Opinion
C089367
07-08-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JOHN DONOHUE, JR., 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 62-156306)
After defendant Michael John Donohue, Jr., pleaded no contest to contracting without a license, the trial court sentenced him to two years' informal probation, ordered victim restitution in the amount of $18,907.50, and, over defendant's objection, imposed fees and fines of $150, $40, and $30. On appeal, defendant contends that (1) we must remand for a hearing on defendant's ability to pay the fines and fees and (2) the trial court abused its discretion by concluding that a determination of defendant's ability to pay could be performed by someone other than the trial judge. We will affirm the judgment, but order the clerk of the superior court to correct the minute order on restitution to reflect the actual amount of victim restitution ordered.
BACKGROUND
The underlying facts are largely irrelevant to the issues raised on appeal. Simply put, defendant pleaded no contest to contracting without a license, a misdemeanor. (Bus. & Prof. Code, § 7028, subd. (a).)
The trial court placed defendant on two years' informal probation and, after briefing and a hearing on the victim's economic losses, ordered defendant to pay $18,907.50 in victim restitution pursuant to Penal Code section 1202.4, subdivision (f). The trial court also imposed the following statutorily mandated fines and fees: a minimum restitution fine of $150 (§ 1202.4, subd. (a)); a suspended probation revocation restitution fine of $150 (§ 1202.44); a court operations assessment of $40 (§ 1465.8); and a criminal conviction assessment of $30 (Gov. Code, § 70373). Immediately after the trial court imposed these fines and fees, defense counsel said, "Your Honor, we're objecting to the $150, $40, and $30 pursuant to Dueñas." The trial court responded, "That's noted, thank you."
Undesignated statutory references are to the Penal Code.
Counsel was referring to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), a decision published three months before the April 2019 hearing at which costs were imposed. We discuss the decision below.
After a brief discussion regarding whether the trial exhibits could be returned to the parties, the prosecutor asked the trial court whether defendant was "ordered to report to revenue services to set up restitution." Defense counsel replied: "If it's part of the probation department orders, then there's no need to order [defendant] to go anywhere because it's part of the record. [¶] [Defendant] is destitute, Your Honor. He has no funds. . . ." The prosecutor responded: "That's self-reported. I believe that revenue services would analyze [defendant's] financial situation, make [a] determination as to the appropriate restitution amounts that should be paid."
The trial court explained that it "ha[d] ordered restitution in the appropriate amount and the defendant needs to pay that as part of his probation. And so the defendant is ordered to -- if he can't pay that amount totally, then he's ordered to go to the revenue services department to set up a payment plan . . . ."
Defendant filed a timely notice of appeal.
DISCUSSION
I
Invoking Dueñas, defendant argues that because he "contested the fines," the trial court "violated [his] due process rights" by failing to "hold an ability-to-pay hearing." Anticipating one of the People's arguments, defendant further contends that even under an Eighth Amendment excessive fines clause analysis, we must remand the matter because the trial court did not consider defendant's ability to pay when it imposed the statutorily mandated fines and fees.
Defendant refers generally to equal protection principles in his opening brief, but fails to develop an equal protection claim distinct from his due process claim. Thus, we do not conduct a separate equal protection inquiry. (See Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1226, fn. 10 [declining to consider argument that was "not sufficiently developed, and [was] unsupported by citation of authority"].)
Defendant does not challenge the order of victim restitution.
The People argue that the Eighth Amendment excessive fines clause, not the due process analysis articulated in Dueñas, is the framework within which we should analyze the constitutional propriety of the challenged fines. The People further argue that (1) under the Eighth Amendment framework, the $150 restitution fine was proper; (2) "[e]ven if analyzed under due process principles," the $150 restitution fine was proper; (3) consistent with due process requirements, the trial court did consider defendant's ability to pay the court operations assessment of $40 and the criminal conviction assessment of $30 before imposing those two fines; and (4) any error by the trial court in imposing the assessments without conducting an ability to pay hearing was harmless beyond a reasonable doubt, because there is nothing in the record to indicate that defendant lacked the ability to pay.
We conclude that, because Dueñas was wrongly decided, defendant's ability to pay argument lacks merit. We further conclude that the $150 restitution fine passes muster under the Eighth Amendment's excessive fines clause.
The Attorney General concedes that due process required the trial court to consider defendant's ability to pay the $40 court operations assessment and the $30 criminal conviction assessment. We need not accept a concession with which we disagree. (People v. Hawkins (2012) 211 Cal.App.4th 194, 203 [citing cases for the proposition courts need not accept such concessions].)
A. Due process claim
Dueñas held 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 Dueñas court also held 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." (Dueñas, at p. 1164.)
The Dueñas opinion relies on a line of authorities beginning with Griffin v. Illinois (1956) 351 U.S. 12 , which itself rested on the "constitutional guaranties of due process and equal protection" and struck down a state practice of granting appellate review only to individuals who could afford a trial transcript. (Griffin, at pp. 13, 17; see Dueñas, supra, 30 Cal.App.5th at pp. 1166-1169.) As recent appellate court cases have illustrated, the authorities Dueñas cites involving the right of access to courts are inapplicable because the imposition of the fine and assessments at issue in Dueñas and in this proceeding do not deny defendants access to the courts. (People v. Hicks (2019) 40 Cal.App.5th 320, 326 (Hicks), review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1068-1069 (Aviles); People v. Caceres (2019) 39 Cal.App.5th 917, 927 (Caceres); see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1039 (Gutierrez) (conc. opn. of Benke, J.).) Griffin stated broadly, "There can be no equal justice where the kind of trial a man gets depends on the amount of money he has." (Griffin, at p. 19.) Another line of cases relied upon by Dueñas is related to this "principle of 'equal justice' " and prohibits imprisonment based on the failure to pay criminal penalties where the nonpayment was due to indigence. (Bearden v. Georgia (1983) 461 U.S. 660, 661-662, 664 [76 L.Ed.2d 221, 225-226, 227]; accord, In re Antazo (1970) 3 Cal.3d 100, 103-106, 109-110; see Dueñas, at pp. 1166-1168.)
The fines and assessments at issue in Dueñas and this appeal subject an indigent defendant "only to a civil judgment that she [or he] cannot satisfy." (Dueñas, supra, 30 Cal.App.5th at p. 1167; see also id. at p. 1169.) Thus, the authorities prohibiting incarceration for indigence alone are inapplicable. (Hicks, supra, 40 Cal.App.5th at p. 326, review granted Nov. 26, 2019, S258946; Caceres, supra, 39 Cal.App.5th at p. 927.) Indeed, in In re Antazo, supra, 3 Cal.3d 100, our Supreme Court granted the petition for the writ of habeas corpus only to discharge the petitioner from his imprisonment resulting from his inability to pay the fine and penalty assessment imposed as a condition of probation, but did not relieve him of any obligations in his probation order. (Id. at p. 117.) The court explained, "[W]e do not hold that the imposition upon an indigent offender of a fine and penalty assessment, either as a sentence or as a condition of probation, constitutes of necessity in all instances a violation of the equal protection clause." (Id. at p. 116.) In other words, "Dueñas does more than go beyond [the] foundation[al pillars of due process]; it announces a principle inconsistent with them." (Hicks, at p. 327, review granted Nov. 26, 2019, S258946.)
We join those authorities that have concluded that the principles of due process do not supply a procedure for objecting to the fines and assessments at issue in Dueñas and in this proceeding based on the present ability to pay. (Hicks, supra, 40 Cal.App.5th at p. 329, review granted Nov. 26, 2019, S258946; Aviles, supra, 39 Cal.App.5th at p. 1069; Caceres, supra, 39 Cal.App.5th at p. 928.) To the extent it announced this broad rule, Dueñas was wrongly decided and defendant's claims pursuant thereto are without merit.
B. Excessive Fines Clause
Defendant argues that an ability to pay hearing also was required under the Eighth Amendment. We disagree.
As noted above, defendant challenges only the statutorily mandated fines and fees, not the $18,907.50 in victim restitution ordered by the trial court.
"The Eighth Amendment prohibits the imposition of excessive fines. The word 'fine,' as used in that provision, has been interpreted to be ' "a payment to a sovereign as punishment for some offense." ' [Citation.]" (Gutierrez, supra, 35 Cal.App.5th at p. 1040 (conc. opn. of Benke, J.).) The determination of whether a fine is excessive for purposes of the Eighth Amendment is based on the factors set forth in United States v. Bajakajian (1998) 524 U.S. 321 (Bajakajian). (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 727-728 [applying Eighth Amendment analysis to both defendant's federal and state excessive fines claims].)
" 'The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. [Citations.] . . . [A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense.' (Bajakajian, supra, 524 U.S. at p. 334.)
"The California Supreme Court has summarized the factors in Bajakajian to determine if a fine is excessive in violation of the Eighth Amendment: '(1) the defendant's culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant's ability to pay. [Citations.]' (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at p. 728; see Gutierrez, supra, 35 Cal.App.5th at p. 1040 (conc. opn. of Benke, J.).) While ability to pay may be part of the proportionality analysis, it is not the only factor. (Bajakajian, supra, 524 U.S. at pp. 337-338.)" (Aviles, supra, 39 Cal.App.5th at p. 1070.) We review the excessiveness of a fine challenged under the Eighth Amendment de novo. (Id. at p. 1072.)
Here, we find that the minimum $150 restitution fine imposed for contracting without a license and causing over $18,000 in economic damage to the victim due to "deficient and incomplete" work is not grossly disproportional to the level of harm and defendant's culpability in this matter.
Business and Professions Code section 7028 is part of a statutory regime intended to "protect the public," in part by "impos[ing] strict and harsh penalties for a contractor's failure to maintain proper licensure." (MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, 418; see Bus. & Prof. Code, § 7028, subd. (b) ["A first conviction for the offense described in this section is punishable by a fine not exceeding five thousand dollars ($5,000) or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment"].)
Though the $150 restitution fine was imposed pursuant to section 1202.4, not the Business and Professions Code, the Legislature's desire to protect the public from unlicensed contractors by imposing "strict and harsh penalties"—including imposition of a $5,000 fine for an initial violation of Business and Professions Code section 7028—is certainly relevant to an Eighth Amendment excessive fines analysis. Accordingly, a $150 fine for defendant's offense was not excessive under the Eighth Amendment.
II
Defendant argues that "[t]o the extent the [trial] court believed the discretion to determine [defendant's] ability to pay rested with revenue and recovery and not with the [trial] court," this was an abuse of discretion.
The People respond that the trial court did not improperly delegate its discretion to an administrative agency. Rather, "it makes sense that the [trial] court informed [defendant] that the revenue services [department] would handle any payment issues associated with its order."
We reject the premise of defendant's argument, i.e., that the trial court suggested an ability to pay determination had to be made by anyone. Rather, the record reflects the trial court's understanding that because it had ordered victim restitution "in the appropriate amount," if defendant could not "pay that amount totally," defendant would have to "set up a payment plan" with the "revenue services department." Defendant does not explain how this understanding implicated any of his rights.
III
Finally, the April 17, 2019 minute order on fees, fines, and restitution incorrectly reflects victim restitution in the amount of $18,970.50, rather than $18,907.50. We shall order the clerk of the trial court to correct the minute order to reflect the actual amount ordered by the trial court. (People v. Mitchell (2001) 26 Cal.4th 181, 185 ["Courts may correct clerical errors at any time, and appellate courts . . . that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts"].)
DISPOSITION
The clerk of the superior court is ordered to issue a corrected minute order reflecting the actual amount of victim restitution ordered: $18,907.50. The judgment is affirmed.
KRAUSE, J. We concur: HULL, Acting P. J. DUARTE, J.