Opinion
E072069
05-07-2020
THE PEOPLE, Plaintiff and Respondent, v. MARTIN ANTHONY SARVER, Defendant and Appellant.
Richard Schwartzberg, 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 Randall D. Einhorn, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF1600572) OPINION APPEAL from the Superior Court of Riverside County. Chad W. Firetag, Judge. Affirmed with directions. Richard Schwartzberg, 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 Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Martin Anthony Sarver guilty of grand theft by embezzlement (Pen. Code, § 503, count 1) and filing a false police report (Pen. Code, § 148.5, count 2). The court placed defendant on three years' felony probation with various terms and conditions, including that he pay the costs for preparation of the probation report and supervision of his probation. The court also included as terms of his probation that he pay a booking fee of $514.58, a restitution fine of $300, a conviction assessment fee for each crime totaling $60, and a court operations assessment fee of $80.
On appeal, defendant contends the court erred in imposing as conditions of his probation the terms that he pay the costs of the preparation of the probation report and of supervising his probation. Defendant additionally argues the court erred in imposing the additional fines and fees without conducting an ability to pay hearing pursuant to the decision in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We affirm the judgment as modified.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts of the case are largely irrelevant to the issues raised on appeal. Thus, we provide only a truncated statement of the facts adduced at trial. --------
Defendant worked at Ed's Coins, a collectible coin and precious metal store. Defendant was initially the purported victim of a robbery at the store by two individuals. Text messages between the two suspects indicated they were involved in a theft, the proceeds of which they intended to share between them. Phone records belonging to one of the suspects reflected three calls had been exchanged between that phone and one belonging to defendant. A search of defendant's car turned up paperwork with one of the suspect's names.
An investigator came to the conclusion that defendant conspired with the other suspects to orchestrate the robbery. A search of defendant's house revealed that it was filled with coins and collectibles. An investigator testified there were over 10,000 coins in the house. A number of coins found in defendant's home were consistent with those stolen from Ed's Coins. An employee of the store helped identify which coins had potentially come from the store. The value of the stolen property exceeded $24,947.
II. DISCUSSION
A. Costs of Probation Report and Supervision of Probation.
Defendant contends the court erred in imposing the costs of the preparation of the probation report and of supervising his probation as conditions of his probation. The People concede the issue. We agree.
"Although the trial court is statutorily authorized to make respective orders for the payment of appointed attorney fees and for the costs of probation, depending on a defendant's ability to pay, such costs and fees cannot legally be imposed as conditions of probation. [Citations.] The costs of probation imposed for preparation of the probation report and of supervising probation 'may not be a condition of probation as the costs are collateral and [section 1203.1b] itself provides for enforcement of the order by civil collection.'" (People v. Bradus (2007) 149 Cal.App.4th 636, 641-642; see People v. Hart (1998) 65 Cal.App.4th 902, 907 [same]; People v. Soto (2016) 245 Cal.App.4th 1219, 1236 [probation supervision costs].)
We order the conditions of defendant's probation that he pay the costs of the preparation of the probation report and of supervising his probation modified to delete the requirement that he pay those costs as conditions of his probation. However, the order that defendant pay such costs is affirmed.
B. Dueñas.
Defendant contends that pursuant to Dueñas, this court must strike the court operations fee, criminal conviction fee, restitution fine, and parole fine it imposed at sentencing because it failed to conduct an ability to pay hearing. We disagree.
Dueñas, supra, 30 Cal.App.5th 1157, involved a homeless probationer who suffered from cerebral palsy and was unable to work. She was married with two young children, and her family received public assistance. (Id. at pp. 1160-1161.) Dueñas's driver's license was suspended when she could not pay some juvenile citations as a teenager. (Id. at p. 1161.) "She was then convicted of a series of misdemeanor offenses for driving with a suspended license, and in each case was given the impossible choice whether to 'pay[]' mandatory fees and fines—which she could not do, because of her poverty—or go to jail. [Citation.] After serving jail time in the first three of these cases, she still faced outstanding debt, which mounted with each conviction." (People v. Johnson (2019) 35 Cal.App.5th 134, 138 (Johnson).)
Upon her fourth conviction for driving with a suspended license, Dueñas was placed on probation and again ordered to pay mandatory fees and fines. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) She asked the court to set a hearing to determine her ability to pay the attorney and court fees she had been assessed. (Id. at p. 1162.) The court held an ability to pay hearing and concluded that she lacked the ability to pay the attorney fees, and it waived them "on the basis of her indigence." (Id. at p. 1163.) However, the court stated that the $30 court facilities assessment (Govt. Code, § 70373) and $40 court operations assessment (Pen. Code, § 1465.8) "were both mandatory regardless of Dueñas's inability to pay them." (Ibid.)
Duenas appealed and argued that "laws imposing fines and fees on people too poor to pay punish the poor for their poverty." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The appellate court agreed, concluding that due process "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 Penal Code section 1465.8 and Government Code section 70373." (Ibid.) The court also held that "although Penal Code 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." (Ibid.)
We first observe that the facts in the instant case bear no similarity to the unique factual circumstances presented in Dueñas. The Dueñas court observed that the record in that case "illustrate[d] the cascading consequences of imposing fines and assessments that a defendant cannot pay." (Dueñas, supra, 30 Cal.App.5th at p. 1163.) It also noted that the case did not "'stem from one case for which she's not capable of paying the fines and fees,' but from a series of criminal proceedings driven by, and contributing to, Dueñas's poverty." (Id. at p. 1164.) There were no such similar circumstances here. Moreover, the record here contains no evidence that defendant was indigent. Furthermore, Dueñas only addressed court facilities, court operations, and restitution assessments. (Ibid.) Here, defendant additionally seeks an ability to pay determination with respect to the criminal conviction fee and parole fine, which were not the subject of the holding in Dueñas.
In any event, assuming the court committed error under Dueñas by failing to conduct an ability to pay hearing, any such error was harmless. "A '"very limited class"' of federal constitutional errors are 'subject to per se reversal'; all others are 'amenable to harmless error analysis.' [Citations.] Dueñas did not address whether Dueñas error requires an automatic reversal." (People v. Jones (2019) 36 Cal.App.5th 1028, 1035.) "We therefore consider whether the error here was harmless beyond a reasonable doubt." (Ibid.; see Chapman v. California (1967) 386 U.S. 18, 24.)
The record here reflects that defendant was working at Ed's Coins at the time he committed the offenses. During his probation interview, "defendant reported he was in good physical and mental health"; he denied "any pre-existing physical disability." Defendant had graduated high school and had a long work history. Thus, there do not appear to be any impediments to defendant obtaining gainful employment from which he can pay the less than $1,000 in assessments of which he now complains.
Moreover, the record also reflects that defendant possessed thousands of collectible coins, which were not taken by authorities, as there was no evidence they were the subject of the robbery; the remaining coins had substantial value that defendant could sell to obtain the money necessary to pay the assessments of which he now complains. "[T]here is enough evidence in the . . . record to conclude that the total amount involved here did not saddle [defendant] with a financial burden anything like the inescapable, government-imposed debt trap . . . Dueñas faced." (Johnson, supra, 35 Cal.App.5th at p. 139.)
In sum, "even if we were to assume [defendant] is correct that he suffered a due process violation when the court imposed this rather modest financial burden on him without taking his ability to pay into account" (Johnson, supra, 35 Cal.App.5th at pp. 139-140), there is no reason to doubt defendant has, or will have, the ability to pay the less than $1,000 in court-ordered assessments. Accordingly, on this record, we conclude any Dueñas error was harmless. (Jones, supra, 36 Cal.App.5th at p. 1035; see Johnson, at pp. 139-140.)
III. DISPOSITION
We order the conditions of defendant's probation that he pay the costs of the preparation of the probation report and of supervising his probation modified to delete the requirement that he pay those costs as conditions of his probation. However, the order that defendant pay such costs is affirmed. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: FIELDS
J. MENETREZ
J.