Opinion
F081452
11-09-2021
THE PEOPLE, Plaintiff and Respondent, v. DEAN IGNACIOUS MEDELLIN, Defendant and Appellant.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F18902636 Timothy A. Kams, Judge.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
Appellant and defendant Dean Ignacious Medellin pleaded no contest to three felony counts pursuant to a negotiated disposition for a second strike sentence of 13 years in prison. On appeal, he argues the court improperly imposed a restitution fine and other fees without finding he had the ability to pay those amounts in violation of his constitutional right to due process, based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). As an alternative argument, he asserts that his trial attorney was prejudicially ineffective for failing to raise the issue. We affirm.
FACTS
On April 18, 2018, at approximately 7:00 p.m., Aubrey T. was walking home when she passed the house where defendant lived with his mother. Defendant was mad and throwing things out of the garage, including a "big industrial fan" that almost hit Aubrey's head. Aubrey was shaken and called 911, but she was advised that law enforcement would not respond unless the situation escalated.
Aubrey continued walking and made it to the house of her friend and neighbor, Rick D., who lived a few blocks away from defendant. Rick noticed she was crying and asked what was wrong. Aubrey explained what happened at defendant's house. Rick told her to get into his truck, and he was going to drive to defendant's house so they could see what was wrong.
Rick parked on the street in front of defendant's house and got out of his truck; Aubrey stayed inside the truck. Rick knocked on the front door and no one answered.
Rick walked back to his truck and heard a "big commotion." He turned around, heard yelling, and saw a lady inside the house.
Rick went back to his truck. Defendant ran out of the house and appeared behind Rick. Defendant swung his fists at Rick but missed. Rick raised his hands to protect himself, backed away, and never hit defendant.
Defendant ran into the garage. Defendant's mother yelled that he was getting an axe. Defendant emerged from the garage with a double-bladed axe, and repeatedly swung the axe at Rick's lower and upper body. Rick thought he was going to die. Rick kept backing up into the street as defendant kept swinging the axe at him. The axe nicked Rick's shirt, but he dodged the other blows. Defendant kept yelling," 'This is my house.' "
Rick heard someone else yell. Defendant stopped swinging the axe and went back to his house. Rick got into his truck, started the engine, and called 911. Defendant reappeared at the truck's passenger side where Aubrey was sitting. Defendant swung the axe and dented the truck by the rear taillight. Defendant's mother walked out of the house and screamed," 'Call the police.' "
Rick drove away from defendant's house, parked further down the street, and talked with the 911 dispatcher. Defendant suddenly appeared but ran past the truck and disappeared.
Deputy Mehling of the Fresno County Sheriff's Department responded, saw the dent in Rick's truck, and found the axe inside defendant's garage.
Deputy Mehling detained defendant and advised him of his constitutional rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and defendant agreed to answer questions. Defendant said his mother's house had been robbed in the past, and he felt Rick was a danger. Defendant initially denied swinging the axe, but eventually admitted doing it. Defendant believed that Rick wanted to hurt him but could not explain why he felt that way.
PROCEDURAL BACKGROUND
Competency proceedings
On April 20, 2018, a felony complaint was filed in the Superior Court of Fresno County that charged defendant with three felony counts and prior conviction allegations.
On April 27, 2018, the court declared a doubt as to defendant's competency pursuant to section 1368, suspended proceedings, and appointed an expert to examine him. On June 5, 2018, the court reviewed the expert's report, found defendant was competent, and reinstated criminal proceedings.
On September 25, 2018, the court again suspended proceedings pursuant to section 1368 and directed the jail to provide defendant with further services. On October 4, 2018, the court ordered defendant transferred to the Department of State Hospitals for inpatient treatment of his competency issues. On March 21, 2019, the court reviewed the report from the state hospital, found defendant had been restored to competency, and reinstated criminal proceedings.
The information
On January 29, 2020, an information was filed charging defendant with count 1, assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)); count 2, criminal threats (§ 422) with a deadly weapon enhancement (§ 12022, subd. (b)(1)); and count 3, felony vandalism of an amount over $400 (§ 594, subd. (a)). The information further alleged that defendant had two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and two prior serious felony enhancements (§ 667, subd. (a)(1)).
All further statutory citations are to the Penal Code unless otherwise indicated.
Plea and sentencing
On May 21, 2020, defendant pleaded no contest to counts 1, 2, and 3 as charged, and admitted the deadly weapon enhancement and all the prior conviction allegations, pursuant to a negotiated disposition for a maximum second strike sentence of 13 years.
On June 26, 2020, the court granted defendant's request to dismiss one prior strike conviction. The court imposed the aggregate term of 13 years based on the upper term of four years, doubled to eight years as the second strike sentence for count 1, plus five years for the prior serious felony enhancement. The court imposed concurrent terms for counts 2 and 3.
The court addressed the restitution fine and stated that the probation report recommended the maximum fine of $10,000, but decided to instead impose $3,000 (§ 1202.4, subd. (b)) for the following reasons: "I know that probation is recommending a more substantial fine of $10,000, but in light of the Defendant's age I think this fine is appropriate. He will be able to work in prison and should be able to satisfy that more minimal fine."
The court suspended the parole revocation fine of $300 (§ 1202.45) and ordered victim restitution in an amount to be determined (§ 1202.4, subd. (f)). It also imposed the court security fee of $40 (§ 1465.8), and the criminal conviction assessment of $30 (Gov. Code, § 70373).
Appellate motions
On July 20, 2020, defendant filed a notice of appeal.
On September 7, 2020, appellate counsel filed a request with the superior court pursuant to section 1237.2, to stay payment of the fines and fees, and requested the court to determine defendant's ability to pay pursuant to Dueñas. On March 8, 2021, the superior court denied this request.
On October 13, 2020, appellate counsel sent another letter to the superior court pursuant to section 1237.2, stating that his presentence credits had been incorrectly calculated. On November 4, 2020, the court filed an amended abstract of judgment correcting the presentence credits.
DISCUSSION
Defendant contends the court improperly imposed the restitution fine and the assessments without determining his ability to pay under Dueñas. We note that aside from Dueñas, defendant could have made an ability to pay objection to the restitution fine of $3,000 because it was above the statutory minimum and used the same motion to object to the other fees as well. (See, e.g., People v. Aviles (2019) 39 Cal.App.5th 1055, 1073-1074 (Aviles); People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154.)
Defendant argues that to the extent defense counsel failed to preserve his ability to pay objections, counsel was prejudicially ineffective. "[T]o 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.' [Citation.]" (People v. Woodruff (2018) 5 Cal.5th 697, 761-762.)
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.)
As explained in 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, 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. (Aviles, at p. 1072.)
Even if counsel was ineffective for failing to object, 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.)"' "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.]" (Id. at p. 1076.)
At the sentencing hearing, the court effectively made an ability to pay finding because it rejected the probation report's recommendation for a restitution fine of $10,000, and instead imposed $3,000 and found the lower amount was appropriate "in light of the Defendant's age …. He will be able to work in prison and should be able to satisfy that more minimal fine."
Defendant acknowledges the court's findings but argues that the presumption that he could get a prison job is unsupported by the evidence, refuted by the existence of his mental disorders that could prevent him from obtaining a prison job, and defense counsel should have objected. We decline to find defense counsel was prejudicially ineffective because the court considered defendant's ability to pay and reduced the restitution fine, and there is nothing in the record to show that any further objections would have resulted in the court staying or striking the fines and fees.
To the extent counsel should have raised an objection, there is nothing in the record to show that defendant would be unable to satisfy the restitution fine and fees imposed by the court while serving his prison term, either from prison wage or monetary gifts from family and friends. (People v. Lewis (2009) 46 Cal.4th 1255, 1321; Aviles, supra, 39 Cal.App.5th at p. 1076; People v. Ellis (2019) 31 Cal.App.5th 1090, 1094; People v. Douglas (1995) 39 Cal.App.4th 1385, 1397; People v. DeFrance (2008) 167 Cal.App.4th 486, 505.) In People v. Potts (2019) 6 Cal.5th 1012, the trial court ordered a defendant convicted of capital murder to pay the statutory maximum restitution fine of $10,000, partially based on the probation officer's erroneous statement that a condemned inmate would be assigned a job in prison. Potts clarified that a defendant sentenced to death would not be permitted to work but found the court's error was harmless beyond a reasonable doubt and the court's restitution order was otherwise lawful. (Id. at pp. 1055- 1056.) The defendant's alleged inability to pay because he lacked a prison job would be "blunted by the fact that he would retain at least some of the money sent to him" by family and friends. (Id. at p. 1056.) Potts held the trial court was "permitted to conclude that the monetary burden the restitution fine imposed on defendant was outweighed by other considerations," such as the seriousness and gravity of the offense, and the circumstances of its commission. (Id. at p. 1057.)
DISPOSITION
The judgment is affirmed.
[*] Before Levy, Acting P. J., Poochigian, J. and Detjen, J.