Opinion
C087505
03-12-2021
THE PEOPLE, Plaintiff and Respondent, v. AARON BROOKS CETON, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17CR002510)
Defendant Aaron Brooks Ceton pleaded guilty to multiple sexual offenses against two minor victims in exchange for a stipulated 36-year term in state prison. At sentencing, defense counsel requested that the court impose the minimum restitution fine given defendant's lengthy prison sentence rather than the maximum restitution fine recommended by probation. The court ordered defendant to pay the maximum $10,000 restitution fine under Penal Code section 1202.4; it declined to find at that time that defendant was "unavailable" to pay given the long incarceration, but stated defendant could file a subsequent motion to reduce the amount imposed. The court also imposed a $440 court operations assessment under section 1465.8, and a $330 criminal conviction assessment under Government Code section 70373.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends the court erred in imposing the maximum restitution fine without considering his inability to pay the fine. In supplemental briefing, he argues that imposing the mandatory court operations and criminal conviction assessments, as well as the restitution fine, without first determining his ability to pay violated his constitutional due process and equal protection rights as well as the prohibition against excessive fines.
We conclude the trial court erred by failing to consider defendant's inability to pay argument with respect to the maximum restitution fine imposed by the court, but defendant is not entitled to challenge his ability to pay the mandatory criminal conviction assessment and the court operations assessment. We shall therefore remand the matter for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
When M.C. was six years old, defendant reached inside her pants and touched her vagina and buttocks on more than 11 different occasions. When K.H. was five years old, defendant lived in a trailer on the same property as K.H.'s family. Defendant frequently tickled K.H.; one day he invited K.H. into his trailer so he could tickle her. Once there, he touched K.H.'s vagina even though she told him no.
Defendant was charged with the continuous sexual abuse of M.C., a child under the age of 14 years (§ 288.5, subd. (a)—count 1), and 10 counts of lewd and lascivious acts upon K.H., a child under the age of 14 years (§ 288, subd. (a)—counts 2-11). He pleaded guilty as charged in exchange for a stipulated 36-year prison sentence.
The court sentenced defendant to the 36-year stipulated term. At the sentencing hearing, defense counsel requested that the court impose a "much smaller, if not a minimal" restitution fine rather than the $10,000 maximum amount recommended by probation, given that defendant was being sentenced to 36 years in prison. The court imposed the maximum restitution fine of $10,000 (§ 1202.4, subd. (b)), declining to find that defendant was "unavailable to pay" the fine at that time. According to the court, defendant could return at a later date and make a motion to reduce that amount. The court also imposed $440 in court operations assessments under section 1465.8 ($40 per conviction), and $330 in criminal conviction assessments under Government Code section 70373 ($30 per conviction). Defendant timely appealed.
DISCUSSION
I
Restitution Fine
Defendant contends the trial court erred by imposing the maximum $10,000 restitution fine without considering his request to reduce the fine based on his apparent inability to pay given his long incarceration. Defendant also argues, citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), that imposing the restitution fine without an ability to pay hearing violated his right to equal protection and the prohibition against excessive fines.
The People argue the trial court considered defendant's asserted inability to pay the restitution fine and properly determined that the maximum restitution fine was justified. After examining the record, we conclude defendant has the better argument.
In every case where a person is convicted of a crime, the court must impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. (§ 1202.4, subd. (b).) The amount of the restitution fine is within the court's discretion, although it must be commensurate with the seriousness of the offense. (§ 1202.4, subd. (b)(1).) For felony convictions, the minimum fine is $300 and the maximum fine is $10,000. (Ibid.)
A trial court shall consider inability to pay when increasing the amount of the restitution fine above the minimum fine allowed. (§ 1202.4, subd. (c).) Section 1202.4, subdivision (d) provides: "[i]n setting the amount of the fine . . . in excess of the minimum . . ., the court shall consider any relevant factors, including, but not limited to, the defendant's inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in the crime."
Here, defense counsel requested that the trial court reduce the maximum restitution fine recommended by probation to the minimum fine allowed under the statute given defendant's stipulated 36-year prison sentence. The court responded that it would not find at that time that defendant was "unavailable to pay" the fine, but that defendant could return at a later date and move to reduce the fine. The court erred in two respects.
First, the court mistakenly believed that defendant could subsequently move to reduce the restitution fine imposed under section 1202.4, subdivision (b) after being sentenced. Although the statute regarding victim restitution confers continuing jurisdiction on a trial court to modify such an order after sentence has been imposed (§ 1202.4, subd. (f)(1)), the same does not apply to the restitution fine imposed here. (§ 1202.4, subd. (b); People v. Turrin (2009) 176 Cal.App.4th 1200, 1205-1206.)
Second, determining that defendant was not "unavailable" to pay the restitution fine is not the same as considering whether defendant had the ability to pay the maximum restitution fine as required by the statute. (§ 1202.4, subd. (c) [court may consider inability to pay only when increasing the amount of the restitution fine in excess of the minimum fine under § 1202.4, subd. (b)(1)].)
Accordingly, we shall remand the matter for the trial court to consider defendant's ability to pay the maximum restitution fine. Upon remand, defendant bears the burden to demonstrate his inability to pay. (§ 1202.4, subd. (d); People v. Gamache (2010) 48 Cal.4th 347, 409 [bare fact of the defendant's impending incarceration did not show he had inability to pay maximum $10,000 restitution fine under § 1202.4]; People v. Frye (1994) 21 Cal.App.4th 1483, 1486-1487 [In the absence of a contrary showing, the court is entitled to presume the defendant will pay the restitution fine out of future earnings.].)
Given this conclusion, we do not reach defendant's remaining contentions in challenging the restitution fine.
II
Mandatory Assessments
Relying on Dueñas, supra, 30 Cal.App.5th 1157, defendant contends in supplemental briefing that imposing a $440 court operations assessment (§ 1465.8) and a $330 criminal conviction assessment (Gov. Code, § 70373) without first determining his ability to pay the assessments violates due process. The People disagree, arguing defendant forfeited these claims by failing to raise them below, and that they are nevertheless meritless because the record does not establish defendant's inability to pay, nor is there any evidence concerning consequences arising from an ability to pay.
We join several other courts in concluding that Dueñas was wrongly decided. (See People v. Hicks (2019) 40 Cal.App.5th 320, 325-327, rev. granted Nov. 26, 2019, S258946 (Hicks) [holding that, contrary to Dueñas, due process precludes a court from imposing fines and assessments only if to do so would deny the defendant access to the courts or result in the defendant's incarceration]; see also People v. Kingston (2019) 41 Cal.App.5th 272, 279-280 [following Hicks] and see People v. Caceres (2019) 39 Cal.App.5th 917, 926-927 [concluding "the due process analysis in Dueñas does not justify extending its holding beyond" the "extreme facts" presented in that case].)
We agree with the reasoning in Hicks and adopt it as our own. (See Hicks, supra, 40 Cal.App.5th at pp. 326-328, rev. granted [noting that Dueñas goes beyond and is inconsistent with the due process cases it relies on].) Having done so, we reject defendant's Dueñas challenge to the above referenced assessments. Since we decline to follow Dueñas, we need not determine whether defendant's claims regarding the assessments are forfeited.
DISPOSITION
The matter is remanded for the trial court to consider, in a manner consistent with this opinion, defendant's ability to pay the restitution fine. In all other respects, the judgment is affirmed.
/s/_________
BLEASE, J. I concur: /s/_________
RAYE, P. J. MAURO, J., Concurring and Dissenting.
I fully concur in the majority opinion except for part II of the Discussion, pertaining to the $440 court operations assessment and the $330 criminal conviction assessment, as to which I dissent.
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, on remand I would give the trial court an opportunity to consider defendant's ability to pay the assessments.
/s/_________
MAURO, J.