Opinion
B296685
05-06-2020
THE PEOPLE, Plaintiff and Respondent, v. MANUEL PEDROZA, Defendant and Appellant.
Melcher & Melcher and William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Susan Sullivan Pithey, Assistant Attorneys General, Noah P. Hill and Stephanie C. Santoro, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. VA147501) APPEAL from a judgment of the Superior Court of Los Angeles County. Roger Ito, Judge. Affirmed. Melcher & Melcher and William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Susan Sullivan Pithey, Assistant Attorneys General, Noah P. Hill and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Manuel Pedroza (defendant) appeals from the judgment entered after he was convicted of unlawful possession of methamphetamine. He challenges the fines and fees imposed at the time of sentencing, and contends that the trial court was first required to determine his ability to pay them. Defendant also requests that we review the sealed transcript of the in camera hearing on his Pitchess motion. We agree with respondent that defendant has forfeited his contention regarding his ability to pay fines and fees, and find that in any event, his claim is without merit. Our review of the sealed transcript disclosed no error. We thus affirm the judgment.
See Pitchess v. Superior Court (1974) 11 Cal.3d 531. A Pitchess motion "allow[s] criminal defendants to seek discovery from the court of potentially exculpatory information located in otherwise confidential peace officer personnel records. If [the moving] party . . . makes a threshold showing, the court must review the records in camera and disclose to that party any information they contain that is material to the underlying case. (See Evid. Code, §§ 1043, 1045.)" (People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 705; see also Pen. Code, §§ 832.5, 832.7, subd. (a).)
BACKGROUND
Defendant was charged in count 1 with possession for sale of methamphetamine in violation of Health & Safety Code section 11378, and in count 2 with sale of methamphetamine in violation of Health & Safety Code section 11379, subdivision (a). At the close of the prosecution's case-in-chief, the trial court granted the defense motion to dismiss count 2 pursuant to Penal Code section 1118.1. The jury then found defendant guilty of possession for sale of a controlled substance. On March 21, 2019, the trial court sentenced defendant to the low term of 16 months in prison, to be served in the county jail, and assessed a $40 court operations fee, as well as a $30 criminal conviction fee. The court also imposed a $300 restitution fine.
All further statutory references are to the Penal Code, unless otherwise indicated.
Prosecution evidence
Los Angeles County Sheriff's Sergeant Joseph Bernas was conducting undercover surveillance from his car, of a liquor store in a high narcotics activity area. Sergeant Bernas observed defendant in the liquor store parking lot approach a man on a bicycle. After they greeted each other and made a hand-to-hand exchange, defendant returned to his car. He then returned to the man on the bicycle for another hand-to-hand exchange. The man on the bicycle rode away. Sergeant Bernas observed defendant engage in a second hand-to-hand exchange similar to the first, with someone in a vehicle that had pulled into the parking lot. During a hand-to-hand exchange with a third person, Sergeant Bernas radioed for back-up. Deputies Alejandro Diaz and Manuel Saldivar arrived shortly and arrested defendant. A search of defendant's car yielded 1.6453 grams of methamphetamine, a scale with a white substance on it, and $96 in cash. At trial, based on his narcotics training and experience, Sergeant Bernas opined that defendant was conducting hand-to-hand narcotics sales. It was also his opinion that defendant possessed the methamphetamine for sale and not for personal use.
Defense evidence
Defendant testified that he used marijuana and methamphetamine, that he had been arrested twice for being under the influence of narcotics, and admitted that the methamphetamine in his car belonged to him, but he claimed that he bought it from the person on the bicycle. Defendant explained that he was in the area to visit his girlfriend, who lived two blocks from the liquor store, but she was leaving to visit her children so he instead went to the liquor to socialize and buy lottery tickets while he waited for her to return. He claimed to have the scale because he was planning on buying $25 worth of drugs and wanted to make sure he was getting what he was paying for. Defendant denied having sold methamphetamine that day or having contact with someone in a car.
DISCUSSION
I. Ability to pay fines and fees
At the time of sentencing, the trial court assessed a $40 court operations fee pursuant to section 1465.8, and a $30 criminal conviction fee pursuant to Government Code section 70373, subdivision (a)(1). The court also imposed the minimum $300 restitution fine pursuant to section 1202.4, subdivision (b). Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant contends that the trial court was required to determine his ability to pay prior to the imposition of the fines and fees.
Trial courts are required to consider a defendant's ability to pay a restitution fine only if the fine is set above the minimum of $300. (§ 1204.4, subd. (d).) The fees assessed pursuant to section 1465.8 and Government Code section 70373 are mandatory. In Dueñas, Division Seven of this court held that principles of due process and equal protection required reading into statutes a procedure for obtaining a waiver of the assessments on the ground of inability to pay. (Dueñas, supra, 30 Cal.App.5th at pp. 1164-1169, 1172 & fn. 10.) The court also held that due process required a consideration of the defendant's inability to pay even when only the minimum fine is imposed. (Ibid.)
Dueñas did not involve an initial sentencing hearing in which fines or fees were imposed, as in this case. There, the defendant was indigent and homeless, suffered from cerebral palsy, and was the mother of young children; she pled no contest to driving with a suspended license, was placed on probation, and ordered to pay $220 in fees and fines. (Duenas, supra, 30 Cal.App.5th at p. 1160.) The trial court further ordered that any amount left outstanding at the end of her probation would go to collections without further order of the court. (Ibid.) The evidence showed that Dueñas was not only unable to pay the current fines and fees, she remained liable for the court fees associated with prior misdemeanor convictions for driving without a license, which had gone to collection. (Id. at p. 1161.)
Respondent asserts that defendant has forfeited his claim because he failed to object at the time of sentencing. Failure to object to the imposition of fines and fees at sentencing forfeits the right to challenge them on appeal. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864 [probation costs and appointed counsel fees]; People v. Trujillo (2015) 60 Cal.4th 850, 853-854 [probation fees]; People v. McCullough (2013) 56 Cal.4th 589, 596-597 [jail booking fee]; People v. Nelson (2011) 51 Cal.4th 198, 227 [restitution fine in excess of the minimum]; People v. Avila (2009) 46 Cal.4th 680, 729 [same].)
Defendant concedes that he did not object to the imposition of the fine and fees at the time of sentencing, but argues that the issue is not forfeited because his appeal is based on a newly announced constitutional principle that could not reasonably have been anticipated at the time of his trial. Contrary to defendant's assertion, the Dueñas decision could have been anticipated both at the time of defendant's trial and at the time of sentencing, as the Dueñas opinion was published on January 8, 2019, defendant's trial commenced on March 6, 2019, and he was sentenced March 21, 2019, more than two and a half months later.
In a subsequent opinion, the Dueñas court declined to find a forfeiture, explaining that its holding in Dueñas created the "newly announced constitutional principle" that "it was unconstitutional to impose fines, fees or assessments without a [prior] determination of the defendant's ability to pay." (People v. Castellano (2019) 33 Cal.App.5th 485, 489.)
Nearly six months after sentencing, defendant requested a hearing on his ability to pay. The trial court denied the request due to defendant's failure to make his request at the time the fines and fees were imposed.
In any event, even if defendant had not forfeited his claim under Dueñas, we would reject it, as we conclude that Dueñas was wrongly decided. (See People v. Hicks (2019) 40 Cal.App.5th 320 (Hicks), review granted Nov. 26, 2019, S258946.) In Hicks, we rejected the holding of Dueñas that due process requires a finding of the defendant's present ability to pay assessments and fines before imposing them. We reasoned that the mere imposition of fines and fees does not deny criminal defendants access to the courts and does not immediately result in incarceration. (Hicks, at pp. 326-327.) Other courts of appeal have also questioned the correctness of the newly announced constitutional principle enunciated in Dueñas. (See, e.g., People v. Kingston (2019) 41 Cal.App.5th 272, 279-282 [no due process violation in imposition of assessments and restitution fine without first ascertaining defendant's ability to pay them]; People v. Caceres (2019) 39 Cal.App.5th 917, 923, 926-927 [Dueñas's due process analysis does not justify extending its "broad holding" beyond its "extreme facts"]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1060 ["Dueñas was wrongly decided"].)
The issue is now before the California Supreme Court. (See People v. Kopp (2019) 38 Cal.App.5th 47, 81-83, review granted Nov. 13, 2019, S257844.) Until and unless the Supreme Court disagrees with our analysis we adhere to our holding in Hicks and reject defendant's claim under Dueñas. II. Pitchess motion
The Supreme Court granted review on the issue of whether a trial court must "consider a defendant's ability to pay before imposing or executing fines, fees, and assessments," and if so, "which party bears the burden of proof regarding defendant's inability to pay." (People v. Kopp S257844, Nov. 13, 2019.)
Prior to trial, defendant brought a Pitchess motion, seeking discovery of materials in the personnel files of Sergeant Bernas, Deputy Diaz, and Deputy Zaldivar. The trial court granted the motion only as to Sergeant Bernas, and only as to claims of "false reporting, perjury, dishonesty or anything of that nature." The court conducted an in camera review, and found no discoverable material. Defendant requests that we undertake an independent review of the sealed transcript of the Pitchess hearing for possible error, and respondent has no objection.
The minute order of August 16, 2018, erroneously states otherwise.
We review the trial court's determination for an abuse of discretion. (People v. Jackson (1996) 13 Cal.4th 1164, 1220-1221.) The personnel records produced in the in camera hearing were not retained, but the custodian of the record was sworn, and the trial court examined and described each document produced. We have reviewed the sealed transcript of that hearing and find the court's descriptions sufficient for review of the trial court's determination, without having to order production of the same documents in this court. (See People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229.) Upon review of the sealed record, we conclude the trial court properly exercised its discretion in determining that the documents produced complied with the scope of the Pitchess motion, and that none of the documents or information contained facts relating to perjury or dishonesty or relevant to defendant's case, and thus were not to be disclosed to the defense.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
CHAVEZ We concur: /s/_________, Acting P. J.
ASHMANN-GERST /s/_________, J.
HOFFSTADT