Opinion
F078932
12-15-2020
THE PEOPLE, Plaintiff and Appellant, v. ETHAN KELLEY, Defendant and Respondent.
Tim Ward, District Attorney, Dan Underwood, Chief Deputy District Attorney, Dale Alavezos, Assistant District Attorney, Cindy Underwood, and Adam Clare, Deputy District Attorneys, for Plaintiff and Appellant. No appearance for Defendant 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Tulare Super. Ct. No. VCM358164)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Brett R. Alldredge, Judge. Tim Ward, District Attorney, Dan Underwood, Chief Deputy District Attorney, Dale Alavezos, Assistant District Attorney, Cindy Underwood, and Adam Clare, Deputy District Attorneys, for Plaintiff and Appellant. No appearance for Defendant and Respondent.
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INTRODUCTION
Ethan Kelley entered into a plea agreement and was placed on probation. At the sentencing hearing, the court denied the Tulare County District Attorney's motion to impose mandatory fines, fees, and assessments. Instead, the court summarily found the district attorney failed to prove Kelley had the ability to pay such amounts pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
The Kern County District Attorney has filed the instant appeal and argues the court imposed an unlawful sentence when it refused to order Kelley to pay mandatory fines, fees, and assessments, and improperly placed the burden on the district attorney to prove Kelley had the ability to pay those amounts. Kelley has not filed any briefing in response to the district attorney's appeal.
We agree the court should not have summarily denied the district attorney's motion and will remand the matter for further appropriate proceedings.
FACTUAL AND PROCEDURAL HISTORY
On November 3, 2017, a felony complaint was filed in the Superior Court of Tulare County against Ethan Kelley alleging that he committed four offenses on or about March 1, 2016: counts 1 and 2, felony purchasing or receiving of two separate stolen Honda ATVs that belonged to M.S. (Pen. Code, § 496d); count 3, knowingly and intentionally operating a chop shop (Veh. Code, § 10801); and count 4, misdemeanor receiving stolen property with a value less than $950, a helmet and goggles (§ 496a).
All further statutory citations are to the Penal Code unless otherwise indicated.
On December 1, 2017, Kelley was arraigned and pleaded not guilty. Kelley did not request appointment of counsel, and instead retained Christopher Martens to represent him throughout the proceedings. Plea hearing
On September 4, 2018, the court stated the parties had reached a plea agreement.
Kelley pleaded no contest to felony counts 1 and 2, purchasing or receiving the two Honda ATVs that belonged to M.S., and the district attorney dismissed counts 3 and 4. Kelley agreed to pay full restitution to the victim in an amount to be determined by the court. The court stated that if Kelley paid full victim restitution prior to the sentencing hearing, the district attorney would move to reduce the two felony convictions to misdemeanors pursuant to section 17, subdivision (b)(4). If he failed to pay the full amount of restitution, he would be sentenced on the two felony offenses, and the court declined to give an indicated felony sentence. Restitution hearing
On November 14, 2018, the court conducted the restitution hearing. The parties stipulated that victim restitution was $2,500, and that Kelley's felony convictions would be reduced to misdemeanors if he fully paid that amount by the time of the sentencing hearing.
Kelley requested six months to pay the full amount of victim restitution. The court denied the request and instead ordered Kelley to pay the full amount by the time of the sentencing hearing in three months. Sentencing hearing
On February 13, 2019, the court conducted the sentencing hearing. Defense counsel stated that Kelley had deposited the stipulated restitution amount of $2,500 with his office and asked the district attorney to clarify where the funds should be sent. The district attorney stipulated that Kelley had paid the full amount requested by the victim. The court directed defense counsel and the district attorney to arrange to send the money to the victim.
Based on the terms of the plea agreement, the court reduced Kelley's two felony convictions to misdemeanors.
Prior to imposing sentence, the court asked the parties what Kelley did. Defense counsel said Kelley purchased an ATV that turned out to be stolen. The district attorney clarified that Kelley had two stolen ATVs, and "[w]hen the police arrived [at Kelley's] residence, they found various parts of the ATVs in his backyard and this is the reason why he was charged with operating a chop shop," although that charge was dismissed.
The court asked Kelley if he took responsibility for his actions. Kelley said that he thought he could purchase a vehicle "under shady circumstances, as it were, and it would be okay and it would pass, when I should have done my due diligence and looked into it as, you know, the circumstances should provide, but ... I did not do due diligence and I was in the wrong."
The court placed Kelley on informal probation for three years on condition of serving 180 days in county jail and suspended all but ten days of that term pending his successful completion of probation, with credit for two days already served. The court ordered him to report to serve the term within six weeks, which would give him time to apply to the sheriff's department for an alternative to serving time in jail. The court noted Kelley had fully paid victim restitution that otherwise would have been a condition of probation.
The district attorney requested the court impose a restitution fine and other fees as mandated by law. The following exchange occurred:
"[THE DISTRICT ATTORNEY]: The People are requesting that the Court impose the required fines and fees in this case.
"THE COURT: What proof do you have to present to the Court that he has the ability to pay?
"[THE DISTRICT ATTORNEY]: He has deposited $2,500 into his attorney's account to pay for the restitution. He also has hired private counsel.
"THE COURT: Well, that's creative; to get somebody to pay restitution and then use that as a basis that they have the ability to pay fines and fees.
I get it. I respectfully decline to find that's sufficient. No fines and fees are imposed."The minute order stated that the court "waived" the fines and fees "[p]urst. to People vs. Duenas [sic]."
On March 6, 2019, the district attorney filed a timely notice of appeal based on the trial court allegedly imposing an unlawful sentence by refusing to order Kelley to pay statutorily required fines and fees.
DISCUSSION
The People have filed this appeal because of the trial court's refusal to impose any fines, fees, or assessments in this case. The People argue the court's failure to impose any fines or fees resulted in an unauthorized sentence, its ruling is not supported by the evidence, and this court should remand the matter with directions to the trial court to impose the statutorily mandated amounts. I. Fines, Fees, and Assessments for Misdemeanor Convictions
Kelley was advised of the deadline to file a respondent's brief but has not filed any briefs in this appeal.
When a defendant is convicted of a misdemeanor offense and placed on probation, the court is statutorily required to impose certain fines, fees, and assessments, including but not limited to the following.
First, the court must order direct restitution to the victim in every case where the victim has suffered economic loss. (§ 1202.4, subd. (f).)
Next, the defendant is mandated to pay a restitution fine pursuant to section 1202.4, subdivision (b)(1), which states that in "every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine...." For misdemeanor convictions, the restitution fine shall be not less than $150 and not more than $1,000. (§ 1204.4, subd. (b)(1).)
When the defendant is placed on probation, "the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional probation revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4," that shall become effective only upon the revocation of probation, "and shall not be waived or reduced by the court, absent compelling and extraordinary reasons stated on record." (§ 1202.44.)
In addition, the court "shall" impose "on every conviction for a criminal offense" both an assessment of $40 for each conviction to assist in funding court operations (§ 1465.8, subd. (a)(1)), and an assessment of $30 for each conviction to ensure and maintain adequate funding for court facilities. (Gov. Code, § 70373.) II. Dueñas and Castellano
The trial court apparently relied on Dueñas when it declined to impose any fines or fees in this case. 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.)
In People v. Castellano (2019) 33 Cal.App.5th 485, decided by a different panel of the same court that decided Dueñas, the court rejected the argument that Dueñas placed the burden on the People to prove a defendant's ability to pay in the first instance. (Castellano, supra, 33 Cal.App.5th at pp. 489-490.) Castellano clarified that the defendant in Dueñas had demonstrated her inability to pay in the trial court and, only in that circumstance, the appellate court concluded fees and assessments could not be constitutionally assessed and restitution must be stayed until the People proved her ability to pay. (Castellano, at p. 490.) Castellano concluded "a defendant must in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court." (Ibid.)
III. Analysis
The People argue Kelley never asked the court to stay or strike the fines and fees, and never claimed he lacked the ability to pay such amounts, and the court improperly placed the burden on the district attorney to prove Kelley's ability to pay. The People further argue the court's finding that Kelley lacked the ability to pay is not supported by substantial evidence since he was represented by retained counsel throughout the criminal proceedings and fully paid the victim restitution order of $2,500.
As a result of Kelley's misdemeanor convictions and probationary status, the court was statutorily required to impose certain fines and fees. As we recently explained in People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles), 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.)
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.)
To the extent Dueñas and Castellano applies to this case, the trial court improperly placed the burden on the district attorney to prove Kelley had the ability to pay the mandated fines and fees. In addition, even if we agreed with Dueñas, we note that a defendant's " ' "[a]bility 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.]' [Citations.]" (Aviles, supra, 39 Cal.App.5th at p. 1076.)
We can infer from the instant record that defendant had the ability to pay the restitution fine, fees, and assessments mandated for his misdemeanor conviction from probable future 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.) The record does not support the court's finding that Kelley lacked the ability to pay, particularly since Kelley was represented by retained counsel throughout the entire proceeding and had already paid $2,500 in victim restitution.
We also reject the trial court's premise that the district attorney only requested an order for Kelley to pay victim restitution to "use that as a basis that [Kelley had] the ability to pay fines and fees." Section 1202.4, subdivision (f) mandates victim restitution in all cases where the victim suffers an economic loss. Kelley pleaded no contest to two felony counts of receiving stolen vehicles belonging to M.S., and the court ordered Kelley to pay victim restitution based on his attorney's stipulation that the victim's economic loss was $2,500. Kelley agreed and paid the full amount of victim restitution prior to the sentencing hearing as part of the plea agreement so the court would reduce his felony convictions to misdemeanors.
Since the court failed to properly address this issue in the first instance, the matter is remanded for further appropriate proceedings for the court to address the statutorily mandated fines, fees, and assessments.
DISPOSITION
The matter is remanded for further appropriate proceedings. In all other respects, the judgment is affirmed.
POOCHIGIAN, J. WE CONCUR: HILL, P.J. DETJEN, J.