Opinion
C088221
02-27-2020
THE PEOPLE, Plaintiff and Respondent, v. DWIGHT ALAN BENNETT, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CR035973)
Defendant Dwight Bennett pled no contest to assault with force likely to produce great bodily injury and admitted violations of probation. The trial court suspended imposition of sentence, placed defendant on probation for three years, and ordered him to serve 364 days in jail with 257 days credit for time served. The trial court further imposed the following fines and assessments: (1) a $300 restitution fine and a $300 stayed parole revocation restitution fine; (2) a $223 probation supervision fee; (3) a $30 criminal conviction assessment; (4) a $40 court operations assessment; (5) a $300 presentence investigation report fee; (6) a $69.05 booking fee; (7) a $240 jurisdictional transfer fee, if applicable; and (8) a $150 interstate compact transfer fee, if applicable. Defendant appeals the imposition of the mandatory minimum restitution fine, criminal conviction assessment, court operations assessment, presentence investigation report fee, and the probation supervision fee.
During the pendency of the appeal, defendant sent a letter brief to the trial court pursuant to Penal Code section 1237.2, requesting the trial court strike the criminal conviction and court operations assessments based on his inability to pay them, and stay the mandatory minimum restitution fine pending a hearing on his ability to pay, as provided in Dueñas. (People v. Dueñas (2019) 30 Cal.App.5th 1157.) The trial court denied the request.
All further section references are to the Penal Code unless otherwise specified.
Section 1237.2 provides: "An appeal may not be taken by the defendant from a judgment of conviction on the ground of an error in the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction in the trial court, which may be made informally in writing. The trial court retains jurisdiction after a notice of appeal has been filed to correct any error in the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs upon the defendant's request for correction. This section only applies in cases where the erroneous imposition or calculation of fines, penalty assessments, surcharges, fees, or costs are the sole issue on appeal."
We conclude the trial court erred in denying defendant's request for an ability-to-pay hearing relating to the restitution fine, and remand for the trial court to conduct such a hearing. Because we remand for an ability-to-pay hearing, we do not consider the remainder of defendant's ability-to-pay arguments because he will have the opportunity to raise those arguments in the trial court on remand.
DISCUSSION
Defendant argues the criminal conviction assessment, the court operations assessment, and the minimum mandatory restitution fine should be stricken because he does not have the ability to pay them. He asserts the trial court's failure to consider his ability to pay the minimum mandatory restitution fine violated his constitutional right to equal protection and the Eighth Amendment's prohibition against excessive fines. Defendant relies primarily on Dueñas but argues remand for an ability-to-pay hearing would be a needless expenditure of judicial resources because the record clearly establishes his inability to pay the assessments and fine. (People v. Dueñas, supra, 30 Cal.App.5th at p. 1157.) He further argues the presentence investigation report fee and probation supervision fee should be stricken based on his inability to pay and, to the extent his challenge to those fees was forfeited by his counsel's failure to object to the imposition thereof in the trial court, he received ineffective assistance of counsel.
The People argue defendant failed to show an inability to pay the assessments and fine and he has no constitutional right to an ability-to-pay hearing. Specifically, the People argue: (1) the restitution fine was not unconstitutionally excessive; (2) the restitution fine did not violate due process because it survives rational basis review; and (3) the imposition of the criminal conviction and court operations assessments without an ability-to-pay hearing was harmless beyond a reasonable doubt. The People further maintain defendant forfeited his challenge to the presentence investigation report and probation supervision fees by failing to object to the imposition thereof in the trial court and, even if not forfeited, he failed to establish an inability to pay those fees and received effective assistance of counsel.
In Dueñas, the court held that principles of due process militate against the imposition of the mandatory minimum restitution fine on indigent defendants who are unable to pay them. (People v. Dueñas, supra, 30 Cal.App.5th at pp. 1168, 1170-1171.) In his section 1237.2 motion, defendant asked the trial court to stay the mandatory minimum restitution fine pending its determination of his ability to pay it, as provided in Dueñas. The trial court denied defendant's request. We find it appropriate to remand the matter to the trial court to conduct a hearing and allow defendant the opportunity to present evidence demonstrating his inability to pay the restitution fine. (People v. Castellano (2019) 33 Cal.App.5th 485, 491.) Defendant bears the burden of proving an inability to pay. (Id. at p. 490.)
Defendant may raise the remainder of his ability-to-pay arguments on remand. We accordingly do not consider those arguments.
DISPOSITION
The matter is remanded to the trial court with directions to stay the execution of the restitution fine and to conduct a hearing regarding defendant's ability to pay. The judgment is otherwise affirmed.
/s/_________
Robie, Acting P. J. I concur: /s/_________
Mauro, J.
Hoch, J., Dissenting
I disagree with the conclusion that remand is appropriate under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) to permit a hearing on defendant's ability to pay. Assuming, without deciding defendant's Dueñas claims are preserved for review, I conclude defendant is not entitled to an ability to pay hearing. (People v. Kingston (2019) 41 Cal.App.5th 272; People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946 ; People v. Aviles (2019) 39 Cal.App.5th 1055, review & request for depub. den. Dec. 11, 2019, S258563; People v. Caceres (2019) 39 Cal.App.5th 917, 927, review den. Jan. 2, 2020, S258720.)
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).)
/s/_________
HOCH, J.