Opinion
C087423
04-28-2020
THE PEOPLE, Plaintiff and Respondent, v. ORRIN TYLER COLBOURN, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CF00368)
A jury found defendant Orrin Tyler Colbourn guilty of carrying a concealed dirk or dagger (Pen. Code, § 21310) and the trial court found true four prior prison term enhancement allegations (§ 667.5, subd. (b)). The court imposed the upper term of three years, purported to stay one of the prior prison term enhancements, and imposed a one-year term as to each of remaining three. The court also imposed a $300 restitution fine (§ 1202.4, subd. (b)), a $40 court operations fee (§ 1465.8, subd. (a)), and a $30 conviction assessment (Gov. Code, § 70373).
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court abused its discretion and violated his due process rights by imposing the fine and fees without determining his ability to pay. In supplemental briefing, the parties agree that the enhancements imposed pursuant to section 667.5, subdivision (b) must be stricken because of recently adopted legislation. We modify the judgment to strike the enhancements for defendant's prison priors. In all other respects, we affirm the judgment.
Defendant asks us to take judicial notice under Evidence Code section 452 of a number of postjudgment motions and proceedings regarding defendant seeking a recall of his sentence and imposition of mandatory supervision. These issues were the subject of a separate appeal in which we have issued an opinion, People v. Colbourn (Dec. 30, 2019, C088433) [nonpub. opn.]. We deny the request for judicial notice. The postjudgment proceedings are not relevant to our evaluation of the issues raised in this appeal. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1135, fn. 1 [material to be judicially noticed must be relevant].) --------
DISCUSSION
I
Ability to Pay
We omit any discussion of the underlying facts of this case, as these facts are not relevant to defendant's contentions or to our determination of the merits thereof. It suffices to say that defendant relies on People v. Dueñas (2019) 30 Cal.App.5th 1157 to challenge the imposition of the minimum restitution fine and two mandatory fees, detailed in our introduction above, that were reduced at sentencing from the recommendation of the probation report after defendant raised his ability to pay at sentencing.
Defendant challenges the restitution fine and mandatory fees, arguing they must be reversed on appeal pending an ability to pay hearing. The People argue defendant's claim is forfeited, his claim regarding the restitution fine should be evaluated under the excessive fines clause and fails under that clause, and the court operations and facilities fees do not implicate due process.
We agree with defendant that the Dueñas claim is not forfeited. Defendant raised his inability to pay at sentencing, and an objection based on the due process argument accepted in Dueñas would be "based on a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial," and the failure to object on that basis is not forfeiture. (People v. Castellano (2019) 33 Cal.App.5th 485, 489; contra, People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 ; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154-1155.) Thus, we reach the merits of the due process claims.
The Dueñas court held that due process prohibits a trial court from imposing court assessments under Penal Code section 1465.8 and Government Code section 70373, and requires the trial court to stay execution of any restitution fines unless it ascertains by hearing the defendant's ability to pay those assessments and fines. (People v. Dueñas, supra, 30 Cal.App.5th at p. 1164.) To support this conclusion, Dueñas relied on two lines of due process precedent. First, it cited authorities addressing access to courts and waiving court costs for indigent civil litigants. Second, it relied on due process and equal protection authorities that prohibit incarceration based on a defendant's indigence and inability to pay a fine or fee. (Id. at pp. 1165-1166, 1168.) The court also concluded that imposing costs on indigent defendants "blamelessly" unable to pay them transformed a "funding mechanism for the courts into additional punishment." (Id. at p. 1168.)
People v. Hicks (2019) 40 Cal.App.5th 320, review granted November 26, 2019, S258946 (Hicks) rejected the reasoning of Dueñas, under both lines of due process authority. Hicks observed that imposition of fees after a determination of guilt does not deny a criminal defendant's access to the courts and does not interfere with a defendant's right to present a defense or challenge a trial court's rulings on appeal. (Id. at p. 326.) Further, imposition of fees, without more, does not result in incarceration for nonpayment of fines and fees due to indigence; thus, it does not infringe on a fundamental liberty interest. (Ibid.)
We find the reasoning in Hicks sounder and more persuasive than Dueñas. Accordingly, we conclude the imposition of fines, fees, and assessments on an indigent defendant without consideration of ability to pay does not violate due process and there is no requirement the trial court conduct an ability to pay hearing prior to imposing these fines, fees, and assessments.
II
Senate Bill No. 136
In supplemental briefing, defendant contends the three one-year prior prison term enhancements imposed pursuant to section 667.5, subdivision (b) must be stricken pursuant to the amendment to section 667.5, subdivision (b) by Senate Bill No. 136 (2019-2020 Reg. Sess.). The People concede the issue and commendably note that the fourth enhancement was incorrectly stayed and should now also be stricken. We agree with the parties.
Signed by the Governor on October 8, 2019, and effective January 1, 2020, Senate Bill No. 136 amends section 667.5, subdivision (b) to eliminate the one-year prior prison term enhancement for most prior convictions with exceptions not relevant here. (Stats. 2019, ch. 590, § 1.)
Because Senate Bill No. 136 became effective before defendant's judgment becomes final, we agree with the parties that the amended law will apply to him retroactively. (See In re Estrada (1965) 63 Cal.2d 740, 744-745 [absent evidence of contrary legislative intent, ameliorative criminal statutes apply to all cases not final when statute takes effect].) Accordingly, all of defendant's section 667.5, subdivision (b) enhancements must be stricken.
Because the trial court imposed the maximum term on the only count of conviction, we need not remand but instead shall modify the judgment to strike defendant's one-year prior prison enhancements.
DISPOSITION
We modify the judgment to strike defendant's section 667.5, subdivision (b) enhancements. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgement and provide a certified copy to the Department of Corrections and Rehabilitation.
/s/_________
Duarte, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Hoch, J.