Opinion
D074603
09-20-2019
THE PEOPLE, Plaintiff and Respondent, v. ESTEBAN PEREZ HERNANDEZ, Defendant and Appellant.
Arielle Bases, 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, Steve Oetting, Daniel Hilton, and Kristen Ramirez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD275802) APPEAL from a judgment of the Superior Court of San Diego County, Charles G. Rogers, Judge. Affirmed. Arielle Bases, 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, Steve Oetting, Daniel Hilton, and Kristen Ramirez, Deputy Attorneys General for Plaintiff and Respondent.
A jury convicted Esteban Perez Hernandez of selling, furnishing, transporting for sale, or giving away controlled substances (Health & Saf. Code, § 11379, subd. (a)) and possessing a controlled substance for sale (id., § 11378) and found true as to both crimes the allegation that the substance contained methamphetamine in excess of 4 kilograms (id., § 11370.4, subd. (b)(2)). The trial court sentenced Hernandez to a total term of nine years and imposed various fines and assessments, including court operations and court facilities assessments totaling $140 (Pen. Code, § 1465.8, Gov. Code § 70373) and a restitution fine of $2,400 (Pen. Code, § 1202.4). On appeal, Hernandez contends the restitution fine and assessments cannot be imposed "unless and until the prosecution can prove he has the present ability to pay." We reject Hernandez's contentions and affirm the judgment in its entirety.
FACTS
In February 2018, agents and officers from the Drug Enforcement Administration's Narcotics Task Force arranged to purchase 30 pounds of methamphetamine for $60,000 using a confidential informant. Hernandez met the informant in a parking lot and placed a large box containing 8.94 kilograms (just under 20 pounds) of methamphetamine inside the informant's vehicle.
Hernandez's probation report indicates the street value of the drugs was more than $40,000. This is generally consistent with trial testimony that valued a pound of methamphetamine at $2,000 (at the time of the crime) and between $1,500 and $2,000 (at the time of trial).
Hernandez was charged with selling or furnishing methamphetamine (Health & Saf. Code, § 11379, subd. (a), count 1) and possessing methamphetamine for sale (id., § 11378, count 2). As to each count it was alleged that the methamphetamine exceeded 4 kilograms in weight (id., § 11370.4, subd. (b)(2)). A jury convicted Hernandez on both counts and found true the special allegations. The trial court sentenced him to a total term of nine years. The trial court also imposed a restitution fine of $2,400—above the statutory minimum of $300 (Pen. Code, § 1202.4, subd. (b)). The court imposed a court operations assessment of $80 (id., § 1465.8 [$40 for each conviction]) and a court facilities assessment of $60 (Gov. Code, § 70373 [$30 for each conviction]). The court declined to impose certain other fees, noting, "[t]hose are all fees as to which the court has the discretion to reduce or eliminate them if the court finds that the accused does not have the ability to pay them, and I find that to be the case here, in [light] of the term of imprisonment that has been imposed."
After filing his notice of appeal, Hernandez requested that the trial court vacate the court operations and court facilities assessments and stay the restitution fine "under the principle it can correct an unauthorized sentence at any time." The trial court denied Hernandez's request, reasoning that Hernandez's challenge to the fines, fees, and assessments was not the type of issue that could be addressed by the trial court while Hernandez's appeal is pending.
In its letter rejecting Hernandez's request, the trial court also explained it did not follow its normal practice of imposing the minimum statutory restitution fine for Hernandez. The court stated it imposed a restitution fine above the statutory minimum "in part because of the quantity of the drugs and the sophistication of the scheme . . . and in part because . . . [Hernandez] coerced a wholly innocent young man—the driver—to participate in the transportation."
DISCUSSION
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Hernandez contends that imposition of the court operations assessment and court facilities assessment should be reversed, and execution of the restitution fine should be stayed, "unless and until the prosecution can prove he has the present ability to pay." We reject Hernandez's arguments.
The court operations assessment and court facilities assessment are required by statute to be imposed upon conviction. (Pen. Code, § 1465.8; Gov. Code, § 70373.) These statutes do not provide any exception based on a defendant's ability to pay. (Pen. Code, § 1465.8; Gov. Code, § 70373.) The restitution fine must be imposed upon conviction as well, unless the trial court finds "compelling and extraordinary reasons for not [imposing the fine] and states those reasons on the record." (Pen. Code, § 1202.4, subd. (c).) The trial court has discretion to set the restitution fine in any amount between the statutory minimum of $300 and the statutory maximum of $10,000. (Id., subd. (b).) A defendant's inability to pay does not qualify as an extraordinary and compelling reason not to impose a restitution fine, but the court must consider ability to pay if it imposes the restitution fine above the statutory minimum. (Id., subd. (c)-(d).)
Hernandez's argument that ability to pay is a factor that the court "can"—but is not required to—consider in imposing a restitution fine above the statutory minimum conflicts with the plain language of the statute and we reject it. (Pen. Code, § 1202.4, subd. (d) ["In setting the amount of the fine . . . in excess of the minimum . . . , the court shall consider any relevant factors, including . . . the defendant's inability to pay . . . ."].)
The Dueñas court examined the effects of imposing fines and fees on certain defendants who lack the financial ability to pay them. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The court determined that such defendants face significant negative consequences, even if the fines and fees are enforced only as civil judgments. (Ibid.) Under these circumstances, Dueñas observed, "Imposing unpayable fines on indigent defendants is not only unfair, it serves no rational purpose, fails to further the legislative intent, and may be counterproductive." (Id. at p. 1167.) The court therefore 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 court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373." (Id. at p. 1164.) The Dueñas court also held that "although Penal Code section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the 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 the restitution fine." (Ibid.)
Dueñas involved an indigent, disabled, and homeless mother of young children who, due to illness, did not complete high school and subsisted on public aid. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) Courts have reached divergent conclusions regarding the application of Dueñas to cases presenting less compelling facts. As this court noted in People v. Kopp (2019) 38 Cal.App.5th 47, 94 (Kopp), "Although we do not reject Dueñas outright, we urge caution in following that case and announcing a significant constitutional rule without regard to the extreme facts Dueñas presented." In addition to the divergent views regarding the merits of Dueñas, courts are split on the issue of whether a defendant forfeits the ability to challenge fines, fees, and assessments by failing to object and request an ability to pay hearing in the trial court. (Compare Gutierrez, supra, 35 Cal.App.5th at p. 1033 [finding forfeiture], People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154-1155 [same], and People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 [same] with People v. Johnson (2019) 35 Cal.App.5th 134, 137-138 (Johnson) [declining to find forfeiture], People v. Castellano (2019) 33 Cal.App.5th 485, 489 [same], and People v. Jones (2019) 36 Cal.App.5th 1028, 1033 [same].)
As we further concluded in Kopp, the proper analytical framework for evaluating the constitutionality of punitive fines, such as restitution fines under Penal Code section 1202.4, subdivision (b), is the excessive fines clauses of the federal and state Constitutions. (Kopp, 38 Cal.App.5th at pp. 96-97; see People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1034 (Gutierrez) (conc. opn. of Benke, J.).)
Here, Hernandez did not object to the restitution fine or the assessments, and he did not request an ability to pay hearing in the trial court. He told the probation officer he had been employed as a tailor for the past 10 years in Los Angeles and as an automobile mechanic who works on vehicles on his own time. Between both of these jobs, he earns approximately $2,000 per month.
At the time of sentencing, the court further concluded Hernandez also "made his livelihood" as a "drug dealer."
Based on this record, we conclude Hernandez forfeited any challenge to the restitution fine of $2,400 by failing to object in the trial court. At the time this fine was imposed, "the law called for the court to consider a defendant's ability to pay in setting a restitution fine [above the statutory minimum], and defendant could have objected at the time if he believed inadequate consideration was being given to this factor." (People v. Nelson (2011) 51 Cal.4th 198, 227 (Nelson) [rejecting defendant's claim that the trial court, which imposed a $10,000 restitution fine, erred by failing to take into consideration his inability to pay]; see Gutierrez, supra, 35 Cal.App.5th at p. 1033 ["[E]ven if Dueñas was unforeseeable (a point on which we offer no opinion), under the facts of this case [defendant] forfeited any ability-to-pay argument regarding the restitution fine [above the statutory maximum] by failing to object."].)
Aside from forfeiture, Hernandez's claim lacks merit. " '[A]s the trial court was not obligated to make express findings concerning his ability to pay, the absence of findings does not demonstrate it failed to consider this factor.' " (Nelson, supra, 51 Cal.4th at p. 227.) Nothing in the record indicates the trial court neglected its duty to consider Hernandez's ability to pay the restitution fine. (Pen. Code, § 1202.4, subd. (d).) We thus infer from the record that the trial court imposed the restitution fine based (at least in part) on the consideration of Hernandez's ability to pay it. And the record supports the conclusion that Hernandez has the ability to pay the imposed fine. As noted, he was earning approximately $2,000 per month working as a tailor and as an automobile mechanic prior to the offense. We therefore conclude the trial court did not erroneously impose the $2,400 restitution fine, and we reject Hernandez's request to stay its execution.
The fact that the trial court imposed a restitution fine higher than the statutory minimum distinguishes this case from Dueñas and Castellano, on which Hernandez relies. In Dueñas and Castellano, the trial court imposed the minimum statutory restitution fine, so there was no basis to infer that the trial court considered the defendant's ability to pay as required under Penal Code section 1202.4. (See Gutierrez, supra, 35 Cal.App.5th at p. 1033 ["[E]ven before Dueñas a defendant had every incentive to object to imposition of a maximum restitution fine based on inability to pay because governing law as reflected in the statute ([Pen. Code,] § 1202.4, subd. (c)) expressly permitted such a challenge."].)
Hernandez repeatedly claims he "is indigent" but the only evidence he provides to support that claim is that he was represented at trial by the public defender and is represented on appeal by appointed counsel. As the Attorney General points out, the standard for determining ability to pay the costs of counsel is not the same as the standard for determining the ability to pay a restitution fine. (See People v. Douglas (1995) 39 Cal.App.4th 1385, 1397 ["a defendant may lack the 'ability to pay' the costs of court-appointed counsel yet have the 'ability to pay' a restitution fine"].)
The same forfeiture analysis applies to Hernandez's challenge to imposition of the court operations and court facilities assessments in this case. (Gutierrez, supra, 35 Cal.App.5th at p. 1033.) As a practical matter, if Hernandez chose not to object to a $2,400 restitution fine based on an inability to pay—as authorized by statute even prior to Dueñas—it is unlikely he would complain on similar grounds regarding an additional $140 in assessments. (Ibid.)
Even assuming that Hernandez did not forfeit his challenge to the assessments, and further assuming the trial court was required to consider Hernandez's ability to pay these assessments before imposing them, we conclude any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) In assessing whether a defendant has the ability to pay the court operations assessment, court facilities assessment, and restitution fine, courts are not limited to considering a defendant's present ability to pay but may consider his or her ability to pay in the future. (Kopp, supra, 38 Cal.App.5th at p. 96 [in determining ability to pay, trial court should not limit itself to considering only whether defendant has the ability to pay at the time of the sentencing hearing; "it is appropriate for the court to consider the wages that [defendants] may earn in prison"]; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [ability to pay includes a defendant's ability to obtain prison wages]; Pen. Code, § 2085.5, subd. (a) [requiring restitution fine to be collected from inmate's wages and trust account deposits].) The assessments at issue in this case total $140, Hernandez was just 32 years old at sentencing, and Hernandez was sentenced to serve a nine-year prison term. "The idea that [defendant] cannot afford to pay [$140] while serving [a nine-year] prison sentence is unsustainable. Thus, even if we were to assume [defendant] is correct that he suffered a due process violation when the court imposed this rather modest financial burden on him without taking his ability to pay into account, we conclude that, on this record, because he has ample time to pay it from a readily available source of income while incarcerated, the error is harmless beyond a reasonable doubt." (Johnson, supra, 35 Cal.App.5th at pp. 139-140.)
The Attorney General argued in its brief on appeal that Hernandez has the ability to pay the assessments and fine through prison wages and future earnings. Hernandez did not dispute this point in his reply brief.
The fact that the trial court declined to impose other discretionary fees—indicating that Hernandez did not have the ability to pay them in light of the "term of imprisonment" imposed—does not alter our conclusion that Hernandez had the ability to pay those fees and assessments that were imposed. A reasonable inference from the court's comments is that it appropriately considered the overall financial burden imposed on Hernandez.
The lack of prejudice beyond a reasonable doubt is fatal to Hernandez's related contention that his trial counsel was ineffective for failing to object to the court operations assessment, court facilities assessment, and restitution fine on grounds of inability to pay. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 119; Strickland v. Washington (1984) 466 U.S. 668, 686 [to prevail on claim of ineffective assistance of counsel, defendant must show that counsel's deficient performance resulted in prejudice].) We also reject Hernandez's claim that counsel's failure to object fell below an objective standard of reasonableness. (Strickland, at pp. 687-688.) He claims there "is no conceivable tactical reason for not raising his inability to pay." But counsel may not have objected because the record indicates Hernandez indeed has the ability to pay. (Gutierrez, supra, 35 Cal.App.5th at p. 1033 [defendant's decision not to object "is understandable in view of his lengthy employment history"]; People v. Ochoa (1998) 19 Cal.4th 353, 463 ["Representation does not become deficient for failing to make meritless objections."].)
DISPOSITION
The judgment is affirmed.
GUERRERO, J. I CONCUR: HUFFMAN, J. I CONCUR IN THE RESULT: BENKE, Acting P. J.