Opinion
H045164
02-25-2020
THE PEOPLE, Plaintiff and Respondent, v. PAUL VINCENT ALEDO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SS170376)
Defendant Paul Aledo contends his case should be remanded for two purposes: so the trial court can decide whether to impose a firearm enhancement that was mandatory when he was sentenced but is now discretionary; and for a determination of his ability to pay fines and fees. We agree the trial court must be allowed to exercise its newly conferred discretion regarding the sentencing enhancement, and will remand for that limited purpose. But defendant is not entitled to a hearing on his ability to pay because the trial court effectively made that determination at sentencing. Defendant did not object to imposition of the maximum restitution fine as recommended in the probation report, which distinguishes this case from the issue decided recently in People v. Dueñas (2019) 30 Cal.App.5th 1157, 1167 (Dueñas).
I. BACKGROUND
Defendant shot a man in the chest and was convicted by jury of attempted murder (Pen. Code, §§ 664/187, subd. (a) (unspecified statutory references are to this code). The jury found true allegations that the attempted murder was premeditated (§ 664, subd. (a)), that defendant personally used a firearm (§ 12022.5, subd. (a)) and that he personally inflicted great bodily injury (§§ 12022.7, subd. (a), 12022.53, subd. (d)). Defendant was also convicted of possessing drug paraphernalia and methamphetamine (Health & Saf. Code, §§ 11364, subd. (a), 11377, subd. (a)).
At sentencing, the trial court received a report from the probation department. Among other things, the assigned probation officer reported, "Although limited, the defendant will be financially capable of paying off his Court ordered fines and fees." Before imposing sentence, the trial court indicated it had reviewed thereport and asked, "Any additions or corrections from the Defense?" Defense counsel responded, "No."
Defendant was sentenced to life in prison with the possibility of parole. His sentence was enhanced by a consecutive 25-year term under section 12022.53, subdivision (d) for using a firearm to cause great bodily injury. The trial court imposed but stayed the upper term of 10 years for a different firearm use enhancement (§ 12022.5, subd. (a)) and stayed a three-year term for the great bodily injury enhancement (§ 12022.7, subd. (a)). Concurrent one-year and six-month terms were added for the respective misdemeanor drug convictions. The trial court imposed a $10,000 restitution fine; a $150 drug program fee (Health & Saf. Code, § 11372.7); a $50 criminal laboratory analysis fee (Health & Saf. Code § 11372.5); a court operations assessment of $120 (Pen. Code, § 1465.8, subd. (a)(1)); and a court facilities assessment of $90 (Gov. Code, § 70373).
II. DISCUSSION
A. SENTENCING ON THE FIREARM ENHANCEMENT
When defendant was sentenced, the enhancement under section 12022.53, subdivision (d) for using a firearm to cause great bodily injury was mandatory. The statute has since been amended to give the trial court discretion to strike that enhancement in the interest of justice. (§ 12022.53, subd. (h), as amended by Senate Bill 620 (Stats. 2017, ch. 682, § 2).) The amendment applies here because defendant's sentence is not yet final. (People v. Robbins (2018) 19 Cal.App.5th 660, 679.)
Defendant asserts we must remand the case to allow the trial court to exercise its new discretion to decide whether to impose the enhancement. The Attorney General argues no remand is required because the court clearly indicated it wanted to impose the maximum possible sentence. (See People v. Almanza (2018) 24 Cal.App.5th 1104, 1110 [no remand required if "the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so."].) In the Attorney General's view, the trial court's comments about the severe impact of the crime on the victim, coupled with its selection of the upper 10-year term on the section 12022.53 subdivision (a) firearm enhancement, evidence an intent to impose the maximum sentence allowable.
We acknowledge that under the circumstances the trial court may be unlikely to deviate from its original sentence. However, we do not see a sufficiently clear indicator of intent to impose the maximum possible sentence, even if presented with different permissible outcomes to consider. We will therefore remand for resentencing to allow the trial court to exercise its discretion regarding the section 12022.53, subdivision (d) enhancement.
B. ABILITY TO PAY DETERMINATION
Defendant also contends his case should be remanded because he is constitutionally entitled to a determination that he is financially able to pay fines and fees before they are imposed. He relies on Dueñas, supra, 30 Cal.App.5th 1157, 1167, decided after his sentencing, which held that imposing fines on an indigent defendant violates the due process clause of the state and federal constitutions. Several courts have rejected Dueñas. (See, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, 329; People v. Kingston (2019) 41 Cal.App.5th 272, 279; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v. Allen (2019) 41 Cal.App.5th 312, 326; People v. Adams (2020) 44 Cal.App.5th 828. We need not address here whether Dueñas was correctly decided, because even assuming an entitlement to an ability to pay determination, that determination was effectively already made by the trial court, without any objection from defendant.
A trial court must impose at least the minimum restitution fine, absent "compelling and extraordinary reasons" which may not include a defendant's inability to pay. (§ 1202.4, subds. (b), (c).) In setting the amount of the restitution fine above the statutory minimum, however, a trial court must consider a defendant's inability to pay. (§ 1202.4, subd. (d).) The probation report the trial court reviewed in preparation for sentencing proposed that defendant would be able to pay the recommended fines and fees, including a $10,000 restitution fine. Defense counsel did not object to that statement and did not seek any additions or corrections to the report. Only then did the trial court impose the restitution fine and other assessments.
Section 1202.4, subdivision (d) provides a statutory basis to assert an inability to pay objection to imposition of a restitution fine exceeding the minimum amount. Defendant did not do so, even in light of the probation report's express conclusion that he would be able to pay the maximum fine and other recommended fees. He has therefore forfeited an appellate challenge to the imposition of fines and fees based on inability to pay. (See People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.)
Defendant argues that remand is nonetheless required because Dueñas had not yet been decided when he was sentenced, so defense counsel was unaware of the constitutional basis supplied by that case for objecting to fines and fees. While the question of ability to pay may have taken on new legal significance in light of the Dueñas decision, that does not entitle defendant to relitigate the issue under these circumstances. To the extent defendant disagreed with or objected to the assertion that he would be able pay fines and fees, he was obligated to bring that to the court's attention when it imposed a fine far exceeding the statutory minimum.
III. DISPOSITION
The judgment is reversed. The case is remanded to the trial court for the limited purpose of exercising its discretion regarding the imposition of the Penal Code section 12022.53, subdivision (d) sentencing enhancement. If the court decides the enhancement should be imposed, it shall reinstate defendant's original sentence. If the court decides the enhancement should be stricken or dismissed, it shall resentence defendant accordingly and transmit an amended abstract of judgment to the Department of Corrections and Rehabilitation.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Greenwood, P. J. /s/_________
Elia, J.