Opinion
F078818
04-27-2021
THE PEOPLE, Plaintiff and Respondent, v. DEAN SCOTT HASTEN, Defendant and Appellant.
Lindsay Sweet, 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, Michael A. Canzoneri and Clifford E. Zall, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Stanislaus Super. Ct. No. 4006542)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Thomas D. Zeff, Judge. Lindsay Sweet, 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, Michael A. Canzoneri and Clifford E. Zall, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
-ooOoo-
INTRODUCTION
Appellant and defendant Dean Scott Hasten contends the court improperly ordered him to pay a restitution fine and other fees without determining his ability to pay those amounts in violation of his constitutional rights as set forth in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We affirm.
FACTUAL AND PROCEDURAL BACKGROUD
On February 15, 2018, defendant entered the Walmart store in Ceres. He had the credit cards of a "Mr. Valentine," who did not give him permission to use those credits cards or pose under his name. Defendant purchased $113 worth of property by falsely representing himself to be Mr. Valentine.
The charges
On February 21, 2018, a complaint was filed in the Superior Court of Stanislaus County, case No. 4006542, that charged defendant with counts 1 through 9, misusing personal identifying information for an unlawful purpose and to obtain goods and services at various businesses in Stanislaus County on February 15, 2018 (Pen. Code, § 530.5, subd. (a)); count 10, misdemeanor petty theft of another business on the same day (§ 484, subd. (a)); and count 11, misdemeanor driving without a license (Veh. Code, § 14601.2, subd. (a)). It was further alleged defendant had two prior strike convictions, and two prior prison term enhancements (§ 667.5, subd. (b)).
All further statutory citations are to the Penal Code unless otherwise indicated.
Plea and sentencing
On March 23, 2018, defendant entered into a negotiated disposition and pleaded no contest to count 1, misuse of personal identifying information at Walmart in Ceres, admitted the two prior prison term enhancements, and the parties stipulated to the above-stated factual basis for the plea. The court dismissed the remaining charges and allegations, and defendant entered a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 for purposes of restitution.
On the same day, the court imposed an aggregate term of five years, based on the upper term of three years for count 1, plus two years for the two prior prison term enhancements, consistent with the negotiated disposition.
The court ordered defendant to pay a restitution fine of $300 (§ 1202.4, subd. (b)), suspended the parole revocation fine of the same amount (§ 1202.45), and also imposed a $40 court security fee (§ 1465.8) and a $30 criminal conviction fee assessment (Gov. Code, § 70373).
Writ petitions
On June 5, 2018, defendant filed a petition for writ of habeas corpus in the superior court, and argued he was entitled to relief because the property was recovered, the total value was less than $950, another person purchased and kept other items, and he was entitled to recall of his sentence pursuant to Proposition 47.
On June 18, 2018, defendant filed another writ petition in superior court and claimed his trial attorney failed to tell him the "correct sentencing exposure."
On July 19, 2018, the superior court denied defendant's writ petitions.
Motion to withdraw plea
Also, on or about June 18, 2018, defendant filed a motion in pro. per. to withdraw his no contest plea to violating section 530.5, and asserted he was entitled to "deferred entry of judgment" under section 1203.43.
Defendant used a preprinted pleading form with the caption that it was being filed in the Superior Court of Los Angeles County.
On September 5, 2018, the superior court held a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 and denied relief.
On November 13, 2018, the court granted defendant's request to drop his motion to withdraw his plea.
Notice of appeal
On January 11, 2019, this court granted defendant's petition for leave to file a belated notice of appeal.
On February 4, 2019, defendant filed the notice of appeal.
Section 1237.2On November 13, 2019, appellate counsel filed an informal motion with the superior court pursuant to section 1237.2, to vacate or stay the restitution fine and fees until the People proved his ability to pay those amounts as required by Dueñas.
On November 13, 2019, the superior court denied defendant's motion based on this court's opinion in People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles).
Defendant's postjudgment letter to the superior court was required to perfect appellate review and comply with section 1237.2, which states that "[a]n appeal may not be taken by the defendant from a judgment of conviction on the ground of an error in the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction in the trial court, which may be made informally in writing."
DISCUSSION
Defendant argues the superior court violated his constitutional right to due process under Dueñas, and violated the Eighth Amendment's prohibition against excessive fines, when it imposed the restitution fine and the other fees in this case. Defendant requests remand for the superior court to stay the restitution fine and vacate the fees unless the People prove his ability to pay those amounts.
Dueñas held 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 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 and find the matter need not be remanded on this issue. As explained in Aviles, supra, 39 Cal.App.5th 1055, 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.)
Next, to the extent Dueñas applies to this case, the court imposed the minimum restitution fine of $300, and defendant lacked the statutory authority to object under the governing law at the time of his sentencing hearing and has not forfeited review of the issue. (Cf. People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154.)
Even if we agreed with Dueñas, we would still reject defendant's constitutional claims and find any error arising from the court's failure to make an ability to pay finding was harmless since defendant has the ability to pay the fines and fees imposed in this case. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Jones (2019) 36 Cal.App.5th 1028, 1030-1031; 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.) There is nothing in the record to show that defendant would be unable to satisfy the fines 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 her 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.