Opinion
F078458
05-19-2020
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY MATTHEW JEFF, Defendant and Appellant.
Conness A. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and George M. Hendrickson, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F18902094)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. F. Brian Alvarez, Judge. Conness A. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
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INTRODUCTION
Appellant/defendant Anthony Matthew Jeff was convicted of felony resisting an officer and sentenced to four years in prison. On appeal, he contends the court improperly ordered him to pay a restitution fine and other fees without determining his ability to pay in violation of his constitutional right to due process under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We affirm.
FACTS
On March 25, 2018, Fresno County Sheriff's Deputy Patrick Hanson and other officers went to a house to serve an arrest warrant on a subject. When the deputies arrived at the residence, they immediately detained the occupants. Defendant was present and attempted to escape from the house. The deputies ordered him to stop, but defendant ran in and out of various rooms and tried to evade them. Defendant was ultimately taken into custody. Defendant had not been the subject of the warrant, but it was determined there was an unrelated warrant for defendant's arrest.
Deputy Hanson tried to speak with defendant, who was lying on the ground outside the house. Defendant did not respond or show any movement. Hanson did a "stimulus response" and pinched defendant's arm. Defendant's eyes moved under his lids but his body did not move. Hanson believed defendant was faking unconsciousness.
The deputies lifted up defendant to get him on his feet. Defendant repeatedly flopped to the ground as if he were limp. As the deputies carried defendant to the patrol car, Hanson noticed that defendant bent his legs, which is not something that an unconscious person would be able to do. Hanson told defendant, " 'If you're going to fake it, then drop your legs down.' " Defendant did not verbally respond but his legs went down.
The deputies arranged for defendant to be taken to a hospital by ambulance to determine his actual condition. At the emergency room, defendant was on a gurney and secured with four-point leather restraints. When the hospital staff attempted to treat him, defendant screamed and cursed at them, and then returned to acting as if he were unconscious. The treating physician told Hanson, " 'He's faking it. Get him out of here.' "
Hanson told defendant he was going to jail. Defendant screamed and cursed at Hanson. Hanson and four or five hospital security guards started to replace the leather hospital restraints with handcuffs. Defendant kept screaming, looked at Hanson, and repeatedly said, " 'I'll see you. I'll see you when you I [sic] get out, you f***ing punk.' " As Hanson and the guards tried to place defendant in handcuffs, defendant swung his right arm and hit Hanson in the side. Hanson and the guards wrestled with defendant as he screamed and struggled, and Hanson had to put a spit mask on defendant to protect himself. They ultimately restrained him and lifted him into a patrol car.
During the drive to jail, Hanson urged defendant to cooperate when he was booked. Defendant did not respond, but he walked into the jail without resistance. When they were inside the jail, however, defendant again threatened Hanson.
While defendant was held in jail, he made several telephone calls that were recorded and played for the jury. In the calls, defendant said he needed to get out on a bail bond, and urged family members to tell the bail bond company that he would show up to court. In one call, defendant said that when he was at the hospital, he got mad "so I just wrestled them all. I f***ing went ape shit on them. They couldn't move me." In another call, he said, "they literally had to pry me out of there. Like take me to the hospital and everything."
PROCEDURAL BACKGROUND
On May 16, 2018, an information was filed in the Superior Court of Fresno County charging defendant with felony resisting an executive officer (Pen. Code, § 69) with one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
All further statutory citations are to the Penal Code unless otherwise indicated.
On October 18, 2018, after a bifurcated jury trial, defendant was convicted as charged and the jury found the prior conviction allegation true.
On November 19, 2018, the court conducted the sentencing hearing. It denied defendant's request to dismiss the prior strike conviction and to reduce his current conviction to a misdemeanor. Defendant was sentenced to the midterm of two years, doubled to four years as the second strike sentence.
At the beginning of the sentencing hearing, defendant presented the court with an ex parte petition for writ of habeas corpus that he prepared, and asserted his constitutional rights were violated because his felony conviction should be reduced to a misdemeanor. The court received the document but refused to file it since defendant had not yet been sentenced.
The court ordered defendant to pay a restitution fine of $1,200 (§ 1202.4), and suspended the $1,200 parole revocation fine (§ 1202.45); a $40 court security fee (§ 1465.8) and a $30 criminal conviction assessment fee (Gov. Code, §70373). Defendant did not object.
As noted by defendant, the original abstract of judgment erroneously stated defendant was convicted by plea instead of a jury trial. On April 24, 2019, appellate counsel sent a letter to the trial court requesting that a corrected abstract of judgment be issued. On May 2, 2019, this court received the corrected abstract of judgment from the trial court, stating that defendant was convicted after jury trial.
On or about November 20, 2018, defendant filed a timely notice of appeal.
On June 13, 2019, appellate counsel filed a letter with the trial court pursuant to section 1237.2, and requested the court strike the fees, reduce the restitution and parole revocation fines to the statutory minimum amount of $300, and stay the enforcement of those fines until there was a showing that defendant has the ability to pay those amounts pursuant to Dueñas.
On June 25, 2019, the trial court denied appellate counsel's request:
"Because there was no error in the imposition or calculation of the fines and fees (Pen. Code, § 1237.2), the Court declines the request. Moreover, these fines and fees were imposed without objection, despite advanced [sic] notice given him of their potential imposition in his probation report. (See People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154-155 [forfeiture]; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 [same].)"
DISCUSSION
Defendant raises one issue on appeal. He argues the restitution fine and fees were imposed in violation of his due process rights and must be stricken because he did not have the ability to pay these amounts based on Dueñas. Defendant asserts he did not forfeit review of the Dueñas issues because the case had not yet been decided at the time of his sentencing hearing and defense counsel could not have anticipated it. In the alternative, defendant argues his defense attorney was prejudicially ineffective for failing to object to the fine and fees.
Defendant's due process argument is based on Dueñas, which was decided after his sentencing hearing and while this appeal was pending. 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 and find the matter need not be remanded on this issue. As we recently explained in People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles), 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, supra, 39 Cal.App.5th 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 the harm he inflicted, and thus not excessive under the Eighth Amendment. (Id. at p. 1072.)
More importantly, even if Dueñas applied to this case, defendant has forfeited any challenge to his alleged inability to pay the fines, fees, and assessments. The court ordered him to pay a restitution fine of $1,200 under section 1202.4, subdivision (b). When the court imposes a restitution fine greater than the $300 statutory minimum amount, "[s]ection 1202.4 expressly contemplates an objection based on inability to pay." (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153 (Frandsen); Aviles, supra, 39 Cal.App.5th at p. 1073.)
While Dueñas had not been decided at the time of defendant's sentencing hearing, defendant had the statutory right to object to the $1,200 restitution fine that was recommended in the probation report, and demonstrate his alleged inability to pay, and such an objection "would not have been futile under governing law at the time of his sentencing hearing." (Frandsen, supra, 33 Cal.App.5th at p. 1154; Aviles, supra, 39 Cal.App.5th at pp. 1073-1074.) In addition, any objections to the assessments imposed under section 1465.8 and Government Code section 70373 would not have been futile. "Although both statutory provisions mandate the assessments be imposed, nothing in the record of the sentencing hearing indicates that [the defendant] was foreclosed from making the same request that the defendant in Dueñas made in the face of those same mandatory assessments. [The defendant] plainly could have made a record had his ability to pay actually been an issue. Indeed, [he] was obligated to create a record showing his inability to pay the ... restitution fine, which would have served to also address his ability to pay the assessments." (Frandsen, supra, 33 Cal.App.5th at p. 1154; Aviles, supra, 39 Cal.App.5th at p. 1074.)
Finally, even if defendant did not forfeit the issue or, accepting defendant's alternate argument that counsel was ineffective for failing to object to the fine and fees, any error under Dueñas is necessarily harmless and not prejudicial because defendant has the ability to pay the fines, fees, and assessments over the course of his prison sentence. (Aviles, supra, 39 Cal.App.5th at pp. 1075-1077.)
"To show ineffective assistance, defendant must show that 'counsel's performance was deficient, and that the defendant was prejudiced, that is, there is a reasonable probability the outcome would have been different were it not for the deficient performance.' [Citations.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " (People v. Woodruff (2018) 5 Cal.5th 697, 761-762.) --------
" ' "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. Douglas (1995) 39 Cal.App.4th 1385, 1397; People v. Ellis (2019) 31 Cal.App.5th 1090, 1094.) As noted by the court at the sentencing hearing, there is nothing in the record to show that defendant would be unable to satisfy the fine 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 his prison sentence. (See, e.g., People v. Lewis (2009) 46 Cal.4th 1255, 1321; People v. DeFrance (2008) 167 Cal.App.4th 486, 505; People v. Potts (2019) 6 Cal.5th 1012, 1055-1057.) We thus conclude that based on the record before this court, defendant has the ability to pay the fine and fees and any error under Dueñas is harmless.
DISPOSITION
The judgment is affirmed.