Opinion
E072678
02-23-2021
THE PEOPLE, Plaintiff and Respondent, v. JUAN JOSE SAMANAMUD, Defendant and Appellant.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1802104) OPINION APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr., Judge. Affirmed with directions. Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Juan Jose Samanamud of attempted murder and aggravated assault. The court sentenced Samanamud to a total of nine years in prison and imposed certain fines and fees. On appeal, Samanamud argues the trial court violated his due process rights as articulated in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas)—or in the alternative, violated the prohibition on excessive fines—by imposing the fines and fees without conducting an ability to pay hearing. Samanamud also argues, and the People agree, that the abstract of judgment should be corrected to remove a booking fee the court did not impose. We affirm with directions.
I
FACTS
The facts underlying Samanamud's convictions are irrelevant to the issues on appeal, so we will not recount them in detail. In short, Samanamud caught a friend at home alone with his wife. Samanamud stabbed the friend nine times, puncturing the friend's lung.
A jury convicted Samanamud of attempted murder (Pen. Code, §§ 664, 187, subd. (a), unlabeled statutory citations refer to this code) and assault with a deadly weapon (§ 245, subd. (a)(1)). The jury also found he inflicted great bodily injury in the commission of both crimes, and that he used a deadly weapon in committing the attempted murder.
The court sentenced Samanamud to nine years in state prison, composed of five years for the attempted murder, three years for the great bodily injury enhancement, and one year for the weapon enhancement. It imposed but stayed sentence for the aggravated assault and related enhancement under section 654. The court found Samanamud indigent, and therefore did not impose any booking fees or presentence incarceration costs. However, it did order Samanamud to pay a $5,400 restitution fine, an $80 court operations assessment, and a $60 criminal conviction assessment. The imposed fines and fees totaled $5,540.
Samanamud timely appealed.
On December 17, 2019, Samanamud filed a motion seeking to strike a booking fee from the abstract of judgment, and to vacate the imposed fines and fees. The trial court declined to take any action on the motion, citing this pending appeal.
We grant Samanamud's Request for Judicial Notice.
II
ANALYSIS
Samanamud argues the trial court erred under Dueñas, which held that imposition of certain fines and fees on indigent defendants, without any finding as to ability to pay, violates the due process guarantees in the United States Constitution and the California Constitution. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) In the alternative, he argues the trial court erred because the imposition of certain fines and fees was a violation of the prohibition against excessive fines in the California Constitution. In either case, he asks us to reverse the fees, stay the imposed fines, and remand the case to the trial court to allow it to conduct an ability to pay hearing. The People argue Samanamud forfeited any objection to the imposition of the fines and fees, and in any case the failure to hold an ability to pay hearing was harmless error.
In addition, Samanamud argues the abstract of judgment must be corrected to remove an erroneously included booking fee. The People agree.
A. Fine and Fees
Section 1202.4 requires the sentencing court to impose a minimum restitution fine of $300 for all felony convictions "unless it finds compelling and extraordinary reasons for not doing so." (§ 1202.4, subd. (c).) However, the statute instructs "inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine" and "may be considered only in increasing the amount of the restitution fine in excess of the minimum." (§ 1202.4, subd. (c), italics added.) In other words, section 1202.4 prohibits courts from considering a defendant's ability to pay if they are imposing the minimum $300 restitution fine, but not if they are imposing a fine greater than $300.
But Dueñas changed the law and found unlawful section 1202.4's prohibition on considering inability to pay for minimum restitution fines. Indeed, the Dueñas court found that due process required an ability to pay hearing. The court held "that although Penal Code 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." (Dueñas, supra, 30 Cal.App.5th at p. 1164.)
The Dueñas court reached a similar conclusion with respect to assessments imposed under Penal Code section 1465.8 and Government Code section 70373. Those provisions mandate assessments on every criminal conviction except parking convictions, without regard to the defendant's ability to pay. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) However, the court concluded "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 court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373." (Dueñas, at p. 1164.)
Here, it's undisputed the trial court did not hold a hearing to determine whether Samanamud had the ability to pay the fines and fees imposed. However, the People argue Samanamud forfeited his right to challenge the fine and fees by failing to object when they were imposed. Generally speaking, we are limited to deciding issues that the appellant has preserved for appeal. "In order to encourage prompt detection and correction of error, and to reduce the number of unnecessary appellate claims, reviewing courts have required parties to raise certain issues at the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits or waives the claim." (People v. Scott (1994) 9 Cal.4th 331, 351.) " ' " '[A] constitutional right,' or a right of any other sort, 'may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.' " ' " (People v. McCullough (2013) 56 Cal.4th 589, 593, citing In re Sheena K. (2007) 40 Cal.4th 875, 880-881.) These general forfeiture rules apply straightforwardly to a defendant claiming the trial court violated their due process right or the prohibition on excessive fines by failing to hold an ability to pay hearing under Dueñas if they were sentenced after Dueñas was decided. (See People v. Nelson (2011) 51 Cal.4th 198, 227 [holding defendant forfeited his right to challenge a $10,000 restitution fine on ability to pay grounds because "[a]t the time of his . . . sentencing, the law called for the court to consider defendant's ability to pay in setting a restitution fine, and defendant could have objected at the time"].)
Here, Samanamud forfeited his right to challenge the trial court's failure to hold an ability to pay hearing. The trial court sentenced Samanamud in May 2019, nearly four months after the decision in Dueñas. Samanamud knew or should have known he had a right to request an ability to pay hearing at the time he was sentenced, and before his appeal.
Because of this, Samanamud argues his counsel was constitutionally ineffective for failing to object and request an ability to pay hearing. To establish ineffective assistance of counsel, "the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (People v. Mai (2013) 57 Cal.4th 986, 1009.) On direct appeal, a defendant establishes ineffective assistance "only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (Ibid.) "[R]arely will an appellate record establish ineffective assistance of counsel." (People v. Thompson (2010) 49 Cal.4th 79, 122.) We will find ineffective assistance of counsel only if "there could be no conceivable reason for counsel's acts or omissions." (People v. Weaver (2001) 26 Cal.4th 876, 926.)
The record doesn't explain why Samanamud's counsel didn't object to the fines and fees. However, this decision may have had nothing to do with Samanamud's ability to pay or lack thereof. A defendant's inability to pay is just one among many factors the court should consider in setting the restitution fine above the minimum. The court should also consider "the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in the crime. Those losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime." (§ 1202.4, subd. (d).) Indeed, here the court followed the legislature's recommendation for calculating restitution fines. The court arrived at the $5,400 fine by multiplying $300 by the length of the sentence in years and by the number of convictions. (§ 1202.4, subd. (b)(2).)
Apart from the factors the court must consider in setting a fine, there were multiple informal factors that might have convinced Samanamud's counsel that silence was a virtue. "[A] defense counsel's decision whether to object to the imposition of fines and fees can encompass factors beyond a defendant's financial circumstances, especially in serious cases involving potentially long prison sentences." (People v. Acosta (2018) 28 Cal.App.5th 701, 707 (Acosta).) For instance, the People requested the court impose the upper term, but probation recommended imposing the lower term. Probation also recommended imposing the $5,400 restitution fine and other fees. Given this, Samanamud's counsel may have concluded Samanamud's best chance at a low term was to argue in favor of probation's recommendation, and that objecting to the recommended fine and fees would undermine that position.
Moreover, the probation officer's report and the record show Samanamud may have had some ability to pay. Samanamud was gainfully employed for his entire adult life, had no serious health issues, and had some hope he might be able to return to his job after serving his sentence. Indeed, according to Samanamud's wife, Samanamud was worth over "half a million dollars" just five years prior to his arrest—though he apparently fell on hard financial times shortly thereafter, including losing his home. Thus, though the record does not paint the picture that Samanamud is a wealthy man able to easily absorb a $5,400 restitution fine, it also indicates Samanamud is industrious and potentially capable of paying such a fine either through existing assets or future earning capacity.
Given the seriousness of Samanamud's offense, the court's decision to follow both probation's and the legislature's recommended fine, the chance that objecting might jeopardize a good sentencing recommendation from probation, and the fact that Samanamud might have had the ability to pay, Samanamud's attorney may have concluded that objecting to the restitution fine would have been pointless. The most Samanamud stood to gain by objecting was receiving a hearing on his ability to pay. Therefore, if Samanamud's counsel felt there was enough for a court to conclude he had an ability to pay, the objection would have only delayed proceedings and undermined the position that probation's recommendation was right. These exact same considerations apply with equal force to counsel's decision not to object to the fees.
In general, "[w]e cannot speculate, given the absence of information before us, what led to defense counsel's decision not to object, but a myopic focus on [defendant's] financial circumstances that neglects any of the other factors at play in a sentencing hearing may not provide an accurate picture of counsel's strategic calculus." (Acosta, supra, 28 Cal.App.5th at p. 707.) Because "[w]e have no idea why counsel did not raise the ability to pay issue," and because "[w]e have no idea whether the fine[ ] . . . or [fees] were of any consequence," we conclude defendant's ineffective assistance of counsel claim would be better addressed through a petition for habeas corpus, not on direct appeal. (People v. Keene (2019) 43 Cal.App.5th 861, 864-865.)
B. Abstract of Judgment
Samanamud also argues the abstract of judgment contains an error, and the People agree. During sentencing, the trial court found Samanamud indigent and ordered "[he] will not incur any booking fees." Nevertheless, section 13 of the abstract of judgment states Samanamud is to "Pay booking fees of $514.58."
When there is a conflict between the abstract of judgment and the oral pronouncement, the oral pronouncement controls, and we have the inherent power to correct the clerical error in the abstract. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, we direct the trial court to correct the abstract of judgment to remove the direction that Samanamud is to pay booking fees.
III
DISPOSITION
We remand the matter for the limited purpose of directing the trial court to strike the additional orders under section 13 of the abstract of judgment and ensure a corrected abstract of judgment is prepared and forwarded to the California Department of Corrections and Rehabilitation. In all other respects, we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: RAMIREZ
P. J. CODRINGTON
J.