Opinion
H046352
04-29-2021
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM LOUIS DELACRUZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. 17CR006277)
The trial court suspended execution of a prison sentence and placed defendant on formal probation after a jury found him guilty of evading an officer while driving recklessly and other offenses. Defendant argues that the court unlawfully imposed fines and fees without determining his ability to pay contrary to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), and that the probation condition authorizing flash incarceration is unlawful because it was imposed without him waiving a probation violation hearing at the time of sentencing under Penal Code section 1203.35. He also argues a one-year enhancement for a prior prison term must be stricken in light of statutory amendments to the Penal Code. In a letter recently filed in this court, defendant informs us that the trial court reduced his probation from three years to two years under new sentencing laws, and his probation has now expired.
Because defendant did not challenge the ability to pay in the trial court, he has forfeited his argument as to fines and fees. Although the flash incarceration issue is moot because defendant is no longer on probation, we will exercise our discretion to address the issue to emphasize that a waiver is required by statute to implement that probation condition. We will modify the judgment to strike the prior prison term enhancement and affirm the judgment as modified.
I. BACKGROUND
Defendant fled from a patrol officer during an attempted traffic enforcement stop. The officer activated his lights and siren to stop defendant's vehicle, but defendant failed to pull over. Instead, he sped through traffic, turned into a residential area, abandoned his car, and fled on foot. The patrol officer located the vehicle, other officers secured the area, and defendant eventually surrendered himself at the scene. Defendant was charged with evading a police officer while driving recklessly (Veh. Code, § 2800.2, subd. (a); count 1), evading an officer against traffic (Veh. Code, § 2800.4; count 2), misdemeanor resisting an officer (Pen. Code, § 148, subd. (a)(1); count 3), and misdemeanor driving without a license (Veh. Code, § 12500, subd. (a)). A jury found defendant guilty on all counts, and the trial court found true that defendant has served a prior prison term within the meaning of former subdivision (b) of Penal Code section 667.5.
The court sentenced defendant to four years in prison. Execution of sentence was suspended, and defendant was placed on three years' formal probation. Among the conditions of probation, defendant was ordered to serve 364 days in county jail and be subject to flash incarceration. Following the probation department's recommendation, the court imposed a $900 restitution fine (Pen. Code, § 1202.4, subd. (b)); a suspended $900 revocation fine (Pen. Code, § 1202.44); a $160 court operations assessment (Pen. Code, § 1465.8, subd. (a)(1)); a $120 court facilities assessment (Gov. Code, § 70373); and a $12 emergency medical air transportation fee (Gov. Code, § 76000.10). Defendant was ordered to pay an $864 probation report fee and $81 in monthly probation supervision fees according to his ability to pay as determined by the probation department. He was ordered to pay a criminal justice administration fee for costs associated with his arrest and booking (Gov. Code, §§ 29550.1, 29550.2), if and as directed by the arresting agency and according to his ability to pay.
Defendant was sentenced on counts 1 and 2 to four years (the upper term of three years plus an additional one year for the prior prison term), with the sentence for count 2 stayed pursuant to Penal Code section 654; one year on count 3; and 180 days on count 4, with the two misdemeanor sentences to be served concurrent to count 1. --------
II. DISCUSSION
A. ABILITY TO PAY FINES AND FEES
Defendant contends the trial court violated his federal constitutional right to due process by imposing fines and fees without determining that he would be able to pay them. He relies on Dueñas, decided after his sentencing, which held that imposing fines on an indigent defendant violates the due process clause of the state and federal constitutions. (Dueñas, supra, 30 Cal.App.5th at p. 1167.) Respondent does not object to a remand for defendant to request a hearing and present evidence demonstrating his inability to pay.
Numerous decisions have rejected Dueñas. (See, e.g., People v. Petri (2020) 45 Cal.App.5th 82, 90; People v. Adams (2020) 44 Cal.App.5th 828, 832; People v. Kingston (2019) 41 Cal.App.5th 272, 279; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v. Allen (2019) 41 Cal.App.5th 312, 326; People v. Hicks (2019) 40 Cal.App.5th 320, 329, rev. granted Nov. 26, 2019, S258946.) The facts here do not require us to address whether Dueñas was correctly decided, nor are we required to adopt respondent's view that a remand is appropriate for the trial court to determine defendant's ability to pay fines and fees. (People v. Kim (2011) 193 Cal.App.4th 836, 847 [courts need not accept a party's concession].)
The probation fees defendant complains of are already subject to an ability to pay determination by the probation department, and defendant has the right to a hearing regarding that determination. (Monterey County Code, ch. 2.93, § 2.93.050.) Courts have held that where, as here, the defendant forfeited an ability-to-pay objection to a large restitution fine by failing to object in the trial court, it may also be concluded that the defendant forfeited ability-to-pay objections to other, smaller amounts imposed, such as the court operations assessment and the court facilities assessment. (People v. Montelongo (2020) 55 Cal.App.5th 1016, 1034; People v. Torres (2019) 39 Cal.App.5th 849, 860; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154.) A trial court must impose at least the minimum restitution fine, absent "compelling and extraordinary reasons" which may not include a defendant's inability to pay. (Pen. Code, § 1202.4, subds. (b), (c).) But in setting the amount of the restitution fine above the $300 statutory minimum, a trial court must consider a defendant's inability to pay. (Pen Code, § 1202.4, subd. (d).) The probation report the trial court reviewed for sentencing proposed that defendant would be "capable of attaining employment and should be held accountable for fines and fees imposed by the Court." Counsel stated that he and defendant had reviewed the report, and defendant did not object to the probation department's assessment of his ability to pay, or to the fines and fees set out in the report.
Penal Code section 1202.4, subdivision (d) provides a basis to assert the inability to pay a restitution fine exceeding the statutory minimum. Defendant did not do so, and he did not challenge the probation department's determination that he was capable of paying the recommended fines and fees. He has therefore forfeited an appellate challenge to the imposition of fines and fees based on inability to pay. (See People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.)
Defendant argues that remand is nonetheless required because Dueñas had not yet been decided when he was sentenced, so defense counsel was unaware of a constitutional basis supplied by that case for objecting to the other fines and fees. While the question of ability to pay has taken on new significance in light of the Dueñas decision, that does not excuse defendant from raising the issue in the trial court under Penal Code section 1202.4. To the extent defendant disagreed with or objected to the probation department's assessment that he was capable of paying fines and fees, he was obligated to bring that to the court's attention when it imposed a fine three times the statutory minimum.
We also reject defendant's argument that trial counsel rendered ineffective assistance by failing to raise his ability to pay in the trial court. The prosecutor urged the court to sentence defendant to three years in state prison in light of his criminal history and the danger he posed to others with his aggressive and reckless driving. After his attorney argued for a grant of probation, defendant personally addressed the court. He impressed that he had made a bad decision, asked for another chance, and assured the court that he "will be gainfully employed and become a productive citizen in society." Given defendant's express commitment to gainful employment, he fails to show any deficiency in counsel not taking an arguable inconsistent position on defendant's ability to pay. (Strickland v. Washington (1984) 466 U.S. 668, 687 [ineffective assistance requires a showing that counsel's performance was deficient, and the defendant was prejudiced by the deficiency].)
B. FLASH INCARCERATION
Penal Code section 1203.35 authorizes a probation department to detain a probationer in county jail for up to 10 days without a court hearing "for any violation of the conditions of probation ... if, at the time of granting probation ..., the court obtains from the defendant a waiver to a court hearing prior to the imposition of a period of flash incarceration." (Pen. Code, § 1203.35, subds. (a)(1), (b).) Flash incarceration is intended as a "swifter, but milder and less disabling sanction than a return to court with its potential" for an extended period of confinement. (People v. Superior Court (Ward) (2014) 232 Cal.App.4th 345, 353.) The sanction also serves "to relieve the courts of the burden of having to adjudicate and punish minor violations." (Id.) The court may not deny probation if the defendant refuses to sign the waiver. (Pen. Code, § 1203.35, subd. (a)(1).)
Defendant argues the flash incarceration condition was unauthorized because the trial court did not obtain his waiver before imposing the condition, as required by the statute. Although defendant's release from probation renders the issue moot (People v. Pipkin (2018) 27 Cal.App.5th 1146, 1150), we will exercise our discretion to address the issue to provide guidance to the trial court. (See People v. Cheek (2001) 25 Cal.4th 894, 898.) We agree defendant did not expressly waive his right to a court hearing as required by Penal Code section 1203.35. Nor was there an implicit waiver based on defendant's acceptance of the probation conditions at his sentencing, given that the probation report, which defendant reviewed with his attorney before judgment was pronounced, did not include the waiver provision. The report described flash incarceration as: "You must accept a period of up to 10 days of Flash Incarceration imposed by the probation officer for any violation of the conditions of probation. If you do not agree to accept a recommended period of Flash Incarceration, the probation officer is authorized" [sic]. That description was not only incomplete, it incorrectly described the procedure as mandatory.
Given that flash incarceration is less severe than returning to court for a probation revocation hearing where defendant would have been exposed to execution of a suspended prison term, we agree with respondent that the appropriate remedy (were defendant still on probation) would be to remand the matter to allow defendant to decide whether to waive his hearing rights in order to accept the flash incarceration condition.
C. STATUTORY CHANGES TO PENAL CODE SECTION 667.5
The trial court imposed a one-year prior prison term enhancement under Penal Code section 667.5, former subdivision (b). At the time of sentencing, prior prison term enhancements applied to terms served for all felony convictions. (Pen. Code, § 667.5, former subd. (b).) The Legislature has since limited prior prison term enhancements to prison terms served for sexually violent offenses. (Pen. Code, § 667.5, subd. (b); Stats. 2019, ch. 590, § 1 (S.B. 136) eff. Jan 1, 2020.) The amendment to Penal Code section 667.5, subdivision (b) applies retroactively because it is ameliorative and defendant's judgment was not final before the amendment's effective date. (In re Estrada (1965) 63 Cal.2d 740, 744-748; People v. Lopez (2019) 42 Cal.App.5th 337, 341-342 [Sen. Bill 136 applies retroactively to nonfinal judgments].) We have authority to correct an unauthorized sentence on appeal (People v. Haskin (1992) 4 Cal.App.4th 1434, 1441), and will do so here. We will amend the judgment to strike the one-year prior prison term enhancement.
III. DISPOSITION
The judgment is amended to strike the one-year sentencing enhancement under Penal Code section 667.5, subdivision (b). As modified, the judgment is affirmed. The superior court clerk is directed to enter a new judgment reflecting this modification.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Greenwood, P. J. /s/_________
Bamattre-Manoukian, J.