Opinion
2d Crim. No. B294973
06-03-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERT DAVID COX, Defendant and Appellant.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, William H. Shin, and Peggy Z. Huang, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 2017033945)
(Ventura County)
Robert David Cox appeals the judgment entered after he pleaded no contest to unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) and misdemeanor driving under the influence (id., § 23152, subd. (f)). Appellant also admitted a prior strike conviction (Pen, Code, §§ 667, 1170.12) and a prior prison term (§ 667.5, subd. (b)). Pursuant to a negotiated disposition, the trial court sentenced appellant to one year and four months in state prison and ordered that the sentence run consecutively to the nine-year sentence previously imposed in Los Angeles County Superior Court case number LA0486320. The prior prison term enhancement was dismissed pursuant to section 1385. Appellant was also ordered to pay fines, assessments and fees including a $60 criminal conviction assessment (Gov. Code, § 70373), an $80 court operations assessment (§ 1465.8), a $450 restitution fine (§ 1202.4, subd. (b)), and a stayed $450 parole revocation fine (§ 1202.45). Appellant contends the court erred in imposing the criminal conviction and court operations assessments and the $450 restitution and parole revocation fines without first determining his ability to pay those assessments and fines, as contemplated in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTS AND PROCEDURAL HISTORY
Because appellant pleaded no contest prior to a preliminary hearing, the relevant facts are derived from the probation report. On the afternoon of August 24, 2018, police officers detained and arrested appellant after he was observed driving, parking, and exiting a recently-stolen vehicle. Immediately prior to his detention, he was also observed drinking from a bottle of vodka. He was searched incident to his arrest and found to be in possession of a glass smoking device and a small amount of marijuana. Appellant also displayed symptoms of being under the influence of a stimulant. He eventually provided a breath sample, which revealed that he had a .034 blood alcohol content. A sample of his blood subsequently tested positive for methamphetamine and cannabinoids.
While the appeal was pending, appellant filed a motion in the trial court to vacate the challenged fines and assessments pursuant to section 1237.2. Appellant contended that under Dueñas, the court violated his due process rights by imposing the fines and assessments without first determining his ability to pay them. The trial court denied the motion after finding that appellant had forfeited the issue by failing to raise it at sentencing. The court further found that Dueñas was factually inapposite and that in any event appellant would have the ability to pay the fines and assessments by earning prison wages during his lengthy incarceration.
Section 1237.2 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."
DISCUSSION
In his sole contention on appeal, appellant claims the trial court erred in denying his Dueñas claim. We disagree.
In Dueñas, the court concluded 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 court facilities and court operations assessments under . . . section 1465.8 and Government Code section 70373." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The court also concluded that "although . . . section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Ibid.)
With respect to appellant's $450 restitution fine and corresponding parole revocation fine, the trial court had the authority, even before Dueñas, to "consider[ ]" the defendant's "[i]nability to pay" whenever it "increase[ed] the amount of the restitution fine" in excess of the $300 minimum. (§ 1202.4, subds. (b)(1), (c).) When a statute mandates a fine but requires the court to consider the defendant's ability to pay, the burden is on the defendant to object or demand a hearing to determine the ability to pay. (People v. McMahan (1992) 3 Cal.App.4th 740, 749-750.) At sentencing, appellant did not object or demand a hearing regarding his ability to pay the restitution fine, so he forfeited his right to challenge those fines on appeal. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154.) Because appellant failed to object to the $450 restitution fine by asserting an inability to pay, he also cannot be heard to complain that the court failed to consider his ability to pay the $60 criminal conviction assessment and $80 court operations assessment. (See People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.)
In any event, "Dueñas is distinguishable. That case involved a homeless probationer, Velia Dueñas, who suffered from cerebral palsy and was unable to work. [Citation.]" (People v. Johnson (2019) 35 Cal.App.5th 134, 138.) Appellant, who was sentenced to prison, "is not similarly situated to the misdemeanor probationer in Dueñas. He was ordered to pay mandatory fees and a fine under the same constellation of statutes that were at issue in Dueñas, but there the similarity ends." (Id. at p. 139.) As the trial court noted, appellant will have the ability to earn wages while in prison. Any due process violation arising from the court's failure to consider appellant's ability to pay the court security fee and criminal conviction assessment was thus harmless beyond a reasonable doubt. (Id. at pp. 139-140 citing Chapman v. California (1967) 386 U.S. 18, 24 .)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
YEGAN, Acting P.J.
TANGEMAN, J.
Ferdinand Inumerable, Judge
Superior Court County of Ventura
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, William H. Shin, and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.