Opinion
C086657
02-18-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ROBYN, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 17FE016433)
This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 and following defendant Robert Robyn's filing of a pro. per. supplemental brief. Having reviewed the record as required by Wende, we requested the parties file supplemental letter briefs addressing the applicability of People v. Dueñas (2019) 30 Cal.App.5th 1157.
We remand the matter to give defendant the opportunity to request a hearing on his ability to pay the restitution and suspended parole revocation restitution fines, the conviction assessment, and the court operations assessment imposed by the trial court. We further direct the trial court to correct the abstract of judgment to reflect the actual custody credits awarded at sentencing. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The People's amended information alleged defendant was a felon in possession of ammunition. It further alleged defendant had a prior strike in that he had been previously convicted of mayhem. Defendant waived formal arraignment, and the trial court entered his not guilty plea and his denial of the allegations.
On September 28, 2017, defense counsel declared a doubt concerning defendant's competency, and the court suspended proceedings pending a competency evaluation. Thereafter, the court found defendant competent and reinstated proceedings. Defendant's subsequent request to represent himself was granted. Defendant filed numerous pretrial motions, the vast majority of which were denied.
After defendant was held to answer following the preliminary hearing, defendant asked to obtain private counsel. Defendant did not obtain such counsel, and the trial court granted defendant's request for the appointment of the public defender. Shortly thereafter, the court granted defendant's request to relieve the public defender, who was unprepared to proceed to trial, in light of defendant's refusal to waive time and stated readiness to proceed in propria persona.
Thereafter, defendant represented himself at trial. At the outset, the parties announced their stipulation that defendant had been previously convicted of a felony. The People then presented evidence that police responded to a call about a person who was standing by a truck at a gas station yelling that he wanted revenge against someone. Deputies spoke with defendant, who was standing next to a truck when they arrived, and defendant admitted the truck belonged to him. He was alone. The deputies recovered 23 live rounds of shotgun ammunition in a search of the truck and the ammunition was placed into evidence at trial. A records check revealed that defendant had previously been convicted of a felony, and he was placed under arrest. Defendant was "Mirandized." He waived his rights and admitted to purchasing the shotgun shells a year earlier from a store.
In his defense, defendant presented the testimony of a woman who originally called 911. She explained defendant's actions that resulted in the 911 call and denied that she mistook defendant for someone else. The 911 call was played for the jury. Defendant also presented testimony from an officer who had testified in the People's case, eliciting that he did not observe defendant place the ammunition in the truck.
The jury found defendant guilty of being a felon in possession of ammunition and found true the allegation that he had a prior felony conviction. Defendant waived his right to a probation report, and the matter was set for a court trial on the strike prior and for sentencing.
The trial court subsequently found true the strike allegation that defendant had been convicted of mayhem and denied defendant's motion to dismiss the matter, which it found duplicative of an earlier motion to dismiss. The court then imposed the upper term of three years, which was doubled to an aggregate term of six years by virtue of the prior strike. The court awarded defendant 158 actual custody credits and 158 good time credits. The court also imposed a $300 restitution fine, a $300 suspended parole revocation restitution fine, a $30 conviction assessment, and a $40 court operations assessment. The court waived all other fines and fees "in light of [defendant's] lengthy prison sentence."
DISCUSSION
I
Defendant's Pro. Per. Brief
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d at p. 436.) Following the advisement regarding the filing of a Wende brief, defendant filed a lengthy pro. per. supplemental brief. We understand the actual appellate argument contained within that brief to be fairly summarized as: (1) defendant lawfully purchased the shotgun shells as recognized by Penal Code section 30300, subdivisions (a)(1) and (b) such that he did not violate section 30305, subdivision (a)(1); and (2) defendant did not have the requisite criminal intent to unlawfully possess the ammunition. We further note defendant has forfeited any arguments contained within the material included with his supplemental brief, but not affirmatively argued within that supplemental brief. (See Cal. Rules of Court, rule 8.204(a); In re Mark B. (2007) 149 Cal.App.4th 61, 67, fn. 2; see also, Keyes v. Bowen (2010) 189 Cal.App.4th 647, 656 [appellant may not incorporate by reference arguments made in papers filed in trial court rather than affirmatively briefing those issues on appeal].)
All further section references are to the Penal Code unless otherwise specified. --------
Section 30305, subdivision (a)(1) states in pertinent part, "No person prohibited from owning or possessing a firearm under Chapter 2 (commencing with Section 29800) . . . shall own, possess, or have under custody or control, any ammunition or reloaded ammunition." Section 29800, subdivision (a)(1) applies to "[a]ny person who has been convicted of . . . a felony under the laws of . . . the State of California." The parties stipulated that defendant had previously been convicted of a felony. Thus, there is no question that defendant was a person prohibited from possessing ammunition under section 30305, subdivision (a)(1). As such, defendant's argument concerning his "lawful" purchase of ammunition under section 30300, which deals with selling or providing information to a minor, is inapposite.
Further, defendant's intent argument fails because section 30305 describes a crime of general criminal intent. Therefore, it does not matter whether defendant knew his possession of the ammunition violated the law, it only matters that he knew he possessed the ammunition. (See, e.g., Stark v. Superior Court (2011) 52 Cal.4th 368, 392-396 [for a general intent crime, defendant must know the material facts when committing the wrongful act, but need not know that the act itself was unlawful unless such knowledge was part of the legal definition of the crime]; People v. Noori (2006) 136 Cal.App.4th 964, 977-978 [mistake of law is not a defense where that mistake did not negate an element of the charged offense]; CALCRIM Nos. 2591, 3407.)
II
Ability To Pay
Citing Dueñas, defendant contends the trial court was required to conduct an ability to pay hearing before ordering him to pay the restitution and suspended parole revocation restitution fines, the conviction assessment, and the court operations assessment. (People v. Dueñas, supra, 30 Cal.App.5th at p. 1157.) He requests that we remand the matter to the trial court to conduct a hearing on his ability to pay the fines and assessments. The People argue defendant forfeited his claim because he failed to raise the argument in the trial court and, if not forfeited, Dueñas was wrongly decided and should not be followed.
As the parties note, courts have diverged on the matter of forfeiture relating to a defendant's ability to pay following Dueñas. (Compare People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 [ability to pay argument forfeited because Dueñas was a foreseeable change in the law, noting Dueñas herself raised the constitutional issue and cited existing precedent and legal principles in her challenge] with People v. Castellano (2019) 33 Cal.App.5th 485, 491 [remanded to allow the defendant to "request a hearing and present evidence demonstrating his inability to pay the fines, fees, and assessments imposed by the trial court" because the conviction and sentence were not yet final].) We join the courts finding no forfeiture.
It is true a defendant who does not object to the imposition of fines, fees, and assessments at the time of sentencing generally forfeits such a challenge. (People v. Castellano, supra, 33 Cal.App.5th at p. 490 ["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"].) It is well established, however, that "[r]eviewing 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." (People v. Welch (1993) 5 Cal.4th 228, 237.) Our Supreme Court has held that, "[i]n determining whether the significance of a change in law excuses counsel's failure to object at trial, we consider the 'state of the law as it would have appeared to competent and knowledgeable counsel at the time of trial.' " (People v. Black (2007) 41 Cal.4th 799, 811.) The court also noted the fact " 'that some attorneys may have had the foresight to raise [an] issue does not mean that competent and knowledgeable counsel reasonably could have been expected to anticipate[]' " a change in the law. (Id. at p. 812.) This includes changes that are rooted in longstanding legal principles. (People v. Jones (2019) 36 Cal.App.5th 1028, 1034.)
Given the mandatory nature of the fines and assessments imposed here, as well as the absence of authority invalidating them based on inability to pay, we conclude defendant could not have reasonably been expected to challenge the trial court's imposition thereof. Any such objection would have been futile. Accordingly, the ability to pay challenge was not forfeited.
Under Dueñas, principles of due process would preclude the trial court from imposing the fines and assessments here imposed if defendant demonstrates he is unable to pay them. (People v. Dueñas, supra, 30 Cal.App.5th at p. 1168.) As in Castellano, we find it appropriate to remand the matter to the trial court to allow defendant to request a hearing and present evidence demonstrating his inability to pay. (People v. Castellano, supra, 33 Cal.App.5th at p. 491.) Defendant will bear the burden of proof in that regard on remand. (Id. at p. 490.)
III
The Abstract Of Judgment
Our review has also disclosed a clerical error on the abstract of judgment, which states that defendant has 148 days of actual credit plus 148 days of good time credit. However, the trial court's oral pronouncement of judgment identified 158 actual days plus 158 days of conduct credit. We can and will correct this error on appeal. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate court may order correction of clerical errors reflected in abstract of judgment].)
DISPOSITION
The matter is remanded to give defendant the opportunity to request a hearing on his ability to pay the fines and assessments imposed by the trial court. We further direct the trial court to correct the clerical error in custody credits reflected on the abstract of judgment as explained herein. The trial court shall forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
Robie, J. I concur: /s/_________
Mauro, J. Hull, J.
I respectfully dissent to that portion of the majority opinion that holds that defendant has a right to a hearing on his ability to pay the restitution and suspended parole revocation restitution fines, the conviction assessment, and the court operations assessment imposed by the trial court. The majority bases its decision on the opinion rendered by the Second District, Division Seven of the Court of Appeal in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
I would hold that Dueñas was wrongly decided and that defendant does not have a right to an ability to pay hearing before fines and fees are assessed by the trial court.
Dueñas 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." (Dueñas, supra, 30 Cal.App.5th 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.)
The Dueñas opinion relies on a line of authorities beginning with Griffin v. Illinois (1956) 351 U.S. 12 (Griffin), which itself rested on the " 'constitutional guaranties of due process and equal protection' " and struck down a state practice of granting appellate review only to individuals who could afford a trial transcript. (Griffin, at pp. 13, 17; see Dueñas, supra, 30 Cal.App.5th at pp. 1166-1169.) As recent appellate court cases have illustrated, the authorities Dueñas cites involving the right of access to courts are inapplicable because the imposition of the fine and assessments at issue in Dueñas and in this proceeding do not deny defendants access to the courts. (People v. Hicks (2019) 40 Cal.App.5th 320, 326 (Hicks), review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1068-1069; People v. Caceres (2019) 39 Cal.App.5th 917, 927; see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1039 (conc. opn. of Benke, J.).) Griffin also stated broadly, "There can be no equal justice where the kind of trial a man gets depends on the amount of money he has." (Griffin, at p. 19.) Another line of cases relied upon by Dueñas is related by this "principle of 'equal justice' " and prohibits imprisonment based on the failure to pay criminal penalties where the nonpayment was due to indigence. (Bearden v. Georgia (1983) 461 U.S. 660, 661-662, 664; accord In re Antazo (1970) 3 Cal.3d 100, 103-106, 109-110; see Dueñas, at pp. 1166-1168.)
The fine and assessments at issue in Dueñas and this appeal subject an indigent defendant "only to a civil judgment that she [or he] cannot satisfy." (Dueñas, supra, 30 Cal.App.5th at p. 1167; see also id. at p. 1169.) Thus, the authorities prohibiting incarceration for indigence alone are inapplicable. (Hicks, supra, 40 Cal.App.5th at p. 326, review granted Nov. 26, 2019, S258946; People v. Caceres, supra, 39 Cal.App.5th at p. 927.) Indeed, in In re Antazo, supra, 3 Cal.3d 100, our Supreme Court granted the petition for the writ of habeas corpus only to discharge the petitioner from his imprisonment resulting from his inability to pay the fine and penalty assessment imposed as a condition of probation, but did not relieve him from any obligations in his probation order. (Id. at p. 117.) The court explained, "[w]e do not hold that the imposition upon an indigent offender of a fine and penalty assessment, either as a sentence or as a condition of probation, constitutes of necessity in all instances a violation of the equal protection clause." (Id. at p. 116, italics added.) In other words, "Dueñas does more than go beyond its foundations; it announces a principle inconsistent with them." (Hicks, at p. 327, review granted Nov. 26, 2019, S258946.)
Further, "the fundamental policy question presented in Dueñas is a nettlesome one—namely, under what circumstance is it appropriate to require criminal defendants, many of whom are people of little or no means, to pay assessments that help defray the costs of operating the court system and restitution fines that pour into a statewide fund that helps crime victims?" (Hicks, supra, 40 Cal.App.5th at p. 328, review granted Nov. 26, 2019, S258946.) This "is a question to which . . . the federal and California Constitutions do not speak and thus have left to our Legislature." (Id. at p. 329.)
I join those authorities that have concluded that the principles of due process do not supply a procedure for objecting to the fines and assessments at issue in Dueñas and in this proceeding based on the present ability to pay. (Hicks, supra, 40 Cal.App.5th at p. 329, review granted Nov. 26, 2019, S258946; People v. Aviles, supra, 39 Cal.App.5th at p. 1069; People v. Caceres, supra, 39 Cal.App.5th at p. 928.) To the extent it announced this broad rule, Dueñas was wrongly decided and defendant's claim pursuant thereto is without merit.
/s/_________
HULL, Acting P. J.