Opinion
B312905
05-18-2022
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY BRYCSAK, Defendant and Appellant.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill, Deputy Attorney General for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA094014, Hilleri G. Merritt, Judge. Affirmed as modified.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill, Deputy Attorney General for Plaintiff and Respondent.
COLLINS, J.
Appellant Anthony Brycsak pled no contest to committing a lewd act upon a child under the age of 14. He contends the court erred in imposing fines and fees without first considering his ability to pay. Alternatively, he contends the sex offender fine imposed under Penal Code section 290.3 should have been $300, not $400.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant forfeited the former contention by failing to object to imposition of fines and fees at trial. However, we agree with appellant and respondent Attorney General that the sex offender fine exceeded the statutorily prescribed amount and must be reduced to $300. We modify the judgment to strike the $400 fine and reflect imposition of a $300 fine pursuant to section 290.3. The judgment is affirmed in all other respects.
BACKGROUND
A home security camera recorded appellant masturbating and touching the vaginal area of his girlfriend's five-year-old daughter over her clothing. Appellant was charged with committing a lewd act upon a child under the age of 14 (§ 288, subd. (a)) and oral copulation or sexual penetration of a child 10 years of age or younger (§ 288.7, subd. (b)).
During the ensuing proceedings, appellant made two Marsden motions, both of which were denied. The trial court subsequently granted appellant's request to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806, after finding that he was competent to represent himself and voluntarily, knowingly, and intelligently waived his right to counsel.
People v. Marsden (1970) 2 Cal.3d 118.
Appellant and the prosecution ultimately negotiated a plea agreement, pursuant to which appellant pled no contest to the lewd act count, the prosecution dismissed the other count, and the court sentenced appellant to the low term of three years in state prison. The court orally imposed a lifetime sex offender registration requirement (§ 290, subd. (c)(1)), a $400 sex offender fine (§ 290.3, subd. (a)), a $300 restitution fine (§ 1202.4, subd. (b)), a $40 court operations assessment (§ 1465.8, subd. (a)(1)), and a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)). The court also imposed and stayed a parole revocation restitution fine of $300 (§ 1202.45). Appellant made no objection to the fines and did not request an ability to pay hearing. The court gave appellant credit for 167 days of actual time served, plus 25 days of good time/work time credit. Appellant timely appealed. He did not request a certificate of probable cause, and none was issued.
Appellant's appointed counsel filed an opening brief that raised no issues and requested independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We directed counsel to send the record and a copy of the brief to appellant, and notified appellant of his right to respond within 30 days. We received no response.
After reviewing the record, we requested supplemental letter briefs on the following issue: "Did the trial court err in its imposition of required fines, fees, and assessments? In addition to any other relevant issue counsel deem appropriate to discuss, the parties should address the fines, fees, and/or assessments required by Penal Code sections 290.3 and 1465.8, and Government Code section 70373." Appellant's counsel and respondent Attorney General both submitted supplemental letter briefs.
DISCUSSION
Appellant contends the trial court erred by failing to hold an ability to pay hearing before imposing fines and fees. Respondent asserts that appellant forfeited the issue by failing to object to the imposition of fines and fees in the trial court. We agree.
In People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Division Seven of this court held that "due process of law requires a trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes" certain fines and fees. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) "Consistent with Dueñas, a defendant must in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed. . . ." (People v. Castellano (2019) 33 Cal.App.5th 485, 490; see also People v. Belloso (2019) 42 Cal.App.5th 647, 662, rev. granted Dec. 27, 2019, S290968 (Belloso) [citing Castellano]; People v. Kopp (2019) 38 Cal.App.5th 47, 96 (Kopp), ["It is the defendant who bears the burden of proving an inability to pay"], rev. granted Nov. 13, 2019, S257844.)
In Kopp, the Supreme Court will consider two issues: "(1) Must a court consider a defendant's ability to pay before imposing or executing fines, fees, and assessments? (2) If so, which party bears the burden of proof regarding the defendant's inability to pay?" Briefing in Belloso has been deferred pending resolution of Kopp.
Appellant, who concedes he did not object or invoke Dueñas below, argues no objection was required. He relies on Belloso, supra, 42 Cal.App.5th 647, but it is distinguishable. In Belloso, Division Seven declined to find forfeiture of the Dueñas issue only because "at the time Belloso was sentenced, Dueñas had not yet been decided," and thus the defendant "was not aware of his ability to challenge the assessments and fines on due process and equal protection grounds." (Belloso, supra, 42 Cal.App.5th at p. 662-663.) Here, appellant was sentenced more than two years after Dueñas was decided. Appellant represented himself and may have been unaware of the decision, but "[s]elf-represented defendants are 'held to the same standard of knowledge of law and procedure as is an attorney.'" (People v. Frederickson (2020) 8 Cal.5th 963, 1000, quoting People v. Clark (1990) 50 Cal.3d 583, 625.)
Appellant alternatively argues that the trial court erred in imposing a $400 fine under section 290.3 because the statutory maximum fine was $300. This argument is preserved despite his failure to raise it below, because imposition of a fine in excess of the statutory maximum results in an unauthorized sentence. (See People v. Rivera (2019) 7 Cal.5th 306, 348-349; see also People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1249.) We agree with appellant and respondent that the fine was improper.
Section 290.3, subdivision (a) provides that "Every person who is convicted of any offense specified in subdivision (c) of Section 290 shall, in addition to any imprisonment or fine, or both, imposed for commission of the underlying offense, be punished by a fine of three hundred dollars ($300) upon the first conviction or a fine of $500 upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine." This was appellant's first conviction. The maximum fine to which he was subject thus was $300.
"When a trial court imposes fines in excess of the statutory maximum, the proper remedy is to modify the judgment to reduce the fines to the statutory maximum." (People v. Rivera, supra, 7 Cal.5th at p. 349.) Accordingly, we modify the judgment to reduce the fine imposed pursuant to section 290.3, subdivision (a) to $300.
We have independently reviewed the entire record and are satisfied that no further arguable issues exist. Appellant has received effective appellate review of the judgment entered against him. (Smith v. Robbins (2000) 528 U.S. 259, 277-279; People v. Kelly (2006) 40 Cal.4th 106, 123-124.)
DISPOSITION
The judgment of conviction is affirmed. The judgment is modified to strike the $400 fine imposed pursuant to section 290.3, subdivision (a) and replace it with a $300 fine imposed pursuant to section 290.3, subdivision (a). On remand, the trial court shall forward corrected abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: MANELLA, P. J., WILLHITE, J.