Opinion
D074797
11-08-2019
THE PEOPLE, Plaintiff and Respondent, v. FRANCIS GUADIAN, Defendant and Appellant.
Neil Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Craig H. Russell, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD277470) APPEAL from a judgment of the Superior Court of San Diego County, Polly H. Shamoon, Judge. DISMISSED. Neil Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Craig H. Russell, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Francis Guadian entered into a plea agreement under which she pleaded guilty to one count of possession of a controlled substance for sale, in exchange for a stipulated sentence of six years in local custody and dismissal of the balance of her charges. The trial court accepted the plea agreement and imposed the stipulated sentence.
The trial court also ordered Guadian to pay the following: (1) a court operations assessment of $40 (Pen. Code, § 1465.8); (2) a conviction assessment of $30 (Gov. Code, § 70373); (3) a criminal justice administration fee of $154 (Gov. Code, § 29550); (4) a drug program fee of $615 (Health & Saf. Code, § 11372.7); (5) a lab analysis fee of $205 (Health & Saf. Code, § 11372.5); and (6) a restitution fine of $1,800 (Pen. Code, § 1202.4, subd. (b)). Guadian did not request, and the court did not conduct, an ability-to-pay hearing before the court imposed these fines, fees, and assessments.
Guadian appealed, arguing only that the trial court's imposition of the fines, fees, and assessments without first determining her ability to pay them violated her due process rights, as enunciated in the recent decision of People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
After Guadian filed her opening brief and the Attorney General filed its respondent's brief, Guadian requested an extension of the deadline for filing her reply brief so that she could first file a motion in the trial court raising her Dueñas challenge there. Guadian explained her request was based on Penal Code section 1237.2, which provides that an appeal may not be taken solely "on the ground of an error in the imposition . . . of fines, penalty assessments, surcharges, fees, or costs unless the defendant first presents the claim in the trial court . . . ." (See People v. Hall (2019) 39 Cal.App.5th 502, 504-505 [holding that Pen. Code, § 1237.2 applies to Dueñas challenges].) We ultimately granted Guadian six extensions to afford the trial court time to hear her motion.
On September 4, 2019, the trial court heard Guadian's motion. Based on the fact it had "some concern in terms of her ability to pay" (italics added), the trial court "delete[d]" the court operations assessment of $40, the conviction assessment of $30, and the criminal justice administration fee of $154. The court left the remaining fines and fees in place, finding Guadian had the ability to pay them. Guadian declined the trial court's invitation to make a further showing of her inability to pay.
The augmented appellate record includes the minute order and reporter's transcript for this hearing. (Cal. Rules of Court, rule 8.340.)
After the trial court hearing, Guadian filed her reply brief in this appeal. In pertinent part, she states: "In light of [the trial court's] ruling, [Guadian] now concedes her claim [that] the imposition of fines and fees without a finding of ability to pay violated her right to due process under [Dueñas]." Guadian does not challenge the trial court's finding that she is able to pay the remaining fines and fees.
We accept Guadian's concession and will dismiss the appeal.
DISPOSITION
The appeal is dismissed.
HALLER, Acting P. J. WE CONCUR: AARON, J. IRION, J.