Opinion
E072719
02-27-2020
THE PEOPLE, Plaintiff and Respondent, v. LOUIS RALPH PICART, Defendant and Appellant.
Louis Ralph Picart, in pro. per., and Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1103731) OPINION APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed. Louis Ralph Picart, in pro. per., and Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
A jury found defendant and appellant, Louis Ralph Picart, guilty of 10 counts of committing lewd and lascivious behavior with a minor under the age of 14 (Pen. Code, § 288, subd. (a), counts 1-10). The jury additionally found true allegations that defendant committed the offenses in counts 1 through 10 against multiple victims. (§ 667.61, subd. (e)(4).) The court sentenced defendant to an aggregate term of imprisonment of 60 years to life and imposed a restitution fine of $280. (§ 1202.4, subd. (b).)
All further statutory references are to the Penal Code.
The information, minute order of conviction, probation officer's report, and reporter's transcript of sentencing incorrectly reflect that the jury found true allegations under section 667.61, subdivision (e)(5), which would reflect that defendant had tied or bound the victims of the offenses in counts 1 through 10. However, despite citing the wrong subdivision, the information, probation officer's report, and reporter's transcript of the sentencing hearing all read that the sustained enhancement actually alleged that defendant had committed the offenses against more than one victim, which would reflect a true finding on a section 667.61, subdivision (e)(4) enhancement, not (e)(5). Indeed, later in the reporter's transcript, the court correctly cites section 667.61, subdivision (e)(4), as the multiple victim statutory enhancement that the jury found true.
The court denied defendant's later request that the court convert his restitution fine to custody time. Defendant thereafter requested a hearing for reconsideration of the restitution fine, which the court denied. Defendant later filed another motion for a hearing for reconsideration of the restitution fine, which the court again denied, noting that it lacked jurisdiction to reconsider a restitution order on a final judgment.
After defendant filed a notice of appeal, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and four potentially arguable issues: (1) whether the court had jurisdiction to reconsider restitution; (2) whether the court erred in imposing the restitution fine without rendering a finding of defendant's ability to pay; (3) whether the denial to strike the restitution fine was prejudicial; and (4) whether the court erred in declining to appoint counsel for defendant on his motion to reconsider the restitution fine.
Defendant was offered the opportunity to file a personal supplemental brief, which he has done. Defendant contends the court erred in failing to consider his ability to pay the restitution fine pursuant to the court's decision in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We affirm.
I. DISCUSSION
Defendant contends the court erred in failing to consider his ability to pay the restitution fine pursuant to the decision in Dueñas. He maintains, pursuant to Dueñas, the matter should be remanded to the trial court to stay the fine until the People demonstrate defendant's ability to pay. We disagree.
First, defendant forfeited the issue by failing to object to imposition of the restitution fine at the sentencing hearing. (People v. Aviles (2019) 39 Cal.App.5th 1055, 1061; People v. Castellano (2019) 33 Cal.App.5th 485, 489 [Where the judgment is not final, a defendant may object in the first instance to imposition of a restitution fine on newly announced constitutional issues on appeal.]) Here, defendant failed to object to the imposition of the fine at his sentencing on November 22, 2013, and he did not file an appeal from the judgment. Not until April 2018, did defendant address the fine, but then only by requesting that it be converted to custody time. On July 13, 2018, defendant first challenged imposition of the fine itself. Thus, defendant forfeited the issue by failing to raise it at sentencing and only challenging imposition of the fine long after judgment was final.
Second, this case is distinguishable from Dueñas, supra, 30 Cal.App.5th 1157. In Dueñas, the defendant requested a hearing to determine her ability to pay court fees at the sentencing hearing. (Id. at p. 1162.) The court granted her request. (Ibid.) At the ability to pay hearing, the defendant submitted an uncontested declaration establishing her indigence. (Id. at p. 1163.) The defendant was given the choice of paying her mandatory fines and fees, which she lacked the means to do, or going to jail. (Id. at p. 1161.)
Here, the court sentenced defendant to prison irrespective of his payment of the restitution fine. Thus, this matter is factually distinguishable from Dueñas. Moreover, defendant never submitted any admissible evidence of his purported indigency, not at the sentencing hearing, not in his request that the court convert his restitution fine to custody time, not in his motion for reconsideration of the restitution fine, and not in his second motion for reconsideration of the restitution fine. Thus, defendant has failed to bear his burden of proving an inability to pay. (People v. Kopp (2019) 38 Cal.App.5th 47, 96 ["It is the defendant who bears the burden of proving an inability to pay."].)
Finally, any error is harmless due to the length of his prison commitment.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no arguable issues.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. CODRINGTON
J.