Opinion
H046430
10-31-2019
THE PEOPLE, Plaintiff and Respondent, v. EFRAME JOSEPH HAILE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. Nos. C1754652, C1762630)
In separate proceedings, defendant Eframe Joseph Haile pleaded no contest to encouraging another person to become a prostitute and failure to update his annual sex offender registration with admissions in both cases that he had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). During a single joint sentencing hearing, defendant was granted probation in both cases. Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), he argues on appeal that the sentencing court violated his right to due process by imposing court operations and court facilities fees without first considering his ability to pay. He also raises an ineffective assistance of counsel claim. We shall affirm.
All further statutory references are to the Penal Code unless otherwise specified.
I. BACKGROUND
On February 16, 2017, defendant pleaded no contest to failure to update his annual sex offender registration (§ 290.012) in case No. C1754652 with the admission that he had served a prior prison term within the meaning of section 667.5, subdivision (b).
On June 13, 2018, defendant pleaded no contest to encouraging another person to become a prostitute (§§ 664, 266i, subd. (a)(1)) in case No. C1762630. He also admitted that he had served a prior prison term within the meaning of section 667.5 subdivision (b).
On November 2, 2018, the court granted defendant formal probation for a period of five years in both cases with various conditions. In each case, the court imposed a $300 restitution fine (§ 1202.4, subd. (b)), a court operations fee (§ 1465.8) of $40, and a court facilities fee (Gov. Code, § 70373) of $30. In case No. C1754652, the court ordered that defendant's probation would terminate upon his release from the four-month jail term that the court ordered as a condition of his probation. Since defendant's presentence custody credits exceeded that term, he was released from custody and the court terminated probation in that case.
Defendant filed a timely appeal from both orders granting probation on November 7, 2018.
While this appeal was pending, the trial court revoked defendant's probation in case No. C1762630. Subsequently, the court sentenced defendant to serve a term of 18 months in state prison on April 30, 2019. Because his presentence custody credits exceeded that term, the court deemed the sentence served. At sentencing the court stayed defendant's $300 restitution fine pursuant to Dueñas.
II. DISCUSSION
Citing Dueñas, defendant argues that the trial court violated his right to due process by imposing the $30 court facilities fees (Gov. Code, § 70373) and the $40 court operations fees (§ 1465.8) without first considering his ability to pay. Defendant also argues that he received ineffective assistance of counsel insofar as his attorney failed to preserve this argument by objecting to the fees based on his inability to pay.
Defendant does not challenge the $300 restitution fine that was imposed in case No. C1754652, and as we have noted, the superior court has stayed the $300 restitution fine in case No. C1762630.
The Attorney General responds that defendant has forfeited his Dueñas claim by his failure to object and that defendant cannot establish ineffective assistance of counsel because his attorney could have reasonably concluded that any objection to the fees would have been futile.
We need not address whether defendant forfeited his Dueñas claim or whether Dueñas was correctly decided because the record here demonstrates that defendant will have the ability to pay the $140 total in fees.
A. Dueñas
In Dueñas, the defendant was a homeless woman with cerebral palsy, two young children, and a husband who was unemployed. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) When she was a teenager, she had received three juvenile citations that she could not pay. (Id. at p. 1161.) Due to her failure to pay these citations, her driver's license was ultimately suspended. (Ibid.) She then received three misdemeanor convictions for driving with a suspended license and one conviction for failure to appear. (Ibid.) In each of those cases she was offered the choice of paying a fine or serving jail time, and each time she served jail time because she could not afford the fines. (Ibid.) On appeal from one of her convictions for driving with a suspended license, she argued that her state and federal rights to due process were violated when the sentencing court imposed fines and fees without considering her ability to pay. (Id. at p. 1160.)
The appellate court agreed, ultimately concluding that "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 court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) Acknowledging that section 1202.4 barred consideration of a defendant's ability to pay unless the court was considering imposing a restitution fine greater than the statutory minimum, the Dueñas court also held that execution of any restitution fine imposed under this statute 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 it. (Dueñas, supra, at p. 1164.)
B. The Record Demonstrates That Defendant Has the Ability to Pay
We conclude that any error in imposing the fines and assessments without conducting an ability-to-pay hearing was harmless in this case. We review federal constitutional errors under the harmless-beyond-a-reasonable-doubt test for prejudice set forth in Chapman v. California (1967) 386 U.S. 18, 24. (See People v. Johnson (2019) 35 Cal.App.5th 134, 140 (Johnson) [finding Dueñas error harmless under Chapman]; People v. Jones (2019) 36 Cal.App.5th 1028, 1030-1031 (Jones) [same].) Any error was harmless if the record demonstrates that defendant could not have established an inability to pay.
Unlike the situation presented in Dueñas, the record here demonstrates that defendant will have the ability to pay the $140 total in fees. Defendant was 30 years old when he was granted probation. There is nothing in the record to indicate that he suffers from any physical, mental, or emotional affliction or illness. When he was granted probation, defendant's attorney informed the court that he had been "working part time with his parents at the Burger King." Prior to sentencing, defendant's parents wrote a letter to the court indicating that they own a Burger King franchise in the San Jose area and that defendant has "worked for [their] business." Defendant's parents further informed the court that he is "reliable, responsible, and trustworthy, so that we allow him to run the business at times when we are on vacation or business meetings." Defendant's cousin also wrote a letter to the sentencing court in which she noted that she would often visit defendant while he was working at the Burger King. She informed the court that defendant is "a fast learner" and "able to do math calculations in his head" and that he had been "very helpful with his parents' . . . fast food restaurant business." In fact, when assessing defendant's ability to pay upon his grant of probation, the sentencing court noted that "I do believe that he will have some means and working [sic] given his history."
A determination of a defendant's ability to be pay may be made "based on the person's ability to earn where the person has no physical, mental or emotional impediment which precludes the person from finding and maintaining employment once his or her sentence is completed." (People v. Staley (1992) 10 Cal.App.4th 782, 783; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 (Hennessey).) Courts must consider "all relevant factors" in determining ability to pay. (People v. Castellano (2019) 33 Cal.App.5th 485, 490.) In fact, " '[a]bility to pay does not necessarily require existing employment or cash on hand.' [Citation]. '[I]n determining whether a defendant has the ability to pay . . . the court is not limited to considering a defendant's present ability but may consider a defendant's ability to pay in the future.' " (Hennessey, supra, at p. 1837.) "This include[s] the defendant's ability to obtain prison wages and to earn money after his release from custody." (Ibid.) While defendant was represented by a public defender, that fact alone does not demonstrate that he will be unable to pay the $140 total in fees. (Cf. People v. Douglas (1995) 39 Cal.App.4th 1385, 1397.)
Considering the current record, it is clear that defendant will be able to earn the $140 total in fees. (Cf. Johnson, supra, 35 Cal.App.5th at p. 139 ["The idea that [defendant] cannot afford to pay $370 while serving an eight-year prison sentence is unsustainable"]; Jones, supra, 36 Cal.App.5th at p. 1035 [finding Dueñas error harmless because defendant sentenced to six-year term would have ability to pay $300 restitution fine and $70 in assessments from prison wages].) As a result, any error in the sentencing court's failure to hold an ability-to-pay hearing under Dueñas was harmless. (Cf. Johnson, supra, at p. 139; Hennessey, supra, 37 Cal.App.4th at p. 1837.)
The fact that the trial court stayed the restitution fine in case No. C1762630 pursuant to Dueñas while this appeal was pending does not change our analysis. Our review is confined to the record before us which demonstrates that defendant does have the ability to pay the fees that the trial court imposed in both cases.
Since we have not found defendant's Dueñas claim forfeited, we need not address his argument that trial counsel was ineffective in failing to preserve that argument. --------
III. DISPOSITION
The judgment is affirmed.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
GROVER, J. /s/_________
DANNER, J.