Opinion
F080766
06-09-2021
THE PEOPLE, Plaintiff and Respondent, v. GUSTAVO JESUS MENDOZA, Defendant and Appellant.
Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF294661A. Gary L. Paden, Judge.
Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT[*]
INTRODUCTION
In 2015, a jury convicted appellant Gustavo Jesus Mendoza of attempted robbery (Pen. Code, §§ 664/211; count 1); conspiracy to commit robbery (§§ 182/211; count 2); prohibited possession of a firearm (§ 29800, subd. (a)(1); count 3); and masked criminal possession of a firearm in public (§ 25300, subd. (a); count 4). The jury found true firearm and criminal street gang enhancements. Appellant received an aggregate prison sentence of 31 years. This sentence included a 10-year term for a firearm enhancement under section 12022.53, subdivision (b), and a five-year term for a prior serious felony conviction under section 667, subdivision (a)(1).
All future statutory references are to the Penal Code unless otherwise noted.
Appellant appealed, raising various issues. In January 2018, this court issued an unpublished opinion in People v. Mendoza (Jan. 10, 2018, F071822). We affirmed appellant's judgment but vacated his sentence. In light of newly enacted Senate Bill No. 620 (2017-2018 Reg. Sess.), we remanded the matter to the trial court for resentencing. The court was directed to determine whether it should strike the firearm enhancement pursuant to section 12022.53, subdivision (h). (People v. Mendoza, supra, F071822.)
In May 2018, appellant appeared in the trial court with his defense counsel. After hearing argument, the court denied appellant's request to strike the firearm enhancement. Appellant appealed to us again. In another unpublished opinion, we rejected appellant's first claim that the trial court had abused its discretion in declining to strike the firearm enhancement. However, we agreed with the parties that this matter must be again remanded. While the last appeal was pending, Senate Bill No. 1393 (2017-2018 Reg. Sess.) amended sections 667 and 1385 to provide trial courts with discretion to strike five-year sentencing enhancements under section 667, subdivision (a)(1). We remanded this matter so the trial court could exercise its discretion regarding this five-year term. We otherwise affirmed appellant's judgment. (People v. Mendoza (Aug. 8, 2019, F077578).)
In February 2020, the trial court declined to strike the five-year prior serious felony conviction enhancement under section 667, subdivision (a). Appellant subsequently filed the present appeal, contending this matter should again be remanded. He argues his constitutional rights were violated because the trial court imposed fines and assessments against him without first determining his ability to pay. He rests his claim on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
Respondent argues this claim is either forfeited or it loses on its merits. In addition, respondent has filed a motion requesting we dismiss this appeal, contending appellant could have raised Dueñas in his last appeal.
We deny respondent's motion to dismiss this appeal and we will consider its merits. Nevertheless, we determine appellant's claim is forfeited, and, in any event, no due process violation occurred. We affirm.
BACKGROUND
I. The Facts Supporting The Judgment.
As set forth in our prior opinion, appellant and his codefendants attempted to rob an undercover agent from the Drug Enforcement Administration. The agent was waiting in a park to make a prearranged purchase from a drug seller. (People v. Mendoza, supra, F071822.) While the agent waited, appellant and another codefendant, Villegas, walked together in tandem towards the agent. Appellant had his face covered up to the bridge of his nose with some type of white cloth. He wore a long-sleeved sweatshirt, or something similar, and he walked with his right hand tucked underneath his opposite armpit. It appeared appellant was carrying a weapon. (People v. Mendoza, supra, F071822.)
Appellant and Villegas came within about 10 to 15 yards of the agent. The agent did not see a gun, but he became nervous and he feared for his safety. The agent believed appellant and Villegas were armed, and they were approaching to rob him. The agent drove away. Neither appellant nor Villegas said anything to the agent, and neither pointed a weapon at him. They did not run at the agent or try to stop him when he drove away. (People v. Mendoza, supra, F071822.)
After the agent drove away, an officer providing surveillance saw a shiny metal object in appellant's hand underneath his left arm near appellant's armpit. The officer saw about an inch of a gun's barrel. The officer determined appellant was armed with a firearm. A short time later, officers made a traffic stop and detained appellant and the others involved in this matter. A loaded.45-caliber handgun was recovered from their vehicle. It had been lying under a towel or T-shirt. At trial, an officer testified the barrel of the recovered handgun “had a ‘consistent shape' ” with the barrel of the handgun seen on appellant when the agent fled. (People v. Mendoza, supra, F071822.)
II. The Imposition Of Fines And Assessments.
As part of appellant's original sentence in 2015, the trial court imposed the following fines and assessments, which total $10,290:
(1) A restitution fine of $10,000 (§ 1202.4, subd. (b)(1));
(2) A $10,000 parole revocation fine (§ 1202.45), which was stayed pending successful completion of parole;
(3) A $160 court operations assessment (§ 1465.8, subd. (a)(1));
(4) A $120 criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)); and
(5) A $10 crime prevention fine (§ 1202.5, subd. (a)).
The $10 crime prevention fine is imposed when a defendant violates certain enumerated offenses, including robbery under section 211. The statute directs a court to order the defendant to pay this fine “in addition to any other penalty or fine imposed. If the court determines that the defendant has the ability to pay all or part of the fine, the court shall set the amount to be reimbursed and order the defendant to pay that sum to the county in the manner in which the court believes reasonable and compatible with the defendant's financial ability. In making a determination of whether a defendant has the ability to pay, the court shall take into account the amount of any other fine imposed upon the defendant and any amount the defendant has been ordered to pay in restitution.” (§ 1202.5, subd. (a).)
At the remand hearing in May 2018, after the trial court declined to strike the firearm enhancement, appellant's defense counsel asked if the court would consider reducing appellant's fines. Counsel reminded the court it had imposed a $10,000 restitution fine, which counsel characterized as “fairly substantial.” The court stated it would reconsider that, and it then denied that request.
At the second remand hearing in February 2020, the trial court declined to strike the five-year prior serious felony enhancement. The court stated, “I took everything into consideration at the time I sentenced him. Even if I had been granted discretion at the time, I still would have imposed that sentence, which I thought was fair. [¶] So that's my ruling. My original sentence stands.” At no point during the second remand proceeding did appellant ask the trial court to consider reducing the fines or assessments.
DISCUSSION
I. We Deny Respondent's Motion To Dismiss This Appeal.
Respondent has filed a motion to dismiss this appeal with prejudice. According to respondent, appellant could have raised his Dueñas claim in the prior 2019 appeal.
In September 2020, we deferred ruling on that motion pending consideration of the appeal on its merits.
Appellant filed his opening brief in the prior appeal on January 7, 2019. The following day, Dueñas was published. (Dueñas, supra, 30 Cal.App.5th 1157.) Respondent notes appellant never filed a supplemental brief raising Dueñas during the approximate eight months the prior 2019 appeal was before this court.
Appellant opposes the motion to dismiss. He argues Dueñas represented a “significant and continuing change in the law” and it was not reasonably foreseeable it would have such a large impact across the state. Appellant contends it was not reasonable for him to raise Dueñas in 2019 just after that opinion had been filed because, at that time, it was not clear to what extent, if any, Dueñas might apply to him. Appellant also asserts that, even if he has forfeited his Dueñas claim, he is still entitled to a resolution of his claim of ineffective assistance of counsel, which he has raised in the present appeal. He maintains his defense counsel improperly failed to raise Dueñas during the second remand hearing in February 2020.
Respondent cites two opinions in support of its motion. Neither establishes that a dismissal is appropriate in this situation.
In People v. Senior (1995) 33 Cal.App.4th 531 (Senior), the defendant was convicted of multiple sex-related offenses. He received a lengthy prison sentence, which included five consecutive three-year terms under section 667.6, subdivision (d). (Senior, supra, at p. 533.) The matter was remanded twice, and both times the trial court reduced appellant's sentence, but it did not alter the terms under section 667.6, subdivision (d). (Senior, supra, at pp. 533-534.) In his third appeal, the defendant raised a challenge for the first time to the sentence based on section 667.6, subdivision (d). (Senior, supra, at p. 534.) The Senior court determined (1) this issue had been ripe for adjudication in the previous appeal; (2) there has been no significant change in the underlying facts or applicable law; and (3) the defendant has offered no reasonable justification for the delay. (Id. at p. 538.) The appellate court deemed the claim to be waived. (Ibid.)
In People v. Jordan (2018) 21 Cal.App.5th 1136 (Jordan), the defendant pleaded no contest to drug charges. He was placed on probation and ordered to pay various fines and fees, including a criminal laboratory analysis fee and a drug program fee, plus associated penalty assessments. (Id. at p. 1139.) The defendant did not object to the imposition of those financial obligations, and he raised a separate issue in the opening brief of his appeal. (Ibid.) While that appeal was pending, the defendant filed a motion in the trial court pursuant to section 1237.2 asking it to strike penalty assessments. The trial court denied that motion, and the defendant filed a notice of appeal of that decision while his original appeal was still pending. (Jordan, supra, 21 Cal.App.5th at p. 1140.) The Jordan court determined the defendant had waived his claim regarding the fees because he could have raised it in his first appeal. (Ibid.) This issue was ripe during the first appeal, there had been no significant change in the facts or the law underlying the penalty assessment claims, and the defendant failed to provide justification for failing to raise this claim in the original appeal. (Id. at p. 1144.) The Jordan court cautioned against this type of “piecemeal litigation.” (Id. at p. 1145.)
Section 1237.2 applies in cases where the erroneous imposition or calculation of fines, penalty assessments, surcharges, fees, or costs are the sole issue on appeal. This statute states an appeal may not be taken unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant must make a motion for correction in the trial court, which may be made informally in writing. This statute grants a trial court jurisdiction after a notice of appeal has been filed to correct any error in the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs upon the defendant's request for correction.
Both Senior and Jordan are distinguishable. Dueñas was issued the day after appellant filed his prior appeal. Unlike the situations in Senior and Jordan, where the disputed sentences were based on statutes that were fixed and unchanged, Dueñas represented a new constitutional principle. We agree with appellant that, especially at the time he filed his prior appeal, this area of law was changing and it was not clear whether Dueñas might apply to him. Thus, appellant has provided a reasonable justification for his earlier failure to raise Dueñas. As such, grounds exist to deny respondent's motion to dismiss this appeal. (See Senior, supra, 33 Cal.App.4th at p. 538 [a reasonable justification for a delay is grounds to avoid waiver of a claim].) Moreover, it is not appropriate to dismiss this appeal in light of appellant's contention he received ineffective assistance when his counsel failed to raise Dueñas during the second remand hearing in February 2020. There is still an issue that must be resolved, which requires us to review the record. As such, respondent's motion to dismiss must be denied. (See Gogerty v. Coachella Valley Junior College Dist. (1962) 57 Cal.2d 727, 729 [when it is necessary to review the appellate record, a motion to dismiss an appeal will be denied].)
Finally, respondent argues appellant failed to comply with section 1237.2 in that appellant never filed a motion in the trial court regarding Dueñas before raising this issue on appeal. Respondent cites People v. Hall (2019) 39 Cal.App.5th 502 (Hall).
In Hall, the appellate court dismissed the appeal because Dueñas had been the only claim raised and the defendant had failed to bring that issue in the trial court, either at the time of sentencing or after, as required by section 1237.2. (Hall, supra, 39 Cal.App.5th at p. 504.) The Hall court determined a dismissal of the appeal did not implicate the defendant's constitutional rights. (Ibid.) Instead, the trial court had stayed all fines and fees which the defendant owed to the court so the defendant could give priority to paying the direct victim restitution. Under section 1237.2, the defendant was still entitled to request the trial court to make that stay permanent unless and until the People could prove she could pay the fees and fines. (Hall, at p. 505.) The appeal was dismissed. (Ibid.)
In the present matter, and apart from the parole revocation fine, the trial court did not stay the fines and assessments which it imposed against appellant. As such, Hall is distinguishable. Under the present circumstances, it is appropriate to consider the merits of appellant's appeal. We conclude respondent's cited authorities are not controlling, and we deny the motion to dismiss.
II. Appellant Has Forfeited His Dueñas Claim And He Does Not Establish Ineffective Assistance Of Counsel; In Any Event, No Due Process Violation Occurred.
We determine appellant has forfeited his Dueñas claim, and he does not establish ineffective assistance of counsel. In any event, no due process violation occurred.
A. This claim is forfeited.
Appellant had a maximum restitution fine of $10,000 imposed against him. Even at the 2015 original sentencing, he had a statutory right to object to the fine based on his inability to pay. (§ 1202.4, subds. (c), (d).) His failure to do so has forfeited appellate review of his claim the trial court erred in imposing the fines, fees, and assessments without determining his ability to pay. (People v. Taylor (2019) 43 Cal.App.5th 390, 399-401; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154.)
Regarding the court operations and facilities assessments imposed, those are mandatory irrespective of an ability to pay. (§ 1465.8, subd. (a)(1); Gov. Code, § 70373, subd. (a)(1).) However, we agree with the Court of Appeal in People v. Gutierrez that if a defendant elects not to object to a $10,000 restitution fine based on an alleged inability to pay, he surely will not complain on similar grounds regarding the much smaller assessments. (People v. Gutierrez, supra, 35 Cal.App.5th at p. 1033.)
In People v. Taylor, the Court of Appeal applied the forfeiture doctrine where the defendant failed to object to the imposition of the maximum restitution fine, but it declined to apply forfeiture to the court operations and facilities fees. The appellate court reasoned that the defendant's failure to object to the restitution fine despite a statutory right to do so may have been based on reasons unrelated to his ability to pay. (People v. Taylor, supra, 43 Cal.App.5th at pp. 400-401.) We are unpersuaded on that point. We conclude appellant forfeited his Dueñas claim by failing to object to the $10,000 restitution fine when the trial court reconsidered this matter in 2020.
Finally, we reject appellant's contention he should avoid forfeiture based on the doctrine of futility. According to appellant, it would have been futile to raise Dueñas at the 2020 remand hearing because the trial court had previously made it clear it would not reduce the imposed restitution fine of $10,000. We disagree. Dueñas represents a new constitutional principle, which appellant never raised in the trial court. We conclude appellant was required to raise Dueñas, or at least again raise the issue of his ability to pay, in the trial court to preserve this issue for appeal. Consequently, this claim is forfeited.
B. Appellant does not establish ineffective assistance of counsel.
The parties dispute whether appellant can establish ineffective assistance of counsel. We agree with respondent that appellant does not demonstrate prejudice.
Appellant bears the burden to establish that (1) his counsel's performance fell below an objective standard of reasonable competence and (2) he was prejudiced from it. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Lucas (1995) 12 Cal.4th 415, 436.) He must demonstrate a reasonable probability a different result would have occurred absent the alleged errors. (People v. Williams (1997) 16 Cal.4th 153, 215.)
The same defense attorney represented appellant at both the 2018 and 2020 remand hearings. At the remand hearing in May 2018, after the trial court declined to strike the firearm enhancement, appellant's counsel asked if the court would consider reducing appellant's fines. Counsel reminded the court it had imposed a $10,000 restitution fine, which counsel characterized as “fairly substantial.” The court stated it would reconsider that, and then it denied that request. At the second remand hearing in February 2020, the trial court declined to strike the five-year prior serious felony enhancement. The court stated, “I took everything into consideration at the time I sentenced him. Even if I had been granted discretion at the time, I still would have imposed that sentence, which I thought was fair. [¶] So that's my ruling. My original sentence stands.”
In light of the court's comments during the two remand hearings, it is clear the court would have neither granted a Dueñas hearing nor reduced the fines and assessments it previously imposed. Consequently, appellant does not establish prejudice because there is not a reasonable probability a different result would have occurred absent the alleged error. (See People v. Williams, supra, 16 Cal.4th at p. 215.) Thus, appellant fails to establish the elements necessary for a claim of ineffective assistance of counsel. (See Strickland v. Washington, supra, 466 U.S. at pp. 687-688; People v. Lucas, supra, 12 Cal.4th at p. 436.) Accordingly, this claim is without merit, and appellant is deemed to have forfeited his arguments relating to Dueñas. In any event, even if forfeiture did not occur, we also conclude appellant did not suffer a violation of due process.
C. A due process violation did not occur.
Appellant contends his due process rights were violated because the financial obligations were imposed without a finding of his ability to pay. This argument is without merit.
When the trial court imposed the maximum restitution fine of $10,000, it was required to consider appellant's inability to pay. (§ 1202.4, subd. (d).) Although the court did not make express findings as to the factors bearing on the amount of the maximum restitution fine, it was not required to do so. (Ibid.)
The court also imposed a $10 crime prevention fine because appellant was convicted of a charge involving robbery. Section 1202.5 directed the court to consider whether appellant had the ability to pay all or part of this fine. The court was directed to “take into account the amount of any other fine imposed upon [appellant] and any amount [appellant] has been ordered to pay in restitution.” (§ 1202.5, subd. (a).)
We presume the trial court knew these various statutory requirements that directed it to consider appellant's inability to pay when it imposed the disputed fines. (See People v. Stowell (2003) 31 Cal.4th 1107, 1114 [a trial court is presumed to know and follow applicable law].) Moreover, at the first remand hearing in May 2018, the court was asked to reconsider the $10,000 restitution fine. The court stated it would reconsider that, and it denied that request.
Based on this record, we presume the trial court followed the law and considered appellant's inability to pay when it imposed the financial obligations. Of course, a trial court's unilateral consideration of a defendant's inability to pay does not perfectly substitute for an actual hearing on the issue. Appellant, however, raises no due process concern other than consideration of ability to pay. For example, he does not contend his convictions result from a compounding inability to pay fines and fees. (See Dueñas, supra, 30 Cal.App.5th at pp. 1163-1164 [explaining “cascading consequences of imposing fines and assessments that a defendant cannot pay”].) Nor does he raise an “access to the courts” claim. (Id. at p. 1165.)
We conclude the trial court impliedly considered appellant's ability to pay prior to imposing the disputed fines. Consequently, the $10,290 in total fines and assessments satisfies due process, and this claim is without merit.
Respondent urges us to resolve this claim through the excessive fines clause in the Eighth Amendment of the United States Constitution. We need not conduct such an analysis because appellant does not raise a constitutional challenge under the Eighth Amendment. Instead, appellant claims his constitutional rights were infringed because the trial court imposed fines and assessments against him without first determining his ability to pay.
DISPOSITION
The judgment is affirmed.
[*] Before Levy, Acting P.J., Smith, J. and Snauffer, J.