Opinion
F080095
06-02-2021
THE PEOPLE, Plaintiff and Respondent, v. VINCENT ANTHONY GUZMAN, Defendant and Appellant.
Carolyn D. Phillips, under appointment by the Court of Appeal for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County. No. 15CM7329 Donna L. Tarter, Judge.
Carolyn D. Phillips, under appointment by the Court of Appeal for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT[*]
INTRODUCTION
Appellant and defendant Vincent Anthony Guzman pleaded guilty to felony arson and was placed on probation. After numerous probation violations and the commission of new offenses, he was sentenced to eight years in prison. On appeal, defendant contends the court improperly ordered him to pay a restitution fine and other fees without conducting a hearing on his ability to pay those amounts as set forth in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We affirm.
FACTS
On August 8, 2015, defendant set fire to an inhabited dwelling owned by his parents in Corcoran. No one was injured and the structure did not burn down.
PROCEDURAL BACKGROUND
On August 10, 2015, a complaint was filed in the Superior Court of Kings County, case No. 15CM7329, charging defendant with count 1, arson of an inhabited structure (Pen. Code, § 451, subd. (b)); count 2, unjustifiable infliction of physical pain and mental suffering against a child (§ 273a, subd. (a)); and count 3, misdemeanor use and being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)).
All further statutory citations are to the Penal Code unless otherwise indicated.
Plea
On January 8, 2016, defendant pleaded guilty to count 1, felony arson, on condition that the court would dismiss the other counts in the case, and his other pending cases, with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754, and defendant could withdraw his plea if he was found not eligible for probation. The court stated that defendant's family members were the victims of the arson and requested that he should receive a referral for drug court. Defendant also admitted that he had violated the terms of his deferred entry of judgment in felony case No. 14CM7079.
Probation
On February 10, 2016, the trial court held the sentencing hearing in case No. 15CM7329. The court stated that defendant was presumptively ineligible for probation unless there were unusual circumstances, he faced a maximum prison term of eight years, and the probation report recommended five years eight months. However, the court found unusual circumstances existed because defendant was 25 years old, his prior record was minimal, no one was harmed in the fire, defendant's parents were the arson victims and requested that he receive probation and residential substance abuse treatment for his drug problem, and it was clear he needed drug treatment.
While the court found unusual circumstances supported probation, it acknowledged it was a “stretch” to make that finding because defendant “took a can of gasoline, poured it on the side of the house, broke a window, caught the house on fire, there was a minor child right inside the kitchen window near where this occurred, and by the grace of God no one was injured, burned, the house didn't burn down.”
The prosecutor objected to placing defendant on probation because he had “an absolute lack of remorse” and alternatively asked for eight years of formal probation.
The court began with defendant's case No. 14CM7079 and reduced his felony conviction for violating Health and Safety Code section 11368, forging or altering a prescription, to a misdemeanor, and sentenced him to 365 days in county jail with credit for time served. The court stated the $300 restitution fine previously stayed in that case was now imposed, along with the court operations fees, the court facilities fees, and all other penalties and assessments.
In case No. 15CM7329, the court placed defendant on formal probation for eight years for his arson conviction subject to certain terms and conditions, including completing the Victory Outreach substance abuse treatment program and obeying all laws. The court urged defendant to take advantage of this “tremendous break, ” because he could go to prison for eight years if he violated probation.
Also, in the arson case, the court also imposed a $300 restitution fine (§ 1202.4, subd. (b)), suspended the probation revocation fine of $300 (§ 1202.44), and reserved victim restitution. It imposed a $40 court operations fee (§ 1465.8), a $30 court facilities fee (Gov. Code, § 70373), and a $200 “penal fine.”
Penal Code section 672 states: Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.
The court ordered defendant to pay $450 to the probation department, as a portion of the cost of the presentence report, a fee not to exceed $20 per month for supervision, an accounts receivable fee of $35 pursuant to section 1205, subdivision (d), and a criminal violation distribution of $1,150.
As part of the plea agreement, the court dismissed counts 2 and 3 in case No. 15CM7329, the misdemeanor charges in case No. 15CM7240, and also dismissed case No. 14CM7374 with a Harvey waiver.
Case No. 16CM1733
On May 23, 2016, the court arraigned defendant in case No. 16CM1733, that alleged violations for being under the influence of a controlled substance (Health & Saf. Code, § 11550) and possession of narcotics paraphernalia (Health & Saf. Code, § 11364) on August 14, 2015. The court noted he was currently on felony probation for arson in case No. 15CM7329, but he was not on probation when he allegedly committed these offenses, and he was not being charged with violating probation.
On June 27, 2016, the court held a pretrial conference in case No. 16CM1733 and found the probation department recommended defendant continue in the Victory Outreach program.
First probation violation
On September 12, 2017, a complaint was filed in case No. 17CM3493, charging defendant with count 1, misdemeanor being under the influence of methamphetamine on July 17, 2017 (Health & Saf. Code, § 11550, subd. (a)).
On September 15, 2017, the probation department filed an allegation that defendant violated probation in the arson case by committing the new offense in case No. 17CM3493 and violating other terms and conditions. On the same day, defendant failed to appear as ordered, and the court revoked probation and issued a bench warrant.
On September 26, 2017, defendant was returned to court.
On October 19, 2017, defendant admitted violating probation in the arson case by failing to obey all laws. He also pleaded guilty in case No. 17CM3493. The court reinstated defendant on probation in the arson case, and stated, “[T]he previously stayed restitution fine is now imposed. I'll impose an additional restitution fine in the same amount, that will be stayed pending any further violation of probation.”
In case No. 17CM3493, the court denied probation and sentenced defendant to 180 days in custody with credit for time served. The court imposed a $100 base fine, plus a $150 restitution fine, a $40 court operations fee, and a $30 court facilities fee, and ordered the fines and fees paid “through [case No.] 15CM7329.”
Second probation violation
On January 22, 2018, probation department alleged that after defendant served 180 days in jail in case No. 17CM3493, he violated probation by failing to report to the probation officer as ordered and failed to provide verification of his mental health and substance abuse treatment.
On February 1, 2018, defendant failed to appear on the probation violation, and the court issued a no-bail bench warrant. Defendant appeared later that day. The court revoked probation and remanded him into custody.
On February 23, 2018, the court held a contested hearing on the allegations that defendant violated probation. The evidence showed that on January 8, 2018, defendant registered at Kingsview for his drug treatment program but failed to appear as ordered on January 9, 2018, to begin treatment. He also failed to report to his probation officer as ordered on January 19, 26, and 30, 2018. When defendant was contacted and asked for explanations about his failures to report, defendant alternatively said he wanted a new probation officer, and to put the case back on calendar and “see what he'll do after that.” The court found defendant violated probation in the arson case.
On March 21, 2018, the court continued the sentencing hearing so it could determine how well defendant complied with the prior terms of probation, and defendant was released on his own recognizance.
On June 25, 2018, defendant failed to appear for the scheduled sentencing hearing and a bench warrant was issued. Defendant was arrested the following day.
Case No. 18CM5063
In case No. 18CM5063, defendant was charged with felony receiving stolen property (§ 496).
On October 29, 2018, the court convened the arraignment. It granted defendant's request to conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 and heard and denied the motion. Thereafter, the court declared a doubt as to defendant's competency, suspended criminal proceedings, and appointed an expert pursuant to section 1368.
On November 19, 2018, the court reviewed the expert's report, found defendant was not competent, and suspended criminal proceedings.
On May 31, 2019, the court found that defendant was restored to competency based on the medical director's certification, and reinstated criminal proceedings.
Disposition of the pending cases
On June 25, 2019, the court convened a hearing on the probation violation in the arson case, No. 15CM7329; and for pretrial hearings for misdemeanor being under the influence of a controlled substance in case No. 17CM6422, felony possession of a stolen automobile in case No. 18CM4005, and felony receiving and concealing a stolen vehicle in case No. 18CM5063.
The court noted that defendant had already been found in violation of probation in the arson case, and defendant entered into a negotiated disposition for the stipulated upper term of eight years. The court granted the prosecution's motion to dismiss the other three cases, with a Harvey waiver in case No. 18CM5063 as to victim restitution.
Sentencing in the arson case
On August 7, 2019, the court conducted the sentencing hearing and imposed the stipulated upper term of eight years for arson in case No. 15CM7329.
The court ordered all fines and fees previously imposed in that case to become a judgment enforceable as any other money judgment, including a $300 restitution fine (§ 1202.4, subd. (b)), a $40 court operations fee (§ 1465.8), and a $30 court facilities fee (Gov. Code, § 70373), with victim restitution reserved. The court lifted the suspension of the $300 probation revocation fine (§ 1202.44) and suspended the parole revocation fine of $300.
Postjudgment motions
On October 2, 2019, defendant filed a notice of appeal, in pro. per., with the trial court.
On March 16, 2020, appellate counsel sent a letter to the trial court and asked for correction of presentence custody credits. On April 23, 2020, the court amended the abstract of judgment to show that defendant had credits of 1, 123 consisting of 1, 032 actual days and 88 good time/work time credits.
On November 13, 2020, appellate counsel sent a letter to the trial court and requested a hearing on defendant's ability to pay the fine and fees pursuant to section 1237.2. The trial court did not respond to this request.
The People assert defendant is foreclosed from challenging the court's imposition of the fines and fees because he failed to comply with section 1237.2. The instant record, however, contains appellate counsel's request consistent with that statute. Assuming the trial court did not act on defendant's request, we have the ability to consider his claim since section 1237.2 merely requires that the defendant “first present[] the claim in the trial court, ” and he complied with the statute. (See, e.g., People v. Hall (2019) 39 Cal.App.5th 502, 504.)
DISCUSSION
Defendant contends the court improperly imposed the fines and fees without conducting a hearing on his ability to pay those amounts based on Dueñas, that held “due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay” before it imposes any fines or fees. (Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1167.)
The California Supreme Court is currently considering whether trial courts must consider a defendant's ability to pay before imposing or executing fines, fees, and assessments; and if so, which party bears the applicable burden of proof. (See People v. Kopp (2019) 38 Cal.App.5th 47, 94-98, review granted Nov. 13, 2019, S257844.)
We disagree with the holding in Dueñas. As explained in People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles), we believe Dueñas was wrongly decided and an Eighth Amendment analysis is more appropriate to determine whether restitution fines, fees, and assessments in a particular case are grossly disproportionate and thus excessive. (Aviles, at pp. 1068-1072.) Under that standard, the fines and fees imposed in this case are not grossly disproportionate to defendant's level of culpability and thus not excessive under the Eighth Amendment. (Aviles, at p. 1072.) Defendant acknowledges Dueñas and suggests it should be reconsidered. We decline to do so in the absence of further guidance from the California Supreme Court.
Next, to the extent Dueñas applies to this case, defendant did not forfeit review of the issue under the governing law at the time of his sentencing hearing. Section 1202.4, subdivisions (c) and (d) only permit a party to raise an ability to pay objection when the court imposes a restitution fine above the statutory minimum. The court imposed the minimum restitution fine of $300, and thus defendant lacked the statutory authority to object at that time. (Cf. People v. Frandsen (2019)33 Cal.App.5th 1126, 1153-1154.) In addition, the statutes that authorize the imposition of the court operations and facilities fees and assessments do not permit a defendant to make any kind of ability to pay objection. (§ 1465.8, subd. (a)(1); Gov. Code, § 70373, subd. (a)(1).)
However, the People further argue that defendant forfeited review of his specific contentions because Dueñas was decided in January 2019, seven months before the sentencing hearing in this case. In his reply brief, defendant for the first time raises a claim of ineffective assistance for counsel's failure to raise an objection based on Dueñas at the sentencing hearing. “ ‘Obvious reasons of fairness militate against consideration of an issue raised initially in [a] reply brief ….' [Citation.]” (People v. Romero and Self (2015) 62 Cal.4th 1, 25; People v. Rangel (2016) 62 Cal.4th 1192, 1218.)
In any event, even if we agreed with Dueñas, defense counsel's failure to object based on that ruling was not prejudicial because defendant has the ability to pay the fines, fees, and assessments over the course of his prison sentence. (Aviles, supra, 39 Cal.App.5th at pp. 1075-1077.) “ ‘ “Ability to pay does not necessarily require existing employment or cash on hand.” [Citation.] “[I]n determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendant's present ability but may consider a defendant's ability to pay in the future.” [Citation.] This include[s] the defendant's ability to obtain prison wages and to earn money after his release from custody. [Citation.]' [Citations.]” (Aviles, supra, 39 Cal.App.5th at p. 1076.)
We can infer from the instant record that defendant has the ability to pay the aggregate amount of fines and fees from probable future wages, including prison wages. (Aviles, supra, 39 Cal.App.5th at p. 1076; People v. Ellis (2019) 31 Cal.App.5th 1090, 1094; People v. Douglas (1995) 39 Cal.App.4th 1385, 1397.) In addition, there is nothing in the record to show that defendant would be unable to satisfy the fine and fees imposed by the court while serving his prison term, even if he fails to obtain a prison job. While it may take defendant some time to pay the amounts imposed in this case, that circumstance does not support his inability to make payments on these amounts from either prison wages or monetary gifts from family and friends during his prison sentence. (See, e.g., People v. Potts (2019) 6 Cal.5th 1012, 1055-1057; People v. Lewis (2009) 46 Cal.4th 1255, 1321; People v. DeFrance (2008) 167 Cal.App.4th 486, 505.)
DISPOSITION
The judgment is affirmed.
[*] Before Levy, Acting P.J., Poochigian, J. and Detjen, J.