Opinion
B296534
04-01-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO BAUDELIO FLORES, JR., Defendant and Appellant.
Carlos Ramirez, 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, Assistant Attorney General, Steven E. Mercer and Michael Katz, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. KA105653) APPEAL from a judgment of the Superior Court of Los Angeles County, Rob B. Villeza, Judge. Affirmed. Carlos Ramirez, 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, Assistant Attorney General, Steven E. Mercer and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Roberto Baudelio Flores, Jr. (Flores) appeals from an order revoking his probation, and sentencing him to three years in county jail. Flores does not challenge the trial court's revocation of probation, nor the sentence it imposed. Instead, he seeks to challenge fines and fees imposed during the initial grant of probation. For reasons we explain, we deem Flores's claims noncognizable and alternatively conclude that Flores has failed to show any entitlement to relief. Accordingly, we affirm the judgment on appeal.
FACTUAL AND PROCEDURAL BACKGROUND
A. 2014 Order Suspending Imposition of Sentence and Placing Flores on Formal Probation
In 2014, Flores pleaded no contest to possession for sale of cocaine (Health & Saf. Code, § 11351) and misdemeanor child endangerment (Pen. Code, § 273a, subd. (b).) On June 6, 2014, the trial court suspended imposition of sentence and placed Flores on formal probation with conditions, including that Flores serve 180 days in county jail. The court further ordered Flores, as a condition of probation, to pay fines and fees and reimburse the county for attorney fees. Specifically, the trial court ordered Flores to pay a $300 restitution fine (§ 1202.4, subd. (b)), a $30.00 court facilities assessment (Gov. Code, § 70373), and a $40.00 operations assessment (§ 1465.8, subd. (a)(1)). The court ordered Flores to pay attorney fees of $427 pursuant to section 987.8. Flores did not appeal this order.
Subsequent undesignated statutory citations are to the Penal Code.
In his opening brief, Flores states that in 2014 the trial court "sentenced [him] to a three-year prison term" and "ordered the execution [sic] this term suspended." Respondent's brief states both that the trial court "suspended imposition of sentence," and that it "suspended execution of sentence." These statements are inaccurate. The trial court imposed no term on any count of conviction and instead wholly suspended imposition of sentence in lieu of probation. (See People v. Howard (1997) 16 Cal.4th 1081, 1094 [explaining "the distinction between suspended imposition and suspended execution types of probation"].)
B. Non-compliance with Probation
Flores initially complied with the terms and conditions of probation and reported to his probation officer approximately 15 times. He stopped reporting after July 2015, and on July 29, 2015, his probation was revoked and a bench warrant was issued for his arrest. In November 2018, the probation department conducted a computer search for Flores in a law enforcement database and determined that on July 14, 2015, Flores was arrested in Oregon, and on December 21, 2015, sustained a felony conviction for the unlawful delivery of heroin. Flores was again arrested in Oregon on December 22, 2017, and sustained a second felony conviction on February 8, 2018 for supplying contraband. Defendant was released from custody in Oregon on or about November 9, 2018. After his release, he returned to the Los Angeles area and surrendered to authorities on or about November 13, 2018.
C. 2019 Revocation of Probation
On January10, 2019, the superior court held a probation violation hearing and at its conclusion found Flores in violation of probation for, inter alia, failing to obey all laws and leaving the state without permission. On January 23, 2019, the court sentenced Flores to the midterm of three years in county jail for the 2014 felony drug count. The court imposed no additional time for the 2014 misdemeanor child neglect count. The court awarded Flores 324 days of presentence credit.
DISCUSSION
A. The Challenges to the 2014 Fees and Fines are Untimely and Thus Noncognizable in this Appeal
A criminal appeal must generally be filed within 60 days of the making of the order being appealed. (Cal. Rules of Court, rule 8.308(a).) "A timely notice of appeal, as a general matter, is 'essential to appellate jurisdiction.' " (People v. Mendez (1999) 19 Cal.4th 1084, 1094.) "The purpose of the requirement of a timely notice of appeal is, self-evidently, to further the finality of judgments by causing the defendant to take an appeal expeditiously or not at all." (Ibid.)
Here, there is no dispute that the January 2019 probation revocation order and judgment is appealable and that Flores filed a timely appeal from that order. The issue is whether Flores's challenge to the July 2014 order is cognizable in this appeal. We conclude it is not.
In revoking Flores's probation in 2019, the trial court imposed a three-year sentence, but ordered no fees, fines, or assessments. Nor did the court make any statements or pronouncements regarding the fines or fees previously imposed as a condition of probation. Consequently, the 2019 abstract of judgment reflects no fees or fines. As such, the sole source of the fines and fees Flores seeks to challenge is the June 2014 order imposing these fees as a condition of probation. Flores could have, but did not, seek an appeal from this order.
An order granting probation and suspending imposition of sentence is an appealable order. (§ 1237, subd. (a) [deeming an order granting probation as a "final judgment" for purposes of taking an appeal]; People v. Amons (2005) 125 Cal.App.4th 855, 869, fn. 8 [explaining that if probation is granted and imposition of sentence is suspended, decision "is final for the limited purpose of taking an appeal therefrom"].) An order modifying the terms of probation is likewise appealable because it is an order following judgment that affects the substantial rights of the defendant. (§ 1237, subd. (b); see People v. Douglas (1999) 20 Cal.4th 85, 91.) "In general, an appealable order that is not appealed becomes final and binding . . . ." (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421.)
The trial court's order of June 6, 2014 was plainly an appealable order. Flores does not contend otherwise. To the extent Flores is now seeking to challenge the fines and fees solely imposed in June 2014 as a condition of his probation, he should have raised those claims in a timely appeal from that order. He did not do so. Instead, Flores is using the instant appeal to collaterally attack the 2014 order. This he may not do. "[A] defendant who elects not to appeal an order granting or modifying probation cannot raise claims of error with respect to the grant or modification of probation in a later appeal from a judgment following revocation of probation." (People v. Ramirez, supra, 159 Cal.App.4th at p. 1421.)
B. Even If Flores's Claims Were Not Time-barred, He Has Failed to Demonstrate any Entitlement to Relief
1. Flores demonstrates no error in assessing restitution fines and fees without an ability to pay hearing.
Citing People v. Dueñas (2019) 30 Cal.App.5th 1157, Flores contends that the trial court violated his due process rights by imposing the $70 in assessments and the $300 restitution fine without first determining his ability to pay these amounts. We disagree.
There is a current split in authority regarding whether a Dueñas ability-to-pay claim can be deemed waived or forfeited wherein the relevant proceedings were conducted prior to issuance of the Dueñas decision. (See, e.g., People v. Gutierrez (2019) 35 Cal.App.5th 1027; People v. Bipialaka (2019) 34 Cal.App.5th 455; People v. Frandsen (2019) 33 Cal.App.5th 1126; People v. Castellano (2019) 33 Cal.App.5th 485.) In light of our decision, we need not weigh in on this issue.
Likewise, we need not address respondent's assertion that the restitution fine should be evaluated under the excessive fines clause of the Eighth Amendment. Flores did not raise an Eighth Amendment challenge in his opening brief. (See People v. Caceres (2019) 39 Cal.App.5th 917, 923 [declining to address applicability of excessive fines clause to Dueñas-based claim where Eighth Amendment challenge was not raised in opening brief].)
2. Dueñas decision.
In Dueñas, an unemployed, homeless mother with cerebral palsy lost her driver's license when she was unable to pay over $1,000 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 afford. (Id. at p. 1161.) The trial court rejected Dueñas's request to hold an ability to pay hearing despite undisputed evidence that she was indigent and lacked the present ability to pay any fees or fines. (Id. at p. 1163.)
The appellate court reversed, holding that due process prohibited imposition of the assessments in the current case and required the trial court to stay execution of the restitution fines until the trial court held an ability-to-pay hearing. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The court expressed concern for "the cascading consequences of imposing fines and assessments that a defendant cannot pay," pointing out that Dueñas's case " 'doesn't stem from one case for which she's not capable of paying the fines and fees,' but from a series of criminal proceedings driven by, and contributing to, Dueñas's poverty." (Id. at pp. 1163-1164.) The court referenced "the counterproductive nature of this system and its tendency to enmesh indigent defendants in a cycle of repeated violations and escalating debt." (Id. at p. 1164, fn. 1.)
3. The trial court committed no error in imposing the challenged fines and fees.
Defendant's reliance on Dueñas is misplaced for several reasons. First, following People v. Hicks (2019) 40 Cal.App.5th 320 (review granted Nov. 26, 2019, S258946), this court has held that Dueñas was wrongly decided because it misapplied due process precedents. (People v. Kingston (2019) 41 Cal.App.5th 272, 279-282 [holding that, contrary to analysis in Dueñas, "due process precludes a court from imposing fines and assessments only if to do so would deny the defendant access to the courts" or directly result in incarceration].) Second, this case is distinguishable from Dueñas because Flores was not ultimately incarcerated because of a previous inability to pay fines and fees. He was incarcerated because he left the state without permission and sustained new criminal convictions during absconsion. (Kingston, supra, at p. 282 [noting defendant's probation was not revoked due to inability to pay fines, but because "she had failed to register for or perform any community service"]; see also People v. Caceres, supra, 39 Cal.App.5th at p. 928 [declining to apply Dueñas's "broad holding" beyond its "unique facts"].) Third, Flores never contended below that he was unable to pay the $370 in fines and fees and "nothing in the record indicates [he] suffered from a physical, mental or emotional impediment" that would have precluded his bona fide efforts to pay them. (Kingston, supra, at p. 281, quoting Hicks, supra, at p. 327.) On the contrary, the probation report indicates that prior to absconding probation, Flores paid three payments totaling $450 towards his total financial obligations. Due process did not preclude the trial court from imposing $370 in fines and fees and granting Flores the probationary period to attempt to satisfy these financial obligations. (Hicks, supra, at pp. 324, 329 [rejecting Dueñas challenge to imposition of $580 in fees and assessments as condition of three-year probationary period and concluding that "[a]t this point in time . . . due process does not deny defendant the opportunity to try"].)
The 2019 probation report states Flores had a remaining balance of $3,645 towards his financial obligations. The report does not state the source of these obligations. However, in Kingston the court pointed out that additional monies were reported beyond those originally assessed due to the cost of probation services throughout the probationary period. (People v. Kingston, supra, 41 Cal.App.5th at p. 276.)
C. Flores Forfeited His Challenge to the Court's Imposition of $427 in Attorney Fees Pursuant to Section 987.8
In 2014, without objection by Flores, the trial court also ordered him to pay $427 in attorney fees, as a condition of his probation. Flores contends the trial court violated his due process rights by imposing such fees, without first determining whether he had the ability to pay this amount. We deem the issue forfeited under well-established precedents.
1. Relevant law.
Section 987.8 authorizes the court to order a defendant to reimburse the county for some or all of the costs of his defense. (People v. Verduzco (2012) 210 Cal.App.4th 1406, 1420.) Section 987.8, subdivision (b), provides in pertinent part: "If a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court . . . the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof. The court may, in its discretion, hold one such additional hearing within six months of the conclusion of the criminal proceedings."
The California Supreme Court has repeatedly held that when a court imposes fees and/or fines pursuant to statutes that specifically include ability to pay findings, the defendant must raise an objection at the sentencing hearing or forfeit the appellate claim that the court failed to make such a finding or there was no evidence of the defendant's ability to pay the imposed amounts. (See People v. Case (2018) 5 Cal.5th 1, 52-53; People v. McCullough (2013) 56 Cal.4th 589, 590, 598-599; People v. Nelson (2011) 51 Cal.4th 198, 227; People v. Gamache (2010) 48 Cal.4th 347, 409; People v. Avila (2009) 46 Cal.4th 680, 728-729.)
In People v. Aguilar (2015) 60 Cal.4th 862 (Aguilar), the California Supreme Court specifically addressed the imposition of attorney fees pursuant to section 987.8, and concluded the defendant's failure to object in trial court precluded him from raising a challenge to the fees on appeal. The court explicitly adopted the reasoning of Aguilar's companion case, People v. Trujillo (2015) 60 Cal.4th 850 [the defendant forfeits an appellate challenge to the sufficiency of evidence supporting a probation supervision cost if objection is not raised in the trial court] (Trujillo).) In Trujillo, the court reasoned that requiring a defendant to contemporaneously object to a fees order is particularly appropriate " '[g]iven that imposition of a fee is of much less moment than imposition of sentence' " which also requires an objection in the trial court for preservation on appeal. (Trujillo, supra, at p. 857.) In both Trujillo and Aguilar, the court further pointed out that the defendant had—and would continue to have—multiple opportunities to assert his indigence. (Trujillo, supra, at pp. 860-861 [noting sentencing court and probation officer retain jurisdiction to address ability to pay probation related fees throughout probationary period]; Aguilar, supra, at p. 868 [noting, under statute, at any time during pendency of judgment ordering attorney fees, a defendant may petition rendering court to modify or vacate previous judgment with regards to his/her inability to pay].)
2. Flores is not entitled to an exemption from the forfeiture rule.
Here, there is no indication that Flores at any time sought to vacate or modify the attorney fee order despite multiple opportunities to do so—both by statute, as referenced in Aguilar, and by appeal as discussed above. Nevertheless, Flores contends the forfeiture rule announced in Aguilar should not apply, because he failed to receive notice of the fees, as required by statute. We disagree.
First, the plea agreement Flores signed in 2014 states that he understands the court will order "between $200 and $10,000 [for] the Victim Restitution Fund, and . . . will also order [him] to pay statutory fees and other assessments." Second, in Trujillo, the Supreme Court refused to apply a forfeiture exception to a fee imposed pursuant to a statute that expressly required a knowing and intelligent waiver to an ability to pay hearing. (Trujillo, supra, 60 Cal.4th at pp. 856-860.) In so doing, the court cited its reasoning in People v. Scott (1994) 9 Cal.4th 331, 353, explaining that " '[a]lthough the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing.' " (Trujillo, supra, 60 Cal.4th at p. 858.) Applying similar logic, the court went on to conclude the following: "Counsel in this case presumably was aware of the knowing and intelligent waiver requirement and was in a position to advise [the] defendant of the nature of the rights the statute contemplated she would be requested to waive. . . . Represented by counsel, [the] defendant made no objection at sentencing to the amount of probation-related fees imposed or the process, or lack thereof, by which she was ordered to pay them; nor does the record contain any indication [the] defendant later raised the question of her ability to pay in the probation department or the sentencing court. No reason appears why [the] defendant should be permitted to appeal the sentencing court's imposition of such fees after having thus tacitly assented below." (Id. at pp. 858-859, italics added.)
The same holds true here; counsel's failure to challenge the procedure by which the attorney's fees were imposed amounts to a tacit assent to the court's imposition of fees.
To the extent Flores seeks to rely on People v. Rodriguez (2019) 34 Cal.App.5th 641, his reliance is misplaced. In Rodriguez, the court reversed an order of $1,185 in attorney's fees imposed as part of a nine-year prison term, despite the defendant's lack of objection in trial court. The Rodriguez court not only relied on the fact that the record clearly demonstrated Rodriguez received no notice of the court's intention to impose attorney fees, but expressly distinguished Aguilar by pointing out Rodriguez was not a formal probationer with multiple court opportunities to challenge the fees, but sentenced to state prison. (Id. at pp. 647-648.) The court further pointed out that because of Rodriguez's prison sentence, "he was presumed to be unable to pay attorney's fees and costs (§ 987.8 subd. (g)(2)(B)—an issue the Aguilar court did not address." (Id. at p. 648; see § 987.8, subd. (g)(2)(B) [if the defendant is sentenced to prison or to county jail for more than 364 days, he "shall be determined not to have a reasonably discernible future financial ability to reimburse" defense costs "[u]nless the court finds unusual circumstances"].)
In a spurious attempt to align himself with Rodriguez, Flores argues that he is entitled to the same statutory presumption because he was sentenced to three years in county jail. The attorney's fees order, however, was not imposed as part of Flores's sentence in 2019, but as a condition of probation in 2014—wherein Flores was ordered to serve 180 days in county jail. This is well below the statutory threshold. (§ 987.8, subd. (g)(2)(B).)
Flores, however, argues that a second exception to the Aguilar forfeiture rule, applies. Citing People v. Viray (2005) 134 Cal.App.4th 1186 (Viray), Flores argues he could not rely on his attorney to interpose an objection in light of an inherent conflict of interest that exists with regards to the imposition of attorney fees. Flores, however, reads Viray too broadly. In Viray, the deputy public defender submitted a written request seeking $9,200 in fees. (Id. at p. 1193.) Then, after remaining largely silent at the sentencing hearing, counsel stated, " 'We're asking the Court to assess attorney's fees.' " " 'We're asking—the amount we're asking is $9,200 in attorney's fees.' " (Id. at pp. 1193, 1216.)
In Aguilar, the Supreme Court mentioned Viray by noting that the case before it "[did] not present, and we therefore do not address, the question whether a challenge to an order for payment of the cost of the services of appointed counsel is forfeited when the failure to raise the challenge at sentencing may be attributable to a conflict of interest on trial counsel's part. (See, e.g., [Viray, supra,] 134 Cal.App.4th [at pp.] 1216-1217 . . . .)" (Aguilar, supra, 60 Cal.4th at p. 868, fn. 4.)
Here, as in Aguilar, defense counsel did not advocate in opposition to his client's interests and request an order that defendant pay attorney fees. Flores nonetheless argues that an inherent conflict of interest existed here based on the broad argument that in every instance where a trial court seeks to impose section 987.8 attorney fees, appointed counsel or a deputy public defender could have an inherent conflict with the client. Common sense dictates, however, that if such a conflict of interest could be asserted in every case in which attorney fees are ordered under section 987.8, Aguilar's forfeiture rule would be the exception, not the rule. Accordingly, we interpret footnote 4 in Aguilar to apply to those instances where counsel is patently in conflict with the client because attorney fees are requested by "defense counsel himself [or herself]." (Viray, supra, 134 Cal.App.4th at p. 1216.)
Flores has forfeited his challenge to the imposition of attorney's fees. (Aguilar, supra, 60 Cal.4th at pp. 867-868.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
ROTHSCHILD, P. J.
JOHNSON, J.