Opinion
H046934
06-10-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVID CECILIO AGUILERA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. 18CR010543)
Appellant David Cecilio Aguilera pleaded no contest to operating a chop shop, possessing burglary tools, and resisting arrest. At his sentencing, the trial court imposed restitution fines and various fees and assessments. On appeal, Aguilera contends, based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), that the trial court violated his due process rights by imposing a restitution fine and three assessments without determining his ability to pay the ordered amounts.
In his opening brief, Aguilera also claims the trial court erred when it failed to award him presentence custody credits. However, in his reply brief, Aguilera "concedes Respondent's argument and hereby withdraws this issue." Therefore, we do not address Aguilera's claim of error regarding custody credits.
For the reasons explained below, we affirm the judgment and direct the trial court to correct the minute order and the abstract of judgment to accurately reflect the sentence imposed.
I. FACTS AND PROCEDURAL BACKGROUND
On November 20, 2018, the Monterey County District Attorney filed an information charging Aguilera with owning and operating a chop shop (Veh. Code, § 10801; count 1), receiving stolen property (Pen. Code, § 496d, subd. (a) ; count 2), attempted receiving stolen property (§ 496, subd. (a); count 3), misdemeanor possessing burglary tools (§ 466; count 4), misdemeanor resisting, delaying, or obstructing an officer (§ 148, subd. (a)(1); count 5), and misdemeanor driving on a suspended license (Veh. Code, § 14601.2, subd. (a); count 6). The information further alleged a prior prison term enhancement. (§ 667.5, subd. (b).)
Unspecified statutory references are to the Penal Code.
The facts of Aguilera's crimes are not recounted in this opinion because they are immaterial to the sole issue in this appeal.
On March 15, 2019, Aguilera pleaded no contest to the felony count of operating a chop shop (count 1) and the misdemeanor counts of possessing burglary tools (count 4) and resisting an officer (count 5).
As part of a plea agreement, Aguilera waived his right to appeal the conviction and judgment. After sentencing, the trial court granted Aguilera's request for a certificate of probable cause. On appeal, the Attorney General does not assert that Aguilera's waiver precludes his appeal on the sentencing issue presented to this court. Because the Attorney General does not argue that Aguilera waived his right to challenge the restitution fine and assessments under Dueñas and given the nature of Aguilera's claim and our treatment of it, we conclude it is unnecessary to consider the waiver issue under these circumstances.
On April 24, 2019, the trial court sentenced Aguilera to the middle term of three years on count 1, six months in county jail on count 4 (concurrent to count 1), and six months in county jail on count 5 (concurrent to counts 1 and 4). The trial court "suspend[ed] the execution of two years and three months of the total [three-year] term," during which time Aguilera would be on mandatory supervision under section 1170, subdivision (h).
Although it does not appear that the trial court dismissed the remaining counts and enhancement on the record, the minute order for the sentencing hearing indicates a dismissal of those counts and striking of the enhancement.
In addition, the trial court ordered Aguilera to pay $3,350 in victim restitution (jointly and severally with his coperpetrator) (§ 1202.4, subd. (f)) and imposed a $900 restitution fine (§ 1202.4, subd. (b)(2)), a $900 suspended restitution fine (§ 1202.45), a $120 court operations assessment (§ 1465.8), a $90 criminal conviction assessment (Gov. Code, § 70373), and a $4 emergency medical air transportation penalty assessment (Gov. Code, § 76000.10). The trial court also imposed a criminal justice administration fee to be determined in accordance with Aguilera's ability to pay (Gov. Code, §§ 29550.1, 29550.2) and $864 plus $81 per month for probation services to the extent Aguilera can afford to pay.
In his briefing to this court, Aguilera incorrectly identifies the $4 emergency medical air transportation penalty assessment as having been imposed under Government Code section 29550. The sentencing minute order and abstract of judgment indicate this penalty assessment was imposed under Government Code section 76000.10. Subdivision (c)(1) of Government Code section 76000.10 states: "For purposes of implementing this section, a penalty of four dollars ($4) shall be imposed upon every conviction for a violation of the Vehicle Code or a local ordinance adopted pursuant to the Vehicle Code, except parking offenses."
II. DISCUSSION
A. Restitution Fine and Assessments
Aguilera describes himself as an indigent, "underemployed seasonal worker, represented by appointed counsel." Relying on Dueñas, supra, 30 Cal.App.5th 1157, Aguilera argues that his due process rights were violated when the trial court imposed the $900 restitution fine (restitution fine), $120 court operations assessment, $90 criminal conviction assessment, and $4 emergency medical air transportation penalty assessment (collectively, assessments) without determining his ability to pay those amounts. Aguilera acknowledges that his defense counsel did not object to the restitution fine or assessments and failed to request a determination of his ability to pay, even though Dueñas had been decided three months before his sentencing. Aguilera contends that defense counsel "was ineffective for failing to object to the fees and assessments." Aguilera asks this court to reverse the assessments and stay the execution of the restitution fine unless and until the People can prove he has the present ability to pay.
The Attorney General counters that Aguilera forfeited his claim of error "as to the restitution fine because the fine exceeded the statutory minimum, and he failed to object at sentencing." Relatedly, the Attorney General argues Aguilera has not demonstrated that his defense counsel was constitutionally ineffective for failing to object to the restitution fine and assessments. In addition, the Attorney General maintains that the restitution fine was not unconstitutionally excessive or violative of Aguilera's due process rights, and the imposition of the assessments without consideration of Aguilera's ability to pay was harmless beyond a reasonable doubt because there is no indication Aguilera would be unable to pay the $214 assessed.
"In January 2019, Dueñas held that 'due process of law requires [a] trial court to . . . ascertain a defendant's present ability to pay before it imposes' (1) 'court facilities and court operations assessments' (under Pen. Code, § 1465.8 and Gov. Code, § 70373, respectively), or (2) a restitution fine (under Pen. Code, § 1202.4). (Dueñas, supra, 30 Cal.App.5th at p. 1164, italics added; see id. at pp. 1167, 1172; see also, id. at p. 1172 [restitution fine imposed without an ability to pay hearing must be stayed until such a hearing is conducted].)" (People v. Hicks (2019) 40 Cal.App.5th 320, 325, review granted Nov. 26, 2019, S258946 (Hicks).)
Panels of this court and other Courts of Appeal have reached differing conclusions on whether Dueñas was correctly decided, and the issue is pending before the California Supreme Court. (See, e.g., People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844; People v. Hicks, supra, 40 Cal.App.5th at pp. 325-329, review granted; People v. Adams (2020) 44 Cal.App.5th 828, 831-832; People v. Petri (2020) 45 Cal.App.5th 82, 92.) For the reasons stated post regarding forfeiture and ineffective assistance of counsel, we need not address the merits of Dueñas in this case.
Turning first to forfeiture, the general rule is that a defendant who fails to object to the imposition of fines, fees, and assessments at sentencing forfeits the right to challenge those fines, fees, and assessments on appeal. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864; People v. Trujillo (2015) 60 Cal.4th 850, 853-854; People v. McCullough (2013) 56 Cal.4th 589, 596-597; People v. Nelson (2011) 51 Cal.4th 198, 227; People v. Avila (2009) 46 Cal.4th 680, 729.) Although the Attorney General argues forfeiture only as to the restitution fine, Aguilera fails to make any specific argument as to why his failure to object to either the restitution fine or the assessments should not amount to forfeiture. Aguilera concedes that "[a]n attorney's failure to assert error or otherwise preserve an issue before the superior court ordinarily will result in the forfeiture of an appeal of the issue." Moreover, Aguilera states that if "this court agree[s] with respondent's argument" that he forfeited his "objection to the fines and fees imposed without a determination of [his] ability to pay," this court "should nevertheless reach the issue on appeal" because defense counsel "ha[d] a duty to . . . to make proper objections" and appellate courts "will address a waived issue on appeal in order to foreclose an ineffective assistance of counsel claim."
Considering Aguilera's failure to argue against forfeiture directly and given that Aguilera was sentenced more than three months after Dueñas was published, we conclude that Aguilera forfeited the claim that his due process rights were violated by imposition of the restitution fine and assessments without a determination of his ability to pay. The trial court imposed a $900 restitution fine, which is $600 above the statutory minimum amount. (§ 1202.4, subd. (b)(1).) Regardless of Dueñas, when Aguilera was sentenced, he "had the statutory right to request that the court consider his ability to pay in setting the restitution fine, but he did not do so. His silence is a classic example of the application of the forfeiture doctrine relied upon by the California Supreme Court in numerous criminal sentencing cases decided well before Dueñas." (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033; see also People v. Lowery (2020) 43 Cal.App.5th 1046, 1053-1054.) Further, with respect to the assessments, nothing in the record suggests that Aguilera was denied the opportunity to press an objection or request a determination of his ability to pay the assessments pursuant to Dueñas. Accordingly, Aguilera forfeited his claim regarding the assessments by failing to raise the issue in the trial court. (See People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154.)
We turn next to Aguilera's claim that his defense counsel was constitutionally ineffective for failing to raise the issue under Dueñas regarding his inability to pay the $214 in assessments imposed by the trial court. Aguilera asserts that, because Dueñas predated his sentencing, defense counsel "certainly should have been aware of the requirement that he object to imposition of fees and assessments as the trial court did not make a finding about present ability to pay." In addition, he maintains that defense counsel "could not have had a tactical reason for failing to object, as the fees and assessments were imposed after a plea deal had already been reached and there was no further negotiation needed."
We note that Aguilera only mentions the "fees and assessments," not the $900 restitution fine, when arguing that defense counsel's failure amounts to ineffective assistance. Nevertheless, our analysis of Aguilera's claim as stated would apply with equal force to any claim of ineffectiveness regarding defense counsel's failure to object to or request a hearing on the restitution fine. --------
To prove that his defense counsel was constitutionally ineffective, Aguilera must establish both that counsel's performance was deficient and that he suffered prejudice as a result of counsel's error. (Strickland v. Washington (1984) 466 U.S. 668, 687.) As to the first element of Strickland, Aguilera bears the burden of demonstrating by a preponderance of the evidence that his counsel's performance fell below an objective standard of reasonableness. (In re Thomas (2006) 37 Cal.4th 1249, 1257.) To satisfy the prejudice element, Aguilera must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been more favorable to [him], i.e., a probability sufficient to undermine confidence in the outcome." (In re Ross (1995) 10 Cal.4th 184, 201.)
"It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1009, italics omitted.)
The record does not disclose why Aguilera's defense counsel failed to object to the $900 restitution fine or the $214 in assessments or request a hearing on Aguilera's ability to pay those amounts. There is no indication that defense counsel was asked for a reason and failed to provide one. Moreover, we cannot say there could be no satisfactory explanation for defense counsel's inaction regarding the assessments. Aguilera was 30 years old at the time of sentencing. According to the probation report, he was employable and working as a seasonal field worker. He also had agreed to pay $3,350 in victim restitution. That Aguilera qualified for appointed counsel does not necessarily mean that he cannot afford to pay the assessments imposed. On this record, it is possible that defense counsel knew that Aguilera had the ability to pay the assessments, in addition to the victim restitution and restitution fine.
Even if we were to conclude that Aguilera's defense counsel performed deficiently by failing to object and to request an ability to pay hearing, Aguilera has not met his burden to show prejudice resulting from counsel's failure. Again, the facts in the record do not demonstrate that Aguilera is unable to pay the $214 in assessments. Thus, we cannot say there is a reasonable probability the result of Aguilera's sentencing would have been more favorable to him, in that the trial court would have reduced or stayed the assessments had defense counsel objected and requested a hearing. (See People v. Keene (2019) 43 Cal.App.5th 861, 864-865.)
B. Corrections to Minute Order and Abstract of Judgment
Although neither party raises the issue on appeal, there is an inconsistency between the sentence imposed orally at Aguilera's sentencing hearing and the sentence as stated in the corresponding minute order and abstract of judgment. Specifically, the trial court orally imposed a total sentence of three years and suspended the execution of "two years and three months of the total term" under section 1170, subdivision (h). However, the amended minute order for Aguilera's sentencing states: "The Court suspends the execution of 2 Years of the total term and places the Defendant on mandatory supervision for the suspended term. [¶] Defendant is committed to the Monterey County Jail pursuant to [section] 1170[, subdivision] (h) for the total fixed term of 1 Year." Similarly, the abstract of judgment states in item No. 10, regarding mandatory supervision, that the "[s]uspended portion" of the total jail time imposed is "2 years" and "1 year" is to be "[s]erved forthwith."
When a clerk's minute order or the abstract of judgment conflicts with the oral pronouncement of judgment, it is the oral pronouncement that governs. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Delgado (2008) 43 Cal.4th 1059, 1070; People v. Pirali (2013) 217 Cal.App.4th 1341, 1346.) We "may correct clerical errors at any time" and have jurisdiction to order "correction of abstracts of judgment that [do] not accurately reflect the oral judgments of sentencing courts." (People v. Mitchell (2001) 26 Cal.4th 181, 185; see also People v. Rowland (1988) 206 Cal.App.3d 119, 123 [endorsing correction of clerical errors in clerk's minutes].) Accordingly, we will order the sentencing minute order and abstract of judgment corrected to state the actual portion of Aguilera's total term that was suspended.
III. DISPOSITION
The judgment is affirmed. The trial court is directed to correct the amended minute order for the April 24, 2019 sentencing to state that the trial court suspended the execution of two years and three months of the total term imposed and committed Aguilera to county jail for a term of nine months. The trial court also is directed to correct the abstract of judgment by modifying item No. 10 to state that the suspended portion of the total jail time imposed is two years and three months and the jail time to be served forthwith is nine months. The trial court is ordered to deliver a certified copy of the corrected abstract of judgment to the Monterey County Sheriff's Office.
/s/_________
Danner, J.
WE CONCUR:
/s/_________
Greenwood, P.J.
/s/_________
Grover, J.