Opinion
C088917
03-02-2020
THE PEOPLE, Plaintiff and Respondent, v. CARLOS MICHAEL AGUILERA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18FE012948)
After a jury found defendant, Carlos Michael Aguilera, guilty on several counts of unlawful possession of firearms and ammunition, the trial court sentenced him to eight years eight months in state prison, and imposed statutorily mandated fines and fees, including a minimum restitution fine of $300. On appeal, defendant contends the trial court violated his right to due process, as articulated in People v. Dueñas (2019) 30 Cal.App.5th 1157, by imposing the costs without first making a determination of his ability to pay them. We affirm because defendant forfeited his claim by failing to raise it in the trial court, one month after the opinion in Dueñas was filed.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts of defendant's crimes are irrelevant to the issue raised on appeal. Simply put, in December 2018, a jury found defendant guilty of two counts of possession of a firearm by a person convicted of a felony and one count of unlawful possession of ammunition by a person prohibited from possessing a firearm.
The opinion in Dueñas was filed on January 8, 2019.
At a hearing held on February 8, 2019, the trial court ruled defendant's prior strike conviction was proven beyond a reasonable doubt, and imposed a sentence of eight years eight months in state prison, consisting of a principal term of six years for one firearm count (the upper term of three years, doubled because of a prior strike felony, pursuant to Pen. Code, § 667, subds. (b)-(i)), and two consecutive terms of 16 months on the other firearm count and the ammunition count. The trial court ordered defendant to pay a $300 restitution fine, and declared: "Any other mandatory fines are imposed. Any discretionary fines are stricken."
Defendant did not raise the issue of his inability to pay any costs.
Defendant timely appealed.
DISCUSSION
Defendant argues that in light of Dueñas, the trial court's imposition of costs without a determination of his ability to pay violated his constitutional rights to due process. Defendant further argues: (1) he did not forfeit his claim, because "existing law at the time afforded 'scant grounds for objection,' " and (2) Dueñas "applies retroactively" to his case. The People acknowledge a split of authority regarding "whether a futility exception to forfeiture excuses a defendant's failure to object to fines and fees imposed before Dueñas was decided," but urge us to side with courts that have decided "the Dueñas ruling was reasonably foreseeable" at sentencing, and therefore conclude that defendant forfeited his claim by failing to object to costs in the trial court. We conclude that defendant forfeited his claim by failing to raise it in the trial court after the opinion in Dueñas was filed.
The People also argue we should dismiss the appeal because, at the time the People filed their brief, the record on appeal did not reflect whether defendant had satisfied Penal Code section 1237.2's requirement, which provides that if the sole issue on appeal is a claim of "error in the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs," a defendant must "first make[] a motion for correction in the trial court."
But subsequent to the filing of the People's brief, the record on appeal was supplemented with documents that demonstrate defendant satisfied Penal Code section 1237.2. Accordingly, we will not dismiss the appeal.
In Dueñas, the court held that principles of due process preclude a trial court from imposing the Penal Code section 1202.4 restitution fine and other assessments at issue in this appeal, if the defendant demonstrates he or she is unable to pay them. (People v. Dueñas, supra, 30 Cal.App.5th at p. 1168.)
But a trial court is required to determine a defendant's ability to pay only if the defendant raises the issue. (People v. Castellano (2019) 33 Cal.App.5th 485, 490.) Dueñas was filed on January 8, 2019. Defendant's sentencing hearing occurred one month later, on February 8, 2019. Thus, the parties misunderstand the question before us. It is not whether Dueñas was foreseeable; but whether competent and knowledgeable counsel could have raised a Dueñas argument at the sentencing hearing, which occurred one month after Dueñas was filed. The answer is "yes." (Cf. People v. Speight (2014) 227 Cal.App.4th 1229, 1248-1249 [ruling counsel should have raised an argument during a sentencing hearing that occurred five weeks after a California Supreme Court decision announced the relevant principle].) Therefore, defendant forfeited his claim by failing to raise it below.
ABSTRACT OF JUDGMENT
Though the trial court did not explicitly orally impose a $30 court facilities assessment or a $40 court security fee as to any count, the trial court did declare "[a]ny . . . mandatory fines . . . imposed." In any event, "[t]he trial court was required to orally impose [those costs] as to each . . . count[] of which defendant was convicted." (People v. Sencion (2012) 211 Cal.App.4th 480, 484.) And given defendant's conviction on three counts, "[t]he abstract of judgment correctly reflects $[120] in court security fees and $[90] in court facilities assessments; therefore, it need not be amended." (Ibid.)
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Mauro, J.