credit for the period from November 9, 2017 up to and including January 30, 2018, when he was confined at the state hospital. However, he was not awarded any conduct credit for that period of confinement.
"Typically, an accused awaiting trial is not statutorily entitled to conduct credits for time spent in a state hospital while subject to a finding of incompetency." (People v. Bryant (2009) 174 Cal.App.4th 175, 182 (Bryant).) However, "equal protection requires application of section 4019 credits to presentence confinement in a state facility if the circumstances of the confinement are essentially penal." (People v. Buckhalter (2001) 26 Cal.4th 20, 30, fn. 6.) Therefore, a defendant may accrue conduct credits for time after he regained competency but before he was transferred from a state hospital to the county jail. (Bryant at p. 184; see also People v. Guzman (1995) 40 Cal.App.4th 691, 693-695.)
In light of these settled rules, the parties agree Pawlyk is entitled to additional conduct credit for time he spent at the state hospital after he regained his competency. Using the date that the medical director signed the Certification of Mental Competency, the People concede Pawlyk is entitled to additional conduct credits from at least January 24 through January 30, 2018. However, Pawlyk contends his competency was restored on January 12, 2018, which was the date of a confidential medical report that was prepared for the purpose of notifying the trial court that Pawlyk had been deemed mentally competent.
At the request of appellant's counsel, this court lifted a protective order so that specific information in the January 12 report could be disclosed to the public. The report, which was signed by Pawlyk's treating psychiatrist and the medical director of the hospital, states: "it is the consensus of the Treatment Team that Mr. Pawlyk is mentally Competent To Stand Trial and should be returned to court." Because this undisputed evidence establishes that Pawlyk regained competency on January 12, he is entitled to conduct credits as of that date rather than the date on the certification of mental competency. (Bryant, supra, 174 Cal.App.4th at p. 184.)
"A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered." (People v. Taylor (2004) 119 Cal.App.4th 628, 647.) Accordingly, we shall modify the judgment to award Pawlyk additional presentence custody credits for the period from January 12, 2019 through January 30, 2019.
II. Fees and Fines
At sentencing, Pawlyk was ordered to pay the following fines and fees: (1) a $900 restitution fine (§ 1202.4, subd. (b)); (2) a $900 parole revocation restitution fine, which was stayed (§ 1202.45); (3) a $40 court operations assessment fee (§ 1465.8, subd. (a)(1)); (4) a $30 criminal conviction fee (Govt. Code § 70373); and (5) a $196.33 booking fee (Govt. Code § 29550.2, subd. (a)).
Pawlyk contends that the $40 court assessment and the $30 conviction fee must be stricken because the trial court violated constitutional due process by imposing these fees without finding that Pawlyk has the ability to pay them. Pawlyk bases this due process claim on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
Dueñas, supra, 30 Cal.App.5th 1157, was an appeal following the defendant's conviction for misdemeanor driving on a suspended license. At her sentencing hearing, defendant argued that she did not have the ability to pay statutory fees and fines, requested a hearing on the matter and produced undisputed evidence establishing her inability to pay. (Id. at p. 1162.) Consequently, the court struck some fees, but imposed others that it concluded were mandatory. (Id. at pp. 1162-1163.) On appeal, the Duenas court found that it was a violation of constitutional due process to impose the $40 fee required by section 1465.8 and the $30 fee required by Government Code section 70373 without finding that the defendant had the ability to pay them. (Id. at p. 1168.)
Unlike the Dueñas defendant, Pawlyk did not request a hearing regarding his ability to pay any fines or object to them on any factual or legal ground. Thus, he forfeited his claim that fines should not have been imposed on him. (People v. Aguilar (2015) 60 Cal.4th 862, 864; People v. McCullough (2013) 56 Cal.4th 589, 596-597; People v. Nelson (2011) 51 Cal.4th 198, 227; People v. Avila (2009) 46 Cal.4th 680, 729.)
Pawlyk contends that he did not forfeit his right to due process by failing to object to these mandatory statutory fees because he was sentenced before Dueñas was decided and it would have been futile to make a due process objection without the benefit of the Duenas decision. We disagree because forfeiture did not result from Pawlyk's failure to make a due process objection but rather from his failure to request a hearing or to otherwise dispute his ability to pay any fine imposed at his sentencing hearing.
Unlike Dueñas, in this case Pawlyk's ability to pay was a statutory consideration with respect to the $900 restitution fine imposed under section 1202.4. Section 1202.4, subdivision (d) outlines factors for the court to consider when setting the amount of a restitution fine above the statutory minimum, which include the defendant's "inability to pay." Here, the probation department recommended a restitution fine that exceeded the $300 statutory minimum by $600, a recommendation that the trial court adopted without objection. If Pawlyk believed he was unable to pay a restitution fine of this magnitude, it was incumbent on him to object at sentencing and request an ability-to-pay hearing, and the failure to do so resulted in a forfeiture of the claim for purposes of appellate review. (People v. Nelson, supra, 51 Cal.4th at p. 227.)
Citing this court's decision in People v. Johnson (2019) 35 Cal.App.5th 134, Pawlyk insists that the futility exception to the forfeiture doctrine authorizes appeals based on Dueñas. Johnson does not apply here, however, because in that case, the court imposed a $300 restitution fine under section 1202.4, subdivision (b), which was the minimum fine under the statute. (Id. at p. 137.) Therefore, unlike Pawlyk, the Johnson defendant did not have a statutory right to an ability-to-pay hearing. As we noted in Johnson, the "distinction between minimum and above minimum restitution fines has consequences for the applicability of [the] forfeiture doctrine." (Id. at p. 138, fn. 5.) Even before Dueñas was decided, defendants in Pawlyk's position had the right to object to above minimum restitution fines based on inability to pay "because governing law as reflected in the statute (§ 1202.4, subd. (c)) expressly permitted such a challenge." (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.)
Pawlyk points out that he is not objecting to the restitution fine imposed on him pursuant to section 1202.4, but he cannot avoid the consequence of his failure to request an ability-to-pay hearing by limiting his appellate challenge to the specific assessments imposed under section 1465.8 and Government Code section 70373. The same evidence in the same hearing that would have addressed Pawlyk's ability to pay the $900 restitution fine could have also established his inability to pay these much smaller assessments, had Pawlyk chosen to litigate that issue. Pawlyk had a statutory right to an ability-to-pay hearing that he did not exercise, thus forfeiting his appellate claim that such a hearing was required.
DISPOSITION
The judgment is modified to award Pawlyk additional conduct credit for the period from January 12, 2018 through January 30, 2018. Upon issuance of the remittitur, the trial court shall recompute the conduct credit award and the clerk shall prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
TUCHER, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
STREETER, J.