Opinion
G057309
02-11-2020
THE PEOPLE, Plaintiff and Respondent, v. MERCED GONZALES, Defendant and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Stacy S. Schwartz and Charles J. Sarosy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16WF2069) OPINION Appeal from a judgment of the Superior Court of Orange County, Maria D. Hernandez, Judge. Affirmed. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Stacy S. Schwartz and Charles J. Sarosy, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Merced Gonzales of carjacking and battery. The court found true allegations Gonzales had suffered various prior convictions, including three strikes (Pen. Code §§ 215, 667, subds. (d) & (e)(2)(A), 1170.12, subds. (b) & (c)(2)(A)); all further statutory references are to this code unless otherwise indicated). The court struck some of the prior convictions and sentenced Gonzales to 27 years to life in prison. The court also imposed a $300 restitution fine (§ 1202.4, subd. (b)); suspended a $300 parole revocation fine (§ 1202.45); and imposed a $80 court operations fee (§ 1465.8 subd. (a)(1)); and a $60 court facilities fee (Gov. Code, § 70373, subd. (a)(1)).
After filing his notice of appeal, Gonzales filed a motion in the trial court seeking to strike the fines and fees imposed unless the prosecution could establish Gonzales had the ability to pay those fines and fees. The trial court denied the motion.
On appeal, Gonzales argues the trial court violated his due process rights by imposing those fines and fees without conducting a hearing to determine his ability to pay them. (See People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).)
We find there was no error in failing to hold a hearing to determine Gonzales's ability to pay those fines and fees. Even assuming there was such error, it is harmless under the facts of this case. We therefore affirm the judgment.
DISCUSSION
1. The Trial Court Did Not Violate Gonzales's Due Process Rights.
A. Background
Section 1202.4 requires imposition of a restitution fine between a minimum $300 and a maximum $10,000, except for "compelling and extraordinary reasons." (§ 1202.4, subd. (b).) Even so, "[a] defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine." (§ 1202.4, subd. (c).) However, an inability to pay may be considered if a court imposes more than the minimum $300 fine. (§ 1202.4, subd. (d).) A defendant's future earning capacity may also factor into an ability to pay inquiry. (Ibid.)
Section 1202.45 requires imposition of a parole revocation fine equal to the fine imposed under section 1202.4, but also specifies the fine is to be suspended unless the defendant's parole is revoked. (§ 1202.45, subds. (a)-(c).)
Section 1465.8 and Government Code section 70373 require the court to impose court operations and court facilities fees of $40 and $30, respectively, on each conviction. (§ 1465.8, subd. (a)(1); Gov. Code, § 70373, subd. (a)(1).)
B. People v. Dueñas
Dueñas involved a homeless mother with cerebral palsy, who was unable to work and whose family was unable to afford even basic necessities. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) Her earlier failure to pay several juvenile traffic citations resulted in the suspension of her driver's license, which then led to a series of misdemeanor convictions over the years for driving with a suspended license, and even more court fines and fees. (Id. at p. 1161.) While she often served time in jail in lieu of paying the fines she owed, she still accrued the concomitant court fees. (Ibid.)
Following another suspended license conviction, the trial court imposed statutory fine and fee assessments like those charged to Gonzales here. (Dueñas, supra, 30 Cal.App.5th at pp. 1161-1162.) However, at her sentencing hearing she raised a due process challenge, objecting that she did not have the ability to pay the statutory fees and fine. She requested a hearing on the matter and at it produced undisputed evidence establishing her inability to pay. (Id. at p. 1162.) The court struck some fees but imposed others, concluding they were mandatory. (Id. at pp. 1162-1163.) The court rejected her due process and equal protection arguments. (Id. at pp. 1163-1164.)
The Court of Appeal reversed, stating that "[i]mposing unpayable fines on indigent defendants is not only unfair, it serves no rational purpose, fails to further the legislative intent, and may be counterproductive." (Dueñas, supra, 30 Cal.App.5th at p. 1167.) Thus, "the assessment provisions of Government Code section 70373 and . . . section 1465.8, if imposed without a determination that the defendant is able to pay, are . . . fundamentally unfair[, and] imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution." (Id. at p. 1168, italics added.) The court further held any restitution fine imposed under section 1202.4—including the statutory minimum—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." (Id. at p. 1164, italics added.)
C. Gonzales is not similarly situated to the defendant in Dueñas
Gonzales was ordered to pay mandatory fees and a restitution fine under the same statutes at issue in Dueñas, "but there the similarity ends." (People v. Johnson (2019) 35 Cal.App.5th 134, 139.)
The harm that caused Dueñas's situation to rise to the level of a constitutional violation was the application of the statutes imposing fines, fees, and assessments in the face of undisputed evidence she was unable to pay and would undoubtedly suffer additional penalties based solely on her indigence. We are not persuaded that the state and federal Constitutions require extending the concepts expressed in Dueñas to afford all defendants an ability to pay hearing, regardless of whether there is any evidence that a waiver of fines and fees might be warranted.
The factual differences between this case and Dueñas are significant. In contrast to Dueñas, here Gonzales did not contest the fines and fees imposed upon him at the time of sentencing. And, unlike in Dueñas, the record here contains no evidence of his indigence. The fact Gonzales was represented by appointed counsel does not necessarily demonstrate an inability to pay the fines and fees. (People v. Douglas (1995) 39 Cal.App.4th 1385, 1397 (Douglas).)
The Attorney General did not argue Gonzales forfeited his due process claim by filing an informal motion to strike the fines and fees after filing his notice of appeal, instead of asserting it at the time of sentencing, and we express no opinion on this issue. --------
Moreover, as a prison inmate, there is nothing to indicate Gonzales will be subject to additional penalties based upon his inability to pay the fines and fees. Unlike an indigent probationer, Gonzales's lengthy prison term will afford him an opportunity to earn prison wages over a significant number of years. (See People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [ability to pay includes a defendant's ability to obtain prison wages]; Douglas, supra, 39 Cal.App.4th at p. 1397 [restitution fine imposed under section 1202.4 "may be based on the wages a defendant will earn in prison"]; § 1202.4, subd. (d) [consideration of a "defendant's inability to pay may include his or her future earning capacity"]; Cal. Code Regs., tit. 15, § 3041.2 [prison wages range from $12 to $56 per month depending on the prisoner's skill level]; § 2085.5, subd. (a) [Department of Corrections and Rehabilitation may garnish between 20 and 50 percent of a prisoner's wages to pay the restitution fine].
The additional punishment Dueñas faced because of her poverty formed the entire basis for the court's opinion in that case, whereas here Gonzales has not been penalized as a result of poverty nor shown a potential of future penalization due to impoverishment. The situation in which Gonzales has put himself—a lengthy sentence in state prison—does not implicate the same due process concerns at issue in Dueñas. Gonzales, unlike Dueñas, does not face incarceration because of any inability to pay the fines and fees. He is in prison because he is a recidivist career criminal who committed a carjacking. And even if Gonzales does not pay the fines and fees, he will suffer none of the cascading and potentially devastating consequences Dueñas faced. (Dueñas, supra, 30 Cal.App.5th at p. 1163.)
Put simply, because Gonzales's situation is so dissimilar to the considerations underlying Dueñas, we decline to apply its reasoning to the facts before us. The due process violation in Dueñas was predicated on the fact that "[b]ecause the only reason Dueñas cannot pay the fine and fees is her poverty, using the criminal process to collect a fine she cannot pay is unconstitutional." (Dueñas, supra, 30 Cal.App.5th at p. 1160.) The case before us is not such a case. (See People v. Caceres (2019) 39 Cal.App.5th 917, 928; cf. People v. Kopp (2019) 38 Cal.App.5th 47, 96-97 (petn. for review granted Nov. 21, 2019, S257844) ["there is no due process requirement that the court hold an ability to pay hearing before imposing a punitive fine and only impose the fine if it determines the defendant can afford to pay it"]; People v. Hicks (2019) 40 Cal.App.5th 320, 329 (petn. for review granted Nov. 26, 2019, S258946).)
DISPOSITION
The judgment is affirmed.
THOMPSON, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.