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People v. Coffer

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado)
Jan 29, 2020
C088276 (Cal. Ct. App. Jan. 29, 2020)

Opinion

C088276

01-29-2020

THE PEOPLE, Plaintiff and Respondent, v. SHANTARAHA DAWN COFFER, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. P16CRF0293)

Appointed counsel for defendant Shantaraha Dawn Coffer asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Based on our review of the record and the supplemental briefing from the parties, we will remand the matter to permit the trial court to determine defendant's ability to pay the imposed fines, fees and assessments, but we will otherwise affirm the judgment.

I

An information charged defendant with mayhem (count 1) and assault by means of force likely to produce great bodily injury (count 2). As to both counts, the information alleged that defendant inflicted great bodily injury.

The trial evidence, viewed most favorably to the verdict, showed that on August 8, 2016, defendant threw a pot of boiling water onto the victim, Tanya N., against whom defendant had a preexisting grudge. The boiling water burned the victim's upper chest and neck area, requiring 24 hours of hospitalization and follow-up treatment by specialists, and permanently discolored the victim's skin.

A jury acquitted defendant on the count 1 charge of mayhem, but convicted her on count 2 charge of assault by means of force likely to produce great bodily injury and found true the great bodily injury allegation on that count. The trial court placed her on probation for five years with various terms and conditions, including that she serve one year in county jail. The trial court also ordered defendant to pay various fines, fees, assessments, and costs, including a $300 restitution fine (Pen. Code, § 1202.4), a $300 probation revocation fine (Pen. Code, § 1202.44), a $60 administrative fee (Pen. Code, § 1205), a $30 critical needs assessment (Gov. Code, § 70373), a $40 court operations assessment (Pen. Code, § 1465.8), and $109.50 for the probation report (Pen. Code, § 1203.1). The record does not indicate that the trial court determined defendant's ability to pay the imposed fines, fees and assessments.

II

Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing the opening brief. More than 30 days elapsed and we received no communication from defendant.

We requested supplemental briefing from the parties because the fines, fees and assessments imposed potentially raise the issue addressed in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). There, the court held it was improper to impose a restitution fine and court operations and facilities assessments without first determining the 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.

The People argue, among other things, that this appeal should be dismissed because defendant failed to seek relief from the fines and fees in the trial court as required by Penal Code section 1237.2. That section 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." (Ibid.)

We decline to dismiss the appeal because we raised the Dueñas issue as part of our Wende review. Moreover, unlike in People v. Jordan (2018) 21 Cal.App.5th 1136, 1142-1144, judicial economy would not be served by dismissing the appeal after our Wende review has been completed.

Having undertaken an examination of the entire record and having reviewed the supplemental briefing, we will remand the matter to permit the trial court to determine defendant's ability to pay the imposed fines, fees and assessments. Finding no other arguable error that would result in a disposition more favorable to defendant, we will otherwise affirm the judgment.

DISPOSITION

The matter is remanded to permit the trial court to determine defendant's ability to pay the imposed fines, fees and assessments. The judgment is otherwise affirmed.

/S/_________

MAURO, J. I concur: /S/_________
ROBIE, Acting P. J. RENNER, J., Concurring and Dissenting.

I concur in the majority opinion except for part II, from which I respectfully dissent. I disagree with the conclusion that a limited remand is appropriate under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), to permit a hearing on defendant's ability to pay.

I agree with those authorities that have concluded that due process does not require the trial court to conduct a hearing and conclude that the defendant has the present ability to pay before imposing the assessments and restitution fines at issue here and in Dueñas. (People v. Hicks (2019) 40 Cal.App.5th 320, 327-329, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v. Caceres (2019) 39 Cal.App.5th 917, 928.) Further, "the fundamental policy question presented in Dueñas is a nettlesome one—namely, under what circumstance is it appropriate to require criminal defendants, many of whom are people of little or no means, to pay assessments that help defray the costs of operating the court system and restitution fines that pour into a statewide fund that helps crime victims?" (People v. Hicks, supra, at p. 329.) This "is a question to which . . . the federal and California Constitutions do not speak and thus have left to our Legislature." (Ibid.) The question has yet to be resolved. (See Governor's veto message to Sen. on Assem. Bill No. 927 (Oct. 9, 2019) (2019-2020 Reg. Sess.).) We should not grant remand to allow a hearing on these issues while the fees in this case are not subject to reduction based on the defendant's ability to pay.

/S/_________

RENNER, J.


Summaries of

People v. Coffer

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado)
Jan 29, 2020
C088276 (Cal. Ct. App. Jan. 29, 2020)
Case details for

People v. Coffer

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. SHANTARAHA DAWN COFFER, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado)

Date published: Jan 29, 2020

Citations

C088276 (Cal. Ct. App. Jan. 29, 2020)