Opinion
F084893
09-25-2023
THE PEOPLE, Plaintiff and Respondent, v. PEDRO GARCIA ORTIZ, Defendant and Appellant.
Sara E. Coppin, 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, Michael A. Canzoneri and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. RF008903A Kenneth G. Pritchard, Judge.
Sara E. Coppin, 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, Michael A. Canzoneri and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Defendant Pedro Garcia Ortiz pled no contest to possession of methamphetamine while armed with a loaded firearm and admitted having suffered a prior "strike" conviction within the meaning of the "Three Strikes" law (Pen. Code, §§ 667, subds. (b)- (i), 1170.12, subds. (a)-(d)). The trial court sentenced him to a six-year term of incarceration and imposed various fines and fees, including a restitution fine (§ 1202.4, subd. (b)), a court operations assessment (§ 1465.8), and a court facilities assessment (Gov. Code, § 70373). On appeal, defendant contends that the trial court erred in ordering him to pay fines and fees without conducting a hearing on his ability to pay those amounts as set forth in People v. Duenas (2019) 30 Cal.App.5th 1157. The People respond that defendant forfeited his claim and, in any event, it is without merit. We affirm.
All further statutory references are to the Penal Code unless otherwise stated.
PROCEDURAL SUMMARY
On March 1, 2022, the Kern County District Attorney filed a complaint charging defendant with possession of a firearm by a felon (§ 29800, subd. (a)(1); count 1), possession of ammunition by a felon (§ 30305, subd. (a)(1); count 2), transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a); count 3), possession of a controlled substance for sale (Health & Saf. Code, § 11378; count 4), possession of a controlled substance with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a); count 5), and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count 6). The complaint further alleged that defendant had suffered a prior strike conviction (§§ 667, subds. (c)-(j) & 1170.12, subds. (a)-(e)).
On March 15, 2022, pursuant to a negotiated plea agreement, defendant pled no contest to count 5 and admitted having suffered a prior strike conviction. In exchange, the trial court dismissed all other counts and indicated a four-year term (the lower term of two years on count 5, doubled due to the prior strike conviction) on count 5, provided that defendant complied with the Cruz waiver, whereby he would be free from custody until the date of his sentencing. The plea agreement and Cruz waiver further specified that defendant could be sentenced to a maximum term of eight years if he failed to comply with the terms of the Cruz waiver.
People v. Cruz (1988) 44 Cal.3d 1247.
On June 30, 2022, defendant failed to comply with the Cruz waiver by failing to appear at the date and time scheduled for sentencing and by violating his parole by absconding. On July 7, 2022, defendant admitted the violations of the Cruz waiver in exchange for the court's indicated sentence of six years imprisonment.
On the same date, the trial court sentenced defendant to a term of six years imprisonment as follows: on count 5, six years (the middle term of three years, doubled due to the prior strike conviction). The court further ordered defendant to pay the following fees and fines: $40 pursuant to section 1465.8, $30 pursuant to Government Code section 70373, and a $300 restitution fine pursuant to section 1202.4, subdivision (b). The court also imposed and stayed a $300 parole revocation restitution fine. The court did not consider defendant's ability to pay the fines and fees and defendant raised no objection.
On September 2, 2022, defendant filed notice of appeal. Defendant did not seek, and the trial court did not grant, a certificate of probable cause.
On January 2, 2023, defendant's appointed appellate counsel sent a letter to the superior court, requesting that the trial court strike the fines and fees imposed or hold an ability-to-pay hearing. According to defendant's appellate counsel, the trial court did not respond.
The facts of the offense are irrelevant to defendant's claims on appeal. We therefore omit a factual summary.
Defendant contends the court improperly imposed the fines and fees without conducting a hearing on his ability to pay those amounts based on Duenas, which held "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. (People v. Duenas, supra, 30 Cal.App.5th at pp. 1164, 1167.) The People respond that defendant forfeited his claim by failing to raise it at sentencing and, in any event, it is without merit. We conclude that defendant's claim is forfeited.
The 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 a threshold matter, Duenas was decided on January 8, 2019, over three years before defendant was sentenced in June 2022. Defendant did not object to imposition of the fines and fees or request an ability-to-pay hearing. "In general, a defendant who fails to object to the imposition of fines, fees, and assessments at sentencing forfeits the right to challenge those fines, fees, and assessments on appeal." (People v. Greeley (2021) 70 Cal.App.5th 609, 624.) This is particularly true in cases like this where sentencing occurred after the Duenas court declared a constitutional right to have courts determine ability to pay prior to imposing mandatory fines and fees. (Greeley, at p. 624.) Further, although the trial court imposed the minimum restitution fine authorized by statute, which expressly precludes consideration of a defendant's ability to pay as a basis for waiving the fine (see § 1202.4, subd. (c)), we cannot say with confidence that an objection to the restitution fine on constitutional grounds would have been futile in light of Duenas having been decided more than three years prior to sentencing in this case. (See People v. Welch (1993) 5 Cal.4th 228, 237 ["Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence."].) Defendant's claim is forfeited, and under the circumstances, we decline to depart from the rule of forfeiture.
Defendant correctly notes that some courts have favored an Eighth Amendment analysis in the ability-to-pay context. (E.g., People v. Kopp, supra, 38 Cal.App.5th at pp. 96-97, review granted.) Even assuming the Eighth Amendment provides the appropriate framework-a question this case does not require us to consider-defendant raised no objection to imposition of the fines and fees on any basis despite published authority for an Eighth Amendment basis for relief having existed for nearly three years prior to his sentencing. (Ibid.) For that reason, defendant's Eighth Amendment challenge to the imposition of fines and fees without an ability-to-pay hearing is also forfeited. (People v. Baker (2018) 20 Cal.App.5th 711, 720 [Eighth Amendment claim forfeited for failure to raise it below].)
Defendant also contends that we may consider the issue despite defendant's failure to object below because the issue is a purely legal one. Another exception to the rule of forfeiture is when a defendant raises constitutional claims on appeal that "involve pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." (People v. Welch, supra, 5 Cal.4th at p. 235.) While our court has previously divided on the issue of forfeiture where there was no opportunity to object because Duenas (or Eighth Amendment cases) had not yet issued at the time an objection would have been timely made (e.g., People v. Montes (2021) 59 Cal.App.5th 1107, 1119-1121 [forfeiture excused where futile or unsupported by existing law]; People v. Son (2020) 49 Cal.App.5th 565, 596-598; People v. Lowery (2020) 43 Cal.App.5th 1046, 1053-1054; People v. Aviles (2019) 39 Cal.App.5th 1055, 1073-1074), we are in agreement that the question of ability to pay is a fact-intensive inquiry and not a pure question of law (Montes, at p. 1121; Son, at p. 591; Lowery, at pp. 1060-1061; Aviles, at pp. 1074-1075). Defendant's claim is forfeited.
DISPOSITION
The judgment is affirmed.
[*] Before Smith, Acting P. J., Meehan, J. and Snauffer, J.