Opinion
A153914
06-14-2019
THE PEOPLE, Plaintiff and Respondent, v. LUDIN ESTRADA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. SCN228624)
Defendant Ludin Estrada pleaded guilty to felony possession of cocaine base for sale. (Health & Saf. Code, § 11351.5.) After the trial court suspended sentence and placed him on three years' formal probation with various terms and conditions, Estrada appealed, claiming the trial court failed to determine his ability to pay prior to imposing certain probation costs and a booking fee. Estrada additionally disputes a probation condition prohibiting his knowing possession of dangerous or deadly weapons other than firearms. Finally, via supplemental briefing, Estrada relies on a recent case—People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas)—to assert that the imposition of a mandatory restitution fine and certain mandatory assessments at sentencing violated his due process rights because he is indigent.
We agree the challenged probation condition is not supported by the record and must be modified. We also set aside the trial court's imposition of a booking fee and probation costs and remand for reconsideration in light of the applicable law and Estrada's ability to pay. We further permit Estrada to raise his Dueñas challenge before the trial court. In all other respects, we affirm the judgment.
I. BACKGROUND
In May 2017, Estrada was arrested on the 600 block of Eddy Street in San Francisco for violation of a stay away order generated in connection with a previous narcotics arrest. When Estrada was searched, police officers discovered numerous individually wrapped packages, which, upon testing, proved to be cocaine base weighing 8.5 grams. As a result of this incident, the San Francisco County District Attorney filed a complaint on October 11, 2017, charging Estrada with felony possession of cocaine base for sale (Health & Saf. Code, § 11351.5, count I) and misdemeanor contempt of a court order (Pen. Code, § 166, subd. (a)(4), count II). On January 24, 2018, Estrada pleaded guilty to count I. On February 26, 2018, pursuant to a negotiated disposition, the trial court suspended imposition of sentence and placed Estrada on probation for three years, with certain terms and conditions. This appeal followed. After briefing was completed, we granted Estrada's request to file supplemental briefing to address the decision in Dueñas, supra, 30 Cal.App.5th 1157, filed on January 8, 2019. Both parties submitted supplemental briefs.
Unless otherwise specified, all statutory references are to the Penal Code. All rule references are to the California Rules of Court.
II. DISCUSSION
A. Probation Costs and Booking Fee
Prior to pleading guilty, Estrada was advised in this case that he would be required to pay fines, fees, and assessments not to exceed $10,000, but that some amounts would be "dependent upon his ability to pay and [would] be fully set out at sentencing." Defense counsel indicated Estrada objected to nonmandatory fees on grounds of inability to pay. Neither probation costs nor booking fees were specifically mentioned at the plea hearing. In advance of sentencing, probation recommended a "jail-booking fee of up to $135.00 pursuant to Section 29550.1 of the Government Code." There is no mention in the presentence report regarding reimbursement for probation costs, despite the fact that rule 4.411.5(a)(12) requires a presentence report in a felony matter to include "[a] statement of . . . recommended . . . costs to be assessed against the defendant, including chargeable probation services and . . . findings concerning the defendant's ability to pay."
At sentencing, defense counsel objected to the proposed booking fee on grounds of inability to pay, stating that Estrada had no means of support and had not had regular income since 2015. The trial court appeared to believe the fee was mandatory, but the prosecutor concurred that ability to pay was an issue. Neither attorney provided the court with citation to any authority, however, beyond the name Pacheco. In its oral pronouncement of sentence, the trial court did not specifically mention imposition of a booking fee. Instead, when the court indicated it was imposing a $155 fee on Estrada for preparation of the presentence report and "[u]p to $15 per month" for probation supervision, defense counsel stated she objected to "those as well based on inability to pay or indigency." The court responded that it was going to order them "based on the statute" and then had a colloquy with defense counsel where Pacheco was again mentioned. It is not clear whether the court was discussing the booking fee, probation costs, or both. At the conclusion of the discussion, the court stated: "Okay. Over your objection, they are ordered." The court's minute order with respect to sentencing states that Estrada "shall pay probation costs up to an amount of $50 per month[,] [¶] . . . cost of pre-sentence investigation in the amount of $150 as determined by the probation officer," and "a booking fee in the amount of $135 pursuant to Government Code [section] 29550.2."
This was likely a reference to People v. Pacheco (2010) 187 Cal.App.4th 1392, 1399-1401 (Pacheco) [discussing ability to pay in connection with the imposition of both probation costs and a booking fee], disapproved on other grounds in People v. Trujillo (2015) 60 Cal.4th 850, 858 & fn. 8.)
There are numerous discrepancies between the trial court's oral pronouncement and its written order in this case. " '[W]hen . . . the record is in conflict it will be harmonized if possible." (People v. Smith (1983) 33 Cal.3d 596, 599.) However, "[i]f 'an irreconcilable conflict exists between the transcripts of the court reporter and the court clerk, the modern rule is not automatic deference to the reporter's transcript, but rather adoption of the transcript due more credence under all the surrounding circumstances.' " (In re Malik J. (2015) 240 Cal.App.4th 896, 905; see Smith, at p. 599; In re D.H. (2016) 4 Cal.App.5th 722, 725 (D.H.) [" 'the part of the record that will prevail is the one that should be given greater credence in the circumstances of the case' "].)
Since the court was clear with respect to the imposition of probation costs, we accept here its oral pronouncement that it imposed a $155 fee on Estrada for preparation of the presentence report and "[u]p to $15 per month" for probation supervision. However, the reporter's transcript is ambiguous as to whether the court actually imposed the booking fee recommended by probation when it stated, "Over your objection, they are ordered." (Italics added.) We therefore harmonize the record by concluding that the court minutes correctly memorialize the court's decision to impose the $135 booking fee.
Having clarified the record, we now conclude that imposition of probation costs and a booking fee over defense counsel's objections without holding an ability-to-pay hearing was error. Turning first to probation costs, subdivision (a) of section 1203.1b provides in relevant part that when, as here, a defendant is convicted of an offense and is the subject of a presentence report, "the probation officer, or his or her authorized representative, taking into account any amount that the defendant is ordered to pay in fines, assessments, and restitution, shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of any probation supervision . . . [and] of conducting any presentence investigation and preparing any presentence report made pursuant to Section 1203." The probation officer, or authorized representative, is also charged with determining the manner in which the payments shall be made to the county, again based upon the defendant's ability to pay. (Ibid.) The probation officer, however, must "inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant's ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver." (Ibid.) Finally, where the defendant does not waive the right to a judicial determination, the probation officer "shall refer the matter to the court for the scheduling of a hearing to determine the amount of payment and the manner in which the payments shall be made" and at that time "[t]he court shall order the defendant to pay the reasonable costs if it determines that the defendant has the ability to pay those costs based on the report of the probation officer, or his or her authorized representative." (§ 1203.1b, subd. (b).)
As the Attorney General acknowledges, it appears that none of these statutory requirements were met in this case. There is no evidence in the record that anyone, whether the probation officer or the court, made a determination regarding Estrada's ability to pay the challenged probation costs. The presentence report makes no mention of probation costs, and there is no indication that either the probation officer or the court informed Estrada of his rights under section 1203.1b. In light of defense counsel's repeated objections on grounds of inability to pay, it is clear Estrada did not make a knowing and intelligent waiver of his right to a judicial determination of his ability to pay the costs of a presentence report or probation services before imposition of those costs. Under similar circumstances, our colleagues in Division Two of this district recently confirmed that "the defendant has the right to a determination of his ability to pay the fee before the court may order payment" (People v. Neal (2018) 29 Cal.App.5th 820, 826), and remanded the matter so that the trial court could follow the directives of the statute. (Id. at p. 829; see Pacheco, supra, 187 Cal.App.4th at pp. 1400-1401, 1403-1404; People v. Hall (2002) 103 Cal.App.4th 889, 893-894 [where trial court fails to follow procedures mandated by section 1203.1b, remand is necessary even though "[l]imited information in the record relative to [the defendant's] financial circumstances support[ed] his claim of indigency"]; cf. People v. Flores (2003) 30 Cal.4th 1059, 1063, 1069 [remand is the proper remedy when a court orders a defendant to pay attorney fees under section 987.8 without substantially complying with procedural safeguards enumerated in that section].)
As for booking fees, "[t]hree statutes address defendants' payment of jail booking fees, Government Code sections 29550, 29550.1, and 29550.2. Which section applies to a given defendant depends on which governmental entity has arrested a defendant before transporting him or her to a county jail." (People v. McCullough (2013) 56 Cal.4th 589, 592 (McCullough).) Here, as stated above, probation recommended a booking fee be imposed pursuant to Government Code section 29550.1, while the minute order stated the fee was imposed under Government Code section 29550.2. It appears probation was correct. Government Code section 29550.3, subdivision (a) provides: "A city which books or processes persons to a jail administered by it and which does not otherwise incur an administrative fee from the county, may establish and collect an administrative fee for an arrested person pursuant to the same standards and procedures set forth in Section 29550.1." The City and County of San Francisco elected to establish and collect a booking fee under the "standards and procedures set forth in Section 29550.1 of the Government Code" pursuant to the authority of this statute. (See San Francisco Admin. Code, former § 8.38.)
We need not, however, finally decide the statutory basis for the booking fee in this case. Government Code section 29550.2 requires a finding of ability to pay prior to imposition of a booking fee. (Gov. Code, § 29550.2, subd. (a); McCullough, supra, 56 Cal.4th at pp. 592-593 [under Gov. Code, § 29550.2, the defendant "had the right to a determination of his ability to pay the booking fee before the court ordered payment"].) And, while Government Code section 29550.1 does not, the San Francisco Administrative Code, when adopting the section 29550.1 procedures, additionally required a court determination of ability to pay "[a]t the time the court grants probation" before a booking fee could be imposed. (San Francisco Admin. Code, former § 8.38(c).) Thus, in imposing the booking fee without any consideration of ability to pay in this case, the trial court violated the requirements under either section. As with the probation costs discussed above, we believe the proper remedy in these circumstances is remand to the trial court so that it can properly consider imposition of a booking fee in accordance with applicable law.
Estrada, however, argues that remand is inappropriate in this case because, as of July 1, 2018, the City and County of San Francisco has abolished the collection of both booking fees and probation costs. (See San Francisco Ord. No. 131-18, § 2 (Fee Ordinance).) Specifically, new section 8.29 of the Administrative Code provides: "Notwithstanding any prior ordinance enacted to make operative Penal Code Section 1203.1b, there is no authorization to collect fees for probation costs, pre-sentence report costs, or any other costs authorized under Penal Code section 1203.1b." And San Francisco Administrative Code, former section 8.38, which, as mentioned above, provided authority for collection of booking fees, has been deleted in its entirety. Moreover, as Estrada points out, the Fee Ordinance further states: "The City urges the San Francisco Superior Court to modify any prior orders to eliminate the fine, fees, and penalties included in this ordinance, and to discharge all debt associated with the same, to the extent permitted by law." (Fee Ordinance, § 1(h).) Estrada argues that the Fee Ordinance should apply retroactively and thus any remand would be futile. However, rather than opine on the applicability of the Fee Ordinance to the current proceedings, we believe it more appropriate to remand the matter to the trial court, which can then consider in the first instance whether or to what extent imposition of probation costs or a booking fee is appropriate based on state law, local ordinance, and Estrada's ability to pay. B. Discrepancy in Probation Condition
Prior to his guilty plea in this matter, the trial court advised Estrada that "under state and federal law" he would be "prohibited from owning, possessing, [or] having under [his] custody or control, any firearm or ammunition for the rest of [his] life." The probation report filed in advance of sentencing, in contrast, recommended as a condition of probation that Estrada "[p]ossess no weapons." At sentencing, Estrada's trial counsel objected to probation's formulation of the condition, stating: "There is no nexus to weapons in the case, no weapon use, and under this condition a mere pocket knife, that would get him violated." Although the trial court did not directly respond to the objection, in imposing sentence it made an order consistent with its prior advisement—that Estrada's conviction prohibited him from "owning, . . . possessing, or having in [his] custody or control, any firearm or ammunition for the rest of [his] life." The court's sentencing minutes, however, state that Estrada "shall not knowingly possess any firearm or any other dangerous or deadly weapon." The recorder's transcript is clear here, and directly contradicts the minutes. Under these circumstances, the court's oral pronouncement should control. (D.H., supra, 4 Cal.App.5th at p. 725 [" 'the part of the record that will prevail is the one that should be given greater credence in the circumstances of the case' " ].) On this basis, Estrada asks that the no-dangerous-or-deadly weapons condition be "reversed, stricken, or vacated." The Attorney General agrees, suggesting that the minute order be amended to reflect the trial court's oral pronouncement. We will follow this suggestion and amend the challenged probation condition to require that Estrada "shall not knowingly possess any firearm or ammunition." C. Dueñas Challenge
We address finally an issue raised by Estrada via supplemental briefing. At sentencing in this matter, the trial court imposed a mandatory minimum restitution fine of $300 (§ 1202.4), court operations assessment of $40 (§ 1465.8), and court facilities/ critical needs assessment of $30 (Gov. Code, § 70373). The trial court ordered the assessments and set the restitution amount without any express inquiry into Estrada's ability to pay. Relying on the recent appellate decision in Dueñas, supra, 30 Cal.App.5th 1157, Estrada now asserts that the imposition of the fine and assessments without a hearing establishing his ability to pay violated his due process rights.
Dueñas involved the plight of a married mother with cerebral palsy, whose family—which included two young children—was demonstrably unable to afford even basic necessities due to their poverty. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) In that case, Dueñas sought and was granted a hearing on her ability to pay the same statutory fine and assessments charged to Estrada in these proceedings, but the trial court determined they were mandatory and rejected her constitutional arguments. (Id. at p. 1163.) The Court of Appeal reversed, concluding that under the factual circumstances presented in that case, due process of law requires a trial court to "conduct an ability to pay hearing and ascertain a defendant's present ability to pay" before it imposes assessments under section 1465.8 or Government Code section 70373. (Dueñas, at p. 1164.) It additionally determined that the execution of any restitution fine imposed under section 1202.4 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.)
As Estrada did not object below to imposition of the mandatory fine and assessments here at issue on grounds of inability to pay, we would generally conclude that he has forfeited the ability to challenge them before this court. (People v. Frandsen 33 Cal.App.5th 1126, 1153-1155 (Frandsen) [Dueñas challenge forfeited by failure to object to the fines and fees at sentencing]; People v. Aguilar (2015) 60 Cal.4th 862, 864 [appellate forfeiture rule applies to various fees imposed a sentencing]; McCullough, supra, 56 Cal.4th at pp. 590-591 [appellant forfeited claim challenging booking fee under Gov. Code, § 29550.2, subd. (a) where no objection was made at trial court]; People v. Avila (2009) 46 Cal.4th 680, 729 (Avila) [rejecting argument that, since the defendant did not have the ability to pay, imposition of a restitution fine under § 1202.4 was an unauthorized sentence not subject to the forfeiture rule].) However, we will exercise our discretion to excuse Estrada's forfeiture in this instance because we have already concluded remand is necessary for consideration of Estrada's ability to pay other court-imposed fees and costs and because Estrada made a record before the trial court indicating that his ability to pay may very well be an issue.
Estrada concedes that his objections before the trial court based on ability to pay all related to nonmandatory fees. He did not raise any constitutional objection below. --------
We stress, however, that on remand the burden is on Estrada to raise the issue of his ability to pay as well as to provide the necessary evidence supporting his claim. A defendant's ability to pay is a quintessentially factual determination. (See Frandsen, supra, 33 Cal.App.5th at p. 1153.) Moreover, a defendant is in the best position to know whether he or she has the ability to pay any fees and fines. (See People v. McMahan (1992) 3 Cal.App.4th 740, 749-750 ["[T]he most knowledgeable person regarding the defendant's ability to pay would be the defendant himself. It should be incumbent upon the defendant to affirmatively argue against application of the [section 290.3] fine and demonstrate why it should not be imposed."].) The burden rests with the defendant, not the People, to demonstrate his or her inability to pay the mandatory fees and fine in question. (People v. Castellano (2019) 33 Cal.App.5th 485, 490 [in Dueñas context, "a defendant must in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court"]; Frandsen, at p. 1154 ["Given that the defendant is in the best position to know whether he has the ability to pay, it is incumbent on him to object to the fine and demonstrate why it should not be imposed."]; compare Avila, supra, 46 Cal.4th at p. 729 [pursuant to subd. (d) of § 1202.4, burden is on defendant to demonstrate inability to pay restitution fine in excess of the minimum].) To the extent Dueñas implies otherwise, we disagree with it.
III. DISPOSITION
The portion of the trial court's sentencing order requiring Estrada to pay a booking fee and probation costs is reversed and remanded for a determination whether these assessments should be imposed under the applicable legal standards. On remand, Estrada may request a hearing and present evidence demonstrating his inability to pay the restitution fine (§ 1202.4) and mandatory assessments (Gov. Code, § 70373; Pen. Code, § 1465.8) and the court may strike or stay the fine and assessments should it deem this remedy appropriate. The court's probation condition with respect to dangerous and deadly weapons is modified to read: "Defendant shall not knowingly possess any firearm or ammunition." The judgment is otherwise affirmed.
/s/_________
Sanchez, J. WE CONCUR: /s/_________
Humes, P. J. /s/_________
Margulies, J.