Opinion
C085054
01-30-2020
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM HENRY PRICE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 16CM01502, 16CF02039, 17CF00811)
After pleading no contest to two felonies and one misdemeanor in three separate cases, defendant William Henry Price was sentenced to an aggregate term of four years eight months in state prison. Without objection, the court imposed the minimum restitution fine in each case as well as the mandatory court operations and court facilities assessments for each conviction.
Citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant contends on appeal that the court violated his constitutional rights to due process and equal protection, and the prohibition against excessive fines by imposing the restitution fines and mandatory assessments without determining his ability to pay them. He also argues the court improperly ordered interest to accrue on the direct victim restitution from the date of sentencing rather than from the date the direct victim restitution amount is actually determined.
We conclude the trial court properly imposed the restitution fines and mandatory assessments, and that the direct victim restitution statute expressly authorized interest on the amount of direct victim restitution from the date of sentencing. We therefore affirm the judgment.
I. BACKGROUND
Over the course of 2016 and 2017, defendant was charged with multiple offenses in three separate cases. Defendant was arrested in early May 2016 for domestic violence against the mother of his child and was charged in case No. 16CM01502 with infliction of a traumatic injury on a cohabitant (Pen. Code, § 273.5, subd. (a)) with a strike prior (§§ 667, subds. (b)-(i), 1170.12). He was released on his own recognizance. A subsequent domestic violence restraining order prohibited defendant from contacting the victim or being in the vicinity of their apartment where he assaulted her.
Further undesignated statutory references are to the Penal Code.
While out of custody, defendant returned to the apartment in violation of the domestic violence restraining order and hit the victim in the head with an unknown object, causing her to lose consciousness. He was arrested and booked into the county jail. During the booking process, a baggie of methamphetamine fell from his waistband. In June 2016, defendant was charged in case No. 16CF02039 with possession of contraband in jail (§ 4573.6, subd. (a)), and with disobeying a domestic relations court order (§ 273.6, subd. (a)). It was further alleged that defendant suffered a prior strike.
Defendant failed to appear as required in case No. 16CM01502, and in February 2017 was charged in case No. 17CF00811 with failure to appear (§ 1320, subd. (b)) while released on his own recognizance (§ 12022.1).
After representing himself, defendant pleaded no contest to injuring a cohabitant in case No. 16CM01502, disobeying a court order in case No. 16CF02039, and failing to appear while on his own recognizance in case No. 17CF00811. In exchange for his plea, the prosecutor dismissed the remaining counts and allegations and defendant was promised that his sentence would not exceed four years eight months. Based on his no contest pleas, the court revoked probation in another pending matter (case No. CM040533).
The trial court denied defendant's motion to withdraw his plea, and on May 18, 2017, sentenced him to four years eight months in state prison. In case No. 16CM01502, the trial court imposed a $300 restitution fine (§ 1202.4), direct victim restitution in an amount to be determined, a $30 court facilities assessment (Gov. Code, § 70373), and a $40 court operations assessment (§ 1465.8). In case No. 17CF00811, the court imposed a $300 restitution fine, a $30 court facilities assessment, and a $40 court operations assessment. In case No. 16CF02039, the trial court imposed a $30 court facilities assessment, a $40 court operations assessment, and a $150 restitution fine. The court also imposed a $150 probation revocation restitution fine in case No. CM040533, probation having been revoked. Defendant did not object to the fines and assessments.
The court imposed four years for the domestic violence offense (§ 273.5, subd. (a)) in case No. 16CM01502, one third the midterm of eight months for the failure to appear offense (§ 1320, subd. (b)) in case No. 17CF00811, and a concurrent term of one year for the disobeying a court order offense (§ 273.6, subd. (a)) in case No. 16CF02039. For the matter in which the court revoked probation (case No. CM40533), the court imposed concurrent terms of one year six months for the misdemeanor offenses in that case.
The court further ordered defendant to pay direct victim restitution to his domestic violence victim, and "reserve[d] jurisdiction to set or otherwise modify the amount of restitution and any accumulated interest on that amount, interest to accrue from the date of sentencing." Both the minute order and the abstract of judgment state that interest is to accrue from May 18, 2017—the date defendant was sentenced.
II. DISCUSSION
A. Ability to Pay
At sentencing, the trial court ordered defendant to pay a total restitution fine of $750 under section 1202.4 ($300 in each of the felony cases, and $150 in the misdemeanor case), a $120 court operations assessment under section 1465.8, and a $90 court facilities assessment under Government Code section 70373. Defendant did not object to and he did not alert the court to any issues relating to his ability to pay.
On appeal, defendant argues the court violated his rights to due process and equal protection and the federal and state constitutional prohibitions on excessive fines by imposing these fines and fees without holding a hearing to determine his ability to pay them. This argument relies primarily on Dueñas, supra, 30 Cal.App.5th 1157, 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 court facilities and court operations assessments under []section 1465.8 and Government Code section 70373." (Id. at p. 1164.) The Dueñas court also held "that although []section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Ibid.) Defendant requests that we strike the court facilities and court operations assessments and stay execution of the restitution fine, or, alternatively, that we remand for a hearing regarding his present ability to pay.
The People argue defendant forfeited his claim by failing to object on due process grounds or even express any concern about inability to pay in the trial court. The arguments defendant advances in support of his assertion that his claim is not forfeited presuppose that Dueñas was correctly decided. We are not persuaded that the analysis used in Dueñas is correct.
Our Supreme Court is now poised to resolve this question, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47 (Kopp), review granted Nov. 13, 2019, S257844, which agreed with the court's conclusion in Dueñas that due process requires the trial court to conduct an ability to pay hearing and ascertain a defendant's ability to pay before it imposes court facilities and court operations assessments under section 1465.8 and Government Code section 70373, but not restitution fines under section 1202.4. (Kopp, supra, at pp. 95-96.)
In the meantime, we join those authorities that have concluded the principles of due process do not require determination of a defendant's present ability to pay before imposing the fines and assessments at issue in Dueñas and in this proceeding. (People v. Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, 329, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v. Caceres (2019) 39 Cal.App.5th 917, 928.) Having done so, we reject defendant's Dueñas challenge to the above-referenced fines, fees, and assessments.
So far as defendant argues that imposing the restitution fines without considering his ability to pay violated the excessive fines clauses of the federal and state constitutions (U.S. Const., Amend. VIII; Cal. Const., art. I, § 17), we likewise disagree. (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 731 (Lockyer) [after examining the relevant considerations, a reviewing court can decide for itself whether a fine or penalty is unconstitutionally excessive].)
"The Eighth Amendment prohibits the imposition of excessive fines. The word 'fine,' as used in that provision, has been interpreted to be ' "a payment to a sovereign as punishment for some offense." ' " (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1040 (conc. opn. of Benke, J.).) The determination of whether a fine is excessive for purposes of the Eighth Amendment is based on the factors set forth in United States v. Bajakajian (1998) 524 U.S. 321 (Bajakajian). (Lockyer, supra, 37 Cal.4th at pp. 728-729 [applying Eighth Amendment analysis to both defendant's federal and state excessive fines claims].)
"The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish." (Bajakajian, supra, 524 U.S. at p. 334.) "[A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." (Ibid.)
The California Supreme Court has summarized the factors in Bajakajian to determine if a fine is excessive in violation of the Eighth Amendment: "(1) the defendant's culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant's ability to pay." Lockyer, supra, 37 Cal.4th at p. 728; see Gutierrez, supra, 35 Cal.App.5th at p. 1040 (conc. opn. of Benke, J.).) "While ability to pay may be part of the proportionality analysis, it is not the only factor." (Aviles, supra, 39 Cal.App.5th at p. 1070, citing Bajakajian, supra, 524 U.S. at pp. 337-338.) We review the excessiveness of a fine challenged under the Eighth Amendment de novo. (Aviles, supra, at p. 1072.)
Here, we find that the $300 restitution fine imposed in relation to the domestic violence case, the $300 restitution fine for the failure to appear offense, and the $150 fine for the disobeying a court order case are not grossly disproportional to the level of harm and defendant's culpability in these matters. It was not grossly disproportionate to impose the statutory minimum restitution fine in all three cases in light of defendant's assaultive conduct, his disregard for the court's order, and the costs to the system incurred as a result of defendant's nonappearance. Accordingly, the $750 restitution fines imposed in these cases are not excessive under the Eighth Amendment or the equivalent provision of the California Constitution. B. Interest on Direct Victim Restitution
Defendant contends the trial court erred in awarding interest on direct victim restitution under section 1202.4 from the date of sentencing because the court had not determined the amount of victim restitution when it sentenced defendant to four years eight months in state prison. He urges us to interpret the language of section 1202.4, subdivision (f)(3)(G)—that interest "accrues as the date of sentencing or loss"—to mean that interest accrues from the "date of the subsequent restitution order" if the court reserves jurisdiction to determine the proper amount at a date subsequent to the date a defendant is sentenced. We are bound by the plain language of the statute, however, which does not lend itself to defendant's urged interpretation.
In construing a statute, a court must ascertain the intent of the Legislature so as to effectuate the purpose of the law. (People v. Coronado (1995) 12 Cal.4th 145, 151.) To determine legislative intent, we first examine the words of the statute. If there is no ambiguity in the statutory language, we presume the Legislature meant what it said and the plain meaning of the language controls. (Ibid.) " 'Where the statute is clear, courts will not "interpret away clear language in favor of an ambiguity that does not exist." ' " (Lennane v. Franchise Tax Bd. (1994) 9 Cal.4th 263, 268.) Accordingly, we start with the statutory language of section 1202.4, which provides a detailed procedure governing restitution in criminal cases.
Section 1202.4 provides that a victim who incurs an economic loss as a result of a crime is entitled to receive restitution directly from a defendant convicted of that crime. (§ 1202.4, subd. (a); see also Cal. Const., art. 1, § 28, subd. (b).) Section 1202.4, subdivision (f) states: "[I]n every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. If the amount of the loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court."
Subdivision (f)(3) of section 1202.4 sets forth the method for calculating restitution. As pertinent here, the subdivision provides: "To the extent possible, the restitution order shall be prepared by the sentencing court, shall identify each victim and each loss to which it pertains, and shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as a result of the defendant's criminal conduct, including . . . [¶] . . . [¶] . . . [i]nterest, at the rate of 10 percent per annum, that accrues as of the date of sentencing or loss, as determined by the court." (§ 1202.4, subd. (f)(3)(G).)
The express language of the statute authorizes the trial court to order interest on direct victim restitution to accrue from "the date of sentencing or loss." (§ 1202.4, subd. (f)(3)(G), italics added.) The phrase "date of sentencing" is not ambiguous. It means the date the court entered judgment and sentenced defendant to four years eight months in state prison—here, May 18, 2017. (People v. Wilcox (2013) 217 Cal.App.4th 618, 625 [" 'A "sentence" is the judgment in a criminal action [citations]; it is the declaration to the defendant of his disposition or punishment once his criminal guilt has been ascertained' "].) At the sentencing hearing, and in accordance with section 1202.4, the court ordered defendant to pay direct restitution to his victim, reserving jurisdiction to determine the appropriate amount at a subsequent date.
The Legislature could have easily said interest accrues from the date the amount of direct victim restitution is determined, rather than the date of sentencing had it so intended. Instead, the statutory scheme specifically recognizes that under certain circumstances, the trial court may not be able to ascertain the amount of restitution at the time of sentencing, and that the amount may be determined at a later date. (§ 1202.4, subd. (f).) Despite this recognition, section 1202.4, subdivision (f)(3)(G) expressly provides that interest shall accrue "as of the date of sentencing or loss." We are bound by the plain language of the statute. (Lennane v. Franchise Tax Bd., supra, 9 Cal.4th at p. 268.) We may not insert words or add provisions to the statute; nor are we permitted to conform the statute to an assumed intent that does not appear from the statute's plain language. (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 826-827 [court refused to insert the words "attempts to receive" into statute governing presumed father status].) That defendant disagrees with the plain language of the statute is an issue more appropriately resolved by the Legislature.
We are not persuaded by defendant's reliance on People v. Pangan (2013) 213 Cal.App.4th 574 at page 581 for the proposition that the award of interest typically accrues from the date of a subsequent restitution order rather than the date sentence is imposed as required by the plain statutory language. Pangan simply "assume[d]" for purposes of the particular facts before the court that the "time of sentencing" was the time of the restitution order as distinct from the time the trial court imposed the defendant's six-year prison sentence. (Id. at p. 581, fn. 7.) The court did so without interpreting the plain language of the statute, the question posed here. "It is axiomatic that cases are not authority for propositions not considered." (People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10.)
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
RAYE, P. J. /S/_________
HULL, J.