Opinion
H047152
05-06-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVID LEWIS TROJA-THEODORE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1895213)
Defendant David Lewis Troja-Theodore was sentenced to six years in prison after he pleaded no contest to assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)). Citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Troja-Theodore contests the trial court's determination that he had the ability to pay fines and fees that were imposed during his sentencing hearing. For the reasons explained below, we affirm the judgment.
Unspecified statutory references are to the Penal Code.
BACKGROUND
On June 26, 2018, two individuals went into a liquor store and attempted to leave without paying for their items. Two liquor store employees tried to restrain the individuals, but they managed to exit the store. Subsequently, Troja-Theodore went inside the store, pulled a firearm out from his waistband, and shouted that he was going to shoot. He then pistol-whipped one of the liquor store employees, fired the gun, and fled with the other two individuals.
Since Troja-Theodore pleaded no contest, we base our summary of the facts on the probation officer's report, which was derived from a report prepared by the San Jose Police Department.
On September 14, 2018, a first amended complaint was filed, charging Troja-Theodore with two counts of second degree robbery (§ 212.5, subd. (c); counts 1 & 2) and two counts of assault with a semiautomatic firearm (§ 245, subd. (b); counts 3 & 4). As to counts 1 and 2, it was alleged that Troja-Theodore personally used a semiautomatic handgun (§ 12022.53, subd. (b)).
On December 12, 2018, Troja-Theodore pleaded guilty to count 3, assault with a semiautomatic firearm (§ 245, subd. (b)), with the understanding that he would be sentenced to six years in prison.
According to the probation officer's report, Troja-Theodore, who was born in 1998, reported that he was last employed as a mover and earned $17 an hour. His longest employment was as a mover with a different moving company between 2015 and 2018, where he also earned $17 an hour. Troja-Theodore said he had asthma but did not have any other physical or mental health issues. He denied that he had any financial obligations.
On July 18, 2019, the trial court sentenced Troja-Theodore to six years in prison. During the hearing, the trial court expressly adopted the recommendations set forth in the probation officer's report and ordered Troja-Theodore to pay all stated fines and fees, including a $1,800 restitution fine under section 1202.4, subdivision (b)(2), a matching $1,800 parole revocation restitution fine under section 1202.45 that was suspended, a $40 court security fee under section 1465.8, a $30 criminal conviction assessment under Government Code section 70373, and a $129.75 criminal justice administration fee payable to the City of San Jose under Government Code sections 29550, 29550.1, and 29550.2. The trial court also awarded Troja-Theodore 772 days of custody credit, consisting of 386 actual days and 386 days of conduct credit.
Defense counsel requested that the trial court impose the statutory minimum restitution fine of $300, given Troja-Theodore's "lengthy prison commitment" and "lack of prior employment." The trial court denied the request. Thereafter, defense counsel asked the trial court to "stay all the fines and fees pursuant to People v. Dueñas." The trial court stated, "There's a recent case that suggests he will be employable in prison industries, between 35 cents [and] $5 a day. [¶] Accordingly, the minimal $1,800 fine, which is the statutory formula, given the luxury of time he has remaining, I find that he has the ability to pay." Defense counsel requested a hearing on the matter. The trial court responded, "You just had it." The trial court then asked defense counsel if he would like to submit any other materials. Defense counsel responded, "I don't think there's anything the Court can rely on to show that he would, if he were to get to prison, would be part of the prisoners [sic] able to work." The trial court replied, "He's able to deny work in prison. That's up to him." Defense counsel did not submit any other evidence or make additional arguments about Troja-Theodore's ability to pay fines and fees.
DISCUSSION
On appeal, Troja-Theodore argues that the trial court erroneously found that he had the ability to pay the imposed fines and fees. Citing Dueñas, supra, 30 Cal.App.5th 1157, he claims that the trial court did not adequately hold a hearing on the matter and that there was no factual support for the trial court's ability-to-pay determination.
1. General Principles and Standard of Review
In Dueñas, the trial court imposed over the defendant's objections a $30 criminal conviction assessment (Gov. Code, § 70373), a $40 court security fee (§ 1465.8), and a $150 restitution fine (§ 1202.4, subd. (c)). (Dueñas, supra, 30 Cal.App.5th at pp. 1162-1163.) The defendant was an unemployed homeless probationer with cerebral palsy who spent her benefits and food stamps on her two children. (Id. at pp. 1160-1161.) The defendant had received juvenile citations as a teenager, which led to fines, which led to her driver's license getting suspended after she was unable to repay her debts. (Id. at p. 1161.) She was then convicted several times of driving with a suspended license, and she spent time in jail because she could not afford to pay the fines associated with her convictions. (Ibid.)
On appeal, the Second Appellate District concluded that imposing the criminal conviction and court security fees without determining the defendant's ability to pay was fundamentally unfair and violated due process. (Dueñas, supra, 30 Cal.App.5th at pp. 1168-1169.) With respect to the restitution fine under section 1202.4, subdivision (b), the Dueñas court held that the trial court must stay the execution of the fine until it determines that the defendant has the ability to pay the fine. (Dueñas, supra, at p. 1172.)
Assuming without deciding that Dueñas was correctly decided, "it is the defendant's burden to demonstrate an inability to pay, not the prosecution's burden to show the defendant can pay, as the Dueñas decision might be read to suggest." (People v. Santos (2019) 38 Cal.App.5th 923, 934 (Santos); People v. Kopp (2019) 38 Cal.App.5th 47, 76-78 (Kopp) review granted Nov. 13, 2019, S257844.) "In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment." (In re I.W. (2009) 180 Cal.App.4th 1517, 1528 (I.W.).) "Specifically, the question becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.' " (Ibid.)
Presently, the Courts of Appeal are split on whether Dueñas was correctly decided (see Santos, supra, 38 Cal.App.5th at pp. 926-927 [applying Dueñas]; People v. Caceres (2019) 39 Cal.App.5th 917, 926-927 [expressing concern over due process analysis in Dueñas]; People v. Petri (2020) 45 Cal.App.5th 82, 90 [finding Dueñas unpersuasive]. The issue is presently pending before the California Supreme Court, which granted review in Kopp, supra, 38 Cal.App.5th 47 (review granted Nov. 13, 2019, S257844), and asked the parties to brief the following issues: whether a trial court must consider a defendant's ability to pay before imposing fines, fees and assessments, and, if so, which party bears the burden of proof regarding the defendant's inability to pay. Until the Supreme Court resolves the burden of proof issue, we adhere to our conclusion in Santos that the defendant, not the prosecution, bears the burden to demonstrate an inability to pay. (Santos, supra, at p. 934.) --------
2. Due Process and the Trial Court's Ability-to-Pay Determination
First, Troja-Theodore argues that the trial court's cursory hearing did not sufficiently inquire into his ability to pay his fines and fees.
We disagree. " 'The fundamental requirement of due process is the opportunity to be heard "at a meaningful time and in a meaningful manner." ' " (People v. Allen (2008) 44 Cal.4th 843, 869.) Troja-Theodore objected to the imposed fines and fees and argued that there was insufficient evidence that he would be able to find paid work in prison. The trial court invited him to submit materials to support his position, but he did not do so. Under these circumstances, the record reflects that the trial court gave Troja-Theodore a meaningful opportunity to be heard. Thus, we disagree with Troja-Theodore's claim that his due process rights were violated and that remand is required for another hearing.
Second, Troja-Theodore insists that there is no support for the trial court's conclusion that he will have the ability to pay his fines and fees using his prison wages. He argues that payment for prison work is a privilege, not a right, he may not qualify for higher paying jobs, and it is likely that he will be released early due to his presentence credits or any other conduct credit he may accrue in the future.
Troja-Theodore misconstrues the burden of proof. He characterizes the trial court's task as finding he has the ability to pay fines and fees, not that he has the inability to pay fines and fees. It was Troja-Theodore's burden to establish his inability to pay the challenged fines and fees, not the prosecution's burden to establish that he has the ability to pay, and Troja-Theodore did not satisfy his burden below. (Santos, supra, 38 Cal.App.5th at p. 934.) He did not provide evidentiary support for his claim that he may not be able to join the prison work force or obtain a paid position. (Ibid. [ability to pay fee at issue includes ability to earn wages while serving prison sentence].) According to the probation officer's report, Troja-Theodore represented that he had no physical or mental health issues aside from asthma, and he was only 20 years old at the time he was sentenced. On appeal, he presents various calculations to support his position that he will be unable to pay the imposed fines and fees using his prison wages, but these figures were not presented to the trial court. (See People v. Fairbank (1997) 16 Cal.4th 1223, 1249 ["we cannot consider on appeal evidence that is not in the record"].)
Moreover, the trial court was entitled to consider his past work history and ability to obtain employment in the future. Troja-Theodore disagrees and argues that Dueñas suggests that the court must find that he has a present ability to pay. (Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1168, 1173.) He argues that section 987.8, subdivision (g)(2)(B), which defines a defendant's "reasonably discernible future financial position" for the purposes of imposing criminal attorney fees, restricts a trial court from considering a period of more than six months from the date of the hearing on the fees unless the court finds the existence of unusual circumstances.
The six-month limitation described in section 987.8, subdivision (g)(2)(B) is inapplicable to Troja-Theodore's case, which does not involve the imposition of criminal attorney fees. Appellate courts have held that when a trial court considers a defendant's ability to pay a fine or fee, the determination may be made "based on the person's ability to earn where the person has no physical, mental or emotional impediment which precludes the person from finding and maintaining employment once his or her sentence is completed." (People v. Staley (1992) 10 Cal.App.4th 782, 783, italics omitted; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [" '[i]n determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendant's present ability but may consider a defendant's ability to pay in the future' "].) In accordance with these principles, other courts have decided whether any error under Dueñas was harmless by considering a defendant's past employment and ability to earn. (People v. Johnson (2019) 35 Cal.App.5th 134, 139; see also Kopp, supra, 38 Cal.App.5th at p. 96, review granted ["the trial court should not limit itself to considering only whether Appellants have the ability to pay at the time of the sentencing hearing"].)
There is nothing in the record indicating that Troja-Theodore would be unable to work in the future. In fact, the probation officer's report states that he previously worked for three years as a mover between 2015 and 2018, earning $17 an hour, and he reported that he had no financial obligations.
Finally, Troja-Theodore insists that the trial court's comments during the sentencing hearing reflect that it based its decision solely on his projected ability to earn wages while incarcerated, not on factors such as his ability to obtain post-release employment. However, if a trial court's decision is " ' "right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion." ' " (People v. Zapien (1993) 4 Cal.4th 929, 977.) Furthermore, as stated above, Troja-Theodore bore the burden to prove his inability to pay. (Santos, supra, 38 Cal.App.5th at p. 934.) And based on the record before us, we cannot say that there is uncontradicted and unimpeached evidence that compels a finding that Troja-Theodore is unable to pay the challenged fines and fees through a combination of his prison wages and post-prison employment. (I.W., supra, 180 Cal.App.4th at p. 1528.)
DISPOSITION
The judgment is affirmed.
/s/_________
Premo, Acting P.J. WE CONCUR: /s/_________
Elia, J. /s/_________
Danner, J.