Opinion
D075277
03-13-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSE JAUREGUI, Defendant and Appellant.
Justin Behravesh, under appointment by the Court of Appeal, on behalf of the Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, Kristen Ramirez and Warren J. Williams, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCS301959) APPEAL from a judgment of the Superior Court of San Diego County, Francis M. Devaney, Judge. Remanded for resentencing. Justin Behravesh, under appointment by the Court of Appeal, on behalf of the Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, Kristen Ramirez and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
After pleading guilty to two criminal charges and stipulating to a four-year prison term, defendant Jose Jauregui complained he had no ability to pay the various fines and fees that the court proposed to assess. The judge explained he only intended to impose what he understood to be "mandatory" fees and assessments. But the court went on to require Jauregui to pay a $1,200 restitution fine pursuant to Penal Code section 1202.4, apparently in the mistaken belief that $1,200 was the mandatory minimum. Because it was only required to assess a minimum $300 restitution fine, we remand for resentencing to allow the superior court to exercise the full range of its statutory discretion.
FACTUAL AND PROCEDURAL BACKGROUND
In 2018, defendant Jose Jauregui was arrested after he assaulted his mother and kicked his dog. Pleading guilty to one felony count of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) and one misdemeanor count of animal cruelty (§ 597, subd. (a)), with an admitted prior strike conviction (§§ 667, 1170.12), Jauregui stipulated to a four year prison term.
All statutory references are to the Penal Code unless otherwise indicated.
At the sentencing hearing on January 9, 2019, Jauregui's counsel claimed he was indigent and had no ability to pay the various fines and fees recommended in the probation report. Referencing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), a Court of Appeal opinion filed the previous day, counsel asked that the court stay the proposed restitution fine (§ 1202.4) and refrain from imposing any other fees or assessments. Not surprisingly, the court responded that it was not familiar with Dueñas, but it offered two options: continue the sentencing hearing to allow time for supplemental briefing and a review of the Dueñas opinion; alternatively, the court would proceed to sentence Jauregui that day, imposing only what it considered to be the mandatory fines and fees, and he could raise his Dueñas issues on appeal.
In the words of the sentencing judge, "I intend to impose what I think are mandatory fines and fees. [¶] I have not had the opportunity—none of you have briefed the case to me telling me whether I'm right or wrong. [¶] I will either go forward today and impose those fees, and you can appeal that order or we can continue this case so I can have this case briefed and figure out what it says. [¶] And once I figure that out, I will impose what I think are the appropriate fines and fees. [¶] You want to go forward today, or you want to continue it for that purpose?"
Jauregui elected to proceed with the sentencing. The court followed the recommendation in the probation report and assessed a restitution fine of $1,200, a court operations fee of $80 (§ 1465.8), a criminal conviction assessment of $60 (Gov. Code, § 70373), and a Criminal Justice Administration fee of $154 (Gov. Code, § 29550.2). It imposed no fees or assessments it did not believe were mandatory.
DISCUSSION
Jauregui relies on Dueñas, supra, 30 Cal.App.5th 1157 and subsequent cases that have followed it, arguing the trial court erred in imposing various fines and fees absent a finding that he had the ability to pay them. Citing other cases that have adopted at least in part a different approach, the Attorney General defends the restitution fine as constitutional. He concedes a potential due process issue with other fees and assessments, but suggests any error was harmless beyond a reasonable doubt.
For purposes of deciding this case, we find it unnecessary to engage in the doctrinal debate that surrounds Dueñas. Here, the record reflects that the trial court misunderstood the scope of its discretion in imposing the restitution fine. The court apparently believed that the $1,200 fine recommended in the probation report was "mandatory." To the contrary, however, section 1202.4, subdivision (b)(1) sets the mandatory minimum restitution fine in felony cases at $300. Subdivision (c) of the same statute refers to the "minimum fine" provided for in subdivision (b)(1) and specifically authorizes the court to consider a defendant's inability to pay "in increasing the amount of the restitution fine in excess of the minimum [$300] fine."
Subdivision (b)(1) of section 1202.4 provides that "[i]f the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000)." --------
The $1,200 restitution fine recommended in the probation report was based on an optional formula described in subdivision (b)(2) of section 1202.4. It provides that the court "may determine the amount of the fine as the product of the minimum fine pursuant to paragraph (1) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted." (Ibid., italics added.) This discretionary formula does not increase the mandatory "minimum fine" to something greater than $300, nor does it eliminate the court's statutory obligation to consider the defendant's ability to pay before it imposes a fine above that amount.
Sentencing decisions are generally left to the sound discretion of the trial judge, but "an erroneous understanding by the trial court of its discretionary power is not a true exercise of discretion." (People v. Marquez (1983) 143 Cal.App.3d 797, 803; accord, People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) Here, the court imposed a $1,200 restitution fine in the mistaken belief it was the mandatory minimum required by statute. We will, therefore, remand for a new sentencing hearing at which Jauregui can seek to demonstrate the extent of his inability to pay and the court can consider whether to impose a lesser fine.
DISPOSITION
The fines and fees are vacated, and the matter is remanded to the superior court for resentencing. Following resentencing, the superior court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
DATO, J. WE CONCUR: BENKE, Acting P. J. O'ROURKE, J.