Opinion
C088313
03-06-2020
THE PEOPLE, Plaintiff and Respondent, v. DWIGHT DARNELL BAILEY, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. DARYL JAMES GODDARD, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 62-150697A) (Super. Ct. No. 62-150697B)
Defendants Dwight Darnell Bailey and Daryl James Goddard appeal the fees, fines, and assessments imposed by the trial court following their no contest pleas to multiple offenses stemming from an armed home invasion robbery. Based primarily on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendants argue on appeal that the trial court could not impose the challenged financial obligations without first determining their ability to pay.
We conclude defendants forfeited their challenges by failing to object below, and that, in any event, Dueñas was wrongly decided. Thus, the trial court properly imposed the fees, fines, and assessments without first determining defendants' ability to pay.
After examining the record, we have discovered an error in the court operations assessment (Pen. Code, § 1465.8) and the criminal conviction assessment (Gov. Code, § 70373) imposed in defendant Goddard's case. We shall modify his judgment accordingly to reflect the appropriate assessment amounts and affirm. We affirm defendant Bailey's judgment.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
The facts underlying defendants' convictions are not relevant to the issues they raise on appeal. Briefly summarized (based on testimony from the preliminary hearing and the police report as described in the probation report), under the guise of delivering flowers, Goddard forced his way into the victim D.P.'s home at gunpoint in an attempt to collect on an alleged drug debt owed by her husband. Bailey followed Goddard inside.
At the time, D.P. was home with her young children. While in the house, Goddard threatened to shoot D.P.'s son unless she told him the combination to the safe. Bailey removed the safe from the house, and guns in a gun safe appeared to have been moved, although not taken, during the robbery. Surveillance video from the residence captured images of both defendants, and they were eventually arrested and charged with multiple crimes.
In January 2018, Bailey pleaded no contest to the first degree home invasion robbery of D.P. (§§ 211, 212.5, subd. (a)), and admitted a prior strike (§§ 667, subds. (b)-(i), 1170.12) and a prior serious felony conviction (§ 667, subd. (a)), in exchange for a stipulated 11-year state prison term and dismissal of the remaining charges. In exchange for a stipulated eight-year term, Goddard pleaded no contest to the first degree home invasion robbery of D.P. (§§ 211, 212.5, subd. (a)) as well as to one count of attempted first degree residential robbery involving S.S. (§§ 664, 211.) He also admitted personal use of a firearm enhancements attached to both counts. The trial court rejected the original plea agreements and defendants withdrew their pleas.
Defendant Goddard was also charged in a separate case with three counts of attempted first degree residential robbery (§§ 664, 211) while personally using a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)), which was later consolidated with the information containing the charges against both defendants here.
In August 2018, Bailey entered the same plea bargain as before for the stipulated 11-year state prison term. Goddard pleaded guilty to the same counts as before in exchange for a stipulated eight-year eight-month state prison term.
On August 21, 2018, the trial court accepted the plea agreements, and sentenced Bailey to the stipulated term of 11 years, which included the low term of three years for the home invasion robbery of D.P., doubled to six years for the strike prior, plus five years for the prior serious felony conviction enhancement. The court imposed a $40 court operations assessment (§ 1465.8), a $30 criminal conviction assessment (Gov. Code, § 70373), a $300 restitution fine (§ 1202.4), a suspended $300 parole revocation restitution fine (§ 1202.45), a $550 booking fee, a $172 incarceration fee, and $350 for a presentence report. The court dismissed the remaining counts and allegations.
The abstract of judgment reflects a $553 booking fee, consistent with the figure recommended in the probation report.
That same day, the court sentenced Goddard to the stipulated eight years eight months in prison, which included the middle term of four years for the home invasion robbery of D.P., a consecutive four years for the personal use of a firearm enhancement, and a consecutive eight-month term (one third the midterm) for the attempted residential robbery offense. The court imposed a $40 court operations assessment (§ 1465.8), a $30 criminal conviction assessment (Gov. Code, § 70373), a $300 restitution fine (§ 1202.4), a suspended $300 parole revocation restitution fine (§ 1202.45), a $553 booking fee, a $172 incarceration fee, and $350 for a presentence report. The remaining counts and allegations were dismissed.
Defendants appealed. The court granted each defendant's request for a certificate of probable cause.
DISCUSSION
1.0 Ability to Pay Determination
Defendants contend the trial court erred in imposing the fees, fines, and assessments here without first determining their ability to pay them. While neither objected below, they both argue they have not forfeited their claims on appeal.
As noted above, the trial court imposed a $40 court operations assessment (§ 1465.8), a $30 criminal conviction assessment, a $300 restitution fine, and a suspended $300 parole revocation restitution fine on Bailey. For Goddard, the court imposed the same—a $40 court operations assessment, a $30 criminal conviction assessment, a $300 restitution fine, and a suspended $300 parole revocation restitution fine.
Both Bailey and Goddard challenge the court operations and criminal convictions assessments, arguing they must be reversed on appeal. They also ask that we remand with directions to stay the restitution fines until the People establish that they have the present ability to pay the fines.
Although it is defendants' burden to establish an inability to pay, (accord, People v. Kopp (2019) 38 Cal.App.5th 47, 96, review granted Nov. 13, 2019, S257844; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154) neither defendant objected to these fees and fines generally or asserted the inability to pay them (to refute the presumption that defendants capable of working who are serving a lengthy prison term will be able to pay assessments from prison wages (People v. Johnson (2019) 35 Cal.App.5th 134, 139)), instead accepting them as listed in the probation report.
We may consider, as persuasive authority, the cases that have been granted review by our Supreme Court. (Cal. Rules of Court, rule 8.1115(e)(1).)
Citing Dueñas, supra, 30 Cal.App.5th 1157 (review on own motion declined & request for depublication denied Mar. 27, 2019, S254210), defendants argue that the imposition of these financial costs without express consideration of their ability to pay is a violation of due process and equal protection. The defendant in Dueñas had in fact sought a hearing on her ability to pay on constitutional grounds, unlike defendants. (Id. at pp. 1162-1163.) As a result, existing authority would hold that defendants have forfeited the issue on appeal (People v. Frandsen, supra, 33 Cal.App.5th at pp. 1154-1155), although there is also authority to the contrary (People v. Johnson, supra, 35 Cal.App.5th at pp. 137-138; People v. Castellano (2019) 33 Cal.App.5th 485, 489). There is also settled law that failure to object to the amount of a restitution fine on the ground of inability to pay forfeits the issue on appeal. (People v. Nelson (2011) 51 Cal.4th 198, 227; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 [failure to object to statutory maximum restitution fine on ground of inability to pay forfeits Dueñas issue].) Defendants have thus forfeited our plenary review of this issue.
In any event, subsequent published authority has called the reasoning of Dueñas into question. As digested in People v. Hicks (2019) 40 Cal.App.5th 320 (review granted Nov. 26, 2019, S258946), Dueñas is premised on authority involving a right under due process of access to the courts, and a bar against incarceration for an involuntary failure to pay fees or fines. (Hicks, at p. 325.) However, a postconviction imposition of fees and fines does not interfere in any respect with the right of access to either the trial or appellate court. (Id. at p. 326.) The postconviction imposition of fees and fines also does not result in any additional incarceration, and therefore a liberty interest that due process would protect is not present. (Ibid.) Since the stated bases for the conclusion in Dueñas do not support it, the question is whether due process generally otherwise compels the same result. (Hicks, at p. 327.) The People have a fundamental interest in punishing criminal conduct, as to which indigency is not a defense (otherwise, defendants with financial means would suffer discrimination). It would also be contrary to the rehabilitative purpose of probation if a court were precluded at the outset from imposing the payment of fees and fines as part of educating a defendant on obligations owed to society. (Id. at pp. 327-328.) "For the reasons set forth above, we conclude that due process does not [generally] speak to this issue and that Dueñas was wrong to conclude otherwise." (Id. at p. 329.) People v. Kingston, supra, 41 Cal.App.5th at pages 279 through 281, agreed with Hicks.
The analysis of Dueñas in Hicks is adopted in People v. Kingston (2019) 41 Cal.App.5th 272, 279-282, and paralleled in People v. Aviles (2019) 39 Cal.App.5th 1055, 1068-1069 (Aviles), People v. Caceres (2019) 39 Cal.App.5th 917, 927, and in the opinions of individual justices in People v. Santos (2019) 38 Cal.App.5th 923, 937-938 (dis. opn. of Elia, J.), and People v. Gutierrez, supra, 35 Cal.App.5th at pages 1034-1041 (conc. opn. of Benke, J.).
Aviles also found Dueñas to be wrongly decided, finding the only proper limit on fees and fines is the constitutional prohibition against excessive fines under the Eighth Amendment to the federal Constitution. (Aviles, supra, 39 Cal.App.5th at pp. 1061, 1067, 1069-1072; accord, Kopp, supra, 38 Cal.App.5th at p. 96, rev.gr.)
Therefore, given the forfeiture of any objection to the mandatory minimum restitution fine under consistent authority and the absence of any valid claim under due process in connection with the remaining fees and fines, we conclude defendants are not entitled to a remand for the trial court to consider their ability to pay either. We therefore reject this argument.
Given our conclusions, we do not address the People's remaining arguments as to why defendants' claims are either forfeited or unsustainable under the Eighth Amendment. To the extent the People argue defendants were required to seek relief in the trial court under section 1237.2, which provides that an appeal may not be taken on the sole ground of an error in the imposition or calculation of fines, fees, or assessments unless defendant first makes a motion for correction in the trial court, the People do not argue the statute is jurisdictional. We therefore reach the merits of defendants' claims. --------
2.0 Modification of Goddard Judgment
The record shows that Goddard pleaded no contest to two offenses. In pronouncing Goddard's sentence, however, the trial court imposed a single $40 court operations assessment (§ 1465.8) and a single $30 criminal conviction assessment (Gov. Code, § 70373). That was error.
Section 1465.8 provides in relevant part: "To assist in funding court operations, an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal offense . . . ." (§ 1465.8, subd. (a)(1), italics added.) Similarly, Government Code section 70373 provides: "To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense . . . ." (Gov. Code, § 70373, subd. (a)(1), italics added.) These assessments are mandatory. (People v. Woods (2010) 191 Cal.App.4th 269, 272.)
Accordingly, we shall modify Goddard's judgment to impose an $80 court operations assessment and a $60 criminal conviction assessment. Because the abstract of judgment already reflects these amounts, an amended abstract of judgment is unnecessary.
DISPOSITION
The judgment for Bailey is affirmed. The judgment for Goddard is modified to impose an $80 court operations assessment under Penal Code section 1465.8 and a $60 criminal conviction assessment under Government Code section 70373. As so modified, Goddard's judgment is affirmed.
/s/_________
BUTZ, Acting P. J. I concur: /s/_________
KRAUSE, J. Mauro, J., Dissenting.
In People v. Dueñas (2019) 30 Cal.App.5th 1157, the court held it is improper to impose certain fines or assessments without determining defendant's ability to pay. (Id. at pp. 1168, 1172.) Although some courts have subsequently criticized Dueñas's legal analysis (see, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946), Dueñas remains citable precedent. Until the California Supreme Court has had an opportunity to resolve the current split in authority, I would conclude that Dueñas presented a new approach to considering fines, fees and assessments, an approach that could not reasonably have been anticipated. (People v. Castellano (2019) 33 Cal.App.5th 485, 489.) Accordingly, I would remand the matter to give the trial court an opportunity to consider defendant's ability to pay the fines, fees and assessments.
/s/_________
MAURO, J.