Opinion
B295956
01-20-2021
THE PEOPLE, Plaintiff and Respondent, v. JONATHAN GONZALEZ, Defendant and Appellant.
Michele A. Douglass, 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, Senior Assistant Attorney General, Michael R. Johnsen, Supervising Deputy Attorney General, and Blythe J. Jeszkay, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA409434) Appeal from a judgment of the Superior Court of Los Angeles County, Katherine Mader, Judge. Affirmed. Michele A. Douglass, 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, Senior Assistant Attorney General, Michael R. Johnsen, Supervising Deputy Attorney General, and Blythe J. Jeszkay, Deputy Attorney General, for Plaintiff and Respondent.
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Jonathan Gonzalez, convicted in 2015 of the second degree murder of Brandon Tritschler with a true finding he had personally discharged a firearm causing Tritschler's death, was sentenced as a second strike offender to an aggregate indeterminate state prison term of 60 years to life. After correcting a minor sentencing error, we affirmed the judgment as modified on direct appeal (People v. Gonzalez (Aug. 22, 2017, B266739) [nonpub. opn.]).
Rather than striking the one-year prior prison term enhancement under former Penal Code section 667.5, subdivision (b), the trial court had ordered the enhancement stayed. (See People v. Langston (2004) 33 Cal.4th 1237, 1241.)
Six months after affirming the judgment, we granted Gonzalez's unopposed petition for a writ of habeas corpus and ordered the trial court to conduct a new sentencing hearing to exercise its recently authorized discretion to strike certain of the sentencing enhancements it had imposed (In re Gonzalez (Mar. 8, 2018, B288168)). At the new sentencing hearing in January 2019 the trial court declined to strike or reduce the 25-year-to-life firearm enhancement imposed pursuant to Penal Code section 12022.53, subdivision (d), but did strike the five-year prior serious felony enhancement imposed pursuant to Penal Code section 667, subdivision (a). At a renewed hearing on February 5, 2019 the trial court denied Gonzalez's request pursuant People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) to stay the fines and assessments imposed at the original sentencing hearing.
Gonzalez appeals only the court's decision as to fines and assessments. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
When the court originally sentenced Gonzalez in 2015, it ordered him to pay the minimum restitution fine of $300 (Pen. Code, § 1202.4, subd. (b)), imposed and stayed a $300 parole revocation fine (Pen. Code, § 1202.45), and imposed a $30 court facilities assessment (Gov. Code, § 70373), and a $40 court operations assessment (Pen. Code, § 1465.8).
At the renewed resentencing hearing Gonzalez's counsel, citing this court's then-recent decision in Dueñas, supra, 30 Cal.App.5th 1157, asked the court to stay the fines and assessments it had previously imposed "until and unless the People demonstrate that the defendant has the ability to pay the fine." Defendant's counsel explained, "Since Mr. Gonzalez will be in state prison for a substantial amount of time, which I would conclude that would be for the rest of his life, that I would ask the court to stay the fines and fees in his case."
The court denied the request. After indicating its understanding that the defendant, who had been sentenced several years before Dueñas was decided, had to object to the imposition of the fees and fines at the time they were imposed, the court stated, "I understand he's going to be in prison forever, but I believe it would take it out of his earnings in prison, and the problem is that if everybody has their fines and fees stayed, the courts can't operate." Defense counsel pointed out that the matter had been returned to the trial court for resentencing, so the issue of fines and assessments was properly before it. The court responded, "I don't want to set a precedent for doing this on old cases. I don't believe I'm required to do it under these circumstances, so I'm not going to."
DISCUSSION
1. Dueñas and Castellano
In Dueñas this court concluded, "[T]he assessment provisions of Government Code section 70373 and Penal Code section 1465.8, if imposed without a determination that the defendant is able to pay, are . . . fundamentally unfair; 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." (Dueñas, supra, 30 Cal.App.5th at p. 1168; accord, People v. Belloso (2019) 42 Cal.App.5th 647, 654-655, review granted Mar. 11, 2020, S259755.) A restitution fine under Penal Code section 1202.4, subdivision (b), however, "is intended to be, and is recognized as, additional punishment for a crime." (Dueñas, at p. 1169; accord, Belloso, at p 655.) And Penal Code section 1202.4, subdivision (c), expressly provides a defendant's inability to pay a restitution fine may not be considered a "compelling and extraordinary reason" not to impose the statutory minimum fine. Accordingly, as this court held in Dueñas, to avoid a serious constitutional question if a restitution fine were to be imposed on an indigent defendant, "the court must stay the execution of the fine until and unless the People demonstrate that the defendant has the ability to pay the fine." (Dueñas, at p. 1172; accord, Belloso, at p. 655.)
The following issues are presently pending before the Supreme Court in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844: "Must a court consider a defendant's ability to pay before imposing or executing fines, fees, and assessments? If so, which party bears the burden of proof regarding defendant's inability to pay?"
In People v. Castellano (2019) 33 Cal.App.5th 485, decided two months after Dueñas, we clarified that, in the absence of evidence of the defendant's inability to pay, the People are not required to establish the defendant has the means to pay before the court imposes the fines, fees and assessments required by statute. "[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." (Id. at p. 490; accord, People v. Santos (2019) 38 Cal.App.5th 923, 934 ["it is the defendant's burden to demonstrate an inability to pay, not the prosecution's burden to show the defendant can pay"]; see Dueñas, supra, 30 Cal.App.5th at pp. 1168-1169.) If the trial court determines, after considering the relevant factors, a defendant is unable to pay, then the fees and assessments cannot be imposed; and execution of any restitution fine imposed must be stayed until such time as the People can show that the defendant's ability to pay has been restored. (Castellano, at p. 490; Dueñas, at pp. 1168-1169, 1172.)
Although clarifying it was the defendant's burden to prove inability to pay in the first instance, we added, "In doing so, the defendant need not present evidence of potential adverse consequences beyond the fee or assessment itself, as the imposition of a fine on a defendant unable to pay it is sufficient detriment to trigger due process protections." (People v. Castellano, supra, 33 Cal.App.5th at p. 490.) --------
In discussing in Castellano the factors that may be considered by the court in evaluating a defendant's ability to pay, we specifically identified "potential prison pay during the period of incarceration to be served by the defendant." (People v. Castellano, supra, 33 Cal.App.5th at p. 490.) Other courts have agreed. (See, e.g., People v. Santos, supra, 38 Cal.App.5th at p. 934 ["in weighing the defendant's ability to pay the fee at issue, the trial court may consider, if applicable, the defendant's ability to earn wages such as while serving his or her prison sentence"]; People v. Kopp (2019) 38 Cal.App.5th 47, 96, review granted Nov. 13, 2019, S257844.)
2. The Trial Court Properly Denied the Request To Stay the Restitution Fine and Court Facilities and Operations Assessments
Focusing on the trial court's comments that it did not want to set a precedent by applying Dueñas to old cases and did not believe it was required to do so, Gonzalez argues the court's failure to stay his fines and assessments constituted an abuse of discretion and urges us to remand the matter for a new hearing on the issue. (See People v. Sandoval (2007) 41 Cal.4th 825, 847-848 ["[a] failure to exercise discretion also may constitute an abuse of discretion"]; People v. Austin (2019) 35 Cal.App.5th 778, 788 [same].)
We agree with Gonzalez that some of the trial court's comments are troublesome. First, as Gonzalez's counsel argued, our order granting the petition for writ of habeas corpus, although specifically focused on the court's discretion to strike sentencing enhancements, required the court to engage in a full resentencing, including with respect to imposition of fines, fees and assessments. (See People v. Buycks (2018) 5 Cal.5th 857, 893 ["when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances'"]; People v. Navarro (2007) 40 Cal.4th 668, 681 [same].) Accordingly, that this was in some respects an "old case" was irrelevant to the court's responsibilities in sentencing Gonzalez, including with respect to imposition of the restitution fine and court operations and facilities assessments in light of Dueñas. Similarly, even if the court were factually correct that the superior court's budget is dependent on collection of various statutory fees and assessments, that fact has no bearing on the court's obligation to honor the defendant's due process rights.
That said, although it was Gonzalez's burden in the first instance to demonstrate his inability to pay the minimum $300 restitution fine and additional $70 in assessments, the record before us is devoid of any evidence on that point. Indeed, the only fact presented was that Gonzalez was about to spend the rest of his life in prison. Yet, as the court observed, "it would take it out of his earnings in prison," essentially a finding he could, over time, pay the amounts imposed. Under People v. Castellano, supra, 33 Cal.App.5th at page 490 and People v. Santos, supra, 38 Cal.App.5th at page 934, nothing more is required to permit the court to impose the statutorily mandated fines, fees and assessments.
DISPOSITION
The judgment is affirmed.
PERLUSS, P. J. We concur:
SEGAL, J.
FEUER, J.