Opinion
F078353
05-06-2020
THE PEOPLE, Plaintiff and Respondent, v. SOUVITH BOSOMBATH, Defendant and Appellant.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Kathryn L. Althizer, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Fresno Super. Ct. No. F18904431)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Kathryn L. Althizer, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
-ooOoo-
INTRODUCTION
Appellant/defendant Souvith Bosombath was convicted of second degree robbery and criminal threats based on two separate incidents where he hit his stepfather and threatened his sister, and was sentenced to six years four months in state prison. On appeal, he argues the court improperly ordered him to pay a $600 restitution fine and other fees without determining his ability to pay in violation of his constitutional right to due process under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We affirm.
FACTS
Defendant and his sister, Nittiya Bosombath (Nittiya) were raised by their mother, Nheng Thoumphone (Nheng), and their stepfather, Thong Thoumphone (Thong). Nheng and Thong owned and operated a farm.
We will refer to the parties by their first names for ease of reference because of common last names; no disrespect is intended.
In 2018, defendant was unemployed and did not work at the family farm. Defendant occasionally went to his parents' house and farm and asked for money. When they did not give him money, defendant would get angry and curse them.
On December 9, 2015, Nittiya obtained a restraining order against defendant to protect herself because of his prior threats, erratic behavior, and damage to the family's property. The order prohibited defendant from being within 100 feet of Nittiya, or otherwise contacting or harassing her for three years. Incident on June 12 , 2018 (Counts 1 & 2)
At 7:00 p.m. on June 12, 2018, Thong was working by himself at the family farm. Defendant arrived and confronted Thong, who was 63 years old. Defendant was angry and demanded $500. Thong said no. Defendant, who was 36 years old, hit Thong on the left side of his face. Thong fell down and was briefly unconscious.
When Thong regained consciousness, defendant lifted him from the ground. Thong was heavily bleeding from his mouth and his eye hurt. Thong realized defendant had taken his cell phone and keys. Thong asked for his keys so he could drive home, and defendant returned the keys. Thong also asked for his cell phone, but defendant kept it.
Defendant used the cell phone to call his mother, Nheng, who was at the family's home. Nittiya was also at the house and could hear the entire call because Nheng put it on speakerphone. Defendant said: " 'I snapped. I beat up dad. Take him to the hospital,' " but he did not apologize. Nittiya asked defendant how he could do that to their father. Defendant told Nittiya, " 'I'm going to f[**]king kill you, bitch.' " Nheng hung up on defendant. Defendant kept calling Nheng but she did not answer.
About 15 minutes after defendant's call, Thong arrived at his house. He was bleeding from his mouth and his left eye was swollen. Nittiya called the police because defendant had just beaten their father, and she was terrified about defendant's threat to her. Nittiya was afraid defendant would come to the house and hurt or kill her, and she feared for her parents' safety.
Deputy Romero responded to the house and took photographs of Thong's injuries. Romero testified Thong looked sad, upset, and as if he had been crying. There was swelling on the left side of Thong's face and cheek, and his left eye was swollen shut. There was swelling, bruising, and dried blood on the inside of his lower lip.
Nittiya cancelled service on her father's cell phone. About four or five days later, Thong found his cell phone in front of his house; the phone did not work since service had been cut off. Incident on July 1 , 2018 (Counts 3-5)
On June 28, 2018, defendant was served with the restraining order that Nittiya had previously obtained.
Around noon on July 1, 2018, Nheng, Thong, and Thong's brother were at the family farm and waiting inside a structure on the property for Nittiya to bring them lunch. Defendant arrived on his bicycle. Nheng saw defendant destroy several rows of their crops.
Defendant was very angry and started "talk[ing] bad." He was cussing and hit Nheng's car. Defendant demanded money from Nheng and Thong, and repeatedly threatened to hit and kill them if they did not give it to him. Defendant told Thong, "You are old. I can do whatever I want." Thong and Nheng said they did not have any money. Thong and Nheng were frightened that defendant was going to hurt them. He got on his bicycle and yelled at Nheng, "I'm going to kill you, kill your husband, and kill your daughter." Nheng and Thong were afraid; they got into their separate cars to leave.
About the same time, Nittiya drove up to the farm with her young child. Her parents called and said defendant was there. She stopped at another structure on the property and saw defendant. Nittiya immediately called the police. Defendant ran towards Nittiya's car, raised his fists, and yelled, "I'm going to f[**]king kill you." Defendant stopped before he got to her car because he saw her child and rode away on his bicycle. Nittiya was terrified.
Defendant eventually left the area, but Thong's brother followed him so that law enforcement would know where he was. The police arrived about an hour later and told defendant to leave.
PROCEDURAL HISTORY
On October 1, 2018, a first amended information was filed in the Superior Court of Fresno County charging defendant with count 1, second degree robbery of Thong (Pen. Code, § 211); and count 2, criminal threats to Nittiya (§ 422), both committed on June 12, 2018.
All further statutory references are to the Penal Code unless otherwise stated.
Defendant was also charged with count 3, criminal threats to Nittiya; count 4, criminal threats to Nheng; and count 5, misdemeanor violation of a domestic relations court order (§ 273.6, subd. (a)), all committed on July 1, 2018.
On October 4, 2018, after a jury trial, defendant was found not guilty of count 3, and convicted of the other four counts.
On November 1, 2018, the trial court sentenced defendant to a total of six years and four months in state prison based on the upper term of five years for count 1; two consecutive terms of eight months (one-third the midterms) for counts 2 and 4; and credit for time served for misdemeanor count 5.
The initial abstract of judgment, filed on November 1, 2018, erroneously stated defendant was convicted after entering pleas to the four counts. On November 5, 2018, the court filed a corrected abstract that stated defendant was convicted after a jury trial.
The court imposed a $600 restitution fine (§ 1202.4) and stayed the $600 parole revocation fine (§ 1202.45). It also imposed a $160 court operations assessment fee (§ 1465.8); and a $120 criminal conviction assessment fee (Gov. Code, § 70373). Defendant did not object to the fine or fees.
The probation report recommended a restitution fine of $1,800.
On March 6, 2019, appellate counsel wrote to the trial court and requested a stay of the restitution fine and a hearing for the People to prove defendant had the ability to pay. The People's brief states that on June 11, 2019, the trial court denied appellate counsel's request and found the claim had been forfeited. Appellate counsel has not disputed the People's statement that the court denied the request.
On November 2, 2018, defendant filed a timely notice of appeal.
DISCUSSION
Defendant raises one issue on appeal. He argues the restitution fine and fees were imposed in both cases in violation of his due process rights and must be stricken because he did not have the ability to pay these amounts based on Dueñas. Defendant asserts he did not forfeit review of the Dueñas issues because the case had not yet been decided at the time of his sentencing hearing and defense counsel could not have anticipated it. In the alternative, defendant requests remand for the trial court to conduct a hearing on his ability to pay.
Defendant's due process argument is based on Dueñas, which was decided after his sentencing hearing and while this appeal was pending. Dueñas held that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay" before it imposes any fines or fees. (Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1167.)
The California Supreme Court is currently considering whether trial courts must consider a defendant's ability to pay before imposing or executing fines, fees, and assessments; and if so, which party bears the applicable burden of proof. (See People v. Kopp (2019) 38 Cal.App.5th 47, 94-98, review granted Nov. 13, 2019, S257844.) --------
We disagree and find the matter need not be remanded on this issue. As we recently explained in People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles), Dueñas was wrongly decided and an Eighth Amendment analysis is more appropriate to determine whether restitution fines, fees, and assessments in a particular case are grossly disproportionate and thus excessive. (Aviles, at pp. 1068-1072.) Under that standard, the fines and fees imposed in this case are not grossly disproportionate to defendant's level of culpability and the harm he inflicted, and thus not excessive under the Eighth Amendment. (Aviles, at p. 1072.)
More importantly, even if Dueñas applied to this case, defendant has forfeited any challenge to his alleged inability to pay the fines, fees, and assessments. The court ordered him to pay a restitution fine of $600 under section 1202.4, subdivision (b). When the court imposes a restitution fine greater than the $300 statutory minimum amount, "[s]ection 1202.4 expressly contemplates an objection based on inability to pay." (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153 (Frandsen); Aviles, supra, 39 Cal.App.5th at p. 1073.)
While Dueñas had not been decided at the time of defendant's sentencing hearing, defendant had the statutory right to object to the $600 restitution fine and demonstrate his alleged inability to pay, and such an objection "would not have been futile under governing law at the time of his sentencing hearing. [Citations.]" (Frandsen, supra, 33 Cal.App.5th at p. 1154; Aviles, supra, 39 Cal.App.5th at pp. 1073-1074.) In addition, any objections to the assessments imposed under section 1465.8 and Government Code section 70373 would not have been futile. "Although both statutory provisions mandate the assessments be imposed, nothing in the record of the sentencing hearing indicates that [the defendant] was foreclosed from making the same request that the defendant in Dueñas made in the face of those same mandatory assessments. [The defendant] plainly could have made a record had his ability to pay actually been an issue. Indeed, [he] was obligated to create a record showing his inability to pay the ... restitution fine, which would have served to also address his ability to pay the assessments." (Frandsen, supra, 33 Cal.App.5th at p. 1154; Aviles, supra, 39 Cal.App.5th at p. 1074.)
Finally, even if defendant did not forfeit the issue, any error under Dueñas is necessarily harmless since defendant has the ability to pay the fines, fees, and assessments over the course of his prison sentence. (Aviles, supra, 39 Cal.App.5th at pp. 1075-1077.)
" ' "Ability to pay does not necessarily require existing employment or cash on hand." [Citation.] "[I]n determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendant's present ability but may consider a defendant's ability to pay in the future." [Citation.] This include[s] the defendant's ability to obtain prison wages and to earn money after his release from custody. [Citation.]' [Citations.]" (Aviles, supra, 39 Cal.App.5th at p. 1076.)
We can infer from the instant record that defendant has the ability to pay the aggregate amount of fines and fees from probable future wages, including prison wages. (Aviles, supra, 39 Cal.App.5th at p. 1076; People v. Douglas (1995) 39 Cal.App.4th 1385, 1397; People v. Ellis (2019) 31 Cal.App.5th 1090, 1094.) There is nothing in the record to show that defendant would be unable to satisfy the fine and fees imposed by the court while serving his prison term, even if he fails to obtain a prison job. While it may take defendant some time to pay the amounts imposed in this case, that circumstance does not support his inability to make payments on these amounts from either prison wages or monetary gifts from family and friends during his prison sentence. (See, e.g., People v. Lewis (2009) 46 Cal.4th 1255, 1321; People v. DeFrance (2008) 167 Cal.App.4th 486, 505; People v. Potts (2019) 6 Cal.5th 1012, 1055-1057.) We thus conclude that based on the record before this court, defendant has the ability to pay the fine and fees and any error under Dueñas is harmless.
DISPOSITION
The judgment is affirmed.