Opinion
C087128
06-26-2020
THE PEOPLE, Plaintiff and Respondent, v. MARK ANTHONY ELDER, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 62-147526B)
Defendant Mark Anthony Elder appeals a judgment entered following a jury's finding him guilty of two counts of grand theft in excess of $950 (Pen. Code, § 487, subd. (a); counts one & three), one count of unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); count two), and the trial court's determination as to all counts that defendant had sustained two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Defendant contends the trial court abused its discretion in denying his request to strike a prior strike under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). He also argues the trial court erred when it imposed certain fines and fees without first determining his ability to pay them or alternatively that his counsel was ineffective for failing to object that he was unable to pay.
Undesignated statutory references are to the Penal Code.
We affirm the judgment.
I. BACKGROUND
The People's first amended felony complaint charged defendant with two counts of grand theft in excess of $950 for allegedly taking a forklift and walnut logs. (§ 487, subd. (a); counts one & three). It also alleged defendant unlawfully drove and/or took the forklift (Veh. Code, § 10851, subd. (a); count two). Finally, the complaint alleged as to all counts that defendant had suffered two prior serious or violent felony convictions for burglary (§ 459) occurring on or about January 3, 1986. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
A jury found defendant guilty on all counts and, at a bifurcated trial, the superior court determined the prior conviction allegations were true. Thereafter, defendant filed an invitation seeking dismissal of at least one of his prior strikes, which the People opposed. The trial court denied this request following a lengthy recitation of the court's reasoning for determining that defendant did not fall outside of the spirit of the three strikes law. We will not recount here the court's rationale, aside from noting that it was a thoughtful, thorough, and well-reasoned analysis.
At the same hearing, the court denied probation and sentenced defendant to an aggregate prison term of seven years four months. The court imposed the upper term of three years doubled to six years for count one; one-third the mid-term, doubled to four years for count two, which the court stayed pursuant to section 654; and one-third the mid-term for count three, doubled to 16 months for count three. Defendant was awarded 23 actual and 22 conduct credits for a total of 45 days custody credit.
The court also awarded restitution to the two victims in the amounts of $15,000 and $660, respectively. It further ordered defendant pay the following fines and fees: a presentence investigation fee of $350 (§ 1203.1b), three $40 court operations assessments (§ 1465.8), three $30 conviction assessments (Gov. Code, § 70373), a $553 booking fee (Gov. Code, § 29550.2), a $172 incarceration fee (§ 1203.1c), a restitution fine of $4,200 (§ 1202.4, subd. (b)), and a suspended parole revocation restitution fine of $4,200 (§ 1202.45). Defendant objected to the amount of the two restitution fines, but did not articulate the basis for that objection.
Defendant timely appealed.
II. DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Refusing to Strike a Strike
Defendant contends the trial court abused its discretion in denying his Romero motion for failure to adequately consider the impact of his substance abuse and health issues. We disagree.
The trial court has wide discretion in determining whether to strike a strike under Romero and must decide "whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [three strikes] scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) We review the decision to deny a motion to dismiss a prior strike for an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 371, 375 (Carmony).)
As our high court explained in Carmony, "In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' [Citations.] Second, a ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " ' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Carmony, supra, 33 Cal.4th at pp. 376-377.)
We are also mindful that "the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [¶] In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not 'aware of its discretion' to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation]. Moreover, 'the sentencing norms [established by the Three Strikes law, may, as a matter of law,] produce[] an "arbitrary, capricious or patently absurd" result' under the specific facts of a particular case." (Carmony, supra, 33 Cal.4th at p. 378.)
As defendant concedes, the trial court below engaged in a thoughtful analysis prior to denying defendant's request to strike at least one of his prior strikes. Defendant has not shown the lower court considered impermissible factors or exercised its discretion in a way that was irrational, arbitrary, or capricious. (Carmony, supra, 33 Cal.4th at p. 378.) Rather, his arguments request that we second guess the lower court's reasoned determination that defendant did not fall outside of the spirit of the three strikes law because he feels greater emphasis should have been given to his substance abuse problems and health issues. This we cannot do. (Id. at pp. 376-378.) Accordingly, defendant's claim fails. B. The Trial Court Did Not Err in Failing to Hold an Ability to Pay Hearing
Defendant argues the trial court violated his constitutional rights as articulated in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), when it imposed certain fines and fees without first determining his ability to pay them. While we note defendant was entitled to and failed to object to the imposition of a restitution fine well in excess of the statutory minimum (§ 1202.4, subds. (c), (d)), arguably forfeiting his inability to pay arguments, we will nevertheless address the merits of these arguments given his ineffective assistance of counsel claim. Having done so, we join the growing group of courts finding that Dueñas was wrongly decided.
In Dueñas, an unemployed mother with cerebral palsy surviving on public assistance lost her driver's license because she was unable to pay $1,088 assessed against her for three juvenile citations. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) Thereafter she received multiple convictions related to driving with a suspended license, each accompanied by jail time and additional fees that she could not pay. (Id. at p. 1161.) After a fourth conviction of driving with a suspended license, the court placed Dueñas on probation and ordered her to pay mandatory fines and assessments under sections 1465.8, 1202.4, and Government Code section 70373. (Dueñas, at p. 1162.) Dueñas asked the trial court to hold a hearing to determine her ability to pay those costs. (Id. at pp. 1161-1163.) Despite Dueñas's uncontested declaration establishing her indigence, the trial court ruled that the assessments were mandatory and that Dueñas had not shown " 'compelling and extraordinary reasons' " to waive the restitution fine. (Id. at p. 1163.)
The Court of Appeal reversed, holding that due process requires the trial court to ascertain a defendant's present ability to pay before imposing the court assessments and fines. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) In support of its due process rationale, the court analogized the assessments imposed on Dueñas to court fees imposed on civil litigants, which indigents are not required to pay. (Id. at pp. 1165-1166.) The court further reasoned that, although the Legislature did not intend the assessments to be punitive, imposing unpayable assessments has "devastating consequences" on indigent defendants by subjecting them to a civil judgment for nonpayment and the associated consequences that flow therefrom. (Id. at p. 1168.) These additional consequences suffered only by indigent persons in effect transform the assessments into "additional punishment" based solely on the defendant's inability to pay, which the court found to be "fundamentally unfair." (Ibid.)
As for the restitution fine, the court held that it too requires an ability to pay determination. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) Although restitution fines are intended to be additional punishment, the court held that such fines, when imposed on a probationer, punish indigent defendants in a way they do not punish wealthy defendants, namely, by limiting their rights to mandatory expungement under section 1203.4, subdivision (a)(1). (Dueñas, at pp. 1170-1171.) The court noted that probationers who pay their fines are entitled to have their charges dismissed under section 1203.4, subdivision (a)(1), whereas defendants who cannot pay, "[a]t best, . . . can try to persuade a trial court to exercise its discretion to grant them relief . . . ." (Dueñas, at pp. 1170-1171.) This too, the court held, is " 'fundamentally unfair.' " (Id. at p. 1171.)
Reactions to Dueñas have been mixed. Although some courts have followed its reasoning, others have strictly limited it to its facts or simply found that it was wrongly decided. Having reviewed these opinions, we agree with those opinions that have disagreed with Dueñas and therefore declined to follow it. (See, e.g., People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1068 (Aviles); People v. Hicks (2019) 40 Cal.App.5th 320, 322, rev. granted Nov. 26, 2019, S258946 (Hicks); People v. Caceres (2019) 39 Cal.App.5th 917, 926-929; see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1034-1041 (conc. opn. of Benke, J.) (Gutierrez); People v. Santos (2019) 38 Cal.App.5th 923, 935-940 (dis. opn. of Elia, J.) (Santos).)
We first observe that the facts in this case bear no similarity to the unique factual circumstances in Dueñas. Dueñas faced hardship because she was caught in a cycle of repeated criminal violations stemming from the loss of her driver's license. (Dueñas, supra, 30 Cal.App.5th at pp. 1161-1162.) Her license was suspended because she was too poor to pay her juvenile citations. She then continued to offend because the escalating assessments and fines prevented her from recovering her license. (Ibid.) On these facts, the court concluded that Dueñas was being punished solely because of her poverty. (Id. at pp. 1163, 1166-1167, 1171.)
We note that legislation enacted in 2017 ended the practice of suspending driver's licenses for failure to pay fines and fees. (See Stats. 2017, ch. 17, § 53 (Assem. Bill No. 103 (2017-2018 Reg. Sess.)), eff. June 27, 2017.) We further note that the legislative and executive branches of state government are focused on the fairness issues raised in Dueñas and appear committed to finding a solution. (<https://www.gov.ca.gov/wp-content/uploads/2019/10/AB-927-Veto-Message-2019.pdf> [as of June 23, 2020], archived at <https://perma.cc/BSQ2-Z7PH>.) --------
There is no similar harm to defendant here. Defendant is suffering fines and assessments for convictions of two counts of grand theft in excess of $950 and one count of unlawful driving/taking of a vehicle. Even if defendant does not pay the assessments and fines imposed by the trial court, he will suffer none of the "cascading consequences" faced by Dueñas. (People v. Caceres, supra, 39 Cal.App.5th at pp. 928-929; Dueñas, supra, 30 Cal.App.5th at p. 1163.)
In any event, we do not find the reasoning of Dueñas persuasive. We agree with the courts in Hicks and Aviles, and the concurring and dissenting opinions in Gutierrez and Santos, that the Dueñas approach is fundamentally flawed in concluding that the due process doctrine of "fundamental fairness" requires courts to conduct a preassessment ability to pay determination before imposing fines and fees on a criminal defendant. (Aviles, supra, 39 Cal.App.5th at pp. 1067-1068; Hicks, supra, 40 Cal.App.5th at pp. 326-327, rev. granted; Gutierrez, supra, 35 Cal.App.5th at pp. 1034-1041 (conc. opn. of Benke, J.); Santos, supra, 38 Cal.App.5th 923, 935-940 (dis. opn. of Elia, J.).) Whether or not it is fundamentally unfair in a constitutional sense for a state to deprive a person of a driver's license because of that person's inability to pay a fine or fee, we are not persuaded that the mere potential an indigent defendant might be unable to pay a debt (and therefore suffer associated collection practices) rises to the level of a due process violation, especially where the defendant has not yet failed to pay or suffered any sanctions for doing so.
DISPOSITION
The judgment is affirmed.
/s/_________
BLEASE, Acting P. J. We concur: /s/_________
BUTZ, J. /s/_________
HOCH, J.