Opinion
F074777
02-27-2020
THE PEOPLE, Plaintiff and Respondent, v. MAURICIO ALFONSO PINEDA, Defendant and Appellant.
Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon, Carlos A. Martinez and Daniel B. Bernstein, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MCR047797)
OPINION
APPEAL from a judgment of the Superior Court of Madera County. Joseph A. Soldani, Judge. Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon, Carlos A. Martinez and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant Mauricio Alfonso Pineda challenges, for insufficiency of evidence, two of his five convictions for committing lewd acts on a child under the age of 14 years. He also argues his sentence of 75 years to life constitutes cruel and unusual punishment because it exceeds his life expectancy and serves no valid penological purpose. In supplemental briefing, appellant raises constitutional challenges to court operations and facilities fees, as well as a restitution fine, which the trial court imposed. Appellant's claim is based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We reject appellant's contentions and affirm the judgment.
PROCEDURAL HISTORY
Appellant was charged, in an eight-count amended information (information) filed in Madera County Superior Court, with crimes against two minor sisters, J.H. and J.Z., as well as another child, A.E. (no relation to J.H. and J.Z.).
Counts 1 to 4 of the information pertained to J.H. In each of these counts, appellant was charged with committing a lewd and lascivious act upon a child under the age of 14 years, with force, duress, violence, menace, or fear of bodily injury. (Pen. Code, § 288, subd. (b)(1).) Counts 1 and 2 related to the year that J.H. was in the first grade (August 2011-July 2012) and counts 3 and 4 related to the year that she was in the second grade (August 2012-July 2013).
Subsequent statutory references are to the Penal Code unless otherwise specified.
Counts 5 to 7 pertained to J.Z. In each of these counts, appellant was similarly charged with committing a lewd and lascivious act upon a child under the age of 14 years, with force, duress, violence, menace, or fear of bodily injury. (§ 288, subd. (b)(1).)
Count 8 pertained to A.E. In count 8, appellant was charged with the infliction on a child of cruel or inhuman corporal punishment or injury resulting in a traumatic condition. (§ 273d, subd. (a).)
A jury convicted appellant of all four counts involving J.H. (counts 1 through 4) as well as one count involving J.Z. (count 7). The jury also found true a special allegation to the effect that appellant had committed the section 288, subdivision (b)(1) offenses against more than one victim, triggering a sentence of 15 years to life for the offenses (counts 1 through 4, 7). (§ 667.61, subds. (b), (c)(4), (e)(4).) The jury was unable to reach a verdict on two counts involving J.Z. (counts 5 & 6) and acquitted appellant of the count involving A.E. (count 8).
Appellant was sentenced to an aggregate term of 75 years to life, consisting of a term of 15 years to life for counts 1 through 4 and 7. Counts 5 and 6 were dismissed on the People's motion.
In the instant appeal, appellant challenges his convictions in counts 1 and 2 for insufficiency of the underlying evidence as well as the constitutionality of his overall sentence.
FACTS
Only facts relevant to the issues on appeal are included in the factual summary.
Trial in this matter took place in October 2016. J.H. was born in 2005 and J.Z. in 2007. At the time of trial, J.H. was in the sixth grade and J.Z. was in the fourth grade.
The maternal grandmother of J.H. and J.Z. was in a romantic relationship with appellant. They separated as romantic partners in 2007. However, appellant still lived in the grandmother's four-bedroom home in Madera, where he had his own bedroom. In total, he lived with the grandmother from 2001 until he was arrested in the present case in December 2013. The grandmother ran a daycare in her home. Appellant worked as a truck driver; he was home on Fridays as Friday was his day off.
The Mother's Testimony
J.H. attended first grade (2011-2012) in Fresno and second grade (2012-2013) in Madera. J.Z. also attended kindergarten (2012-2013) in Madera. The school year ran from August to June.
Starting in February 2012, the girls' mother began to rely on the grandmother for child care while she herself went to work. The mother soon worked out an arrangement whereby she and the girls lived with the grandmother during the work week and returned to their own home in Fresno on weekends (they had lived in a mobile home in Fresno since 2007). This arrangement lasted from February 2012 to October 2013, when the mother moved to her sister's house in Madera. Even before this arrangement, however, the mother and the girls were at the grandmother's house "all the time." J.H. and J.Z. also spent their summer holidays with the grandmother in her Madera house.
In December 2013, while the mother and the girls were living with the mother's sister, J.H. woke up screaming one night; she was crying and appeared scared. That incident is what led the mother to call the police and make a report concerning J.H. The instant charges followed.
J.H.'s Trial Testimony (Counts 1 through 4)
J.H. used the word "tutu" to refer to her vagina. J.H. testified, with reference to the period she lived with the grandmother, that appellant periodically took her into his bedroom. She explained: "I would only go inside his bedroom when he usually grabbed me by the hand and told me to go to his bedroom." He would take her by the "wrist area"; although he did not hold it tight, she "[p]robably" could not get away. Indeed, she "did not try" to get away "because [she] was scared and nervous." J.H. also said: "[T]he reason why I would go there [is] because he told me he would give me chocolates."
Once she was inside the bedroom, appellant would "take off [her] pants" and underwear and tell her to lay down on his bed with her feet off the bed; he would then "touch [her] tutu." More specifically, he would "be kneeling down [on the ground] towards [her] tutu" and would "put his mouth on [her] tutu." J.H. would feel his saliva on her tutu and sometimes "would look down towards him to see." Asked whether the act was "quick" or "long," J.H. replied, "It was kind of medium." Appellant's hands touched her when he pulled down her pants. His "hands were very chapped and dry." Afterwards, J.H. "would go out to continue [to] play with [her] friends," while appellant would stay in his room.
J.H. clarified that appellant touched her in this way "[m]ore than one time" but noted that her memory had faded because "[i]t's been a really long time." She repeated, at another point, that appellant had touched her like this "multiple times," but observed she did not "have an exact number." Asked whether it was five or 10 times, J.H. stated: "I'm not really sure, but I'm pretty sure it was more than five times." J.H. added: "[H]e usually just did the same things when he told me ... to go to his bedroom." She also specified she would get a chocolate every time. Regarding the time frame applicable to these acts, she testified: "I'm thinking it was—could have been about when I was in first and second grade."
The prosecutor asked J.H.: "When his hands were pulling down your pants, did you ever try to stop him?" J.H. answered, "No." Asked whether she ever told him to stop, J.H. said: "I really don't know. I'm not sure, but I think I may have told him to stop one time, and that ... may have been the last time he did it because that was also the time when I told my mom after that happened." J.H. then confirmed that appellant did stop when she told him to stop that last time.
The prosecutor also asked J.H.: "Did [appellant] touch your tutu in any other room besides his bedroom?" J.H. responded: "I think one time, he put me on the washing machine." The washing machine was located in the garage and appellant "grabbed [her] hand" and "took [her] there." She added: "[In the garage], he—he picked me up, and he put me on the washing machine, and then he took off my underwear and my pants, and he started touching my tutu." J.H. clarified that appellant was facing her as she sat on the washing machine and he touched her tutu "[w]ith his mouth." "It felt very weird." The incident "wasn't very long." He also gave her a chocolate; he kept chocolates in a high cabinet in the garage, out of reach of the children. J.H. noted: "[Afterwards] I pulled up my pants and my underwear, and I went and I continued ... doing something. I'm not sure, but I know I left the garage."
J.H. did not tell her grandmother about these incidents because "[she] was scared, and [she] was nervous." She explained: "I was afraid that he might have—might hurt someone or do—or hurt me." She added: "I just thought something like that would happen if he—if he knew that I told someone because he told me not to tell anyone." Consequently, she did not tell anyone until she finally confided in her mother. The acts stopped after J.H. informed her mother of their occurrence.
The prosecutor asked J.H. whether she had told the police officers and forensic interviewer—who spoke to her after her mother became aware of the situation—that appellant would put his mouth on her tutu. J.H. responded: "No, I didn't, and I did not say that because I was very scared, and I was afraid, and I didn't—I was—I just—I'm not sure what to do, so I didn't tell the truth at that time, but ...." In her forensic interview, J.H. indicated that appellant had touched her tutu with his hand; in actuality "he touched [her] with his mouth." J.H. clarified that although she described the molestation incidents somewhat differently in her forensic interview and trial testimony, respectively, the incidents "did happen."
J.H.'s Forensic Interview
Josephina Roderick of the Madera County Child Forensic Interview Team (CFIT) testified for the People. Roderick conducted a forensic interview with J.H. in December 2013. A video of the interview was admitted into evidence and played for the jury.
In the forensic interview, Roderick said to J.H.: "[S]o tell me about why you came to talk to me today." J.H. responded: "Well, let's see, um, grandpa, he was touching me and I didn't like it and I kept it in for a long time, but then I—I didn't want to do a bad thing and I didn't want to be a bad person, so then I told my mom." Roderick then asked: "Okay. Tell me about the first time that you can remember something happening." J.H. replied: "I don't remember, but I remember the last time he did it, he put me on the washer and tried to touch me but then I told him, 'Stop it.' And I raised my voice at him and he's, like, 'You don't like it?' And I said, 'No.' And then he's, like, said, 'That's fine.' And then he walked away and I got off the washing machine and I went to my grandma but I didn't tell her because I was too scared of what she was gonna [sic] think."
J.H. said that this incident began when appellant offered to give J.H. and some other children candy; all the children went to the garage and he distributed the candy; then, when the other kids left, he picked J.H. up by the waist and put her on the washing machine. J.H. said that appellant had "tried to push his hand under [her] pants and under [her] underwear." However, on that particular occasion, he did not manage to touch her tutu. This "last" incident happened "about two or one year ago."
J.H. also described an incident when several children went to appellant's bedroom to get candy; the other children left but appellant held J.H.'s hand, did not let her leave, and "pushed [her] on his bed." She added that she was on her back on the bed "because he pushed" her and was "holding [her] back"; she felt the push on her stomach and chest. His hands felt "rough," "chapped," and "really crispy." He was on his knees, facing her, and "trying to touch [her] tutu"; his face was "looking down at [her] tutu and ... it didn't feel good." He "tried to touch [her] tutu and that time he actually did touch [her] tutu." He stopped when he heard the grandmother's footsteps approaching his room; he left J.H. on the bed to investigate and, after the grandmother went into her own room, let J.H. leave his bedroom.
J.H. testified: "He—he left me—he was staying there inside the room but he stopped and then my grandma went into her room and then he—and then I—he—he—when he heard the door shut and then he—he opened his door and let me out."
J.H. said the abuse occurred more than one time in the garage and more than one time in appellant's bedroom but she did not remember the details of every incident because she "just didn't wanna [sic] think about it" and she "didn't like it." She said it "basically happens in those rooms." The abuse continued for about one and one-half years. After the abuse stopped, J.H. "didn't feel comfortable with it" and "going to [her] grandma's house and looking at [appellant]" made her "mad." Although appellant did not instruct her to refrain from revealing his actions to anyone, she "didn't tell anybody because [she] was scared."
J.H. also noted that she felt uncomfortable when appellant gave the children piggyback rides: "He gives us piggyback rides and he carries us from the butt and it doesn't feel—and it doesn't feel good and it—it feels uncomfortable." J.H. explained appellant would use his finger, "kind of sticking it inside of [her] butt crack." She added: "I got a piggyback from him [only] one time because when I felt that I didn't want to get a piggyback from him again."
Testimony of Madera Police Officer Brent Cederquist
Madera Police Officer Brent Cederquist executed a search warrant at the grandmother's house on December 12, 2013. In appellant's bedroom, Cederquist found an empty bag of Lindor chocolates on a closet shelf and a full bag of Lindor chocolates on the dresser.
Appellant's Testimony
Appellant took the stand in his own defense and denied molesting J.H. and J.Z. He acknowledged he kept chocolates in his bedroom and the garage to hand out to the children around the house.
DISCUSSION
I. Sufficiency of Evidence to Support Counts 1 and 2 (J.H.)
Appellant argues the evidence was insufficient to support his convictions in counts 1 and 2 for committing lewd and lascivious acts with force or duress. He contends J.H.'s testimony was too generic, and force or duress was not established for these charges. He asserts J.H. gave no details of the alleged lewd acts other than they occurred on more than one occasion while she was in first and second grades.
Appellant acknowledges the incident in count 3 "took place in [his] bedroom" when J.H. was in second grade. He also acknowledges the incident in count 4 took place "on the washing machine in the garage" when J.H. was in second grade.
The People respond that "[a]mple evidence showed [appellant] used force when he followed a common plan of grabbing [J.H.] to take her to his bedroom or garage and pushed or held her so she would not escape during the molestations." The People also argue that duress was inherent in the interactions between appellant and J.H. in light of their significant age difference, appellant's status as a grandfather figure to J.H. and an authority figure in the house, and J.H.'s consequent fear of, and deference to, him. Here, we agree with the People that there was sufficient evidence of force and duress in relation to counts 1 and 2. Accordingly, we affirm appellant's convictions on these counts.
When the sufficiency of the evidence underlying a conviction is challenged on appeal, our review is circumscribed. We "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d. 557, 578; In re Jerry M. (1997) 59 Cal.App.4th 289, 298.)
Counts 1 and 2 were charged under section 288, subdivision (b)(1), which proscribes lewd and lascivious acts committed on a child under the age of 14 years "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." The elements of an offense under this statute are "(1) physical touching of a child under age 14; (2) for the present and immediate purpose of sexually arousing or gratifying the defendant or victim; and (3) the touching was accomplished by use of force, violence, duress, menace, or fear of injury." (People v. Poletti (2015) 240 Cal.App.4th 1191, 1207, citing People v. Alvarez (2002) 27 Cal.4th 1161, 1171.)
In People v. Jones (1990) 51 Cal.3d 294, our Supreme Court held that convictions for lewd acts under section 288 may properly be based on nonspecific or "generic" testimony from the victim, i.e., "testimony describing a series of essentially indistinguishable acts of molestation." (People v. Jones, supra, at pp. 299-300, 314.) This principle is particularly relevant in cases involving "a young accuser" and a "so-called 'resident child molester,' " who "either lives with his victim or has continuous access to him or her," because, in such cases, the accuser may be able to describe "repeated acts of molestation occurring over a substantial period of time but, lacking any meaningful point of reference, is unable to furnish many specific details, dates or distinguishing characteristics as to individual acts or assaults." (Id. at p. 299.) To support a conviction, generic testimony must, at a minimum, describe: (1) "the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy)"; (2) "the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment"; and (3) "the general time period in which these acts occurred (e.g., 'the summer before my fourth grade,' or 'during each Sunday morning after he came to live with us'), to assure the acts were committed within the applicable limitation period." (Id. at p. 316; italics omitted.)
Courts have also interpreted the terms "force" and "duress" as they appear in section 288, subdivision (b)(1). As used in the statute, the term force means force that is " 'substantially different from or substantially greater than that necessary to accomplish the lewd act itself.' " (People v. Soto (2011) 51 Cal.4th 229, 242 (Soto); accord, People v. Alvarez (2009) 178 Cal.App.4th 999, 1004; People v. Cicero (1984) 157 Cal.App.3d 465, 484, overruled on other grounds by Soto, supra, at p. 248, fn. 12.) "[A]cts of grabbing, holding and restraining that occur in conjunction with the lewd acts themselves" meet this definition. (People v. Alvarez, supra, at p. 1005; People v. Babcock (1993) 14 Cal.App.4th 383, 387 [force element satisfied where the defendant grabbed victims' hands and made them touch his crotch, as forcibly holding victim who wants to escape is not necessarily an element of the lewd act]; People v. Pitmon (1985) 170 Cal.App.3d 38, 48 [the defendant employed force in those instances where victim orally copulated him inasmuch as defendant slightly pushed the victim's back during each performance of the act], overruled on other grounds by Soto, supra, at p. 248, fn. 12.)
As for duress, " ' "duress as used in the context of section 288 [means] a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted." ' " (People v. Garcia (2016) 247 Cal.App.4th 1013, 1023, italics omitted.) "[D]uress involves psychological coercion" and "can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes." (People v. Senior (1992) 3 Cal.App.4th 765, 775.) " 'Where the defendant is a family member and the victim is young, ... the position of dominance and authority of the defendant and his continuous exploitation of the victim' is relevant to the existence of duress." (Ibid.; see People v. Veale (2008) 160 Cal.App.4th 40, 46 [" ' "The total circumstances, including the age of the victim, and [her] relationship to [the] defendant are factors to be considered in appraising the existence of duress" ' "]; People v. Cochran (2002) 103 Cal.App.4th 8, 16, fn. 6 [same], overruled on other grounds by Soto, supra, 51 Cal.4th at p. 248, fn. 12.)
The evidence presented at trial, through J.H.'s testimony as well as her video-recorded forensic interview, showed that appellant orally copulated J.H. "multiple times" in his bedroom and the garage, when she was in the first and second grades. J.H. made clear that appellant orally copulated her more than one time in his bedroom and more than one time in the garage. She also noted: "[I]t would happen about—it would happen one—one time in one day if I went to his ... if I went to my grandma's house.... [I]t would probably just happen one time a day."
J.H. described, at trial, an incident when appellant orally copulated her while she was seated on the washing machine located in the garage. Appellant "grabbed [her] hand" and "took [her]" to the garage. She added: "[In the garage], he—he picked me up, and he put me on the washing machine, and then he took off my underwear and my pants, and he started touching my tutu." With regard to the incidents that took place in appellant's bedroom, J.H. similarly testified at trial that appellant would grab her by the hand and lead her to his room, offering to give her chocolates; she did not feel she could get away. In her forensic interview, J.H. described a specific incident that unfolded in appellant's bedroom. Several children, including J.H., were in appellant's room to get candy. The other children soon left but appellant held J.H.'s hand, did not let her leave, and "pushed [her] on his bed." She added that she was on her back on the bed "because he pushed" her and was "holding [her] back"; she felt the push on her stomach and chest. She explained: "I don't really go to his room unless I, like, I try to go away with all the other kids, but he, like captures me." She noted: "[A]ll the times it was the same." She again noted at trial that "he usually just did the same things" when he took her to his bedroom.
In short, the evidence shows a repeated pattern of behavior by appellant. He would grab J.H.'s hands to lead her to the garage or his bedroom. In the garage, he would pick her up and put her on the washing machine. When he took her to his bedroom, he would hold her hands to keep her there and thereafter would push her onto the bed and hold her down while he orally copulated her. We conclude the evidence was sufficient to support a finding that appellant used force to commit the lewd acts charged in counts 1 and 2.
The evidence was similarly sufficient to support a finding that appellant used duress to accomplish the lewd acts charged in counts 1 and 2. The record was clear that J.H. was uncomfortable with appellant's ongoing abuse but was afraid to challenge appellant or reveal the abuse to others. J.H. did not tell her grandmother about these incidents because "[she] was scared, and [she] was nervous." She explained: "I was afraid that he might have—might hurt someone or do—or hurt me." She added: "I just thought something like that would happen if he—if he knew that I told someone because he told me not to tell anyone." This record supports a reasonable inference that appellant's conduct encompassed an implied threat sufficient to support a finding of duress. (See People v. Veale, supra, 160 Cal.App.4th at p. 47 [duress found from an implied threat derived from a reasonable inference].) Other factors, including J.H.'s young age, the disparity in age and size between appellant and her, and the fact that appellant was a grandfather figure living in the same house with her, also support a finding of duress. (Ibid.; see People v. Cochran, supra, 103 Cal.App.4th at p. 16, fn. 6 ["as a factual matter, when the victim is [a young child] and is molested by her father in the family home, in all but the rarest cases duress will be present"].)
During her forensic interview, J.H. was asked: "Okay. Did he ever tell you to tell anybody or not to tell anybody?" She responded: "No, he didn't tell me none of that, but I did—I didn't tell anybody because I was scared. I felt it, too when I—it—I knew that it wasn't right and I shoulda [sic] told her and I shoulda [sic] listened to her but I—I just didn't—I was scared." At trial, however, J.H. testified that she was afraid of revealing the abuse because of her concern for the consequences if appellant were to find out that she "told someone because he told [her] not to tell anyone."
Appellant's convictions in counts 1 and 2 are affirmed.
II. Appellant's Sentence and the Prohibition on Cruel and Unusual Punishment
Appellant next challenges the constitutionality of his sentence of 75 years to life. He suggests that "a sentence of 75 years to life for a 62 year old first-time offender [like him] who committed no homicide is cruel and unusual punishment." More specifically, he argues, based on "the analysis of Justice Mosk in his [concurring] opinion in People v. Deloza (1998) 18 Cal.4th 585, 600-602," that this sentence, which cannot be served in his lifetime, is "excessive," in that it "makes no measurable contribution to acceptable goals of punishment" and "can serve no rational legislative purpose." He thus contends that his sentence "must be reversed and the matter remanded to the superior court" for "resentencing based on a requirement that the sentence imposed be one that provides for at least an opportunity for parole within [his] lifetime."
The Eighth Amendment to the United States Constitution bars punishment that is excessive in relation to the crime committed. (Coker v. Georgia (1977) 433 U.S. 584, 592.) "[A] punishment is 'excessive' and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime." (Ibid.) Appellant's argument expressly relies on Justice Mosk's concurring opinion in People v. Deloza, which noted, with reference to the first theory of unconstitutional punishment set forth in Coker v. Georgia, that a sentence exceeding a human life span can serve no rational penological purpose and is inherently cruel and unusual. (People v. Deloza, supra, 18 Cal.4th at p. 601 (conc. opn. of Mosk, J.).)
We are not persuaded. First, appellant's argument is premised on a concurring opinion that has "no controlling weight" or precedential value (People v. Ceballos (1974) 12 Cal.3d 470, 483) and is undercut by many cases that hold, on the contrary, that sentences exceeding human life expectancy do not constitute cruel and unusual punishment (see, e.g., People v. Retanan (2007) 154 Cal.App.4th 1219, 1230-1231 [upholding sentence of 135 years to life]; People v. Byrd (2001) 89 Cal.App.4th 1373, 1382 [upholding sentence of 115 years plus 444 years to life]; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1134-1137 [affirming sentence of 375 years to life plus 53 years]; People v. Wallace (1993) 14 Cal.App.4th 651, 666-667 [affirming sentence of 283 years eight months]; People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 532 [upholding sentence of 129 years]).
Second, appellant's sentence actually serves valid penological goals. The goals of criminal punishment include vindication of society's sense of justice, protecting society from criminal harms, and deterring criminal behavior. (See In re Nunez (2009) 173 Cal.App.4th 709, 730 ["Valid penological goals include retribution, incapacitation, rehabilitation, and deterrence."]; People v. Warner (1978) 20 Cal.3d 678, 689 ["The paramount concern in sentencing must be the protection of society"], abrogated by statute on other grounds as stated in People v. Douglas (1999) 20 Cal.4th 85, 92, fn. 6.) As explained in People v. Byrd, a sentence in excess of a human life span clearly "serves valid penological purposes: it unmistakably reflects society's condemnation of defendant's conduct and it provides a strong psychological deterrent to those who would consider engaging in that sort of conduct in the future." (People v. Byrd, supra, 89 Cal.App.4th at p. 1383.)
Here, appellant's repeated acts of molestation affected at least two children at extremely vulnerable times in their lives, realistically leading to lifelong consequences for them. Furthermore, appellant continued to commit the offenses over a considerable span of time. Given this record, the sentence that appellant received furthered acceptable penological goals of retribution, incapacitation, and deterrence and, accordingly, was not excessive under Coker v. Georgia.
Appellant also argues, citing Miller v. Alabama (2012) 567 U.S. 460, 469 (Miller), that "evolving standards of decency should now recognize that a sentence which is impossible to serve in a defendant's lifetime but which is labeled as a 'years to life' sentence is cruel and unusual."
In Miller, the United States Supreme Court held that the "Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." (Miller, supra, 567 U.S. at p. 479.) In reaching its holding, Miller relied "extensively on differences between juveniles and adults with regard to their culpability and capacity for change." (People v. Gutierrez (2014) 58 Cal.4th 1354, 1360.) Miller explained that the "distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes." (Miller, supra, at p. 472.) Miller's prohibition on mandatory life without parole sentences under the Eighth Amendment is limited to defendants who were under the age of 18 years when their crimes were committed, since that is the point where society draws the line between childhood and adulthood for many purposes. (See People v. Argeta (2012) 210 Cal.App.4th 1478, 1482.)
In People v. Caballero (2012) 55 Cal.4th 262 (Caballero), the California Supreme Court addressed, in the context of juvenile offenders, the constitutionality of sentences consisting of a term of years with parole eligibility dates outside the respective juvenile offender's natural life expectancy. Caballero concluded that such sentences constituted "cruel and unusual punishment in violation of the Eighth Amendment." (Caballero, supra, at p. 268.) However, the holdings of Miller and Caballero are limited to juvenile offenders and have no application here. (See People v. Perez (2016) 3 Cal.App.5th 612, 617.)
Since appellant's sentencing claims fail on the merits, we need not address the People's argument that his failure to challenge the constitutionality of his sentence in the trial court forfeits these claims on appeal. We also note that, to the extent appellant challenges his sentence under the California Constitution, these claims are entirely undeveloped and rejected as improperly raised. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2; Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.)
III. The Trial Court Did Not Violate Appellant's Constitutional Rights When Imposing The Disputed Fees And Fines.
A. Background
Except for certain parking offenses, Government Code section 70373, subdivision (a)(1), requires trial courts to impose for every criminal conviction an assessment "[t]o ensure and maintain adequate funding for court facilities ...." (Gov. Code, § 70373, subd. (a)(1).) The fee is $30 for each felony or misdemeanor conviction, and $35 for each infraction. (Ibid.) Further, except for certain parking offenses, section 1465.8, subdivision (a)(1), requires trial courts to impose for every criminal conviction, a $40 assessment "[t]o assist in funding court operations ...." (§ 1465.8, subd. (a)(1).) Neither fee is considered punishment. (People v. Alford (2007) 42 Cal.4th 749, 757 [§ 1465.8]; People v. Knightbent (2010) 186 Cal.App.4th 1105, 1112 [Gov. Code, § 70373].)
Section 1202.4, subdivision (b)(1), also requires the imposition of a restitution fine of not less than $300 and not more than $10,000 in each criminal case in which a person is convicted of a felony, unless the court finds "compelling and extraordinary reasons for not doing so and states those reasons on the record." (§ 1202.4, subd. (c).) A defendant's "[i]nability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine [of $300]." (Ibid., italics added.) In contrast with the fees discussed above, a restitution fine (§ 1202.4, subd. (b)(1)) represents punishment. (People v. Hanson (2000) 23 Cal.4th 355, 361-363.)
Appellant filed a supplemental brief challenging under Dueñas the trial court's imposition of a $200 court operations fee (§ 1465.8); a $150 court facilities fee (Gov. Code, § 70373); and a $280 restitution fine (§ 1202.4, subd. (b)). The challenged fees and fine amount to a total of $630.
With regard to the court's imposition of the court operations and facilities fees, appellant cites Dueñas for the proposition that "imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process." (Dueñas, supra, 30 Cal.App.5th at p. 1168.) Given the lack of any such determination in his case, appellant argues the order imposing the $150 and $200 in assessments must be reversed. With regard to the $280 restitution fine imposed pursuant to section 1202.4, subdivision (b)(1), appellant urges us to follow Dueñas and stay the execution of this fine until and unless the People demonstrate appellant's ability to pay. (See Dueñas, supra, 30 Cal.App.5th at pp. 1172-1173.)
We find appellant's assertions based on Dueñas unavailing. Dueñas is distinguishable from the present matter, and appellant's constitutional rights were not violated. In any event, any presumed constitutional error is harmless beyond any reasonable doubt.
The parties disagree whether appellant forfeited his Dueñas claim by failing to object to the imposed fines and fees in the trial court. We need not address forfeiture. Instead, appellant's claim fails on the merits and any presumed error is harmless beyond a reasonable doubt.
B. The Dueñas decision
In Dueñas, the defendant was an indigent, homeless mother of two, who subsisted on public aid while suffering from cerebral palsy. She had dropped out of high school because of her illness, and she was unemployed. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) As a teenager, the defendant's driver's license was suspended when she could not pay some citations. (Id. at p. 1161.) She then was convicted of a series of misdemeanor offenses for driving with a suspended license, and in each case, she was given the choice to pay mandatory fees and fines, which she lacked the means to do, or go to jail. (Ibid.) She served jail time in the first three of these cases, but still faced outstanding debt, which increased with each conviction. (Ibid.)
After her fourth conviction of driving with a suspended license, the defendant was placed on probation and again ordered to pay mandatory fees and fines. The court imposed a $30 criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)); a $40 court operations assessment (§ 1465.8, subd. (a)(1)); and a minimum $150 restitution fine (§ 1202.4, subd. (b)(1)). The court also imposed and stayed a probation revocation restitution fine (§ 1202.44). (Dueñas, supra, 30 Cal.App.5th at pp. 1161-1162.) The defendant challenged the fees and fines imposed under sections 1202.4 and 1465.8, and Government Code section 70373. (Dueñas, at p. 1164.) The trial court rejected her constitutional arguments that due process and equal protection required the court to consider her ability to pay these fines and assessments. (Id. at p. 1163.) On appeal, however, the Dueñas court determined that the defendant's due process rights had been infringed. According to Dueñas, an ability to pay hearing was required so the defendant's "present ability to pay" could be determined before assessments were levied for a court operations assessment (§ 1465.8, subd. (a)(1)) and a criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)). (Dueñas, at p. 1164.) The Dueñas court also concluded the minimum restitution fine of $150 (§ 1202.4, subd. (b)(1)) had to be stayed. The appellate court reached that conclusion despite section 1202.4 barring consideration of a defendant's ability to pay unless the judge is considering a fine over the statutory minimum. (§ 1202.4, subd. (c).) Dueñas held that "execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Dueñas, at p. 1164.)
Subsequently, a different panel of the same court that decided Dueñas rejected the argument that Dueñas places a burden on the People to prove a defendant's ability to pay in the first instance. (People v. Castellano (2019) 33 Cal.App.5th 485, 489-490 (Castellano).) Castellano clarifies that the defendant in Dueñas had demonstrated her inability to pay in the trial court and, only in that circumstance, had the appellate court concluded fees and assessments could not constitutionally be assessed and restitution must be stayed until the People proved ability to pay. (Castellano, supra, at p. 490.) Thus, "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." (Ibid.)
C. Dueñas is distinguishable from the present matter.
According to the Dueñas court, the defendant lost her driver's license because she was too poor to pay her juvenile citations. She continued to offend because the aggregating criminal conviction assessments and fines prevented her from recovering her license. The Dueñas court described this as "cascading consequences" stemming from "a series of criminal proceedings driven by, and contributing to, [the defendant's] poverty." (Dueñas, supra, 30 Cal.App.5th at pp. 1163-1164.)
Dueñas is inapplicable in the present matter. In contrast to Dueñas, appellant's incarceration was not a consequence of prior criminal assessments and fines. Appellant was not caught in an unfair cycle, and he could have avoided the present convictions regardless of his financial circumstances. Dueñas is distinguishable and it has no application in this matter. (See People v. Lowery (2020) 43 Cal.App.5th 1046, 1054-1055 (Lowery); People v. Caceres (2019) 39 Cal.App.5th 917, 928-929 [declining to apply Dueñas's "broad holding" beyond its unique facts]; People v. Johnson (2019) 35 Cal.App.5th 134, 138 ["Dueñas is distinguishable."].)
D. The trial court did not violate appellant's constitutional rights.
Even if Dueñas is applicable, the trial court did not violate appellant's constitutional rights when imposing the disputed fees and fines without conducting an ability to pay hearing. The Dueñas defendant presented compelling evidence the imposed assessments resulted in ongoing unintended punitive consequences. The Dueñas court determined those unintended consequences were "fundamentally unfair" for an indigent defendant under principles of due process. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The Dueñas court noted the imposed financial obligations were also potentially unconstitutional under the excessive fines clause of the Eighth Amendment. However, Dueñas stated "[t]he due process and excessive fines analyses are sufficiently similar that the California Supreme Court has observed that '[i]t makes no difference whether we examine the issue as an excessive fine or a violation of due process.' [Citation.]" (Dueñas, supra, at p. 1171, fn. 8.)
This court has declined to expand Dueñas's holding beyond the unique facts found in Dueñas. In Lowery, supra, 43 Cal.App.5th 1046, two defendants were convicted for a series of armed robberies, and various fees, fines and assessments were imposed against them. (Lowery, supra, at pp. 1048-1049.) Based on Dueñas, the defendants in Lowery challenged the imposition of some of those financial obligations. The Lowery court, however, rejected a due process challenge based on Dueñas. The Lowery court noted the "unique concerns addressed in Dueñas" were lacking. (Lowery, at p. 1056.) Nothing established or even reasonably suggested the two defendants in Lowery faced ongoing unintended punitive consequences stemming from the imposition of fees, fines and assessments. The defendants did not establish how they suffered a violation of a fundamental liberty interest. To the contrary, the defendants had been incarcerated not because of their alleged indigency but because they were convicted of intentional criminal acts. Because unintended consequences were not present, the Lowery court held it was not fundamentally unfair for the trial court to impose fees, fines and assessments against the defendants without first determining their ability to pay. (Lowery, supra, 43 Cal.App.5th at pp. 1056-1057.)
In People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles), this court held that, in contrast to a due process challenge, the " 'excessive fines' " clause in the Eighth Amendment to the United States Constitution was a more appropriate avenue for an indigent defendant to challenge the imposition of fees, fines and assessments. (Aviles, supra, 39 Cal.App.5th at p. 1069.) Under its facts, Aviles found no constitutional violation for the imposition of assessments and fines imposed on a felon who, after fleeing from officers, shot and wounded two of them. (Id. at pp. 1059-1060.) Aviles also concluded any presumed error was harmless because the felon had the ability to earn money while in prison. (Id. at pp. 1075-1077.)
Dueñas was also strongly criticized in People v. Hicks (2019) 40 Cal.App.5th 320, 325-326, review granted November 26, 2019, S258946 (Hicks). The Hicks court held that, in contrast to Dueñas's application of due process, a due process violation must be based on a fundamental right, such as denying a defendant access to the courts or incarcerating an indigent defendant for nonpayment. Hicks concluded that Dueñas's analysis was flawed because it expanded due process in a manner that grants criminal defendants a right not conferred by precedent; that is, an ability to pay hearing before assessments are imposed. (Hicks, supra, 40 Cal.App.5th at pp. 325-326, review granted.) Under its facts, Hicks rejected a due process challenge to the imposition of fines and assessments on a felon who, while under the influence of a stimulant, resisted arrest. (Id. at pp. 323, 329-330.)
Finally, in People v. Trujillo (2015) 60 Cal.4th 850 (Trujillo), our Supreme Court held the forfeiture rule applies when a defendant fails to object to the imposition of probation supervision and presentence investigation fees under section 1203.1b. (Trujillo, supra, 60 Cal.4th at pp. 853-854.) In finding forfeiture, the Trujillo court acknowledged the forfeiture doctrine does not apply to the advisement of certain federal constitutional rights. (Id. at p. 859.) A knowing and intelligent waiver is generally required when a criminal defendant gives up " ' any significant right' " such as constitutional rights relinquished by a guilty plea, the right to counsel, and the right to appeal. (Ibid.) Importantly, the Trujillo court stated "no comparably significant right is at stake. [The] [d]efendant has not argued that any core autonomy interests or constitutional rights are implicated by the waiver of a judicial hearing on a defendant's ability to pay, and no similar waiver is required for any of the analogous sentencing fines and fees." (Ibid., italics added.) This language from Trujillo is compelling. The high court's comments strongly suggest no constitutional rights were implicated when the trial court imposed the disputed fees, fines and assessments against appellant without first conducting an ability to pay hearing.
Section 1203.1b permits imposition of reasonable probation costs as a condition of probation. Costs can be imposed, in part, for probation supervision, a conditional sentence, mandatory supervision, certain investigations, and the preparing of certain reports. (§ 1203.1b, subd. (a).) The probation officer (or an authorized representative) shall determine a defendant's ability to pay all or a portion of these reasonable costs after considering any amount the defendant is ordered to pay in fines, assessments, and restitution. (Ibid.)
The unique concerns addressed in Dueñas are lacking in the present matter. Appellant does not establish the violation of a fundamental liberty interest. Indeed, he was not incarcerated because of his indigency but for his reprehensible criminal acts. Appellant was not caught in a cycle of "cascading consequences" stemming from "a series of criminal proceedings driven by, and contributing to, [his] poverty." (Dueñas, supra, 30 Cal.App.5th at pp. 1163-1164.) As such, it was not fundamentally unfair for the trial court to impose the fees, fines and assessments in this matter without first determining appellant's ability to pay. Thus, the trial court did not violate appellant's due process rights, and appellant's constitutional claims fail. (See Lowery, supra, 43 Cal.App.5th at pp. 1056-1057.)
We note the trial court was permitted to impose fines upon appellant following his convictions. (See, e.g., Bearden v. Georgia (1983) 461 U.S. 660, 669 [a state has a fundamental interest in "appropriately punishing persons—rich and poor—who violate its criminal laws" and poverty does not immunize a defendant from punishment].)
E. Any presumed constitutional violation is harmless.
Unlike the Dueñas defendant who was placed on probation and subjected to a recurring cycle of debt, appellant was sentenced to an aggregate prison term of 75 years to life. Nothing in this record suggests he might be unable to work, or he might be ineligible for prison work assignments. As such, we can infer he will have the opportunity to earn prison wages and he can start paying these financial obligations. (See Lowery, supra, 43 Cal.App.5th at p. 1060; Aviles, supra, 39 Cal.App.5th at p. 1076; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [ability to pay includes a defendant's prison wages].) Although it may take him time to pay his financial obligations, he can make payments from either prison wages or monetary gifts from family and friends. (Lowery, supra, 43 Cal.App.5th at pp. 1060-1061; Aviles, supra, 39 Cal.App.5th at p. 1077.) Thus, any presumed constitutional error is harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Therefore, appellant's constitutional challenge is without merit and remand is unnecessary. (See Lowery, supra, 43 Cal.App.5th at p. 1061.)
Appellant is 65 years old and, prior to incarceration, he was employed as a truck driver.
DISPOSITION
The judgment is affirmed.
/s/_________
LEVY, Acting P.J. I CONCUR: /s/_________
FRANSON, J. MEEHAN, J., Dissenting.
The majority rejects appellant's ability-to-pay challenge to the fines, fees and assessments imposed by the trial court based on inability to pay, advanced in reliance on the Court of Appeal's decision in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). The majority does not reach the issue of forfeiture and concludes that Dueñas is limited to its facts, appellant fails to show a violation of a fundamental liberty interest and any presumed error is harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24.
In this case, the trial court imposed the statutory minimum restitution fine under Penal Code section 1202.4, subdivision (b)(1), and, as a result, appellant was expressly precluded under section 1202.4, subdivision (c), from challenging the fine based on his inability to pay. In addition, Dueñas, which was decided approximately two years after the sentencing in this case and while the appeal was pending, marked a significant shift in the law. Finally, the record in this case is understandably silent regarding appellant's ability to pay. Given these factors, I would reject the People's forfeiture argument and remand the matter to the trial court for the limited purpose of allowing defendant to raise the issue and make an appropriate record. On these grounds, I respectfully dissent from part III. of the Discussion in the majority opinion.
All further statutory references are to the Penal Code.
I. Split of Authority
Presently, Courts of Appeal are split regarding if, and under what circumstances, the forfeiture doctrine applies to a claim brought under Dueñas. (E.g., People v. Taylor (2019) 43 Cal.App.5th 390, 399-401 [challenge to restitution fine forfeited where fine above the statutory minimum and the defendant failed to exercise his statutory right to object, but challenge to fees not forfeited because Dueñas was unforeseeable]; People v. Rodriguez (2019) 40 Cal.App.5th 194, 197, 206 [applying forfeiture doctrine to statutory minimum restitution fine and fees]; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154 [applying forfeiture doctrine to restitution fine and assessments where the defendant had statutory right to object to imposition of restitution fine above statutory minimum and failed to do so] (Frandsen).)
Courts of Appeal are also split regarding if and under what circumstances Dueñas applies. (E.g., People v. Lowery (2020) 43 Cal.App.5th 1053-1061] [finding Dueñas claim forfeited as to restitution fine, assessments and fees where court imposed restitution fine above the statutory minimum, but also concluding Dueñas factually distinguishable; the defendants failed to show a violation under due process, equal protection or excessive fines clause; and any error harmless given ability to earn wages in prison] (Lowery); People v. Belloso (2019) 42 Cal.App.5th 647, 662-663 [following Dueñas]; People v. Allen (2019) 41 Cal.App.5th 312, 325-330 [rejecting the defendant's Dueñas-based due process and equal protection claims]; People v. Hicks (2019) 40 Cal.App.5th 320, 326-329, review granted Nov. 26, 2019, No. S258946 [rejecting Dueñas's due process analysis] (Hicks); People v. Aviles (2019) 39 Cal.App.5th 1055, 1061 [disagreeing with Dueñas's due process analysis and concluding constitutional challenge to fines, fees and assessments should be made under the 8th Amend.'s excessive fines clause]; People v. Kopp (2019) 38 Cal.App.5th 47, 95-96, review granted Nov. 13, 2019, No. S257844 [following Dueñas as to assessments but not restitution fines] (Kopp); People v. Castellano (2019) 33 Cal.App.5th 485, 489-490 [extending Dueñas holding to claim raised by a defendant serving a sentence following felony conviction] (Castellano).)
The California Supreme Court is now poised to address issues raised by Dueñas, having granted review in Kopp, a case in which the Court of Appeal found that as to assessments, the defendants were entitled to remand for an ability to pay hearing under Dueñas, but they bore the burden of demonstrating their inability to pay. (Kopp, supra, 38 Cal.App.5th at pp. 95-96, review granted.) With respect to fines, the Kopp court declined to follow Dueñas's due process approach and concluded that a constitutional challenge to a punitive fine must be raised under the excessive fines clause of the Eighth Amendment of the federal Constitution and article I, section 17 of the California Constitution. (Kopp, supra, at pp. 96-98, review granted.) The California Supreme Court limited review in Kopp to whether courts must consider a defendant's ability to pay in imposing fines, fees and assessments; and, if so, which party bears the burden of proof. The court deferred briefing in Hicks pending its decision in Kopp.
II. Forfeiture
Turning to the issues presented here, the failure to object in the trial court generally forfeits a claim on appeal and this principle is applicable to constitutional claims. (People v. McCullough (2013) 56 Cal.4th 589, 593; In re Sheena K. (2007) 40 Cal.4th 875, 880-881; see § 1259.) There are exceptions to this general rule, however, and courts of review have the discretion to consider an issue notwithstanding the failure to object. (People v. McCullough, supra, at p. 593; In re Sheena K., supra, at p. 887, fn.7.) In this case, the parties disagree over whether appellant forfeited his Dueñas claim by failing to object to the fines, fees and assessments imposed by the trial court. The majority does not reach this issue, but I would resolve it because in my view, it informs the disposition.
A. Cases Applying Forfeiture Doctrine to Imposition of Restitution Fines Above Statutory Minimum
It was unnecessary for the court in Dueñas to address the issue of forfeiture because the trial court held an ability-to-pay hearing following Dueñas's objection and request for a hearing, but post-Dueñas, several cases have applied the forfeiture doctrine where the trial court imposed a restitution fine above the statutory minimum. (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1032-1033 (Gutierrez); People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 (Bipialaka); Frandsen, supra, 33 Cal.App.5th at pp. 1153-1154.)
In People v. Rodriguez, the Court of Appeal applied the forfeiture doctrine to a minimum restitution fine but it did so without discussion. (People v. Rodriguez, supra, 40 Cal.App.5th at pp. 197, 206.)
The restitution statute provides that the inability to pay is not a "compelling and extraordinary reason not to impose a restitution fine" (§ 1202.4, subd. (c)), but where, as in Gutierrez, Bipialaka and Frandsen, a trial court imposes a restitution fine above the statutory minimum, the court may consider the defendant's inability to pay in setting the fine (§ 1202.4, subd. (d)). Because the defendants in such cases could have but did not object to the imposition of a restitution fine above the statutory minimum, the Courts of Appeal concluded they forfeited their claims. Gutierrez and Frandsen also reasoned by extension that given the absence of any objection over the imposition of a restitution fine in the maximum amount of $10,000, there would have been no basis to object to the imposition of fees or assessments in a substantially lesser amount. (Gutierrez, supra, 35 Cal.App.5th at p. 1033; Frandsen, supra, 33 Cal.App.5th at p. 1154.) In this case, the trial court imposed the minimum restitution fine, which, under the plain language of the statute, was not objectionable based on inability to pay (§ 1202.4, subd. (c)) and, therefore, the reasoning of Gutierrez and Frandsen does not apply.
B. Failure to Object Excused Where Futile or Unsupported Under Existing Law
"Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence." (People v. Welch (1993) 5 Cal.4th 228, 237; accord, People v. Gomez (2018) 6 Cal.5th 243, 286-287; People v. Black (2007) 41 Cal.4th 799, 810.) Appellant argues, in relevant part, that the futility exception of the forfeiture doctrine is applicable here. I agree.
In cases such as this, involving the imposition of the statutory minimum restitution fine and mandatory fees and assessments, the decision in Dueñas constituted a marked departure from existing law. As recognized by the Court of Appeal in Castellano, "[N]o California court prior to Dueñas had held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant's ability to pay[; and] none of the statutes authorizing the imposition of the fines, fees or assessments at issue authorized the court's consideration of a defendant's ability to pay." (Castellano, supra, 33 Cal.App.5th at p. 489.) The Court of Appeal in People v. Johnson (2019) 35 Cal.App.5th 134, 138, agreed, explaining, "Granted, Dueñas is grounded in longstanding due process principles and precedent (see Dueñas, supra, 30 Cal.App.5th at pp. 1168-1169, 1171 [relying on Griffin v. Illinois (1956) 351 U.S. 12, In re Antazo (1970) 3 Cal.3d 100, and Bearden v. Georgia (1983) 461 U.S. 660]), but the statutes at issue here stood and were routinely applied for so many years without successful challenge (see Dueñas, supra, 30 Cal.App.5th at p. 1172, fn. 10), that we are hard pressed to say its holding was predictable and should have been anticipated." (Fn. omitted.)
Another Court of Appeal subsequently adopted this view, pointing out that in addition to the statutory language that "all but precluded" a meaningful opportunity to contest the restitution fine and "all but foreclosed" a due process challenge to the fee assessments (People v. Jones (2019) 36 Cal.App.5th 1028, 1032 (Jones), "controlling case law on point effectively foreclosed any objection that imposing the $300 restitution fine without conducting an ability to pay hearing violated his due process rights" (id. at p. 1031, citing People v. Long (1985) 164 Cal.App.3d 820 (Long)). Indeed, in Long, this court rejected a due process challenge based on the defendant's inability to pay, stating, "[C]onsideration of a defendant's inability to pay a [restitution] fine is clearly not a prerequisite to the imposition of the fine." (Long, supra, at p. 828.) The Long court concluded that imposition of the restitution fine was not constitutionally infirm because the defendant would "suffer no further incarceration based on [his] inability to pay," the only detriment being "possible execution against whatever nonexempt assets he may have to satisfy his delinquent indebtedness to the state." (Ibid.) The decision in Long was thereafter followed in rejecting similar challenges based on inability to pay. (People v. Sandoval (1989) 206 Cal.App.3d 1544, 1549, 1550 [applying reasoning in Long to reject ability to pay challenge to direct victim restitution order, but concluding the defendant was deprived of a reasonable opportunity to be heard on the restitution issue, where the trial court "unexpected[ly]" imposed restitution in an amount and under terms that differed from that recommended in the probation report]; People v. McGhee (1988) 197 Cal.App.3d 710, 715 [rejecting excessiveness challenge to $10,000 restitution fine and stating alleged lack of assets and limited employment not relevant].)
In Dueñas, the court stated, "To the extent that ... Long ... remains viable despite its reliance on multiple statutes that have since been amended, we respectfully disagree with its due process analysis." (Dueñas, supra, 30 Cal.App.5th at p. 1172, fn. 10.) In Jones, however, the court observed, "At bottom, Dueñas simply disagreed with Long's due process analysis. [Citation.] While Dueñas noted that Long interpreted statutes that were subsequently amended [citation], we do not see the fact of amendments as having been decisive in Dueñas, nor changes that foretold that decision. The amendments did not change the relevant bases for the fines." (Jones, supra, 36 Cal.App.5th at pp. 1031-1032.)
The Jones court concluded that "it was reasonable for [the defendant] to conclude at the time of his sentencing that he could not meaningfully raise the objection that ultimately prevailed in Dueñas. As our Supreme Court has explained, '[t]he circumstance that some attorneys may have had the foresight to raise this issue does not mean that competent and knowledgeable counsel reasonably could have been expected to anticipate[]' the change in law." (Jones, supra, 36 Cal.App.5th at p. 1034, quoting People v. Black, supra, 41 Cal.4th at p. 812.) The court rejected the Frandsen court's assertion that "Dueñas was foreseeable [because] Dueñas herself foresaw it" and that it applied old law. (Frandsen, supra, 33 Cal.App.5th at p. 1154.) The Jones court stated, "[W]e will not characterize Dueñas as foreseeable simply because it cited principles stretching back to the Magna Carta." (Jones, supra, at p. 1034.) "[T]he fact that a new case relies on long-held principles or other established law does not necessarily mean it was foreseeable." (Ibid., citing People v. Black, supra, at pp. 810-812.)
As this case involves a restitution fine in the minimum amount, which appellant was precluded from challenging based on inability to pay by the statute's express terms, I would follow the aforementioned authorities and find that given the statutory language and the state of the substantive law pre-Dueñas, appellant did not forfeit his Dueñas claim by failing to object in the trial court.
III. Remand Appropriate on This Record
The People do not argue in this case that Dueñas was wrongly decided. They concede that "Dueñas addresses important constitutional concerns that may arise when the criminal justice system imposes penal consequences on a defendant for his or her inability to pay court-ordered assessments and fines," and "[t]he criminal justice system should not be blind to the consequences that monetary assessments may have for indigent defendants, and constitutional concerns may arise due to their lack of wealth." Given that the parties did not have the benefit of Dueñas at the time of sentencing and appellant did not forfeit his claim, I would accept the People's concession on this point and allow appellant to raise the issue in the trial court on remand, where he will bear the burden of both demonstrating a harm of constitutional magnitude and making a record regarding his alleged inability to pay the fines, fees and assessments. I express no view as to whether appellant may be able to state a viable claim that ultimately withstands constitutional scrutiny on review.
Dueñas involved a detailed record regarding the legal proceedings that began when Dueñas was a teenager and culminated in the situation confronted by the Court of Appeal. Dueñas is therefore distinguishable on the issue of burden. Subsequently, in Castellano, the court clarified that the holding in Dueñas was informed by its facts: "Our holding ... that the fees and assessments could not constitutionally be assessed and that execution of the restitution fine had to be stayed was based on the trial court's uncontested finding that Dueñas was unable to pay the amounts imposed." (Castellano, supra, 33 Cal.App.5th at p. 490.)
As previously set forth, Castellano explained, "Consistent with Dueñas, 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. In doing so, the defendant need not present evidence of potential adverse consequences beyond the fee or assessment itself, as the imposition of a fine on a defendant unable to pay it is sufficient detriment to trigger due process protections. (Dueñas, supra, 30 Cal.App.5th at pp. 1168-1169.) The trial court then must consider all relevant factors in determining whether the defendant is able to pay the fines, fees and assessments to be imposed. Those factors may include, but are not limited to, potential prison pay during the period of incarceration to be served by the defendant. If the trial court determines a defendant is unable to pay, the fees and assessments cannot be imposed; and execution of any restitution fine imposed must be stayed until such time as the People can show that the defendant's ability to pay has been restored. (Dueñas, at pp. 1168-1169, 1172.)." (Castellano, supra, 33 Cal.App.5th at p. 490, fn. omitted; accord, People v. Belloso, supra, 42 Cal.App.5th at pp. 662-663.)
With respect to the imposition of fees, Dueñas referred to a defendant's "present ability to pay." (Dueñas, supra, 30 Cal.App.5th at p. 1164, italics added.) I reiterate that Dueñas involved a detailed record regarding Dueñas's economic situation: she and her husband were homeless and had two children they were unable to support fully on the government assistance received, her husband was unemployed other than occasional short-term construction work, and she had dropped out of high school and was unemployed as a result of a disability. (Id. at pp. 1160-1161.) Moreover, the trial court already determined that Dueñas was unable to pay. Thus, the "present ability" language in Dueñas should not be divorced from the facts. (Id. at p. 1164.) Indeed, Castellano subsequently rejected the defendant's argument that the People had to prove his present ability to pay and in addition to clarifying that the burden of presenting evidence of inability to pay lies in the first instance with the defendant, the court included in its discussion of relevant factors for the trial court to consider "potential prison pay during the period of incarceration to be served by the defendant." (Castellano, supra, 33 Cal.App.5th at p. 490, fn. omitted; accord, People v. Santos (2019) 38 Cal.App.5th 923, 934; Kopp, supra, 38 Cal.App.5th at p. 96, review granted.)
The United States Supreme Court has recognized that "[t]he State ... has a fundamental interest in appropriately punishing persons—rich and poor—who violate its criminal laws. A defendant's poverty in no way immunizes him from punishment." (Bearden v. Georgia, supra, 461 U.S. at p. 669, italics added; see People v. Lewis (2009) 46 Cal.4th 1255, 1321 ["[The] defendant's assertion that he was unable to pay the fine did not compel the court to impose a lesser fine."].) Discretion to determine an appropriate fine amount rests with the trial court and the court is free to consider, among other factors, any money received by appellants, be it in the form of prison wages or gifts. (People v. Potts (2019) 6 Cal.5th 1012, 1055-1056 [concluding trial court could lawfully impose $10,000 restitution fine despite condemned inmate's categorical ineligibility to earn prison wages and his receipt of only occasional small gifts of money from family, and rejecting argument "that a fine is automatically invalid if a defendant is unable to pay it"].)
In reaching a contrary conclusion, the majority takes the position that Dueñas is limited to its facts and that appellant has not established the violation of a fundamental liberty interest. I agree with the majority that the facts of Dueñas are distinguishable, but that does not resolve the matter. Castellano extended Dueñas beyond its unique facts and found that a limited remand was appropriate where, as here, the defendant's claim was based on a newly announced constitutional principle and he did not forfeit the claim because he lacked the ability under the statute to object to the minimum restitution fine. (Castellano, supra, 33 Cal.App.5th at pp. 487, 489.) As I have explained, the People do not challenge the constitutional principles underpinning Dueñas, appellant did not forfeit his claim and the parties here did not have the benefit of Dueñas at the time of sentencing. Given these considerations, I would remand this matter to allow appellant to raise the issue in the trial court, where, as discussed, he will bear the burden of both demonstrating a harm of constitutional magnitude and making a record regarding his alleged inability to pay the fines and fees.
In finding appellant failed to establish the violation of a fundamental liberty interest, the majority draws on the California Supreme Court's decision in People v. Trujillo (2015) 60 Cal.4th 850 (Trujillo), this court's decision in Lowery, and the decision in Hicks for support. However, "cases are not authority for propositions not considered" (People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10), and I am unpersuaded that Trujillo speaks to the merits of the constitutional issues underlying Dueñas.
Trujillo addressed probation supervision and presentence investigation fees imposed under section 1203.1b. (Trujillo, supra, 60 Cal.4th at pp. 854-855.) The fee statute at issue in Trujillo is materially distinguishable from the statutes at issue here. Section 1203.1b expressly provides for an ability to pay determination before a probation officer and for a court hearing regarding the ability to pay that includes the right to counsel, and the statute specifically provides an avenue for postjudgment relief based on changed circumstances. (§ 1203.1b, subds. (a), (b), (f).) Relevant to the Trujillo court's holding, section 1203.1b, subdivision (a), requires a knowing and intelligent waiver of the court hearing.
As discussed, ability to pay is a factor in imposing a restitution fine under section 1202.4 only if a fine above the statutory minimum is imposed. (§ 1202.4, subd. (c).) Imposition of court operations and facilities assessments under Penal Code section 1465.8 and Government Code section 70373, also at issue in this case, is mandatory irrespective of a defendant's ability to pay. (Pen. Code, § 1465.8, subd. (a); Gov. Code, § 70373, subd. (a); People v. Santos, supra, 38 Cal.App.5th at p. 932.)
In Trujillo, the defendant who later challenged the fee imposition on appeal refused to be interviewed by the probation officer as contemplated by the statute and she did not subsequently object or claim an inability to pay during the sentencing hearing. (Trujillo, supra, 60 Cal.4th at pp. 855-856.) However, section 1203.1b, subdivision (a), expressly required the defendant's knowing and intelligent waiver and her waiver of the right to a court hearing did not appear in the record. (Trujillo, supra, at p. 855.) The California Supreme Court concluded that based on the defendant's failure to cooperate with the probation officer and her subsequent failure to object during the sentencing hearing, she "tacitly assented" to the fee imposition and forfeited her right to appeal the issue. (Id. at p. 859.) In concluding that the defendant forfeited her claim on appeal, the Trujillo court did not decide or discuss whether or under what circumstances the defendant's ability to pay minimum fines or mandatory fees and assessments may warrant constitutional protection nor did the high court characterize the nature or importance of the defendant's interest. (Id. at pp. 858-859.)
Given the statutory requirement that the ability to pay hearing before the court be knowingly and intelligently waived, the Trujillo court addressed the general rule that the forfeiture doctrine is inapplicable to the prophylactic advisement of constitutional rights and it distinguished the waiver of the ability to pay hearing under the statute from "momentous rights" such as those relinquished by pleading guilty, waiving the right to counsel or waiving the right to appeal. (Trujillo, supra, 60 Cal.4th at pp. 859-860, citing Boykin v. Alabama (1969) 395 U.S. 238, 242-243 [acceptance of guilty plea]; Faretta v. California (1975) 422 U.S. 806, 835 [waiver of right to counsel]; People v. Panizzon (1996) 13 Cal.4th 68, 80 [waiver of right to appeal].) The Trujillo court observed that the case before it did not involve a claim that "any core autonomy interests or constitutional rights are implicated by the waiver of a judicial hearing on a defendant's ability to pay, and no similar waiver is required for any of the analogous sentencing fines and fees." (Trujillo, supra, at p. 859, italics added.) That statement was made in the context of determining whether the statutory waiver provision in section 1203.1b, subdivision (a), required an affirmative showing that the defendant knowingly and intelligently waived her right to a court hearing or whether "tacit[] assent[]" was sufficient. (Trujillo, supra, at p. 859.) I would adhere to the well-settled principle that "cases are not authority for propositions not considered" (People v. Ault, supra, 33 Cal.4th at p. 1268, fn. 10) and decline to rely on the proposition advanced by the majority that the waiver language in Trujillo "strongly suggest[s] no constitutional rights were implicated when the trial court imposed the disputed fees, fines and assessments against appellant without first conducting an ability to pay hearing." (Maj. opn., ante, at p. 23.)
As I have discussed, there is a split of authority as to the applicability of various constitutional principles and theories to the issue of ability to pay fines, fees and assessments, and the issue is pending before our Supreme Court. I take no position as to the merits of whether the ability to pay minimum fines or mandatory fees and assessments may warrant constitutional protection in this case because it is premature to do so given its posture. Regarding Trujillo, Lowery and Hicks, my position is simply that where, as here, a defendant advances a claim premised on a significant and unforeseeable development in the law that occurred after sentencing and during the pendency of the appeal; there was no statutory right to object to the fines, fees and assessments at issue; and the record is wholly undeveloped on the issue, a limited remand is appropriate to allow the parties to address the issue in the trial court in the first instance.
IV. Harmlessness of Error
Finally, the People argue, and the majority agrees, that because appellant is serving a lengthy prison term and there is no indication he is unable to perform prison work, he presumably has the ability to satisfy his debt through prison wages and future earnings. (See §§ 2700, 2801.) I agree there is ample authority supporting the proposition that prisoners are able to pay a restitution fine out of future prison wages (People v. Santos, supra, 38 Cal.App.5th at p. 934; Kopp, supra, 38 Cal.App.5th at p. 96, review granted; Jones, supra, 36 Cal.App.5th at p. 1035; People v. Douglas (1995) 39 Cal.App.4th 1385, 1397; People v. Gentry (1994) 28 Cal.App.4th 1374, 1376-1377; People v. Frye (1994) 21 Cal.App.4th 1483, 1487), or small gifts from friends or family (People v. Potts, supra, 6 Cal.5th at pp. 1055-1056), but I believe that because the record is undeveloped, reliance on either proposition is purely speculative at this juncture. Not all inmates are able to work and not all inmates who work are eligible for paid positions, which are considered a privilege and are accompanied by various restrictions and requirements. (Cal. Code Regs., tit. 15, §§ 3040, 3041.1.) Furthermore, not all inmates receive monetary gifts from friends or family. Therefore, I would remand the matter to allow the parties and the trial court to make a record on these issues.
On the grounds discussed herein, I respectfully dissent from the majority's conclusions in part III. of the Discussion.
/s/_________
MEEHAN, J.