Opinion
C082284
02-06-2020
THE PEOPLE, Plaintiff and Respondent, v. SEMAJ SHAW HOWARD, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F02989)
Defendant Semaj Shaw Howard was homeless when he and his son, Sirrom, shot and killed another homeless man, Quincey Lacey, who had threatened to rape defendant's girlfriend. Charged with murder, defendant was tried by jury and acquitted of that crime. The jury instead convicted him of voluntary manslaughter and found an allegation defendant was armed with a firearm during the commission of the offense to be not true. The trial court, after finding defendant was previously convicted of a serious felony offense, sentenced him to serve 22 years in state prison and imposed other orders.
On appeal, defendant contends: (1) the trial court prejudicially abused its discretion and violated his federal constitutional rights by denying his request for a continuance; (2) the trial court also prejudicially erred and further violated defendant's constitutional rights by failing to instruct the jury, sua sponte, on principles relevant to assessing accomplice testimony; (3) this court should independently review certain medical records the trial court reviewed in camera in order to determine whether or not any of those records should have been turned over to the defense; and (4) the trial court violated various constitutional provisions by imposing mandatory fines and fees without first determining his ability to pay.
We affirm. As we explain, the trial court's denial of the requested continuance was not an abuse of discretion and did not result in a constitutional violation. Assuming, without deciding, that the jury should have been instructed regarding their assessment of accomplice testimony, any error in this regard was manifestly harmless. Having reviewed the medical records in question, we conclude nothing was improperly withheld from the defense. And finally, we conclude defendant has forfeited his challenge to the trial court's imposition of a $6,600 restitution fine and stayed parole revocation fine in the same amount; assuming, without deciding, his challenges to the other mandatory fines and fees have not been forfeited, we conclude there was no constitutional violation.
FACTS
Because defendant does not challenge the sufficiency of the evidence supporting his conviction, we need not set forth each item of evidence adduced against him in great detail. The following summary of events, recounted in the light most favorable to the judgment, will suffice.
In March 2015, defendant and his girlfriend, C., were homeless and living in defendant's car. Lacey was also homeless and living in a camp along the American River. A few days before Lacey's death, he and defendant got into an argument at another individual's camp. During the argument, Lacey told defendant he was going to rape C. in some bushes. Defendant became angry and said, "I would like to see you try."
On the day Lacey was shot to death, defendant briefly stopped by a different camp along the river, occupied by P., whom defendant referred to as "mom." Defendant was wearing a camouflage jacket and holding a revolver. He said he was looking for Lacey. When P. asked if he and Lacey could resolve their dispute with "words instead of acts of violence," defendant responded, "No negotiation, it's about respect," and told her to "stay out of it." He then left her camp.
Later that night, C. was at a bar close to the river when Lacey approached her and asked where defendant was. C. said she did not know and left the bar to look for him. Finding defendant beneath a nearby overpass, C. told him Lacey was looking for him. They then walked to another camp along the river, where C. would stay for the next few hours while defendant "was in and out," sometimes leaving for a few minutes, other times being gone for half an hour.
After one of those trips out of the camp, defendant returned with his son, Sirrom. C. saw defendant holding a revolver behind his back as they approached the camp. He was still wearing the camouflage jacket he had on earlier. C. described Sirrom as being either African American or Indian, with a medium skin tone, and taller than defendant. Sirrom asked C. whether Lacey had threatened to rape her. C. said he had. Defendant and his son then left the camp. Defendant was holding the revolver when they left.
Either on their way to the camp or after leaving, defendant and his son came upon P., with whom defendant had spoken earlier. While she did not know Sirrom, she described defendant's companion as a "young man" in "his early 20s," taller than defendant, and he appeared to be biracial. Defendant was carrying the same revolver P. saw him with earlier.
Meanwhile, Lacey was at another camp with several homeless people, including V. At around 11:00 p.m., Lacey and V. left the camp to walk to a nearby convenience store. During the walk, defendant approached wearing a black hooded sweatshirt and bandanna around the bottom of his face. Pointing the revolver at the men, defendant said: "Stop, both you mother fuckers." V. recognized defendant's voice. Defendant then said to Lacey, among other things: "You messed with the wrong girl. You talked shit about the wrong person, mother fucker." Apparently at defendant's direction, Lacey and V. got down on the ground. Defendant then whistled, prompting his son to walk out from behind some bushes. Sirrom was holding a semiautomatic handgun and was also wearing a black hooded sweatshirt and bandanna around the bottom of his face. Defendant ordered Lacey to get up and follow him over a hill and towards the river. Lacey complied. As they walked, another homeless man happened upon the scene. Defendant ordered him to "[g]et the fuck over here" and Sirrom had him join V. on the ground.
From V.'s position on the ground, he could hear defendant and Lacey on the other side of the hill. Lacey begged for his life. Defendant told him he "was going to pay" for what he said about C. Lacey responded: "I didn't say that. It wasn't like that." Defendant then fired six rounds. V. heard the shots and Lacey screaming. Defendant called for Sirrom to come over and "put some more lead in his ass." When Sirrom started walking up the hill, V. and the other homeless man took that as their opportunity to escape. V. heard another "ten or twelve" shots as they made their hasty departure.
C. also heard the shots from where she was at the camp. A short time later, defendant and Sirrom returned. Defendant, who was now wearing a black hooded sweatshirt, told C. to "get [her] stuff and run." Defendant handed her the revolver and Sirrom handed her the semiautomatic, both of which she put in a diaper bag. The three ran toward their respective cars. At some point, C. gave Sirrom the guns and he parted company, walking alone toward his car while defendant and C. continued toward defendant's car. Later that night, defendant seemed "remorseful." He did not tell C. what happened, but did say, "No one says that about my queen."
Lacey's body was discovered the following morning. He had been shot 14 times in the abdomen, chest, both thighs, left upper arm and forearm, neck, back, and buttocks. Six bullets were recovered from his body. A forensic analysis of these bullets revealed each was consistent with having been part of a .380 automatic cartridge and each was fired from the same gun. A seventh bullet was found near Lacey's body at the crime scene. This bullet was also of the .38 caliber variety, but was heavier than the other six and had different rifling characteristics, indicating it was fired from a different gun, probably a .38 Special or a .357 Magnum revolver. Seventeen .380 automatic shell casings were also found near Lacey's body, all of which were fired from the same gun.
The prosecution's case against defendant relied largely on the testimony of C., V., and P., whose testimony corroborated that of each other and was further corroborated by the ballistics evidence. Additionally, the prosecution adduced testimony from F., an inmate who shared a cell with defendant while he awaited trial. Defendant told F. that he was charged with murdering Lacey and offered him "large amounts of methamphetamines" in exchange for killing V., P., and other "complications" to his case. Defendant told F., who would be getting out of jail before the preliminary hearing, to kill these potential witnesses before that hearing. He also wrote their names down on a piece of paper and gave it to F., who, rather than comply with defendant's request, told the guards about the conversation and handed over the list of names. C.'s name was not on the list, but she initially told police she was the one who killed Lacey. She did so because she was "still in love" with defendant. About three months after Lacey's death, C. provided a second statement to police implicating defendant. After that interview, C. received three phone calls from an unidentified male. In the first, the caller said defendant wanted her to write to him and that he still loved her. About a week and a half later, C. received a second call in which the caller said defendant did not know why she turned her back on him. In the third call, the caller told C. to "watch [her] back" and that he knew where her son lived. Notwithstanding these calls, C. testified against defendant at trial, as recounted above.
The defense case consisted of two witnesses who testified V. admitted to shooting Lacey. We discuss their testimony in greater detail in the discussion portion of the opinion, to which we now turn.
DISCUSSION
I
Denial of Defendant's Requested Continuance
Defendant contends the trial court prejudicially abused its discretion and violated his federal constitutional rights by denying his request for a midtrial continuance to enable him to locate a potential defense witness, N., who was homeless and had not been located despite defense counsel's diligent efforts to secure his attendance. We disagree.
A.
Additional Background
On January 14, 2016, N. was served with a subpoena to appear in court the following week. He failed to appear, a bench warrant was issued, and he was arrested.
On February 2, while N. was in custody, defendant asked the trial court to issue a material witness warrant, stating in the request for the warrant that N. was expected to contradict testimony P. gave during the preliminary hearing. As P. would later testify at trial, recounted in greater detail above, she testified during the preliminary hearing that defendant stopped by her camp with a revolver looking for Lacey, and he was also holding the same gun when she encountered him again later that night. N., however, provided a statement to police in which he stated he saw Lacey, not defendant, with a revolver that day. N. further stated he was in the tent with P. when defendant stopped by, defendant was looking for C., and N. "didn't see he had a gun at all."
Two days later, N. appeared before the court with assigned counsel, who explained N. did not appear for the previous court date because he was in custody at the time scheduled for his appearance. He was apparently released from custody later that day and then arrested the next day for the failure to appear. N. was sworn and testified he was willing to come to court to testify in this matter. The trial court determined the failure to appear was not willful, set two court dates for the following week, and ordered N. to appear both dates.
N. appeared on the first of those dates and was ordered to return on February 17. He did not appear for that court date and the trial court issued another bench warrant for his arrest. The following day, toward the end of the prosecution's case-in-chief, defense counsel informed the trial court N. was "still not in custody" and asked for a continuance, explaining: "He's incredibly important for the defense. I will not close or rest my case until I have [N.] on the witness stand." The trial court responded: "Well, I'll give you some time, Counsel, I can't give you an indefinite amount of time. Certainly I can give you the weekend. Today is Thursday, so I don't think you're saying -- you're not going to have any trouble from the Court if you can't proceed with[] him today because [the prosecutor] has evidence to present. If we have to end it at the end of the morning, that's fine, that's a very reasonable request since we're dark on Friday anyway. [¶] But depending on where we are on Monday, hopefully we'll get this guy in custody, and if there's anything you want the Court to do to facilitate that, I would be happy to help in any way I can. But I can't really grant you a continuance if he's not in custody next week and leave the jury on the hook indefinitely. That's just not practical. [¶] So whatever I can do to help, let me know. In the meantime, [there] can be a search over the weekend. If you have a lead on the guy and you need a day or two, I'll work with you there, too."
On Monday, February 22, defense counsel informed the trial court N. had still not been found and asked for a continuance. Counsel explained he notified the park rangers, who "had six officers looking for [him], they did know where his camp was; however, he was not in his camp." Counsel continued: "There were three phone numbers that were provided by [N.'s assigned attorney] to myself to contact [N.] Two of the numbers did not work. One of the numbers is to [D.] I spoke to her on Sunday, she has not seen [N.] She was under the belief that the day before [N.] had pounded on the door while her grandson was home, but [N.] is not allowed in the house without her being present. She did not see [N.] and the grandson did not see [N.], but that was what they suspected. [¶] I checked the web site for the Sacramento County Sheriff's Department this morning and I did not see [N.'s] name in the in-custody section." After hearing from the prosecution, the trial court denied the request, explaining: "We are dark for evidence this morning and tomorrow morning and the People have indicated that they plan to do a rebuttal case. So while I won't grant a continuance, I will allow you to call the witness at [the] conclusion of the People's rebuttal case. But I'm not going to keep a jury on hold indefinitely while we look for the witness. There's no indication that we will ever find him, we may or we may not."
The following day, defense counsel again asked for a continuance, explaining to the trial court: "I spoke to [N.'s] grandmother this morning again. She has not seen or heard from [N.] I did check the in-custody status this morning and I did not see [N.'s] name on it. [¶] I'm renewing my request for a continuance until [N.] is brought before the court. He's an essential witness." Counsel then asked that N.'s recorded statement to police be marked as an exhibit and argued his expected testimony would contradict P.'s testimony. After again hearing from the prosecution, the trial court denied this request as well, explaining: "In that the witness is not in custody and that there's no indication of where he might be, he is a transient, there's no indication of where he has gone. To grant a continuance at this point would be an indefinite continuance because we don't know where he is or even if he is in Sacramento or even if he is in California at this time." After the trial court's ruling, the defense rested its case and the prosecution indicated it had no rebuttal case to present.
B.
Analysis
"The granting or denial of a continuance during trial traditionally rests within the sound discretion of the trial judge. [Citations.] To establish good cause for a continuance, defendant had the burden of showing that he had exercised due diligence to secure the witness's attendance, that the witness's expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven." (People v. Howard (1992) 1 Cal.4th 1132, 1171, italics added; see also People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 291 [trial court "must consider not only the benefit the moving party anticipates, but also the likelihood the benefit will result"].) Additionally, the trial court must consider " 'the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion. In the lack of a showing of an abuse of discretion or of prejudice to the defendant, a denial of his [or her] motion for a continuance cannot result in a reversal of a judgment of conviction.' [Citation.]" (People v. Zapien (1993) 4 Cal.4th 929, 972 (Zapien); People v. Fudge (1994) 7 Cal.4th 1075, 1105-1106.)
Here, the trial court was well within its discretion in determining defendant had not shown N.'s testimony could be obtained within a reasonable time. As the trial court explained, despite diligent efforts by defense counsel to obtain N.'s attendance, no one knew where he was located or whether he was even still in California. Defendant takes issue with this assessment, arguing defense counsel "possessed information [N.] was in the area" and citing the fact his grandmother "suspected" N. had pounded on her door over the weekend. However, what defendant omits from his briefing is defense counsel's representation that the grandmother was not home at the time, and while another grandson was home, he did not see who was pounding on the door. Both the grandmother and her grandson simply suspected it was N. who did so. This is pure speculation.
As our Supreme Court stated in similar circumstances many years ago: "Of course, there was nothing in the claim that a continuance should be granted to enable defendant to obtain the deposition of an alleged witness as to whose whereabouts nobody had any knowledge, and concerning whom there was no apparent probability that any knowledge would ever be obtained. An application for a continuance in a criminal case is a matter in which much is left to the discretion of the trial court, and it cannot be here held that there was any abuse of that discretion." (People v. Russell (1909) 156 Cal. 450, 456.)
II
Absence of Accomplice Instructions
Defendant also claims the trial court prejudicially erred and further violated his constitutional rights by failing to instruct the jury, sua sponte, on principles relevant to assessing accomplice testimony. The Attorney General neither concedes nor contests that instructional error occurred, but instead argues any assumed error was harmless under any standard of prejudice. We also assume error occurred and conclude it was harmless.
As previously mentioned, two defense witnesses testified V. admitted to shooting Lacey. This testimony supported defendant's third-party culpability defense. The first such witness, who lived in a van at a trailer park, testified that V. came over to his van one night after Lacey was killed. They used some methamphetamine together and V. confessed to shooting Lacey. According to this witness, V. showed him a semiautomatic handgun and said, among other things, that he "emptied the clip" into Lacey. The other witness who claimed V. confessed testified she had two conversations with him about the shooting. V. was "really high" and "babbling" during the first conversation. While the witness could not understand much of what V. was saying, he indicated that he witnessed Lacey rape a Mexican girl in some bushes and got a gun to confront him. V. then "kind of made it out like him and somebody else had tortured [Lacey] and made him plea for his life, and they finally killed him." In the second conversation, V. was also high on methamphetamine, but more coherent than during the first. He claimed somebody else killed Lacey while he watched, but that he participated in torturing him. While the testimony is less than clear on this point, during one or both of these conversations, V. claimed he shot Lacey only once. While neither the prosecution nor the defense pursued a theory that V. was an accomplice to the murder, as opposed to either an innocent bystander or the third-party perpetrator, we need not decide whether that rendered accomplice instructions unnecessary. Instead, we conclude any assumed error in failing to provide such instructions was harmless.
As our Supreme Court has explained, " 'the failure to instruct on accomplice testimony . . . is harmless where there is sufficient corroborating evidence in the record. [Citations.] The requisite corroboration may be established entirely by circumstantial evidence. [Citations.] Such evidence "may be slight and entitled to little consideration when standing alone. [Citations.]" ' [Citation.] 'Corroborating evidence "must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged." [Citation.]' [Citation.]" (Zapien, supra, 4 Cal.4th at p. 982.)
Here, V.'s testimony was corroborated by that of both C. and P. As previously described, V. testified defendant approached him and Lacey while holding a revolver and said: "Stop, both you mother fuckers." Defendant also said to Lacey: "You messed with the wrong girl. You talked shit about the wrong person, mother fucker." Stopping for a moment at this point in the narrative, we note both C. and P. testified defendant was carrying a revolver that night. P. testified defendant was looking for Lacey, and when she asked whether they could resolve their differences without resorting to violence, defendant said: "No negotiation, it's about respect," and told her to "stay out of it." As C. testified, the dispute between defendant and Lacey involved the latter threatening to rape C., defendant's girlfriend, making V.'s account of defendant's statement to Lacey, that he "talked shit about the wrong person," entirely believable.
Returning to V.'s testimony, he also described another man who appeared from behind some bushes when defendant whistled. This person was holding a semiautomatic handgun and stood guard over V. and another homeless man who happened upon the scene as defendant ordered Lacey to walk over a hill and toward the river with him. V. then heard Lacey begging for his life and defendant telling him he "was going to pay" for what he had said. Lacey responded: "I didn't say that. It wasn't like that." V. then heard six gun shots and Lacey screaming. Defendant called for the other man to come over and "put some more lead in his ass." When defendant's accomplice started walking up the hill, V. and the other homeless man ran away as "ten or twelve" more shots were fired. This testimony was also corroborated by that of C. and P. While V. could not identify the second man, defendant referred to him as "son" and the description V. provided generally corresponded to C.'s description of Sirrom and P.'s description of the young man she saw defendant with earlier in the night. C. also testified that defendant and Sirrom came to the camp where she was before the shooting and Sirrom asked her whether Lacey had threatened to rape her, indicating defendant and his son were out looking for Lacey to confront him about the threat. C. further testified that after the shooting, defendant came back to the camp with Sirrom and told C. they needed to run. Defendant and Sirrom handed C. their respective guns, a revolver and semiautomatic handgun, to put into her diaper bag. Thus, the combined testimony of C., P., and V. provided compelling evidence V. was not an accomplice, but rather a witness to the shooting perpetrated by defendant and his son as retribution for the threat Lacey made against C.
As in Zapien, supra, 4 Cal.4th 929, "[t]he other evidence of defendant's guilt was sufficient, therefore, to corroborate the testimony of [V.], and any error committed by the trial court in failing to instruct the jury regarding the testimony of an accomplice was harmless." (Id. at p. 983.)
III
Review of Medical Records
Defendant also asks this court to independently review certain medical records the trial court reviewed in camera in order to determine whether any of those records should have been turned over to the defense. The Attorney General agrees we may do so. Having reviewed the medical records not turned over to the defense, we conclude nothing was improperly withheld from the defense.
IV
Imposition of Fines and Fees
In a supplemental brief filed with this court's permission following the Second Appellate District's recent decision in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant argues imposition of the following fines and fees violated his constitutional rights because the trial court did not determine his ability to pay before imposing them: (1) a restitution fine of $6,600 (Pen. Code, § 1202.4), (2) a stayed parole revocation restitution fine of $6,600 (Pen. Code, § 1202.45), (3) a victim restitution fine of $990.27 (Pen. Code, § 1202.4), (4) a jail booking fee of $384.94 (Gov. Code, § 29550.2), (5) a jail classification fee of $64.82 (Gov. Code, § 29550.2), (6) a fee of $702 for preparation of the probation report (Pen. Code, § 1203.1b), (7) a court operations assessment of $40 (Pen. Code, § 1465.8), and (8) a court facilities assessment of $30 (Gov. Code, § 70373). He asks this court to stay each of these fines and fees. The Attorney General responds by arguing this claim is forfeited by defendant's failure to raise the issue of his ability to pay in the trial court. The Attorney General further asserts there was no constitutional violation because there is no indication in the record that defendant will not be able to earn sufficient prison wages during the course of his lengthy incarceration to pay these fines and fees.
We conclude defendant's challenge to the restitution fine and parole revocation restitution fine are forfeited. Assuming, without deciding, his challenges to the other fines and fees have not been forfeited, we conclude Dueñas, supra, 30 Cal.App.5th 1157 was wrongly decided and therefore reject defendant's claim on that basis.
A.
Dueñas
In Dueñas, the defendant (Dueñas) was an indigent and homeless young mother with cerebral palsy who pleaded no contest to driving with a suspended license, a crime she committed after losing her license because she was unable to pay certain fines associated with three juvenile citations. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) The trial court granted Dueñas probation and, among other things, imposed various mandatory fines and fees. (Id. at pp. 1161-1162.) Dueñas asked the trial court to set a hearing to determine her ability to pay. (Id. at p. 1162.) At the hearing, the trial court found Dueñas lacked an ability to pay but nevertheless confirmed imposition of court facilities and court operations assessments, noting both were "mandatory regardless of Dueñas's inability to pay them," and also confirmed imposition of a restitution fine in the minimum amount, finding, "Dueñas had not shown the 'compelling and extraordinary reasons' required by statute (Pen. Code, § 1202.4, subd. (c)) to justify waiving this fine." (Id. at p. 1163.) The trial court also rejected Dueñas's constitutional arguments that due process and equal protection prohibited imposition of these fines and fees without a determination that she possessed the ability to pay them. (Ibid.)
Our colleagues at the Second Appellate District reversed. With respect to the court facilities and court operations assessments, the court 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 [these] assessments." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The court noted the constitutional guarantees of due process and equal protection prohibit a state from "inflict[ing] punishment on indigent convicted criminal defendants solely on the basis of their poverty." (Id. at p. 1166, citing Griffin v. Illinois (1956) 351 U.S. 12, 17 (Griffin).) Analogizing the imposition of these mandatory assessments without first determining an ability to pay to the situation in which a convicted defendant is required to serve jail time if he or she is unable to pay a fine and penalty assessment (invalidated by our Supreme Court in In re Antazo (1970) 3 Cal.3d 100, 103) and the situation in which an indigent convicted defendant's probation is automatically revoked upon his or her failure to pay a fine and restitution (invalidated by the United States Supreme Court in Bearden v. Georgia (1983) 461 U.S. 660, 667-668 ), the court stated: "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. A fine on indigent people 'is not imposed to further any penal objective of the State. It is imposed to augment the State's revenues but obviously does not serve that purpose; the defendant cannot pay because he [or she] is indigent . . . .' [Citations.] Poor people must face collection efforts solely because of their financial status, an unfair and unnecessary burden that does not accomplish the goal of collecting money." (Dueñas, supra, at p. 1167.) The court concluded such a burden "in effect transform[s] a funding mechanism for the courts into additional punishment for a criminal conviction for those unable to pay." (Id. at p. 1168.)
With respect to the minimum restitution fine, the court held imposition of this fine without first determining ability to pay, while done in accordance with the statutory scheme, also violated due process; execution of such a fine "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." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The court noted the restitution fine is recognized to be "additional punishment for a crime" and concluded the statutory prohibition on considering ability to pay when imposing the minimum fine is fundamentally unfair because it "punishes indigent defendants in a way that it does not punish wealthy defendants." (Id. at pp. 1169-1170.)
B.
Forfeiture
There is presently a split of authority with respect to whether or not a defendant who did not object to the trial court's imposition of mandatory fines and fees based on inability to pay, such as defendant in this case, forfeits a Dueñas, supra, 30 Cal.App.5th 1157 claim. (Compare People v. Frandsen (2019) 33 Cal.App.5th 1126 (Frandsen) [finding forfeiture] with People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano) [no forfeiture].) We conclude defendant's challenges to the restitution fine and parole revocation restitution fine are forfeited and decline to address the forfeiture issue with respect to the remainder of his Dueñas claim because, even if properly preserved for review, there was no constitutional violation.
Beginning with the restitution fine, as previously mentioned, Penal Code section 1202.4 allows consideration of a defendant's ability to pay when determining whether to increase the restitution fine above the statutory minimum. (Pen. Code, § 1202.4, subd. (c).) That statutory minimum is $300. (Pen. Code, § 1202.4, subd. (b)(1).) Here, the trial court imposed a restitution fine in the amount of $6,600, far more than the statutory minimum. Thus, defendant could have objected to this fine based on inability to pay but failed to do so, forfeiting his challenge to this fine on those grounds in this appeal. (See People v. Avila (2009) 46 Cal.4th 680, 729 [challenge to restitution fine based on inability to pay forfeited where trial court imposed maximum fine and defendant did not object on that basis below]; Frandsen, supra, 33 Cal.App.5th at p. 1153; see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1032-1033.)
We reach the same conclusion with respect to the parole revocation restitution fine imposed pursuant to Penal Code section 1202.45 because this fine must be imposed "in the same amount as that imposed pursuant to [Penal Code section 1202.4, subdivision (b)]." (Pen. Code, § 1202.45, subd. (a).) Failing to object to the $6,600 restitution fine resulted in the same amount being imposed pursuant to Penal Code section 1202.45. Moreover, because this fine was stayed pursuant to subdivision (c) of this provision, defendant will suffer no adverse consequences from imposition of this fine unless and until his postrelease parole is revoked.
Turning to the remainder of defendant's Dueñas claim, we note that in Frandsen, the appellate court rejected the defendant's argument that his challenge to the court facilities and court operations assessments was not forfeited because an objection to these assessments based on inability to pay would have been futile prior to Dueñas, supra, 30 Cal.App.5th 1157, an argument accepted by a different division of that same court in Castellano. (Compare Frandsen, supra, 33 Cal.App.5th at p. 1153 with Castellano, supra, 33 Cal.App.5th at p. 489.) We need not weigh in on this forfeiture issue here because, as we explain immediately below, even assuming the remainder of this claim is properly preserved for review, there was no constitutional violation.
C.
No Constitutional Violation
Reactions to the new constitutional principle articulated in Dueñas, supra, 30 Cal.App.5th 1157 have been mixed. Although many courts have followed its reasoning, others have distinguished (see People v. Caceres (2019) 39 Cal.App.5th 917) or disagreed with the opinion (see People v. Hicks (2019) 40 Cal.App.5th 320, 326, rev. granted Nov. 26, 2019, S258946 (Hicks); People v. Aviles, supra, 39 Cal.App.5th at pp. 1067-1068). We join the latter group and limit our discussion of the matter to rejecting Dueñas outright.
In Hicks, supra, 40 Cal.App.5th 320, our colleagues at the Second Appellate District rejected the Dueñas court's reliance on "two strands of due process precedent" in "fashioning" a new constitutional principle requiring an ability to pay determination before imposing the fine and assessments challenged therein. (Hicks, supra, 40 Cal.App.5th at p. 325.) The first strand, starting with Griffin, supra, 351 U.S. 12, 17 , "secures a due process-based right of access to the courts." (Hicks, supra, p. 325.) This strand of precedent, however, "does not dictate Dueñas's bar on imposing fees because the imposition of assessments, fines and fees does not deny a criminal defendant access to the courts." (Hicks p. 327.) The second strand of due process precedent relied upon by the Dueñas court (see, e.g., Antazo, supra, 3 Cal.3d 100 and Bearden, supra, 461 U.S. 660, described above) "erects a due process-based bar to incarceration based on the failure to pay criminal penalties when that failure is due to a criminal defendant's indigence rather than contumaciousness." (Hicks, supra, at p. 325.) This strand "also does not dictate Dueñas's bar on imposing fees because their imposition, without more, does not result in incarceration for nonpayment due to indigence." (Hicks, at p. 326.)
Finally, the Hicks, supra, 40 Cal.App.5th 320 court also concluded Dueñas, supra, 30 Cal.App.5th 1157 erred in expanding due process protections in the manner it did, explaining: "Dueñas does more than go beyond its foundations; it announces a principle inconsistent with them. Our Supreme Court in Antazo, supra, 3 Cal.3d 100, . . . expressly declined to 'hold that the imposition upon an indigent offender of a fine [or] penalty assessment, either as a sentence or as a condition of probation, constitutes of necessity in all instances a violation of the equal protection clause.' [Citation.] Antazo refused to prohibit the imposition of fines and assessments upon indigent defendants for good reason, which the United States Supreme Court explained best: 'The State . . . has a fundamental interest in appropriately punishing persons—rich and poor—who violate its criminal laws,' such that '[a] defendant's poverty in no way immunizes him [or her] from punishment.' (Bearden, supra, 461 U.S. at pp. 669-670 . . . .) To confer such an immunity, that Court has said, 'would amount to inverse discrimination [because] it would enable an indigent [defendant] to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other . . . .' (Williams[ v. Illinois (1970)] 399 U.S. [235,] 244.) By adopting an across-the-board prohibition on the very imposition of assessments and fines on indigent defendants, Dueñas prohibits a practice that Antazo sanctioned (albeit under a different constitutional provision). What is more, Dueñas mandates the very type of 'inverse discrimination' condemned by the Court in both Bearden and Williams." (Hicks, supra, at p. 327.)
We agree with the Hicks, supra, 40 Cal.App.5th 320 analysis in its entirety. The strands of precedent relied upon by the Dueñas, supra, 30 Cal.App.5th 1157 court in expanding due process protections to require an ability to pay determination before imposing a mandatory fine, fee, or assessment do not support, and indeed run contrary to, such an expansion. Imposition of the challenged financial obligations has not deprived defendant of access to the courts. Nor has defendant been incarcerated because of his inability to pay. Rather, he is incarcerated because he shot another human being to death. He was sentenced to serve a lengthy prison sentence for this crime and will have an opportunity to attempt to pay these obligations, e.g., from prison wages if he obtains employment while in prison. "Should they remain unpaid at the end of his [prison term], the trial court will have to decide whether it was due to his indigence or to a lack of bona fide effort. At this point in time, however, due process does not deny defendant the opportunity to try." (Hicks, supra, at p. 329.)
Nor has defendant persuaded this court imposition of the fines and fees in this case violated his Eighth Amendment right against excessive fines, as that right was recently described by the United States Supreme Court in Timbs v. Indiana (2019) ___ U.S. ___ . That case is so manifestly inapposite we decline to discuss it at all. Instead, we simply note defendant has cited us to no authority, nor have we discovered any on our own, supporting the position that the fines and fees imposed in this case are excessive in relation to either the gravity of defendant's offense or his economic situation. (Id. at p. 688.)
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. I concur: /s/_________
RENNER, J. ROBIE, J., Concurring and Dissenting.
I concur in all parts of the Discussion except section IV relating to defendant's imposition of fines and fees. Defendant believes Dueñas calls into question the imposition of the $6,600 restitution fine (Pen. Code, § 1202.4); the $6,600 stayed parole revocation restitution fine (Pen. Code, § 1202.45); the $990.27 victim restitution fine (Pen. Code, § 1202.4, subd. (f)); the $384.94 jail booking fee (Gov. Code, § 29550.2); the $64.82 jail classification fee (Gov. Code, § 29550.2); the $702 probation report preparation fee (Pen. Code, § 1203.1b); the $40 court operations assessment (Pen. Code, § 1465.8); and the $30 court facilities assessment (Gov. Code, § 70373) without a determination of his ability to pay. (People v. Dueñas (2019) 30 Cal.App.5th 1157.)
I conclude defendant forfeited his challenge to the $6,600 restitution fines, the $384.94 jail booking fee, the $64.82 jail classification fee, and the $702 probation report preparation fee because our Supreme Court has already determined an ability to pay objection must be made in the trial court to preserve a challenge to the imposition of these fines and fees on appeal given the pertinent statutes provide defendant with the right to a determination of his ability to pay them before the trial court ordered payment. (People v. Nelson (2011) 51 Cal.4th 198, 227 [court's failure to consider ability to pay a restitution fine greater than the mandatory minimum is forfeited by failure to object]; People v. McCullough (2013) 56 Cal.4th 589, 596-597 [challenge to evidence supporting the imposition of a booking fee imposed under Gov. Code, § 29550.2 forfeited by failure to object].) I further conclude the $990.27 direct victim restitution fine imposed under Penal Code section 1202.4, subdivision (f) is not subject to an ability to pay analysis, as explained in Evans. (People v. Evans (2019) 39 Cal.App.5th 771, 777.)
As to the remaining challenged assessments, I agree with Dueñas that principles of due process would preclude a trial court from imposing the assessments if a defendant demonstrates he or she is unable to pay them. (People v. Dueñas, supra, 30 Cal.App.5th at p. 1168.) I do not find the analysis in Hicks to be well-founded or persuasive and believe the majority has it backwards -- it is Hicks that was wrongly decided, not Dueñas. (People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946.) Defendant also has not forfeited the ability to pay argument with regard to these assessments, as the People contend. I agree that, as stated in Castellano, a trial court is required to determine a defendant's ability to pay only if the defendant raises the issue, and the defendant bears the burden of proving an inability to pay. (People v. Castellano (2019) 33 Cal.App.5th 485, 490.) In the absence of authority invalidating the court operations and court facilities assessments on inability to pay at the time the trial court imposed them, however, defendant could not have reasonably been expected to challenge the trial court's imposition thereof. (People v. Welch (1993) 5 Cal.4th 228, 237 ["[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence"].)
I believe a limited remand under Dueñas is appropriate to permit a hearing on defendant's ability to pay the court operations and court facilities assessments because his conviction and sentence are not yet final. (See People v. Castellano, supra, 33 Cal.App.5th at pp. 490-491.)
/s/_________
Robie, Acting P. J.