Opinion
D075843
04-27-2020
THE PEOPLE, Plaintiff and Respondent, v. ERNEST RUIZ, Defendant and Appellant.
Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JCF002028) APPEAL from a judgment of the Superior Court of Imperial County, William D. Quan, Judge. Affirmed. Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Ernest Ruiz appeals the trial court's imposition of fines, fees, and assessments totaling $452, after the court conducted an ability-to-pay hearing at Ruiz's request. At that hearing, Ruiz proffered no evidence to show an inability to pay.
On appeal, relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Ruiz challenges the court's ability-to-pay finding, arguing there is no substantial record evidence to support it. Because the record shows Ruiz expressly agreed in his guilty plea to pay among others a $300 restitution fine under Penal Code section 1202.4, subdivision (b), and because substantial record evidence in any event supports the court's finding, we reject this claim of error. Affirmed.
All further statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
This factually summary is primarily derived from Ruiz's probation report, inasmuch as he entered a plea of no contest.
Ruiz was charged with possession of a controlled substance for sale, specifically methamphetamine, in violation of section 11378 of the Health and Safety Code. On April 3, 2019, Ruiz pleaded no contest to the charge, agreeing, as relevant here, to the following terms: "I understand that I must pay a restitution fine ($300-$10,000), that I will also be subject to a suspended fine in the same amount, and that I must pay full restitution to all victims. . . . [¶] . . . I give up my right to appeal the following: (1) denial of my [section] 1538.5 motion, (2) issues related to strike priors (under [§§] 667(b)-(i) and 1170.12), and (3) any sentence stipulated herein." Ruiz expressly stated both in the plea agreement and at the hearing that he understood the terms of the plea and acknowledged it was knowing, intelligent, and voluntary.
At the sentencing hearing, the trial court suspended the imposition of sentence and sentenced Ruiz to three years of formal probation. During the hearing, counsel for Ruiz asked the court to strike and/or stay all fines, fees, and assessments, citing Ruiz's present inability to pay due to unemployment. Ruiz provided no additional evidence to support his inability-to-pay claim.
The court found Ruiz had the ability to pay, and imposed the following fines: a $300 restitution fine, which is the statutory minimum and which amount Ruiz expressly agreed to pay under the terms of the plea agreement (§ 1202.4, subd. (b)); a matching suspended probation revocation fine (id., § 1202.44); a $40 court operations fee (id., § 1465.8, subd. (a)(1)); a $30 critical needs assessment criminal conviction fee (Gov. Code, § 70373, subd. (a)(1)); a drug-testing fee of $7 per test (§ 1203.1ab); a $25 administrative collection-processing fee (§ 1203.1b, subd. (h)); and a $50 Criminal Laboratory Analysis Fee (Health & Saf. Code, § 11372.5).
DISCUSSION
A. Forfeiture
As a threshold issue, the People argue that Ruiz forfeited his inability-to-pay claim with respect to the $300 restitution fine imposed under section 1202.4, subdivision (b) because he agreed to pay this statutory minimum as part of his plea. We agree.
An appellant forfeits an argument on appeal challenging terms expressly waived in his or her plea, as those conditions are deemed to be well within his or her "contemplation and knowledge at the time the waiver was made." (People v. Vargas (1993) 13 Cal.App.4th 1653, 1662.) Further, a waiver of the right to appeal, pursuant to a plea agreement, is valid against an appellant. (Id. at p. 1661 ["Defendant is bound by his agreement and may not repudiate the unfavorable terms"].) However, a waiver or forfeiture is only valid if "knowing, intelligent, and voluntary." (See People v. Panizzon (1996) 13 Cal.4th 68, 80 (Panizzon).)
Here, the trial court found Ruiz's decision to enter into the plea was "knowing, intelligent, and voluntary" (see Panizzon, supra, 13 Cal.4th at p. 80), a finding Ruiz does not challenge on appeal. Indeed, the record shows not only was the restitution fine explicitly mentioned in the plea, but the amount of $300 was circled on the plea form, supporting the conclusion that paying a $300 restitution fine was well within Ruiz's contemplation at the time of his entering the plea. We therefore hold that Ruiz forfeited on appeal any challenge to the imposition of the $300 restitution fine.
B. Ability to Pay the Fines, Fees, and Assessments
Relying on Dueñas, supra, 30 Cal.App.5th 1157, Ruiz claims the court erred in finding he had the ability to pay the fines, fees, and assessments imposed by the trial court because that finding is not supported by substantial evidence.
Dueñas held that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under . . . section 1465.8 and Government Code section 70373" (Dueñas, supra, 30 Cal.App.5th at p. 1164); and that, although "section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the 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, italics added.)
Dueñas has been the subject of much controversy, and many courts have refused to follow it, instead concluding that due process principles do not require a court to determine a defendant's (present) ability to pay before imposing on him or her fines, fees, and assessments. (See e.g., People v. Hicks (2019) 40 Cal.App.5th 320, 329, rev. granted Nov. 26, 2019, S258946); People v. Aviles (2019) 39 Cal.App.5th 1055; People v. Kopp (2019) 38 Cal.App.5th 47, 81-83 (conc. opn. of Benke, J.) (Kopp).) Our Supreme Court recently granted review to resolve this split. (See e.g., Kopp, at pp. 81-83; rev. granted Nov. 13, 2019, S257844.) However, we need not decide in the instant case whether Dueñas was properly decided because the record shows the court held an ability-to-pay hearing at Ruiz's sentencing, finding he had the ability to pay the fines, fees, and assessments totaling $452.
We review the record as a whole "in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible, and of solid value" to support the finding(s) of the trier of fact. (People v. Nelson (2011) 51 Cal.4th 198, 210 (Nelson).) As noted, Ruiz proffered no evidence to show an inability to pay, as defense counsel merely cited his unemployment and his receipt of public assistance.
Turning to the instant case, the record shows that in the past, Ruiz earned income as a fork-lift operator; that he and his two children at or near the time of sentencing were living with his parents; that he expressed a desire to seek gainful employment; and that he then was in good physical health and only about 43 years old. Reviewing the record as a whole, as we must (see Nelson, supra, 51 Cal.4th at p. 210), we conclude there is sufficient evidence to support the trial court's finding—even absent Ruiz's forfeiture of the $300 restitution fine—that he had the ability to pay the $452 in fines, fees, and assessments.
In light of our decision on the merits, we deem it unnecessary to resolve the People's alternate contention that Ruiz's appeal should be dismissed for his failure to obtain a certificate of probable cause. --------
DISPOSITION
Judgment affirmed.
BENKE, Acting P. J. WE CONCUR: HALLER, J. DATO, J.